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the production of, or to investigate, or make any objection whatever, in respect of the title of the lessor (b).

VI. That no purchaser shall require any other evidence of the covenants and conditions in the lease having been observed and performed up to the completion of the pur

title, does not preclude the purchaser from investigating that title, if he can procure the inspection of it aliunde, or from objecting to any defects in it, which he can discover. (Shepherd v. Keatley, 1 Cro. Mee. & Ros. 117; Warren v. Richardson, 1 Younge, 1). If the property comprised in the lease be of copyhold or customary tenure, the vendor must shew that the lease was authorised by the custom of the manor, or by a license from the ord; and, if by a license, he must also shew the lord's title to license. (Hanbury v. Litchfield, 2 My. & Ke. 629; Shepherd v. Keatley, ubi supra). In the latter case, however, it does not appear that the lord's title to license was called for.

If a vendor cannot produce the lessor's title, the purchaser may recover his deposit, with interest, and the expenses of investigating the title, and also any other damages which he could recover, in the case of a common defective title; (see ante, Conditions as to title, &c., note (r), p. 62); but he must abandon the contract; for a court of equity cannot assist him in any other way than by committing the vendor to prison.

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It is settled, that the purchaser of a bishop's lease cannot call for the lessor's title; (Fane v. Spencer, 2 Madd. 438; 2 Mer. 430, n.); and the same principle is applied in practice to the lease of other any ration which demises by virtue of the disabling statutes. But the rule does not apply to a lease held under a corporation, which the disabling statutes do not affect; (Purvis v. Rayer, 9 Price, 488); although, in practice, in ordinary cases, the production of the title of any corporation is, in such cases, not required. (See ante, Vol. 1, p. 153).

(b) If the term which is offered for sale be held by underlease, and that fact appear on the title, care should be taken to guard against a requisition, either for the title of the original lessor, or for the title of the lessee or assignee by whom the underlease was granted; for as the condition speaks only of the lessor's title, it may, and probably would be held, not to preclude a purchaser from requiring the production of the original lease, and the title of the grantor of the underlease. In such case, the following condition may be substituted for that in the text ;— "That the title shall commence with the underlease, under which the vendor holds, and no purchaser shall be entitled to call for the production of, or investigate, or make any objection whatever in respect of, the title of the original lessor, or the original lease, or the title of the lessor of the underlease."

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CONDITIONS

AS TO LEASEHOLDS.

In respect of bishops and corporation leases.

Condition to be used in the sale

of an underlease.

CONDITIONS

AS TO LEASEHOLDS.

Evidence as to the performance of covenants, &c.

As to what is

notice to a pur

chaser of the covenants in the lease.

day of

chase, than the production of the receipt for the rent up
to the
last (c). The nature of the cove-
nants in the lease may be ascertained from an abstract there-
of, which will be produced at the sale.

VII. That, upon payment of the remainder of the pur-
chase-money, at the time and place above mentioned, the
several purchasers shall have proper assurances executed to
them of the lots purchased by them respectively; but such
assurances are to be prepared by and at the expense of
the respective purchasers, and are to be tendered or left
by them, on the said
at the office afore-

day of

said, for execution by the vendor.

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VIII. A. That, as the property comprised in the particular is held under one lease at an entire rent of £ per annum, the said rent shall be apportioned among

(c) Evidence that the covenants and conditions in the lease have been observed and performed, is always required by purchasers; but as the burden which such a requisition throws upon the vendor is, in fact, that of proving a negative, viz. that no breach has been committed, it is desirable to specify the evidence which the vendor can furnish, and with which the purchaser shall be content.

With regard to the nature of the covenants, and other contents of a lease, it is perfectly settled, that a person who contracts for the purchase of a lease, without any mention of its contents, is taken to have full notice of those contents, and cannot afterwards, on account of them, object to complete his purchase. (Walter v. Maunde, 1 Jac. & Walk. 181). But if the particular of sale affects to state the clauses of the lease, and states them insufficiently, or falsely, it amounts to a misrepresentation by the vendor, so as to discharge the purchaser from his contract; (Flight v. Booth, 1 Bing. N. C. 370; Van v. Corpe, 3 My. & Ke. 269); and the reading the lease at the auction by the auctioneer, is no excuse for a misdescription of the terms of the lease in the particular of sale. (Jones v. Edney, 3 Camp. 285; Flight v. Booth, ubi supra). It is obvious, therefore, that the particular of sale should either state the terms of the lease with accuracy, or should not state them at all; and should never be content with merely describing the covenants as usual covenants, unless they are undoubtedly of that class. (See Propert v. Parker, 3 Russ. & My. 280). It seems, that a person who contracts for an underlease, will be held to have constructive notice of at least all the usual covenants of the original lease; (Van v. Corpe, ubi supra; Flight v. Barton, 3 My. & Ke. 282); and, perhaps, of all covenants, whether usual or unusual; (Cosser v. Collinge, 3 My. & Ke. 283).

several lots in the shares mentioned in the particular, and the several purchasers shall, at their own expense, give and execute such mutual indemnities, with regard to the payment of the said apportioned rents, and the observance and performance of the covenants and conditions relating to the lots purchased by them respectively, as are usual in like cases (d).

(d) At common law, no apportionment of services could be effected except by the act of law, even when the tenancy was in fee; and the services issuing out of each and every part of the land,—the lord might distrain on any part for the whole. The statute of Quia emptores provides that, in cases of alienation in fee simple, the services shall be apportioned; and hence it is, that, at the present day, rent services are apportionable either by the verdict of a jury, or the consent of the tenant, in manner mentioned in a previous note. (Note (a), p. 73). But as the statute of Quia emptores makes no mention either of terms of years, or of rent-charges, or of rents seck, the original common law remains, with regard to them, unaltered. And hence it is, that the great difficulty arises in effecting a sale in lots of any property which is held for a term of years under one lease at an entire rent for the whole; for, after an assignment of any part of the property to a purchaser, the lessor may distrain upon that part for the rent which accrues due on the whole property included in the lease; the avowry is made for the rent due from the original tenant in the original demise, and nothing appears upon the record as to the assignment. (1 Bing. N. C. 760). For the reasons above noticed, there is no mode of compelling an apportionment, and the consent of the lessor to an apportionment can hardly ever be obtained. The same difficulty occurs in case of a sale in lots of land subject to a rent-charge; each parcel of the land remains subject to the whole rent. In case the lessor or owner of the rent-charge is willing to make an apportionment, the object may be effected by a covenant on his part to levy the apportioned parts of the rent only on those parcels of the land out of which it is intended they shall thenceforward respectively issue.

The condition of re-entry, usually inserted in leases, is another formidable obstacle to effecting sales in lots of the property, because, if the assignee of any one part neglects to pay the rent or perform the covenants as to that part, the lessor may re-enter on the whole property comprised in the lease, and avoid the lease as to the whole. (Walter v. Maunde, 1 Jac. & Walk. 181). Of course, the effect of that proviso is to render the assignee of each part liable to be evicted by the acts of persons over whom he has no control.

An original lessee, notwithstanding his having assigned any part or the whole of the demised property, always remains liable to the payment of the whole rent, and to the observance of the covenants, by reason of his G 2

CONDITIONS

AS TO LEASEHOLD S.

Apportionment of rents and

liabilities, on a sale of lease

holds in lots.

Liabilities and rights of an as

signee of part of the estate in lease.

CONDITIONS

AS TO LEASEHOLDS.

Mutual indem

nities of the assignees of different parts of property held under one lease.

Modes of indemnity and apportionment.

VIII. B. (e) That, as the property offered for sale is held under one lease at an entire rent of £

per annum,

privity of contract. (Rushden's case, Dyer, 4 b; Broom v. Hare, Cro. Eliz. 633). An assignee of part of the property is liable, by reason of his privity of estate, for the observance of the covenants which run with the land, so far as they relate to the part of which he is assignee; (Congham v. King, Cro. Car. 222; see, too, Stevenson v. Lambard, 2 East, 576); and he is entitled to the benefit of all such of the lessor's covenants as run with the land, and relate to the part of which he is the assignee. (Palmer v. Edwards, 1 Doug. 186). Of course, the privity of an assignee of part of the property, like the privity of an assignee of the whole, is destroyed by his assignment of the estate. It is, at present, an unsettled question, whether an assignee of part of the land is liable in an action of debt or covenant for the whole rent; (Hare v. Cater, Coop. 766; Curtis v. Spitty, 1 Bing. N.C. 756); but as he is liable to be distrained upon for the whole, it is clear, that, practically, rent cannot be apportioned by the alienation of the lessee.

It follows, from the preceding considerations, that when property comprised in one lease and demised at an entire rent, is to be sold in lots, it becomes needful to provide each purchaser with a security that each of the other purchasers shall pay a stipulated part of the rent, and observe the covenants relating to his respective share; and to accomplish this effectually, is a matter of great difficulty. Perhaps, the best way is, for the purchaser of a particular lot, or of the largest part in value, to take an assignment of the original lease, and make under-leases to the other purchasers of their respective portions; or for the vendor to retain the term himself, or assign it to trustees, and for all the purchasers to accept under-leases of their respective portions. In such cases, the under-lessees should execute counterparts of their under-leases, and the under-leases should contain proper covenants for indemnifying the holder of the original lease and the several under-lessees, against the acts of all other parties except themselves. Sometimes cross powers of distress

(e) Perhaps, it may frequently be deemed sufficient to stipulate that the purchaser or all the purchasers but one, shall take under-leases as mentioned in the Conditions numbered VIII. B, and VIII. c, respectively, such under-leases to contain the same covenants and conditions as the original lease, and the under-lessees to have merely a covenant for quiet enjoyment from the person in whom the original lease is vested. If there be a covenant on the part of the lessee in the original lease, to insure against fire, in a given sum, it seems necessary to resort to the method of under-leases, because the original lessor has a right to have the whole property included in one insurance in one sum, and not to have each part of it insured in a smaller sum.

the said rent shall be apportioned among the several lots
in the shares mentioned in the particular. The purchaser
of the largest part in value shall take an assignment of the
existing lease, and shall execute to the other purchasers
under-leases, for the whole term wanting three days, of their
respective lots, at the said apportioned rents, such under-
leases to contain all necessary covenants for indemnifying
the several purchasers against the performance of the cove-
nants or payment of the rent in respect of any other lots
than their own, and for securing the payment of the rent
and performance of the covenants by the several purchasers
in respect of their own lots; if any lots remain unsold, the
vendor shall, for the purposes of this condition, stand in the
place of the purchaser of the largest part in value. All the
under-lessees shall execute counterparts of their leases, and
all instruments required by this condition, shall be pre-
pared by and at the expense of the respective purchasers.
VIII. c. (ƒ) That, as the property offered for sale is
held under one lease at an entire rent of £-
per annum,
the vendor will execute under-leases to the several pur-
chasers of the lot or lots purchased by them respectively,
for the whole of the original term wanting three days, and
at the rents apportioned in the particular to the several

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and entry are given to the several purchasers over each others' lots, and other kinds of indemnity are employed, which will be mentioned in that part of the work which treats of indemnity deeds. If the lessor can be induced to concur in the sale, the lease should be surrendered, and new and separate leases granted of their respective lots to the separate purchasers; and if the lessor be an ecclesiastical corporation, so that there can be no ground to doubt the lessor's title, this mode is free from objection.

Some precedents of conditions, adapted to the sale of a leasehold estate in lots, are given in the text; and they might, if such a course had been deemed useful, have been greatly multiplied; these, however, which are furnished, are sufficient to form precedents by which such others as are needed may be framed. It is impossible, within the limits of a condition of sale, to make with accuracy the precise stipulations which are required, and, therefore, perhaps, the Condition numbered VIII. A, is the most likely to be practically useful. It leaves open the questions, however, what indemnities are "usual in like cases."

(f) See note (e), p. 84.

CONDITIONS

AS TO LEASEHOLDS.

Observations on the form in the

text.

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