T. 10, CH. 3. [under the under-lease before the date of actual completion PART III. of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the under-lease have been duly performed and observed up to the date of actual completion of the purchase, and further that all rent due under every superior lease, and all the covenants and provisions of every superior lease, have been paid and duly performed and observed up to that date. (6) On a sale of any property, the expenses of the production and inspection of all Acts of Parliament, inclosure awards, records, proceedings of Courts, court rolls, deeds, wills, probates, letters of administration, and other documents, not in the vendor's possession, and the expenses of all journeys incidental to such production or inspection, and the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the vendor's possession, and all attested, stamped, office, or other copies or abstracts of, or extracts from, any Acts of Parliament or other documents aforesaid, not in the vendor's possession, if any such production, inspection, journey, search, procuring, making, or verifying is required by a purchaser, either for verification of the abstract, or for any other purpose, shall be borne by the purchaser who requires the same; and where the vendor retains possession of any document, the expenses of making any copy thereof, attested or unattested, which a purchaser requires to be delivered to him, shall be borne by that purchaser. (7) On a sale of any property in lots, a purchaser of two or more lots, held wholly or partly under the same title, shall not have a right to more than one abstract of the common title, except at his own expense. (8) This section applies only to titles. and purchasers on sales properly so called, notwithstanding any interpretation in this Act. (9) This section applies PART III. [only if and as far as a contrary intention is not expressed T., 10, CH. 3. in the contract of sale, and shall have effect subject to the terms of the contract and to the provisions therein contained. (10) This section applies only to sales made after the commencement of this Act. (11) Nothing in this section shall be construed as binding a purchaser to complete his purchase in any case where, on a contract made independently of this section, and containing stipulations similar to the provisions of this section, or any of them, specific performance of the contract would not be enforced against him by the Court."] 1663a. CHAPTER IV. SOME MISCELLANEOUS POINTS IN THE LAW OF VENDORS AND PURCHASERS (a). T. 10, CH. 4. obligation of purchaser application purchase General In cases under the old law, where real property is devised PART III. or conveyed to be sold for, or is charged with, the payment of definite and ascertained sums only, and such payment to see to the is to take place at the time when the required amount is to of the be raised, the purchaser of such property is bound to see money. that the purchase money is applied in the fulfilment of the rules. trust, unless expressly exempted by a provision by the author of the trust, although the estate be sold under the decree of a Court of Equity. But where the property sold constitutes the natural and primary fund for the payment of debts generally, or is expressly charged with, or conveyed or devised for, the payment of debts generally, and therefore, in order to ascertain the sums to the payment of which the property is liable, it would be necessary for the purchaser to take proceedings in equity; or where the purchaser, if bound to see to the application of the money, would be involved in a trust of long continuance; there, the purchaser, unless he has notice that there are no debts or notice of fraud, is not bound to see to the application of the purchase money (b). 1664. points in illustration In illustration of these rules, it may be observed, that, Specific as the personal estate, whether consisting of chattels per- of the above sonal or of chattels real, is liable at the common law, and constitutes the natural and primary fund for the payment obligation. (a) See also next title. (b) See Story's Eq. Jur. § 1126— 1128, 1130-1134; Sugd. Concise View, 517, 518, 520. As to the payment by mistake of part of the rules as to the pur chaser's T 10, CH. 4. PART III of the debts of the testator generally, the purchaser ofże whole or of any part of it, without notice that des no debts, or that the sale was not made for payment of debts, is not bound to see that the purchase money is applied by the executors in the discharge of the debts na even if the testator has directed his real estate to be scli for payment of debts, whether specified or not, and has made a specific bequest of a part of his personal estate for a particular purpose or to a particular person, although such specific bequest is known to the purchaser, but be has no reason to suspect any fraudulent or unauthorized purpose; for, otherwise, before a person could become a purchaser of personal estate specifically bequeathed. it would be indispensable for him to come into a Court of Equity to have an account taken of the assets of the testator, and of the debts due from him, so as to ascer tain whether it was necessary for the executor to sell (7). 1665. The same rule, for the same reason, applies to real estate devised for or charged with the payment of debts generally (c) ; even though the trust is only to sell, or is a charge for, so much as the personal estate is deficient to pay the debts; and even though a specific part of the real estate is devised for a particular purpose or trust; if the whole real estate is charged with the payment of debts generally by the will. If, however, the trustee has only a power to sell, and not an estate devised to him then, unless the personal estate is deficient, the power to sell does not arise (d). 1666. (a) Story's Eq. Jur. § 1126, 1128; 2 Spence's Eq. Jur. 372. 377. (b) Story's Eq. Jur. § 1129; 2 Spence's Eq. Jur. 375–377; Sugd. Concise View, 526. (c) Sugd. Concise View, 518; Story's Eq. Jur. § 1130; 2 Spence's Eq. Jur. 380, 382; 1 White & Tu- (d) Story's Eq. Jur. § 1131 ; 2 Spence's Eq. Jur. 382; Sugd. Concise View, 521. PART III. Where, in cases of real estate, the trust is for the pay-10, CH. 4. ment of legacies or annuities only, or of specified or scheduled debts alone, or of both, but not of debts generally, the rule is different; for they are ascertained, and the purchaser must therefore see that the money is applied in discharge of them. But where the devise is for payment of debts generally, and also for the payment of legacies or annuities or specified debts, the purchaser is not bound to see to the application of the purchase money; because, to hold him liable to see the legacies or annuities or specified debts paid, would in fact involve him in the necessity of taking an account of all the debts and assets (a). 1667. And the purchaser is not bound to see to the application of the purchase money where the specific objects of the trust are not pointed out (b). 1668. But if there is collusion between the purchaser and the trustees, who are guilty of a misapplication, or if there is notice that the sale or mortgage is made for the purpose of a breach of trust, the estate will be liable (c). 1669. In determining as to the liability of the purchaser, the Court will look to the deed or will alone, and not to subsequent events: so that where a testator makes a charge for payment of debts generally and legacies, and the debts are paid after the death of the testator, and the legacies only are left as a charge, that circumstance alone does not prevent the application of the rule (d). 1670. Where the time appointed by the will for a sale of real estate is arrived, and the persons entitled to the money are infants or unborn, there the purchaser is not bound to see to the application of the purchase money; because that might involve him in a trust of long continuance. |