It is unsafe to pay the purchase-money before the sur- Enrolment. render is entered on the rolls, as a subsequent purchaser might otherwise get in the legal estate by surrender and admittance, and so gain the advantage of title. On every sale of copyholds the steward is bound, within four months of the surrender, to make out a duly stamped copy of court-roll of the surrender, and have the same ready for delivery to the person entitled thereto, under a penalty of fifty pounds for neglect: but he may refuse to deliver such. copy until his fees and the proper duty shall have been paid (p). conditions. On a sale of copyholds, in addition to the usual searches Searches. for incumbrances, the purchaser should search the courtrolls (2), and require evidence of the customs of the manor on any point which may affect the property purchased (r). When freeholds and copyholds are intermixed, it is neces- Usual and sary to stipulate in the conditions of sale that the purchaser necessary shall not be entitled to have the boundaries distinguished, and (when required by the circumstances) to provide that the vendor shall not be bound to distinguish the manors of which the different tenements are held, or of which they are parcels respectively; otherwise it seems that the purchaser will be entitled to have the land of each particular tenure pointed out and distinguished by its boundaries (s). A purchaser having to pay a certain sum for timber will not be entitled, if these conditions are used, to any abatement of price upon the ground that he is prevented from cutting any of the timber by reason of the confusion of boundaries (t). A condition to relieve the vendor from identifying the parcels will not preclude a purchaser from requiring evi (p) 54 & 55 Vict. c. 39 (Stamp Act, 1891), ss. 67, 68. See Appendix, post. (9) Pearce v. Newlyn, 3 Madd. 186; but see Bugden v. Bignold, 2 Y. & C. Ch. 377, as to courtrolls not being constructive notice to purchaser of copyhold of prior (r) Dart, V. & P. 132, 566, 567. (t) Crosse v. Lawrence, 9 Hare, 462. dence as to identity, if the descriptions in the abstracted deed should differ among themselves so as to be repugnant to each other, or if the deeds contain no evidence at all as to the identity. "A condition that the purchaser is not to require any further proof of identity than is furnished by the deeds themselves, is insufficient in the absence of proof of identity as to the whole or a part of the property; it is in effect a contract that the deeds shall show identity, and if they do not, a good title is not made" (u); and the usual condition relieving the vendor from proof of identity will not of itself, it appears, deprive the purchaser of his right to have the boundaries of the tenures distinguished in the case of intermixed lands (r). In the absence of stipulation it is a general rule that the vendor must identify the property sold with that described in the abstract; but in the case of copyholds "he is not bound to show how the description on the court-rolls is to be applied to the present state of the property, if he can prove that it has actually been held under that description for sixty years" (y). In the absence of special conditions, the vendor will have to pay the costs of all matters essential to the validity of the conveyance, including the expense of all proceedings which may become necessary by the death of any of the conveying parties; and the purchaser will only be obliged to pay the expenses of his own admittance, and the fees of the steward upon the surrender (z). An agreement by the vendor to pay the expenses of the admittance, or to surrender and assure the property at his own cost, will not extend to the payment of the fine on admittance, because the title is perfected by the admittance, and the fine is not due until afterwards (a). When it appears on the title that a surrender or admittance has (u) Dart, V. & P. 175. See Curling v. Austin, 2 Dr. & Sm. 129; Flower v. Hartopp, 6 Beav. 476. (x) Dart, V. & P. 175; and see Dawson v. Brinckman, 3 Mac. & G. 53. (y) Long v. Collier, 4 Russ. 267. (z) Paramore v. Greenslade, 1 Sm. & G. 541. (a) Graham v. Sime, 1 East, 632. been made by attorney, there should be a stipulation that the entry on the court-rolls shall be sufficient evidence of the validity of the power of attorney, otherwise the power would have to be produced, and evidence given of the principal having been alive at the time of its being acted upon, unless it has been made, or rendered irrevocable, in accordance with the provisions of the Conveyancing Act, 1882 (b), and has been deposited as directed by sect. 48 of the Conveyancing and Law of Property Act, 1881. Where the title depends upon a grant of the waste, as a new copyhold made before the Copyhold Act, 1887 under a special custom, it should be stipulated that no evidence shall be required of the existence of the custom, or of the consent of the homage having been given (c). The vendor must covenant to produce the copies of court-roll over which he has power, or which are in his possession, and must hand them over upon completion of the purchase if they relate only to the property sold, however ancient they may be. In the absence of stipulation the vendor is bound to produce the original of all documents and other instruments necessary to verify the abstract of his title, but as regards copyholds he is only bound to produce the copies of the court-rolls which he has in his power or possession. If the vendor has not any copies, the purchaser is not entitled to a covenant for production, for he may at any time resort to the court rolls and make use of them (d); but where the original copies are not produced, a good reason must be given for the omission (e). An enquiry may be made upon the purchase whether the vendor's solicitor or the steward know of any manorial custom or matter of tenure which might affect the validity of the proposed conveyance (ƒ). A purchaser is not bound to accept land of a different Specific performance. (b) Sects. 8, 9. (e) Dart, V. & P. 189, 190. (d) Cooper v. Emery, 1 Phill. 388; and see In re Agg-Gardner, 25 Ch. Div. 600. (e) Dart, V. & P. 159. (f) But see In re Ford and Hill, 10 Ch. Div. 365. Dayne surrender. tenure to that which he contracted for, because the difference extends to the whole estate, and is therefore not a proper matter for compensation (g). He cannot, therefore, except by special conditions, be compelled to take copyhold instead of freehold (h), or an estate partly freehold when he has contracted to purchase a copyhold (i), or enfranchised copyholds, with an exception of minerals or timber, instead of freehold (). But where an estate was represented to be equal to freehold, it was held that the vendor ought to complete, although it turned out to be altogether freehold, in the absence of a stipulation that the contract should fail if any part were not of copyhold tenure (7). An objection to a difference of tenure will give the purchaser a right to compensation if from the circumstances of the contract he should be compelled to complete (m). Objections of this kind will be held to be waived if the purchaser, after discovering the facts, should proceed with the treaty for purchase (n). On a sale of copyholds it is not necessary to state the peculiar customs of the manor, or to mention that the lands are subject to the payment of heriots, reliefs, and the like; but it is expedient to mention at least the fines, as the value of the property depends a good deal on the fact whether the fines are arbitrary or not. On the sale of freeholds subject to heriots, which are expressly stated to be held of a manor, the heriots, &c., need not be mentioned, but would be matter for compensation. But in all cases it is better to mention liabilities of this kind (0). In the extensive district comprised in the manor of Taunton Deane in Somersetshire there is a peculiar conveyance known as a Dayne Surrender, which is used when (g) Drewe v. Corp, 9 Ves. jun. 368; Wright v. Howard, 1 S. & S. 190. (h) Price v. Macaulay, 2 De G. (i) Ayles v. Cox, 16 Beav. 23. (1) Twining v. Morrice, 2 Bro. C. C. 326, 331; and see Daniels v. Davison, 16 Ves. jun. 249. (m) Fordyce v. Ford, 4 Bro. C. C. 495. (n) Calcraft v. Roebuck, 1 Ves. jun. 221. (0) Dart, V. & P. 132. a copyholder alienes his tenement but desires to retain a part for his own life. The purchaser is admitted to the whole of the land, which is called the Dayne Tenement, and pays a fine of one-third of the amount of an ordinary admittance-fine, and further makes himself responsible for the heriot to be paid on the death of the tenant for life. On the death of the surrenderor the whole land belongs to the Dayne tenant (p). And by a somewhat similar custom "Excepted in the manor of Yetminster in Dorset the copyholder for life, with power of nominating the successor, may surrender to the use of another "excepting" a portion to himself; the surrenderee becomes tenant of the whole, but the original tenant remains in possession of the "excepted tenement," and his widow will have it for freebench (q). tenements." The mortgage of a copyhold is effected by a covenant to Mortgage. surrender upon condition, the covenants for title being contained in the same deed, followed by a conditional surrender; the surrender is conditioned to be void on payment of principal and interest at a specified date. If the surrenderor neglects or refuses to make the conditional surrender for twenty-eight days after the mortgagee has demanded it, and has tendered to him the engrossment for his signature, the Court will, on the petition of the mortgagee, make a vesting order under section 2 of the Trustee Extension Act, 1852 (r), and will treat the mortgagor as a trustee refusing to convey (s). The condition of the surrender is considered to be fulfilled by a payment at any time before sale or foreclosure. The admittance is usually postponed, to save the fine, until some default in payment is apprehended, the mortgagor remaining tenant, and on the fulfilment of the condition being in of his old estate (†). (p) Shillibeere, Customs of Taunton Deane, 32. (9) For the customs of Yetminster Prima, see Appendix, post, and Devenish v. Baines, Ch. Pr. 3, as to a "copy of exception supplied by Court of Equity. (r) 15 & 16 Vict. c. 55. (8) Re Crowe's Mortgage, L. R. 13 Eq. 26. (t) Simonds v. Lawnd, Cro. Eliz. 239; Doe d. Shewen v. Wroot, 5 East, 132. |