c. 41, s. 2.

gaged property; and mortgagee includes any person from time 44 & 45 Vict. to time deriving title under the original mortgagee; and mortgagee in possession is, for the purposes of this act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property :

(vii.) Incumbrance includes a mortgage in fee, or for a less estate, and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum; and incumbrancer has a meaning corresponding with that of incumbrance, and includes every person entitled to the benefit of an incumbrance, or to require payment or discharge thereof:

(viii.) Purchaser, unless a contrary intention appears, includes a lessee or mortgagee, and an intending purchaser, lessee, or mortgagee, or other person, who, for valuable consideration, takes or deals for any property; and purchase, unless a contrary intention appears, has a meaning corresponding with that of purchaser; but sale means only a sale properly so called:

(ix.) Rent includes yearly or other rent, toll, duty, royalty, or other reservation, by the acre, the ton, or otherwise; and fine includes premium or fore-gift, and any payment, consideration, or benefit in the nature of a fine, premium, or fore-gift:

(x.) Building purposes include the erecting and the improving of, and the adding to, and the repairing of buildings; and a building lease is a lease for building purposes or purposes connected therewith:

(xi.) A mining lease is a lease for mining purposes, that is, the searching for, winning, working, getting, making merchantable, carrying away, or disposing of mines and minerals, or purposes connected therewith, and includes a grant or licence for mining purposes:

(xii.) Will includes codicil:

(xiii) Instrument includes deed, will, inclosure award, and Act of Parliament:

(xiv.) Securities include stocks, funds, and shares:

(xv.) Bankruptcy includes liquidation by arrangement, and any other act or proceeding in law having, under any act for the time being in force, effects or results similar to those of bankruptcy; and bankrupt has a meaning corresponding with that of bankruptcy.

(xvi.) Writing includes print; and words referring to any instrument, copy, extract, abstract, or other document include any such instrument, copy, extract, abstract, or other document being in writing or in print, or partly in writing and partly in print:

(xvii.) Person includes a corporation :

(xviii.) Her Majesty's High Court of Justice is referred to as the court.

(a) E.g., a second mortgagee (Teevan v. Smith, 20 Ch. Div. 730).

44 & 45 Vict.

c. 41, s. 3.

II.-SALES AND OTHER TRANSACTIONS.

Contracts for Sale.

3.-(1.) Under a contract to sell and assign a term of years derived out of a leasehold interest in land, the intended assign Application shall not have the right to call for the title to the leasehold

of stated conditions of sale to all purchases.

reversion (b).

(2.) Where land of copyhold or customary tenure has been converted into freehold by enfranchisement, then, under a contract to sell and convey the freehold, the purchaser shall not have the right to call for the title to make the enfranchisement (c).

(3.) A purchaser of any property shall not require the production, or any abstract or copy, of any deed, will, or other document, dated or made before the time prescribed by law, or stipulated, for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; nor shall he require any information, or make any requisition, objection, or inquiry, with respect to any such deed, will, or document, or the title prior to that time, notwithstanding that any such deed, will, or other document, or that prior title, is recited, covenanted to be produced, or noticed; and he shall assume, unless the contrary appears, that the recitals, contained in the abstracted instruments, of any deed, will, or other document, forming part of that prior title, are correct, and give all the material contents of the deed, will, or other document so recited, and that every document so recited was duly executed by all necessary parties, and perfected, if and as required, by fine, recovery, acknowledgment, inrolment, or otherwise (d).

(4.) Where land sold is held by lease (not including underlease), the purchaser shall assume, unless the contrary appears, that the lease was duly granted; and, on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase (e).

(5.) Where land sold is held by under-lease, the purchaser shall assume, unless the contrary appears, that the under-lease and every superior lease were duly granted; and, on production of the receipt for the last payment due for rent under the underlease before the date of actual completion 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 (ƒ).

c. 41, s. 3.

(6.) On a sale of any property, the expenses of the production 44 & 45 Vict. 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 (g).

(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 only if and as far as a contrary intention is not expressed 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.

(b) See, in connection with this section, V. & P. Act, 1874, s. 2, rule 1 (ante, p. 566), and sect. 13 (post, p. 586).

(c) On an enfranchisement, it was said that the copyholder is not entitled to an acknowledgment of the right to production of the documents of title of the manor (Re Agg-Gardner, 25 Ch. D. 600).

(d) This sub-section was not intended to repeal the doctrines or qualify the principles on which before the act the courts granted or refused specific performance (Nottingham Co. v. Butler, 15 Q. B. D. 272). Accordingly, it does not preclude a purchaser who has discovered aliunde a defect prior to the stipulated commencement of title, and which was known to the vendor, from refusing to complete (S. C., 16 Q. B. Div. 778); and see Waddell v. Wolfe (L. R. 9 Q. B. 515); Smith v. Robinson (13 Ch. D. 148). (e) This sub-section applies only to a payment of money, and not to a rent of a peppercorn, or in kind (Re Moody and Yates, 30 Ch. Div. 344). As to the effect of breaches after contract and before completion, see Lawrie v. Lees (14 Ch. Div. 249; 7 App. Cas. 19).

44 & 45 Vict. c. 41, s. 3.

Completion of contract after death.

Provision by court for inand sale freed

cumbrances,

therefrom.

(f) The production of a receipt signed by the ground landlord is not sufficient within this sub-section (Re Higgins and Percival, 59 L. T. 213). (g) This sub-section does not interfere with the duty of the vendor to furnish a proper abstract of title, and only deals with the expenses of requisitions made on the footing of such an abstract (Re Johnson and Tustin, 30 Ch. Div. 42). Where there is a covenant to finish, to the satisfaction of a surveyor, a house contracted to be sold, the surveyor's certificate forms part of the vendor's title, and must be procured at his expense (Re Moody and Yates, 30 Ch. Div. 344). But when a proper abstract has been delivered, this sub-section applies to the production of all documents properly comprised therein (Re Ebsworth and Tidy, 42 Ch. D. 34). The purchaser bore the cost of production of deeds in the hands of a mortgagee (Re Willett and Argenti, 60 L. T. 735); and the cost of statutory declarations made by the vendor (Re Edwards and Rudkin, 58 L. T. 789). It has been held in Ireland that in the absence of stipulation the vendor bears the cost of registry searches (Re Murray and Heggarty, 15 L. R. Ir. 510).

4.-(1.) Where at the death of any person there is subsisting a contract enforceable against his heir or devisee, for the sale of the fee simple or other freehold interest, descendible to his heirs general, in any land, his personal representatives shall, by virtue of this act, have power to convey the land for all the estate and interest vested in him at his death, in any manner proper for giving effect to the contract.

(2.) A conveyance made under this section shall not affect the beneficial rights of any person claiming under any testamentary disposition or as heir or next of kin of a testator or intestate.

(3.) This section applies only in cases of death after the commencement of this act (h).

(h) See sect. 30, post, p. 600, and the cases quoted under sect 2 of the Trustee Act, 1850 (ante, p. 499).

Discharge of Incumbrances on Sale.

5.-(1.) Where land subject to any incumbrance, whether immediately payable or not, is sold by the court, or out of court, the court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into court, in case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, of such amount as, when invested in government securities, the court considers will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge, and in any other case of capital money charged on the land, of the amount sufficient to meet the incumbrance and any interest due thereon; but in either case there shall also be paid into court such additional amount as the court considers will be sufficient to meet the contingency of further costs, expenses, and interest, and any other contingency, except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in, unless the

court for special reason thinks fit to require a larger additional 44 & 45 Vict.

amount.

(2.) Thereupon, the court may, if it thinks fit, and either after or without any notice to the incumbrancer, as the court thinks fit, declare the land to be freed from the incumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in court.

(3.) After notice served on the persons interested in or entitled to the money or fund in court, the court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.

(4.) This section applies to sales not completed at the commencement of this act, and to sales thereafter made (i).

(i) The court has refused to compel a vendor to free land from a rentcharge under this section where this would be a great hardship (Re G. N. R. Co. and Sanderson, 25 Ch. D. 788). It is doubtful if this section applies to statutory rent-charges (ib.). On a sale by a mortgagor part of the purchase-money was paid into court under this section, and the property vested in the purchaser (Milford Haven Co. v. Mowatt, 28 Ch. D. 402). An order was made under this section where the land was charged with legacies (Archdale v. Anderson, 21 L. R. Ir. 527). For form of order on sale by the court, see Dickin v. Dickin (30 W. R. 887); Patching v. Bull (46 L. T. 227; 30 W. R. 244).

General Words.

c. 41, s. 5.

6.—(1.) A conveyance of land shall be deemed to include and General words shall by virtue of this act operate to convey, with the land, all in conveybuildings, erections, fixtures, commons, hedges, ditches, fences, buildings, or ances of land, ways, waters, watercourses, liberties, privileges, easements, rights, manor. and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.

(2.) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof (k).

(3.) A conveyance of a manor shall be deemed to include and shall by virtue of this act operate to convey, with the manor, all pastures, feedings, wastes, warrens, commons, mines, minerals,

S.

PP