will be generally imprudent to do so, as it must increase the expense, and may give rise to useless and embarrassing inquiries.

The vendor's solicitor should suppress no fact or deed material to the title, but it frequently happens that it may be perfectly correct to omit particular deeds in the abstract. Thus leases which have expired may be omitted, and where a particular charge on the property, which is not referred to in any of the other deeds, has been clearly satisfied, it seems useless to insert the deeds connected with it in the abstract; but if, as is generally the case, it is mentioned in any deed connected with the other parts of the title, or if there be any doubt of its complete satisfaction, the deeds must be abstracted.

It is proper, however, to mention that Lord Kenyon has said that the abstract ought to mention every incumbrance whatever, affecting the property included in the abstract. (a) And Mr. Preston is of the same opinion. (b)

And where there is a mere presumption of the satisfaction of the charge or incumbrance, the deeds should always be abstracted, because the presumption may be rebutted by contrary evidence, and then it will not avail. (c)

If a purchaser discovers any fact which has been concealed from him, and which affects the security of his title, and there has been a decided misrepresentation on the part of the vendor, although he has paid his money and the premises have been conveyed to him, he will be entitled to have the conveyance set aside and his

(a) Richards v. Barton, 1 Esp. N. P. C. 268.

(b) 1 Prest. Abs. 64.

(c) See Barnwell v. Harris, 1 Taunt. 430.

purchase-money repaid with costs, although no interruption to his enjoyment has either been made or threatened. (a)

The court will not exercise its summary jurisdiction to compel a vendor's solicitor to perform an undertaking, given by him at the sale, to do certain acts for clearing the title to the estate. (b)

If the property has remained a considerable time in one family, or is of great extent and importance, it will always be prudent, before a sale or mortgage, to submit an abstract of the title to counsel, on behalf of the vendor. By this means the real difficulties and defects of the title may be known and remedied before it is brought into the market. Or if the defects cannot be remedied, they may be provided for by the articles of sale, which may restrict inquiries beyond a certain date, or specify that the title is open to certain objections, and must be taken subject to them. (c)

If the lands are sold by public auction, it seems doubtful whether articles of sale, providing that the purchaser shall take a defective title, would be held to be valid. Thus in a late case from Scotland, where the vendor stipulated at a public auction, by the articles of sale, to deliver certain specified deeds, which were described as "all the deeds in his custody," such a provision was held to be void; Lord Eldon, C. observing, that he never heard that because a vendor provides by the conditions of sale that he will give to the purchaser only certain specified deeds, that the purchaser must take such title as appears upon the deeds. (d) But it is clear that the vendor may stipulate

(a) Edwards v. M'Leary, Coop. 308. 2 Swanst. 287. S. C. on appeal. (b) Peart v. Bushell, 2 Sim. 38.

(c) See the proper forms, Vol. II.

21-27.

(d) Dick v. Donald, 1 Bli. N.S. 661.

And even on a sale by

by private agreement that the purchaser shall accept the title such as it is; (a) and that a purchaser may waive his right to a good title by concluding an agreement after he has full notice that he is not to expect a title beyond a limited period. That may be matter of notice and not of contract. (b) public auction stipulations of this nature will sometimes be allowed. Thus where assignees put up to sale the bankrupt's interest in an estate, "as he lately held the same, an abstract of which might be seen at a particular office, and the auctioneer, on putting up the estate, explained to the bidders that it was a re-sale, on account of a defect of title, and that the assignees having rescinded the contract, again came before the public with such title as they had, and that the purchaser was not to expect a good title, but take it as it was, the Vice-Chanceller, (Sir John Leach,) held that the vendee could not insist upon any other title than such as the bankrupt had, observing that a vendor, if he thought fit, might stipulate for the sale of an estate with such title only as he happens to have. (c) And it may perhaps be laid down, that where notice of the articles of sale can be clearly brought home to the vendee, he will be compelled to accept the title, although the sale is by public auction.

If a vendor, before conveyance to himself, sells by auction, and engages to make a good title by a certain day, which, not having obtained a conveyance, he cannot do, he is liable not only for the expenses in

(a) Wilmot v. Wilkinson, 6 B. & C.

506.

(b) 3 Mer. 64. Sug. V. & P. 305, 8th edition. Baxter v. Conolly, 1

Jac. & Walk. 576.

(c) Freme and others v. Wright, 4 Madd. 364.

curred by his vendee, but also to damages incurred by the contract not being carried into effect. (a)

The particular time at which the abstract should be delivered is generally mentioned in the contract for sale, and the abstract should be punctually delivered at the appointed time; for if the abstract is not then delivered, the purchaser may at law avoid his contract; (b) and it will also be avoided in equity, except in cases where the vendor has used all due diligence, but has been prevented by insuperable difficulties from fulfilling his contract; (c) or perhaps where the purchaser has neglected to take the proper steps in calling for the abstract. (d) But it is now settled that time may be made the essence of the contract as well in equity as at law. (e) And in a late case Lord Eldon expressed his disapprobation of the principle, which allows a vendor to deliver the abstract behind the appointed period. (f)

If there be no time stipulated for the delivery of the abstract, it must be delivered as soon as it can be reasonably prepared.

Upon the delivery of the abstract, the vendor's solicitor must be prepared to produce the deeds themselves to the purchaser's solicitor, and if they are not in his possession, but can be obtained by virtue of a covenant or otherwise, they must be produced, and the expense of such production, including journeys if requisite, must be borne by the vendor. If the deeds.

(a) Hopkins v. Grazebrook, 6 B. & C. 31.

(b) Berry v. Young, 2 Esp. N. P. C. 640, n.

(c) Lloyd v. Collett, 4 Ves.689, n. Paine v. Meller, 6 Ves. 349. Radcliffe v. Warrington, 12 Ves. 326.

(d) See Guest v. Homfray, 5 Ves.

823.

(e) Hudson v. Bartram, 3 Madd. 440. And see Boehm v. Wood, 1 Jac. & Walk. 419. Withy v. Cottle, Turn. 78.

(f) Lechmere v. Brasier, 2 Jac. & Walk. 289.

themselves cannot be produced, the vendor's solicitor must furnish attested copies of them, for the purpose of being examined with the abstract.

Although a purchaser buys with full notice that a title cannot be made without the consent of a third person, yet it lies on the seller and not on the purchaser to obtain the consent. It cannot be inferred that the seller only agreed to part with his interest in the estate, so far only as he was able to do so. (a)

II. THE DUTY OF THE PURCHASER'S SOLICITOR.

Where a time is appointed for the delivery of the abstract, the purchaser's solicitor should take care to demand its delivery on or about that time, as he may otherwise be unable to enforce a specific performance of the contract. (b) If he wishes to rescind the contract, on the non-delivery of the abstract at the stipulated time, he should give notice to that effect to the vendor, and demand the re-payment of his deposit money; for if he allow the time to pass by without any step of this kind, he will be held to have waived his right to take advantage of the negligence on the other side. (c) And if the abstract is delivered after the stipulated time, the purchaser's solicitor should only receive it, without prejudice to his client's right to take advantage of the neglect. (d)

The purchaser's solicitor must compare the abstract most carefully with the original instruments there abstracted, and must see that the abstract contains a

(a) Lloyd v. Crispe, 5 Taunt. 249. Mason v. Corder, 2 Marsh 332; 7 Taunt. 9. S. C.

(b) See Guest v. Homfray, 5 Ves. 813. Ante, p. 37.

(c) Jones v. Price, 3 Anst. 924. (d) Smith v. Burnam, 2 Anst. 527. Seton v. Slade, 7 Ves. 265. And see Lloyd v. Collett, 4 B. C. C. 469. Ante, p. 37.