Commencement of the Abstract. 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 (m), 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." This section applies only to titles and purchases on sales properly so called, and only if and so far as a contrary intention is not expressed in the contract. (Sub-sects. 8 and 9.) "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." (Sub-sect. 11) (n). (m) A purchaser who has notice of a deed forming part of the vendor's title has constructive notice of its contents: Sugd. Vend. 775; see also Patmam v. Harland, 17 Ch. D. 353. The effect of this section is to take away the right of a purchaser on an open contract, to require the production of all documents recited or referred to. But in a case where the deed mentioned as the root of title recited an earlier conveyance in fee, subject to the conditions, &c. on the part of the grantee therein mentioned, a condition that "No purchaser shall investigate or take any objection to the title prior to the commencement of the abstract," was held not to preclude the purchaser from insisting on further explanation as to the nature of these conditions: Phillips v. Coldcleugh, L. R., 4 Q. B. 159, and see sub-sect. (11), post. (n) Specific performance will not be enforced, if a defect on the vendor's title appears on the face of the abstract (Sellick v. Trevor, 11 M. & W. 722; Phillips v. Coldcleugh, L. R., 4 Q. B. 159); nor where a defect on the title is accidentally disclosed by the vendor (Smith v. Robinson, 13 Ch. D. 148); or is discovered aliunde by the purchaser: Shepherd v. Keatley, 1 C. M. & R. 117; Darlington v. Hamilton, Kay, 550; Waddell v. Wolfe, L. R., ment of the Abstract. Except in cases covered by the provisions of the Commenceact above quoted, it is the established rule that an appointment should not be abstracted without pre- Appointment. viously showing the creation of the power and the ceremonies requisite to the valid exercise of it (0); nor a post-nuptial settlement executed in pursuance Settlement. of articles antecedent to the marriage, without first abstracting the articles at length, that it may be seen whether or not the settlement is in conformity with them. The admittance of a party to copyholds, in Admittance pursuance of a surrender, must be preceded by to copyholds. showing that there was a surrender which authorized such admittance. title. The provisions of this act do not seem to affect Documents the right of the purchaser to have all documents of of earlier earlier title, which relate exclusively to the property purchased, handed over to him on completion of the purchase. Where a vendor retains any part of an estate to which any documents of title relate, he is entitled to retain such documents. See stat. 37 & 38 Vict. c. 78, s. 2, r. 5. Sometimes the indefensible course is pursued of Suppressing 9 Q. B. 515; Harnett v. Baker, L. R., 20 Eq. 50; Jones v. Clifford, 3 Ch. D. 779. If it is intended to preclude the purchaser from his rights as to production of title, a special condition to that effect must be inserted in the contract. The condition must be plain and explicit, and must not be framed so as to suggest what the vendor knows is not the actual state of the title: Re Bannister, Broad v. Munton, 12 Ch. D. 131; Marsh v. Earl Granville, (C. A.), W. N. 1883, p. 119. (o) Sales under powers contained in settlements and wills will probably be less frequent than formerly, such powers being in great measure superseded by those conferred on tenants for life, and other limited owners, by the Settled Land Act, 1882 (45 & 46 Vict. c. 38), sects. 3, 58. When land is vested by one deed in trustees upon trust for sale, and to hold the proceeds of sale, and to apply the rents until sale, upon trusts declared by another deed, it will now be necessary for the purchaser to require production of the latter deed in order to ascertain whether the sale is made with the consent of the tenant for life, rendered necessary in all such cases by sect. 56 of this act. As to the due execution of powers, see as to deeds, stat. 22 & 23 Vict, c. 35, s. 12; and as to wills, see stat. 1 Vict. c. 26, s. 10. Et vide infra, tit. "APPOINTMENT." intermediate deeds. ment of the Abstract. Commence- suppressing intermediate deeds, which are supposed, in event, to have become immaterial to the title, as, where a mortgage has been paid off and the estate reconveyed; in which case the deeds of mortgage and reconveyance are laid aside under the notion that the parties are placed in statu quo by the reconveyance, and from an anxiety to keep out of sight the circumstance of the mortgagor having encumbered the property. But the notion is often erroneous, and the practice very improper; the revocation of a will, or some other effect extremely important to the title, might have been produced by the suppressed deed. The only fair course is, to set out all the deeds in the vendor's possession, leaving the purchaser's counsel to judge of their materiality and effect (p). Commencement of abstract. Purchase or mortgage. The most satisfactory document with which an abstract can commence is a purchase or mortgage deed, from which, under ordinary circumstances, it may be presumed, that the state of the ownership was then investigated, and a title deduced during the preceding forty years; a presumption, however, which, in the case of a purchase deed, by no means implies a perfect title; for there may have been special stipulations, indemnities, and abatements for apparent defects, all of which a vendor takes care to keep out of sight. A mortgage deed, if the security does not appear to have been taken for an existing debt, is more satisfactory in this respect than a purchase deed, as such a transaction can never be the subject of special stipulations as to title, and a (p) The case of Drummond v. Tracy (Johns. 608) extended this rule to documents creating mere equitable charges, and stated that such charges, even though discharged, ought to be communicated to the purchaser; and Lord St. Leonards expresses his approval of the rule so laid down: Sugd. Vend. 411. This rule is, however, not in accordance with the usual practice of conveyancers, which is to avoid the unnecessary disclosure of mere equities upon a title, and it is to be feared that the opposite practice, if introduced would, in the generality of cases, be likely to lead to unnecessary delay and expense. See Dart, V. & P. 301. As to expired leases, see p. 78. See further as to the impropriety of omitting from the abstract transactions, even though mortgagee will not lend his money without strictly Commencescrutinising the offered security. ment of the Abstract. Settlement A settlement by deed, or a specific devise of the property is, of course, less satisfactory than a or devise. purchase deed, inasmuch as the disposition by the settlor or testator may have been made quantum valeant. See Parr v. Lovegrove, 4 Drew. 170. A general devise in a will is obviously insufficient as a root of title; the testator's seisin must be shown either by abstracting the conveyance to him of the property, or by the production of other evidence. As to evidence, vide post, pp. 88 et seq. under adverse possession by Whether a person would be compelled to take a As to title title gained under the Statute of Limitations, by long possession by a mortgagee without acknowledgment, mortgagee. is not clear. The objection to it is, that the fact upon which its validity depends, namely, the nonrecognition of the mortgage debt, is not susceptible of positive proof, and there may have been disabilities in the mortgagor keeping alive the right of redemption. However, in the case of Cooper v. Emery (1 Hayes, Conv. 274, 5th ed.), a title of this kind was forced on a purchaser. Reversions and remainders in the Crown were Titles under not destructible by recovery, nor can they now be the Crown. barred by an enrolled assurance; and it is therefore necessary, in deducing a title under a grant from the Crown, to set forth the original grant, in order that it may be seen whether any interest remains in the Crown or not, or whether any rent, condition, or service, has been reserved (q). As to the limitation of the rights of the Crown, vide ante, p. 47. The foundation of a title to tithes held as a lay property is usually a grant from the Crown after the dissolution of the monasteries. The original grant ought therefore to be set forth, and (omitting bond fide, supposed by the vendor not to affect the title, Gray v. Fowler, L. R., 8 Ex. 249; see also Palmer v. Locke, 18 Ch. D. 381. (9) Intermediate instruments will be omitted and the history will be taken up so as to show a good forty years' title: Dart V. & P. 295; see also Pickering v. Lord Sherborne, 1 Craw. & Dix Abr. 254. ment of the Abstract. Commence- intermediate documents), the abstract should show a title for the last forty years: Sugd. Vend. 367; and see Pickering v. Lord Sherborne, 1 Craw. & Dix. Abr. 254. Estate sold tithe free. Advowsons. As to titles old leases. When an estate is sold tithe free, the tithes being regarded as having been merged under the Acts 1 & 2 Vict. c. 64, and 2 & 3 Vict. c. 62, the early title to the tithes must be shown. Liability to tithes, when property is sold tithe free, is a sufficient ground for resisting specific performance by a purchaser: Ker v. Cloburg, Sugd. Vend. 321; but see Bincks v. Lord Rokeby, 2 Sw. 222. The question whether an estate is tithe free or not is said to be a question not of title but of fact: See Sugd. Vend. 321; and Smith v. Lloyd, 2 Sw. 224 n.; Wallinger v. Hilbert, 1 Mer. 104. The extreme period within which an advowson may be recovered against a party adversely exercising his right of presentation is a hundred years (r); and notwithstanding the provisions of the recent Act (s), that period should be covered by the abstract of title to an advowson. A list of the successive presentations should accompany the abstract, so as to show that the enjoyment has gone along with the title: Sugd. Vend., p. 367. In the case of a leasehold title, the general rule is derived under that the original lease and all mesne assignments should be abstracted. But where an estate is held under a lease of great antiquity, a vendor can only be required to show the creation of the term, and to deduce the title for the last forty years; and it is not incumbent on him to trace its history, uninterruptedly, from the origin of the lease down to the immediate transaction. It was formerly thought that even the absence of the deed creating the term would not render the (r) See 3 & 4 Will. 4, c. 27, s. 30, and 37 & 38 Vict. c. 78, 8. 1, ante, pp. 17, 23. (s) The Vendors and Purchasers Act, 1874 (37 & 38 Vict. c. 78), does not contain any definition of land; it is therefore doubtful how far the provisions of that Act with regard to contracts for sale of land apply to advowsons and other incorporeal hereditaments. |