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title unmarketable. See 1 Prest. Abs. 11. But in commence.
ment of the a recent case it was held that a vendor, under an
Abstract. absolute contract for the sale of leaseholds, was bound to produce the lease, which was the root of his title, although the lease was dated in 1606 (t): Frend v. Buckley, L. R., 5 Q. B. 213. One danger which formerly attended the titles of Time does not
run against leasehold estates, the possibility of a representation
an administo a deceased owner having been dormant for many trator, except years, from the neglect of any person to obtain grant of adadministration to his effects, no longer exists; the ministration. Statute of Limitations having enacted, that time shall run against an administrator during the dormancy of the representation : Sect. 6, ante, p. 10.
The well-known rule, that a renewal of a lease by Title to rea trustee or person entitled for a partial interest powable
leases. shall enure for the advantage of all who were beneficially interested in the former lease, gives rise to great embarrassment in titles to property of this description; for it is usual to state in the new lease the surrender of the former lease, the production of which the purchaser would be entitled to require, the reference to it being notice to him of its contents. See Coppin v. Fernyhough, 2 Br. C. C. 291; Hodgkinson v. Cooper, 9 Beav. 304; see also Sugd. Vend. 410. And by parity of reasoning, if such lease contained, as it probably would, a similar reference to a prior lease, the prior lease must also be produced, and so on to the original lease. With this requisition it is not often in the power of the vendor to comply, as the surrendered leases are given up to the lessor. In such cases it will be necessary to make out the history of the title to the surrendered leases, and carry it back to the same period that would have been proper had the lease which is the subject of sale been the original lease.
Titles to renewable leases are also defective in the legal title. The restraining statute, 32 Hen. 8, c. 28, merely makes a lease granted contrary to its provisions voidable by the successor, and inflicts no
(1) If the lease is not in the vendor's possession, the purchaser must bear all expenses attending the search and production of the instrument, infra p. 91.
ment of the Abstract.
the execution of a lease.
Commence- penalty on the grantor; so that ecclesiastical persons
who renew leases are not generally very careful to ascertain that the legal estate in the subsisting lease is vested in the person who affects to surrender it, and hence the legal estate is sometimes left outstanding for more than a year after the grant of the new lease, which is thus invalidated. In the case of property held under a lease for lives, it must be shown that the lives are in existence, notwithstanding there is in the lease a covenant for perpetual
renewal: Anderson v. Higgins, 1 J. & L. 718. As to proving The general rule is, that after acceptance of the
abstract the purchaser cannot require the deeds to be proved by the witnesses. He is supposed to assume the deeds to be such as on the face of them they appear to be, and the only matter in dispute being as to what may be their legal effect, the necessity of formal proof is dispensed with, and he cannot turn round at the trial and dispute their genuineness. Whether this rule would, under ordinary circumstances, extend to excuse the vendor of a leasehold from proving the execution of the lease in an action to enforce the contract, is doubtful; but where the purchaser had returned the abstract immediately upon its being sent to him, stating that he merely bid at the request of the vendor, it was held, in an action against the bidder for loss on a re-sale, that the vendor must prove the execution of the lease in the ordinary way: Laythoarp v. Bryant, 1 Bing. N. C. 421; S. C., 1 Scott, 327.
The point was formerly much ligitated, whether formerly
the purchaser of leaseholds was entitled to call for bound to pro- the production of the lessor's title. See Sugd. 2 duce lessor’s Vend. 10th ed. 140. The case of Fane v. Spencer Bishop's (2 Mer. 430, n.) decided, that the purchaser of a
bishop's lease was not entitled to call for the lessor's title; but, according to subsequent decisions, this must be considered as an exception to the general rule; that rule being, that the performance of a contract could not be enforced by a vendor who did not produce his lessor's title.
And consequently wherever the vendor of a leasehold did not intend to produce his lessor's title, it was necessary that he should state such an intention
Vendor of leaseholds
ment of the
in the conditions of sale; as to the effect of which, Commencesee Shepherd v. Keatley, 1 Cr., M. & R. 117. As to
Abstract. waiver of the right to production of the lessor's title, see Haydon v. Bell, 1 Beav. 337; Warren v. Richardson, You. 1. But now as regards sales made after the 31st of New rule
V. & P. Act, December, 1874, it is enacted that (unless a contrary 1874 ; Conv. intention is expressed in the contract of sale) Acts, 1882 " under a contract to grant or assign a term of years, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the freehold :" 37 & 38 Vict. c. 78, s. 2, r. 1. And by the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), it is enacted that after the commencement of that Act, and subject to the terms of the contract,
Sect. 3 (1). “Under a contract to sell and assign term of years derived out of a leasehold interest in land, the intended assign shall not have the right to call for the title to the leasehold reversion." Sect. 13 (1).
“On a contract to grant a lease for a term of years to be derived out of a leasehold interest, with a leasehold reversion, the intended lessee shall not have the right to call for the title to that reversion."
And by the Conveyancing Act, 1882, sect. 4, which applies both before and after the commencement of the Act,
"Where a lease is made under a power contained in a settlement, will, Act of Parliament or other instrument, any preliminary contract for or relating to the lease shall not, for the purpose of the deduction of title to an intended assign, form part of the title, or evidence of title, to the lease."
Neither of these provisions, however, relieves a lessee or underlessee on granting an underlease, in the absence of stipulation to the contrary, from the necessity of producing his lease or underlease, and proving his subsequent title. See Stranks v. St. John, L. R., 2 C. P. 376. See further on this subject, infra, tit. “ AGREEMENTS."
An attendant term forms part of the title to the Attendant equitable inheritance. The creation of the term
Commence should be shown, if possible (u); but although this is
not done, the title cannot be objected to where the term is more than forty years old, and the evidence of possession during that period accords with the apparent title. It is to be observed, that a danger to which the title to a term was formerly exposed, that of a dormant representative to the last true owner, has been removed by the Statute of Limitations (3 & 4 Will. 4, c. 27), s. 6, vide ante, p. 10); so that wrongful possession for twelve years will, in all cases not between trustee and cestui que trust
, confer an indefeasible title. Generally speaking, the courts will presume the fact of mesne assignments having been regularly made: Earl v. Baxter, 2 W. Black. 1228; see also White v. Foljambe, 11 Ves. 337, 350.
Abstract at vendor's expense.
2. CONTENTS, FORM, AND ARRANGEMENT OF THE
ABSTRACT. According to the general practice in modern times the abstract is prepared at the vendor's expense by his solicitor. In the case, however, of sales of lands to a railway or other company under the Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18), it is enacted by sect. 82 of that act, that “the costs of all such conveyances shall be borne by the promoters of the undertaking; and such costs shall include all charges and expenses, incurred on the part as well of the seller as of the purchaser, of all conveyances and assurances of
such lands, and of any outstanding terms or interests therein, and of deducing, evidencing, and verifying the title to such lands, terms, or interests, and of making out and furnishing such abstracts and attested copies as the promoters of the undertaking may require, and all other reasonable expenses incident to the investigation, deduction, and verification of such title.”
(u) The deed creating the term should, if possible, be abstracted, and also all mesne assignments thereof in recent times,
as to show in whom they were created when merged under 8 & 9 Vict. c. 112. See Dart, V. & P. 289; Sugd. Vend. 370.
Similar provisions are contained in most of the Contents, earlier acts relating to railways, canals, and other Arrangement undertakings.
Abstract. The purchaser has a right to require that an abstract be delivered to him, and a delivery of the deeds not
Delivery of deeds themselves to him is not sufficient : Sugd. sufficient. Vend. p. 406; and see Howe v. Wingfield, 3 Sc. N. R. 340.
The general rule is that the vendor bears the expense of the abstract, but by the Conveyancing and Law of Property Act, 1881, sect. 3 (6), the expense of making abstracts of documents not in the vendor's possession is thrown on the purchaser.
The charge for drawing an abstract is strictly 6s. 8d. for every sheet of eight folios of seventytwo words, and half that amount for a copy of an abstract already drawn. See Schedule II. to the Rules under the Solicitor's Remuneration Act, 1881 (44 & 45 Vict. c. 44). An abstract should be prepared with the utmost care, and should be written in a clear legible hand on good paper. It should state in the heading whose title is abstracted and in whose interest, and it should be accompanied by a copy of the agreement or conditions of sale: Sugd. Vend. 406.
Formerly it was considered that in the absence of express stipulation to the contrary a purchaser at an auction of several lots held under the same title was entitled to a separate abstract in respect of each lot purchased. The necessity for stipulating to the contrary has been done away with by the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), which enacts that subject to the terms of the contract (see subsect. (9), —
Sect. 3 (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.”
This provision only applies to purchasers on sales properly so called, and does not affect intending mortgagees or lessees. See subsect. (8).
On delivery of the abstract to the purchaser, he