Form, and

Contents, is entitled to the possession of it for the purpose of Arrangement investigating the title, and taking opinions there

of the Abstract.

upon, and also to assist him in the preparation of the conveyance; and he may retain it even after rejection of the title, in order to show the grounds of such rejection: Roberts v. Wyatt, 2 Taunt. 268. Until the purchase is completed or abandoned, although the property in the abstract is not vested absolutely in either party, the intending purchaser has such temporary and qualified property therein as enables him to maintain an action of trover for it even against the vendor: Roberts v. Wyatt, ubi supra. If the purchase is completed, the abstract becomes the absolute property of the purchaser. But if the contract is finally abandoned it must be returned, and no copy of it must be retained. Observations and opinions written thereon may be erased; and if written on separate paper may be retained by the purchaser: Wood v. Court, 2 S. Atk. Conv. 463; see also Sugd. Vend. 428; Dart, V. & P. 279.

The most material consideration in the preparing of an abstract is, to give every information which can possibly bear upon the validity of the title, or which may be required for the purpose of framing the recitals, &c., in the conveyance to the purchaser; subject to this all-important requisite, brevity is desirable for the purpose, not only of saving time and trouble to all parties, but of submitting the title to counsel in the most compact form, unembarrassed by extraneous particulars, so that a comprehensive view of the whole may be most easily taken.

Care should be taken to make the abstract perfect (x) in the first instance. If the sale is made subject to the very ordinary stipulations, that the vendor shall deliver an abstract within a certain time, and that the purchaser shall make his objections within a certain time, and the vendor delivers an

(x) A perfect abstract has been defined as one "which contains with sufficient clearness and sufficient fulness the effect of every instrument which constitutes part of the vendor's title." Per Kindersley, V.-C., in Oakden v. Pike, 11 Jur., N. S. 666.

Contents,

Arrangement

of the Abstract.

imperfect abstract, the vendor's neglect to deliver a perfect abstract absolves the purchaser from all obli- Form, and gation of making objections within the time specified. See Hobson v. Bell, 2 Beav. 17; Tanner v. Smith, 4 Jurist, 310; Southby v. Hutt, 2 M. & Cr. 211; Sherwin v. Shakespear, 5 De G., M. & G. 517; Upperton v. Nickolson, L. R., 6 Ch. 436. And wilful neglect on the part of the vendor to deliver a proper abstract within the fixed time will even in equity entitle the purchaser to avoid the contract: Roberts v. Berry, 3 De G., M. & G. 284; Seton v. Slade, 7 Ves. 264; Tilley v. Thomas, L. R., 3 Ch. 61.

If the property has been derived under a common Title under law exchange, or an exchange by mutual conveyances exchange. with eviction clauses (vide infra, tit. EXCHANGE), the title to the estate given in exchange must (7) be shown from the usual period down to the date of the exchange (Bastard's case, 4 Rep. 121), unless, in the case of a common law exchange, it can be proved that the lands given in exchange have been aliened by the other party (z).

Upon the sale of a share by one tenant in common to another, the purchaser, if he stipulates for the delivery of an abstract, will be entitled to an abstract of the title to the whole property down to the creation of the tenancy in common, and thereafter of the vendor's share: Morris v. Kearsley, 2 Y. & C. Ex. 139. But in the absence of such stipulation it would seem that the vendor is only bound to furnish an abstract of title to his own share: Law v. Law, 9 Jur. 745. See also Phipps v. Child, 3 Drew. 709; Sugd. Vend. 377, 428.

Act.

The title to an allotment under an Inclosure Act Title under depends, of course, upon the title to the estate in Inclosure respect of which the allotment was made; although the tenure of the allotment is always, in the absence

(y) So also, where land has been exonerated from tithe by an exchange under 6 & 7 Will. 4, c. 71, s. 30. See Dart, V. & P. 289.

(z) The statute 8 & 9 Vict. c. 106, s. 4, enacts "that an exchange or a partition of any tenements or hereditaments made by deed executed after the 1st day of October, 1845, shall not imply any condition in law."

B.

F

Contents, Form, and Arrangement of the Abstract.

Inclosures.

of any provision to the contrary in the act, of common socage, whatever may be the tenure of the commoner's estate (Doe d. Sweeting v. Hellard, 9 B. & Cr. 789); even though the act provides that allotments shall be held to the same uses as the lands in respect of which they are allotted: Doe v. Davidson, 2 Mau. & Sel. 175. And see the stat. 6 & 7 Will. 4, c. 115, "for facilitating the Inclosure of open and arable fields in England and Wales."

An allotment is no evidence that the person to whom it was made was seised in fee, as allotments may be and frequently are made to tenants for life, or other owners of partial estates. Great difficulties in titles derived through Inclosure Acts frequently arise, from the impossibility of determining in respect of which part of the lands or common rights, belonging to the allottee at the time of the inclosure, any given portion of the allotment was made. Thus if a person have several open pieces of land held under distinct titles, and an allotment be made to him in general terms in lieu of all his lands in the parish, unless it can be shown what part of the allotment was made in respect of each piece of open land, it is obvious that no title can be made to any part of the allotment, without deducing the title to the whole of the lands which were subject to the inclosure; and an incumbrance or defect of title affecting any portion of the inclosed lands will affect the whole of the allotment, on account of the impossibility of distinguishing the exempted parts. Sometimes the surveys and papers in the hands of the clerk of the peace furnish the requisite information; but frequently they are not accessible. If the title to all the lands of the owner in question which were subject to the operation of the act be well deduced (evidence of course being given that the lands to which a title is shown were all the lands), the title to every part of the allotment will be free Effects of in- from objection. This supposes that the allottee had the fee-simple in all the lands in respect of which the allotment was made, or, at all events, that they were subject to the same limitations, so as to devolve in the same channel. But where this is not the

discriminate

respect of

several lands held under

different titles.

Arrangement

of the Abstract.

of equity to

apportion

case, as, if the allottee be owner in fee of Whiteacre, and tenant for life of Blackacre, and an entire Form, and allotment be made to him in respect of both those lands, a farther evil ensues; it then becomes necessary, at his death, in order to ascertain the rights of Inclosures. the respective owners to the several parts of the allotment, that those parts should be distinguished; and, if any of the persons entitled to either portion are under any incapacity, this cannot be effected by mutual agreement, but it is necessary to resort to a judicial proceeding. And it seems (though the con- Interference trary has been supposed by a learned writer, who has exposed, with much force, the evils in question, allotments. vide Coventry on Inclosures, p. 7), that formerly a bill in equity, and now an action, for ascertaining boundaries, would lie in such a case; an instance of which is afforded in the case of King v. Moody, 2 Sim. & Stu. 579, where A., who was entitled in fee to a manor, subject to an executory devise over, to arise at his death, having purchased certain freeholds in the parish, and also copyholds of inheritance, parcel of the manor, which were surrendered to him, and thereby became extinguished in the manor (a), and, consequently, subject to the executory devise, erroneously conceiving himself to be seised in fee simple of both estates, claimed of the inclosure commissioners one entire allotment for the whole, and the commissioners, acting under the same mistake, awarded certain lands to him, in lieu of both estates, describing the allotment to be in respect of lands of which he was seised in fee; the executory devise having taken effect, a bill was filed by the executory devisees, claiming such part of the allotment as was made in respect of the copyholds, and praying that a commission might issue to ascertain it, &c. It was objected, that the allotments having been described in the award as made in lieu of lands of which the allottee was seised in fee simple, evidence was not admissible to the contrary;

(a) Extinguishment denotes the transfer of a copyhold interest from the tenant to the lord; enfranchisement is the transfer of the lord's interest to the tenant: Scriven on Copyholds, p. 276.

Arrangement of the Abstract.

Inclosures.

Contents, and also, that the question was a legal one, and Form, and therefore, that the plaintiffs should be left to their remedy at law. But Sir J. Leach, V. C., overruled both these objections, holding the evidence to be admissible; and that, as the plaintiffs could not recover at law any specific portion of the allotment, they might come into a Court of equity to have the portion to which they were entitled ascertained. The Court, therefore, declared the plaintiffs to be entitled to so much of the allotment professed to be made in respect of the estate in fee of A., as was actually made in respect of the copyhold lands, and referred it to the master to apportion the allotment accordingly.

Exchange.

The evil which the Court was called upon to rectify in this case might have been prevented, and ought always to be prevented, by the claimant to several allotments carrying in before the commissioners a distinct claim for each property.

Upon an exchange under the Inclosure Acts, or under any of the acts authorizing the exchange of ecclesiastical property (b), or under the acts to facilitate the exchange of lands lying in common fields (4 & 5 Will. 4, c. 30), the title to the land given in exchange must be furnished down to the time of the exchange, and also so much of the title to the land taken in exchange as may show that the consents of persons interested, as required by those Acts, have been obtained. See Dart, V. & P. 287. But in the case of exchanges under the Commons Inclosure Act, 1845, it is provided that the confirmation of the award shall be conclusive evidence that all the directions of the Act have been obeyed (c).

By the Charitable Trusts Act, 1869 (32 & 33 Vict. c. 110), sect. 12, it is enacted that—

"Where the trustees or persons acting in the administration of any charity have power to determine on any sale, exchange,

(b) 55 Geo. 3, c. 147; 56 Geo. 3, c. 52; 1 Geo. 4, c. 6; 6 Geo. 4, c. 8.

and

(c) This Act has been amended and extended by later statutes, 9 & 10 Vict. c. 70; 10 & 11 Vict. c. 111; and 12 & 13 Vict. c. 83; and see infra, p. 74.