of title, but earlier title than forty years may be required in cases similar to those in which earlier title than sixty years might before the Act be required.

A purchaser under a judgment will be compelled to take an equitable title provided the legal estate can be got in, e.g. when outstanding in an infant: Freeland v. Pearson, 7 Eq. 247; Sugd. V. & P. 397; but will not be compelled to take a doubtful title: Ib. (8); and see Palmer v. Locke, 15 Ch. D. 294, C. A.; and inf. Chap. L., "SPECIFIC PERFORMANCE."

The purchaser is entitled to his costs of the inquiry when the title proves good on grounds not appearing on the abstract: Fielder v. Higginson, 3 V. & B. 142; and will not be ordered to pay the vendor's costs though the title proves good according to the abstract: Flower v. Hartopp, 8 Beav. 200; Holland v. King, 1 W. R. 80; Dart, V. & P. 1336; but see Osborn v. 0., 18 W. R. 421; unless the objections are frivolous and vexatious: Thorpe v. Freer, 4 Madd. 466; Peers v. Sneyd, 17 Beav. 151.

If the title prove bad, and the purchaser is discharged, he is entitled to a return of any deposit, and to his costs, charges, and expenses consequent upon his having become a purchaser: see Sect. III., inf. p. 359.

PAYING IN PURCHASE-MONEY-INTEREST-PROPERTY TAX.

It is provided by the ordinary conditions of sale (R. S. C. App. L. 15), that each purchaser is, under an order for that purpose, to be obtained by him, or, in case of his neglect, by the vendors at his costs, upon application at Chambers, to pay the amount of his purchase-money (after deducting the amount paid as a deposit), together with the amount of any valuation of timber, into Court to the credit of the cause, on or before a day to be specified (which must be subsequent to the time fixed for delivering the abstract, see Dav. Conv. vol. i. p. 506); and if the same is not so paid, then the purchaser is to pay interest on his purchase-money, including the amount of the valuation, from the day specified to the day on which the same is actually paid (if 80, deducting property tax). Upon payment of the purchase-money the purchaser is to be entitled to possession, or to the rents and profits, as from (usually the last rent day), down to which time all outgoings are to be paid by the vendor. The order to lodge purchase-money is now rarely made, the money being generally lodged on a direction under O. LI, 3a.

Two or more separate purchasers may join in one application, but their purchase-money must be paid in separately. Two or more purchasers of one lot must pay in an entire sum: Darkin v. Marye, 1 Anst. 22.

Where the lots are very small, it is not unusual for the conditions to provide that no abstract shall be delivered or title shown unless specially requested by the purchaser: see Huish v. Sweet, V.-C. W. at Chambers, 12 Nov. 1872, A. 2637.

The purchaser should not ordinarily apply for leave to pay in his purchasemoney until he has approved the title: Sugd. V. & P. 103.

Except under special circumstances, he will not be allowed to pay in without accepting the title: De Visme v. De V., 1 Mac. & G. 336, 344; Rutley v. Gill, 3 D. & S. 640; Denning v. Henderson, 1 D. & S. 689; nor will he in any case be let into possession without accepting the title: Hutton v. Mansell, 2 Beav. 260; Rutter v. Marriott, 10 Beav. 33; Dempsey v. D., 1 D. & S. 691.

On taking possession without authority from the Court he will be treated as having accepted the title, and be compelled at once to pay in: Wilding v. Andrews, 1 C. P. Coop. 380; but if he take possession after delivery of the abstract he will not be bound as to objections not disclosed thereby: Bown V. Stenson, 24 Beav. 631. See also Miller v. Pridden, 5 W. R. 171; 3 Jur. N. S. 78, that payment in, and acceptance of a conveyance, with knowledge of an incumbrance, will have the effect of waiving any objection thereon.

A purchaser, after he has paid his money into Court and obtained a conveyance, is not bound to see to the application or apportionment of the fund: Todd v. Studholme, 3 K. & J. 324; Cavendish v. C., 10 Ch. 319; and see Morris v. Debenham, 2 Ch. D. 540; Cooper and Allen's Contract, 4 Ch. D. 802, 807, 816.

The rate of interest as a general rule is 4 p. c. per ann.: Dart, V. & P. 708; Dav. vol. i. p. 507.

As to the effect of the condition now in general use (see Dav. Conv., vol. i. p. 576; Prid. Conv. vol. i. p. 49), that the purchaser shall pay interest on his purchase-money if "from any cause whatever" the purchase shall not be completed by the day fixed for completion, see Williams v. Glenton, 1 Ch. 200; Sherwin v. Shakspear, 5 D. M. & G. 517; Sugd. V. & P. 633–637; Dart, 143; et sup. p. 351.

The condition as to interest now usually adopted enables the purchaser to deduct the property tax on the interest payable: see D. C. F. 640; where it does not he must pay in in full without deduction: Dawson v. D., 11 Jur. 984; Humble v. H., 12 Beav. 43; Flight v. Comac, 2 W. R. 437; Goslings and Sharpe v. Blake, 23 Q. B. D. 324, 330, C. A.; but may apply for its return when the money is dealt with by the Court: see Bebb v. Bunny, 1 K. & J. 216, 219; Sugd. V. & P. 99.

Where a vendor went abroad two days before the day for completion, he was held not entitled to interest on the purchase-money during the delay caused by his absence: Re Young and Harston's Contract, 31 Ch. D. 168, C. A.

A purchaser cannot relieve himself from liability to pay interest by setting apart the unpaid purchase-money and giving notice thereof to the vendor : Re Riley and Streatfield, 34 Ch. D. 386.

Upon a purchase under the ordinary condition, the order for payment of purchase-money will not be made with a direction for deduction of rents received after the date for completion: Re Smith, Day v. Bonaini, 54 L. T. 627; but a receiver being in possession, a direction was inserted that he should pay such rents to the purchaser: S. C., 55 L. T. 329.

INVESTMENT AND DEALING WITH PURCHASE-MONEY IN COURT.

By O. LI, 3a, no order for payment of purchase-money into Court shall be necessary, but a direction for that purpose sigued by the Master shall be sufficient authority for the Paymaster-General to receive the money, An order for investment of the purchase-money when paid in should always state at whose instance such investment is directed: see Form 2, p. 345. If the investment is on the application of the purchaser, he must, if the purchase be rescinded, take the stock, whether the funds have fallen or risen since the investment; secus, if made on the vendor's application: Sugd. V. & P. 119, 640; Tompsett v. Wickens, 3 Sm. & G. 171; Humphries v. Home, 3 Ha. 376; and see Dart, V. & P. 1333. To give the full effect of a stop order to the concluding direction that the purchase-money is not to be dealt with without notice to the purchaser (see Form sup. p. 345), the order should be lodged at the Chancery Pay Office for the express purpose of being entered on the books as a stop order, and giving the purchaser a lien upon the purchase-money until completion.

By S. C. F. R. 1894, r. 5, it is provided that when an order has directed the sale of any property and the lodgment of the proceeds thereof in Court, the authority for such lodgment may be a lodgment schedule signed by the Master; and such lodgment schedule shall operate in the same manner as a lodgment schedule annexed to an order.

Plt's solr was held personally responsible for loss caused by his omission to request investment of purchase-money: Butten v. Wedgwood Coal and Iron Co., 31 Ch. D. 340.

On delivery of the conveyance to the purchaser, the vendor's solr should obtain from him a written acknowledgment thereof, and an authority to concur in his name to such distribution of the purchase-money as the Court may direct: see Dan. 897; otherwise the purchaser must be served with notice of any application to deal with the money, whether the order be entered at the Pay Office or not.

If he does not appear, an affidavit of such service is required, and of delivery of his conveyance.

If he has not obtained his conveyance, he will be entitled to his costs of appearing, though merely for the purpose of consenting to the application : Bamford v. Watts, 2 Beav. 201; Noble v. Stow, 30 Beav. 272.

If he has obtained his conveyance, his costs of appearing will not be allowed: Barton v. Latour, 18 Beav. 526, except, perhaps, under special circumstances: Rowley v. Adams, 16 Beay. 312; and see sup. p. 329.

SUCCESSION DUTY.

By the Succession Duty Act, 16 & 17 V. c. 51, s. 42, the duty is made a first charge on the property; but where powers of sale, exchange, or partition are exercised, the duty will be shifted to the substituted property, or interim moneys or investments.

By s. 44, every person in whom the property chargeable shall be vested, by alienation or other derivative title, at the time of the succession becoming an interest in possession, is made personally accountable for the duty to the extent of the property.

By s. 52, every receipt and certificate, purporting to be in discharge of the whole duty payable for the time being in respect of any succession, is to exonerate therefrom a bonâ fide purchaser for value without notice, notwithstanding any suppression or misstatement in the account rendered for, or any insufficiency of the assessment; and no such purchaser, under a title not appearing to confer a succession, is to be subject to any duty chargeable by reason of extrinsic circumstances of which he has no notice at the time of his purchase.

As between himself and the purchaser of a fee simple, the vendor must pay all duties (including succession duty) which have or will become payable under any settlement or disposition of the property prior to the sale of the fee simple, but the purchaser of a reversion expectant on an intermediate life estate is liable to the duty on the reversion: Cooper v. Trewby, 28 Beav. 194; Re Langham's Contract, 39 W. R. 156; 60 L. J. Ch. 110; Re Kidd and Gibbon's Contract, (1893) 1 Ch. 695; secus, on a purchase from trustees of an estate in settlement subject to a jointure, the duty in such case being chargeable upon the proceeds of the sale: Dugdale v. Meadows, 6 Ch. 501; and see Cooper and Allen's Contract, 4 Ch. D. 802. That the devisee from the purchaser in fee of an estate in settlement having paid succession duty on the death of his testator is not again liable for duty on the death of the vendor tenant for life: see Hanson, 332; Dart, V. & P. 667, 668, 958; Dav. Conv. vol. ii. 253, 313.

On purchase of a fee simple subject to leases where payment of duty on the increased value at the determination of the leases has been postponed under sect. 20, such duty must be paid by the vendor: Re Kidd and Gibbon's Contract, (1893) 1 Ch. 695.

As to valuation of real successions and incidence of duty under s. 18 of the Finance Act, 1894, v. inf. Vol. II. p. 1414.

INCUMBRANCERS.

A mortgagee concurring in the sale of the mortgaged estate does not in general postpone his rights over the purchase-money, and is entitled to be paid his principal, interest, and costs thereout in priority to the Plt's costs of suit: Hepworth v. Heslop, 3 Ha. 485; Wood v. Mackinlay, 2 D. J, & S. 358. This priority extends to the costs of the sale, and where the proceeds were sufficient to pay the first mortgagee in full, but not the second mortgagee (the Plt), a third mortgagee who had joined in the conveyances to purchasers under the decree was held not entitled to any costs in respect of his concurrence: Wonham v. Machin, 10 Eq. 447; et v. inf. Chap. XLIV., "ADMINIS

TRATION."

Under the usual direction for sale in such a case an account is taken in Chambers of what is due to the incumbrancers, and if incumbrances appear by the certificate, or semble, though not so appearing, if they are known to exist, the purchaser may on summons obtain an order to pay the amount out of the purchase-money on the incumbrancers executing the conveyance to him, and to pay the balance into Court; see D. C. F. 668; or the application may be delayed until the purchase-money has been paid : see Form 7, sup. p. 347, or by consent the mortgage may be kept on foot as against the estate and the purchaser only: see Form 10, sup. p. 348.

VOL. I.

A A

CONVEYANCE.

Where an order for payment in of purchase-money is made it ordinarily provides for the execution of a conveyance by all proper parties; but semble, a direction that the vendor shall convey includes in effect all necessary conveying parties: Minton v. Kirwood, 3 Ch. 614, et v. inf. Chap. L., "SPECIFIC PERFORMANCE."

If infants or persons under disability were necessary conveying parties, or interested in the property sold, the conveyance was formerly directed to be settled by the Judge, and the words "in case the parties differ" were not inserted in the order.

In practice, however, except in orders for sale under the Settled Estates Act, these words are now always used, and accordingly the conveyance, even where infants, &c. are interested as conveying parties, is not necessarily settled by the Judge.

The words "in case the parties differ" should, it seems, be omitted where judgment is in default of defence in a purchaser's action for specific performance. The omission of the words does not necessitate a reference to the conveyancing counsel: Baxendale v. Lucas, W. N. (95) 30, per Kekewich, J. In sales under the Settled Estates Act, the practice of requiring the conveyance to be settled by the Judge, whether the parties differ or not, has been adhered to: see Re Eyre, 4 K. & J. 268; and has not been changed by the Settled Estates Act, 1877, or the Orders under that Act.

Under the usual qualification "in case the parties differ," a purchaser will have to pay the costs of applying at Chambers respecting his conveyance, unless a special case is made: Hodgson v. Shaw, 11 Jur. 95; 16 L. J. Ch. 56. The order of a Judge settling the form of a conveyance is subject to appeal: Pollock v. Rabbits, 21 Ch. D. 466.

As to the procedure on settling a deed in case the parties differ, see O. LV, 34.

As to vesting lands or contingent rights of infants, or parties under disability, on sales by the Court, see inf. Chap. XLI., "TRUSTEES."

All persons having a legal title to or remedy against the property, whether parties to the action or not, should concur in the conveyance, but persons having only equitable interests, who are parties to the action, are bound by the order for sale, and the purchaser cannot, even at his own expense, insist upon their concurrence: Re Williams, 5 D. & S. 515; Dart, V. & P. 1346; Dav. Conv. vol. ii. p. 271 (a); nor is he entitled to covenants for title from them: Cottrell v. C., 2 Eq. 330.

Where delay in completion occurs owing to defect of conveyance, the vendor is entitled to have a reasonable time within which to remove the defect: Hatten v. Russell, 38 Ch. D. 334.

When the conveyance has been settled, the necessary parties may be compelled to execute it by summons served upon them, and the order, upon service and non-compliance, may be enforced by writ of attachment or by committal: O. XLII, 7; but the better course is to obtain an order on summons at Chambers under the Trustee Acts and O. LV, 13a (c), appointing a person to convey to the purchaser, or vesting the estate at once in him, or an order under sect. 14 of the Jud. Act, 1884, appointing a person to execute. Execution of the conveyance by a party may be ordered, although it has not been settled in Chambers: Dougherty v. Teay, 21 L. R. Ir. 379.

POSSESSION.

Under O. LI, 1, any party to the action (in which a sale has been directed) in possession of the estate, or in receipt of the rents and profits of the estate directed to be sold, may be ordered to deliver up such possession or receipt to the purchaser or such other person as the Court shall direct.

To enforce possession the purchaser should apply by summons or motion on notice for an order for delivery of possession within a limited time. If possession be withheld after due service of the order the purchaser may proceed to enforce delivery of possession by writ of possession: O. XLII, 3, 5, XLVII; which since the Jud. Acts, has, so far as relates to land, been

substituted for the writ of assistance, whether between the parties to the action or as against strangers: see Hall v. H., 47 L. J. Ch. 680; but as to the writ of assistance being still available in special cases, see Wyman v. Knight, 39 Ch. D. 165.

The purchaser will be entitled, out of the purchase-money, to his costs of obtaining possession, occupation rent during the time he has been kept out of possession, compensation for deterioration, and arrears of charges (e.g., tithe) which he may have been compelled to pay, the amount, if not agreed upon, to be ascertained by inquiry: see Thomas v. Buxton, 8 Eq. 120.

COMPENSATION.

The ordinary conditions provide that any error or misstatement in the particulars shall not annul the sale nor entitle the purchaser to be discharged from his purchase, but that a compensation is to be made to or by the purchaser, the amount of which is to be settled by the Judge at Chambers.

Notwithstanding this condition, misrepresentation in the particulars may be so material as to entitle the purchaser to be discharged: see Dimmock v. Hallett, 2 Ch. 21; Else v. E., 13 Eq. 196; and for instances of the right to compensation, or e cont. to a discharge from the purchase, v. inf. Chap. L., "SPECIFIC PERFORMANCE."

A purchaser has been allowed compensation under this condition for misdescription or misstatement of rent in the particulars, discovered after conveyance: Cann v. C., 3 Sim. 447; Bos v. Helsham, L. R. 2 Ex. 72; Re Turner and Skelton, 13 Ch. D. 130; Palmer v. Johnson, 13 Q. B. D. 351, C. A., not following Manson v. Thacker, 7 Ch. D. 620; Besley v. B., 9 Ch. D. 103; and Allen v. Richardson, 13 Ch. D. 524; and commenting on Joliffe v. Baker, 11 Q. B. D. 255; and see Dart, V. & P. 904; Dav. Con. vol. i. p. 467; but not in the absence of such a condition for a defect of title which might have been discovered: Clayton v. Leech, 41 Ch. D. 103, C. A.; and see Soper v. Arnold, 14 App. Ca. 429; nor for innocent misrepresentation made by the auctioneer: Brett v. Clowser, 5 C. P. D. 376; and as to the right to specific performance with compensation or abatement, v. inf. Chap. L., "SPECIFIC PERFORMANCE."

TITLE-DEEDS.

The conditions of sale usually contain provisions for the delivery to the purchaser of such of the title-deeds in the vendor's possession as relate exclusively to the lots purchased, and for the giving of an acknowledgment or undertaking as the case may require, under sect. 9 of the Conveyancing Act, 1881, in reference to title-deeds which do not relate exclusively to the lots purchased, and which are either not delivered to the purchaser, or delivered to him subject to the right of other persons to production of them.

When the vendor retains any part of an estate to which any documents of title relate, he is entitled to retain such documents: see V. & P. Act, 1874, s. 2, sub-s. 8; Dart, V. & P. 162, 163, 762.

In the absence of any stipulation, the purchaser of the lot largest in value is entitled to the custody of the title-deeds, and must enter into a covenant for their production to the other purchasers, who will be entitled to attested copies at the expense of the vendor: see Peterson v. Elwes, 6 W. R. 611; Griffiths v. Hatchard, 1 K. & J. 17; Sugd. V. & P. 34, 451; Dart, V. & P. 763, 1349; and see Conveyancing Act, s. 9.

A condition that the purchaser of "the largest lot" shall have the deeds has been differently construed. In Scott v. Jackman, 21 Beav. 110 (citing and following L. Kinnaird v. Christie, Form 12, sup., p. 349), the purchaser of the lot largest in price was held entitled to the deeds, as against the purchaser of several lesser lots though of greater aggregate amount.

In Griffiths v. Hatchard, sup., the words "largest lot" were held to mean largest in superficial extent; but see on this case Sugd. V. & P. 34.

Where on a sale in lots the conditions provided that the largest purchaser should have the deeds and covenant to produce them to the others, it was held that each purchaser requiring a covenant must bear his own costs of it: