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Review: Dart's Vendors and Purchasers.
10. Matters arising between delivery of Abstract and preparation of Conveyance.
11. Searches for and Inquiries respecting Incum
12. The preparation of the Conveyance.
13. Matters relating to the completion of the Purchase.
14. Effect of the Conveyance on the relative rights
of Vendor and Purchaser.
15. Effect of the Conveyance on the adverse rights of third Parties.
16. The rights under the Conveyance of joint
Purchasers and Persons other than the nominal
17. Remedies at Law for breach of Contract.
19. Sales by the Court of Chancery.
The doctrines of law, which are clearly and concisely stated by Mr. Dart, are, of course, essential to be known by both branches of the profession; but a large part of the practical rules are more particularly important to solicitors and articled clerks. In this view we avail ourselves of some of Mr. Dart's valuable observations on the preparation of abstracts of title, and the costs of suits for the specific performance of contracts.
With regard to the former subject, the preparation, contents, and delivery of the abstract, the author states that
"The abstract must always commence with a document, of at least the requisite age, if the vendor have one: but neither can a purchaser require, nor would the vendor's solicitor be justified in furnishing, an abstract of deeds prior in date to that which would constitute a good root of title: the purchaser, however, may require the production of every document in the vendor' possession, however ancient.
"As a general rule, the first abstracted documents should purport to deal with the entire legal and equitable estates in the property, or should at least afford prima facie evidence that the title to such legal and equitable estates was, at the date of such documents, consistent with the title as subsequently deduced they should not be dependent for their validity upon any previous instrument: and should contain nothing raising a fair doubt whether the parties claiming the interests there purported to be dealt with, were in fact entitled so to deal with them."
After several illustrations of this general rule, Mr. Dart proceeds thus
"It is not essential that the origin of the title should be shown either by deed or will; in the absence of documents it may be sufficient to produce evidence of such long uninterrupted possession enjoyment, and dealing with the property, as to afford a reasonable presumption that there is an absolute title in fee-simple. But the proof of title by evidence of possession is not admissible in cases where documents forming part of the modern title are lost or destroyed; in such cases the vendor must prove their contents and execution.
"The title, wherever taken up, should be thence continued either in chronological or some other regular order; where separate parts of the estate are held under separate titles, such titles should, of
course, be traced' separately so long as they remain distinct, every subsequent document dealing with the legal estate (except expired leases, and with the exceptions already referred to), should be abstracted, for instance, a mortgage and a re-conveyance are not to be suppressed under the notion that the title has been thereby brought back to its original state; such may, or may not, have been the case; and is a point to be determined by the advisers of the purchaser, not of the vendor: all documents forming part of the title should be abstracted in chief; the introduction of them merely as recitals in other abstracted instruments (which is not uncommon, especially in the case of wills), is, it is apprehended, clearly improper: were it not so a copy of the conveyance to the vendor might, in many cases, take the place of an abstract: besides which, the omission to abstract a document in chief may proceed trom a desire to avoid noticing matters of a suspicious character occuring in such document, but which are not noticed in the recital: it is convenient to introduce, in their proper places, direct statements of deaths, marriages, and other matters of pedigree; and not, as is frequently done, to trust to the recitals in the abstracted documents; and in cases of complicated descents, &c., a regular pedigree should accompany the abstract.*
"Documents affecting merely equitable interests give rise to considerations of greater difficulty: Lord St. Leonards states generally, that the solicitor should abstract every document upon which the title depends, or upon which any difficulty has arisen; wherever he begins the root of the title, he ought to abstract every subsequent deed:' this, however, it is conceived, must be understood to mean every document upon which the purchaser's title will necessarily depend: if, for instance, the vendor be possessed of a document declaring that a prior owner who purchased, apparently on his own account, was in fact a trustee, or, that a mortgagedebt was trust-money, the title of the vendor who has notice of the trust may depend upon various instruments which would be altogether immaterial to a purchaser destitute of such notice; and it would, it is conceived, be unusual and highly improper, for the solicitor to allow notice of such a trust to appear upon his abstract: this, however, it must be admitted, is, pro tanto, a departure from the general principle, that it is for the purchaser's solicitor, and not the vendor's, to judge of the materiality of the muniments of title: but it is sanctioned by convenience and universal practice. Other cases may perhaps occnr in which a document may be, without material risk, suppressed; as, for instance, where a good title is shown to the legal estate, and a charge, which clearly operated merely in equity, has been paid off and no trace of it appears upon the subsequent title: the difference between the suppression of such an instrument and a legal mortgage is evident; the equitable charge has no operation as against a subsequent purchaser for valuable consideration without notice, and his title, therefore, is not dependent on the sufficiency of the release; nor does there seem to be any good reason for making a distinction between an equitable charge by deed, and a mere memorandum accompanying an old equitable mortgage by deposit, which, except upon special grounds, is never abstracted; but, in the case of a legal mortgage, the purchaser's title at It would be better if these various points were mark by numbers, where they are separate and distinct from ea other.
Review: Dart's Vendors and Purchasers.
law will depend (theoretically if not practically) | upon the legal validity of the deed of reconveyance, whether its existence be known to him or not: still, even in the case of the equitable charge, it seems at least probable that a solicitor who suppresses it, under the idea that it is unimportant to the title, does so at his own risk; and it is submitted, that such a course should rarely, or never, be taken, in respect of an instrument which is so framed that it could by possibility affect the legal estate; as, for instance, a mortgage of an equity of redemption, drawn as a conveyance with a proviso for redemption; and which, although merely a charge in equity if the first mortgage be valid in law, would yet pass the legal estate, supposing it not to have been effectually transferred by the prior instrument."
As to consulting counsel, and the delivery of the abstract, the following regulations are pointed out:
"Cases not unfrequently occur of complicated titles, in which the solicitor who prepares the abstract will be justified in laying it before counsel on behalf of his own client; this remark applies particularly to heavy mortgage transactions, in which considerable expense to the mortgagor may frequently be saved by the delivery in the first instance, of a perfect and well-verified abstract.
"An abstract may be written so illegibly, or upon paper of such an inconvenient size or substance, as to justify the purchaser's solicitor or counsel in declining to receive it.
"The non-delivery of a perfect abstract on the day named, discharges the purchaser from any conditions binding him to make objections, &c., within a specified time after delivery; and, at law, relieves him altogether from the contract: in equity, however, the purchaser will be bound if either he neglect to apply for the abstract within a reasonable time before the day fixed for its delivery, or if, upon its being subsequently tendered, he receive it without objection: but the wilful neglect on the part of a vendor to prepare the abstract withiu proper time, when pressed by the purchaser to do so, will, even in equity, entitle the purchaser to avoid the contract as soon as the time fixed for completion is elapsed: where the purchaser's solicitor intends to rely upon the non-delivery of the abstract upon the day named, or (if no day have been named) within a reasonable time before the day fixed for completion, he should decline to receive it; or, if forwarded to him under circumstances which gave no opportunity for its rejection, he should at once return it, and without reading it.
"Where it is important to the purchaser to complete (if at all), at or about the time fixed for completion, and the abstract, having been called for, is delivered so late as to render it doubtful whether this can be accomplished, the most expedient course would appear to be, to return it unread; offering, however, to receive it again, without prejudice to the purchaser's right to annul the contract, if, on investigating the title, it should be found impossible to complete at (or within some short specified period after) the time originally fixed for completion."
We conclude our extracts with the author's comprehensive and well-arranged statement of the effect of the decisions on various classes of cases relating to the costs of suits for the specific performance of contracts, and which we consider to be peculiarly useful to solicitors:
"In equity, as at law, the party who fails is,
primâ facie, liable to costs: and, although the question of costs rests entirely in the discretion of the court, yet it is for the unsuccessful litigant to show (if he can), the existence of circumstances sufficient to negative his primâ facie liability; and the present disposition of the courts appears to be, to adhere, with considerable strictness, to the general rule. It has been curtly observed by Lord Cottenham, C., 'parties may have more or less reason for coming here; but the question is, whether those who are right, or those who are wrong, are to pay the costs of their so doing. The rule I always act upon is, to order costs to be paid by those who are wrong.'
"The cases upon the subject may be conveniently classified as follows, viz. :
"1st, Cases where the general rule, fixing the unsuccessful litigant with costs, is enforced with more than ordinary stringency.
"2ndly, Cases where it is merely allowed to operate.
deprive the successful litigant of his costs, wholly "3rdly, Cases where it is modified, so as to or in part.
"And 4thly, Cases where the successful litigant is wholly or in part fixed with payment of costs."
"As to the 1st class of cases.-A vendor obtaining a decree for specific performance has been held entitled to costs on the special ground of the purchaser having persisted in an objection to the title which he knew had been decided against another purchaser in a former suit: so, where a bill is dismissed on the ground of misrepresentation or fraud, or contains groundless imputations of moral fraud against the defendant, or where the claim is against a clear stipulation in the contract, the dishonourable and contrary to moral equity, or dismissal will be with costs: so, where the unsuccessful litigant has acted fraudulently in the subjectmatter of the suit, or has acted vexatiously, and against him will generally be with costs. refused fair offers of accommodation, the decree
"As to the 2nd class of cases.-A purchaser resisting specific performance, on grounds which the court considers clearly untenable, will not be relieved from costs because he acted under counsel's opinion; or even upon the recommendation of the
so where he is held by his conduct to have waived the usual reference upon the title, or any particular objection arising on the title, and he has rested his defence on the question of title, the decree against him will be with costs: so, where the vendor's bill is dismissed merely for want of title, and the title is clearly bad, the decree against him is with costs, although he be merely a trustee for sale, or although the title have become defective through the accidental destruction of the deeds subsequently to the contract: so, where a purchaser had objected that a good title could not be shown unless certain accounts were taken, and, this being resisted, each holding the purchaser to be right, made a decree in party filed a bill for specific performance, the court, the second suit, and gave him the costs of both suits.
"As to the 3rd class of cases.-A vendor obtaining a decree, has been refused costs on the ground of his having unsuccessfully contended that the purchaser had waived his right to investigate the
title: so, a vendor has been refused costs where the purchaser's objection to the title, although
*This classification is valuable, and enables the practitioner to steer his course with probable success for his client.
Review: Dart's Vendors and Purchasers.
overruled, has been considered a fair objection, or has been overruled merely on the authority of occasioned an unreported decision, or has been
by the vendor or his solicitor; or has arisen
"So, the dismissal of the vendor's bill has been
"So, a purchaser obtaining a decree for specific performance, has been refused his costs, on the ground of the inadequacy of the consideration: so, where a purchaser's bill for the performance of a contract alleged to arise out of correspondence, was dismissed on the ground of the language being equivocal and not clearly amounting to an agreement, costs were refused: so, where it was dismissed on the ground of delay, and the vendor had not objected to the delay: so, also on the ground of the defendant having in his answer alleged fraud and circumvention, which he failed to prove, or having set up a false defence which the plaintiff has been obliged to disprove: so, where the suit is occasioned by the death of the vendor before completion: so, if the purchaser elect to have his bill dismissed, upon its appearing that the vendor cannot make a title, the present practice seems to be to dismiss the bill without costs; unless, perhaps, his bill alleges that the vendor cannot make a title: so costs have been refused on the ground of delay in the commencement and prosecution of the suit.
"And it has been held that, if a bill is correctly filed on the authority of a reported decision, there being no authorities in conflict with it, and such decision is reversed, the plaintiff may thereupon, on motion, dismiss his bill without costs: so, where the defendant puts an end to the subject-matter of the suit;as by surrendering a lease on a bill being filed for its assignment, and absconds.
"As to the 4th class of cases.-It not unfrequently happens that the party obtaining a decree has been clearly in the wrong, during all or a part only of the litigation; and if so, he must, as a general rule, pay all or a proportionate part of the costs of the suit: e. g., in an exceptional case, where the plaintiff obtained a decree not in accordance with the prayer of his bill, ne was made to pay the costs
of the suit: so, if a purchaser file à bill insisting
"Where a purchaser sets up a defence which prevents the plaintiff from obtaining the usual reference of title on motion, and fails to establish it, he may be at once directed to pay costs up to and inclusive of the hearing, without regard to the result of the reference.
"Where the defendant submits to the whole demand of the plaintiff, and to pay costs, he may at once stop all further proceedings; and, if the question of liability to costs be the only one remaining in dispute, the proper course, it appears, is, to apply to the court by petition: and where a plaintiff omitted so to do, but brought the cause to a hearing, the court refused him any costs subsequent to the time at which his original demand had been submitted to. It has, however, been unwillingly held by V.-C. K. Bruce, that this course cannot, without the defendant's consent, be adopted before answer; inasmuch as he has a right to put in his answer, and read it on the question of costs at the hearing: and in a later case his Honour refused a similar application by a plaintiff after answer; but merely on the ground of the novelty of the proceeding: and where the defendant by an agreement for compromising the suit had admitted his liability to costs, and failed to fulfil the agreement, but subsequently satisfied the plaintiff's demand except in respect of
Copyhold Acts Amendment Bill.
costs, Lord Langdale, upon motion before answer, ordered their payment.
"It has been laid down by Sir J. Wigram, V. C., as a general rule, that where a defendant so disclaims as to show that he had no interest in the property when the bill was filed, he is entitled to his costs: but where he is properly brought before the court in respect of an interest at the time the bill was filed, and then says, 'I now abandon my interest,' it is a question of discretion with the court either to order the plaintiff to pay the defendant's costs or not; with reference to the circumstances which may have rendered the suit necessary or proper.
"Where a vendor, having a bad title, files a bill for specific performance, and his title is perfected pending the suit, it is his duty to offer to the purchaser his costs up to that time, and to give him a conveyance.
"In general, a purchaser is less favoured on the question of costs when he has taken possession of the estate before the title is made out; but this does not apply to cases where, according to the contract, possession is to be taken before a title is shown; or where it is taken at the instance of the vendor. A purchaser who, for many years, retained possession without payment, and refused either to vacate the contract or accept the title, was fixed with the costs of a suit by the vendor, although the title was ascertained to be defective.
"Where the court has actually dismissed a purchasers bill with costs, it will not, on a subsequent application, allow him to set off against them the deposit paid to the vendor, but will leave him to his legal right: but the court, as we have seen, has refused to give costs unless the vendor would return the deposit.
"Where a defendant, a purchaser, asked for a case to be sent to a court of law, which was granted, and
opinion of the judges was against him, but imately the bill was dismissed with costs upon ther ground, he was allowed his costs at law as
as in equity: but, in other cases, the costs of, at may be termed, collateral litigation, have either been refused, or have been thrown upon the party failing therein, although held entitled to the general costs of the suit. It would appear that, as a general rule, such costs are not included in a mere order for payment of the costs of the suit.
"And it is laid down by Lord St. Leonards, as a general rule, that either party resorting to law, where the equity is against him, will be fixed with the costs of the action'; but the prima facie right of the other party to such costs may be lost by his neglecting to resort to equity so soon as the action is commenced at law.
"Where either party has received costs under an order or decree which is subsequently reversed on appeal, he will not, in repaying such costs, be compelled to pay interest upon them.
"A mortgagee has been refused, as against the mortgaged estate, his costs of an unsuccessful suit against a purchaser for specific performance, although instituted under the best advice.
"In one case an order is stated to have been made on the petition of the vendor's solicitor, restraining the vendor from receiving, and the purchaser from paying, the purchase-money until the solicitor's lien for costs was satisfied."
Very numerous authorities have been cited by Mr. Dart in support of these dicta, for which we refer to his pages.
COPYHOLD ACTS AMENDMENT BILL.
THIS bill recites that it is expedient to repeal certain provisions of "The Copyhold Acts," and to make further and other provisions for the commutation of manorial rights in respect of lands of copyhold and customary tenure, and in respect of other lands subject to such rights, and for facilitating the enfranchisement of such lands, and for the improvement of such tenure.
The proposed enactments are as follow:
2. The following acts and sections and part of sections of "The Copyhold Acts" are hereby repealed, that is to say
The whole of the 16 & 17 Vic. c. 57.
So much of the 11th section of "The Copyhold Act, 1841," as follows after the words "substituted in the place of such lord, tenant, or other person." The whole of the 2nd section of "The Copyhold Act, 1852."
The whole of the 11th section of "The Copyhold Act, 1852."
All the provisions of the copyhold acts which authorise commutations by schedule of apportionment, and also all the provisions which authorise commutations by a schedule to be prepared by the steward, and also all the provisions which authorise enfranchisement by schedule of apportionment, and also all the provisions which authorise the charging of enfranchisement or compensation monies or the expenses of commutations or enfranchisements upon land, are hereby repealed.
3. Saving of acts done, rights vested, &c.
4. The copyhold acts shall not extend to any manors belonging, either in possession or reversion, to any ecclesiastical corporation, or to the Ecclesiastical Commissioners for England, where the tenant has not a right of renewal.
5. Application of consideration money.-Whenever it shall appear to the Copyhold Commissioners that an enfranchisement under the copyhold acts is one which might have been effected under the provisions of the 14 & 15 Vic. c. 104, so long as that act or any act for continuing the same shall be in force, the moneys or rent-charges which form the consideration of such enfranchisement shall be paid and applied to the same account and in the same manner as if such enfranchisement had been effected under the said act of the fourteenth and fifteenth of her Majesty; and all the provisions of the said last-mentioned act which affect the application of enfranchisement moneys under that act shall be applicable to such enfranchisements as aforesaid, made under the provisions of the copyhold acts; and the Church Estates Commissioners and Ecclesiastical Commissioners shall respectively have the same powers over such consideration moneys, or the interest accruing thereon, or upon land, rent-charges, or securities acquired in respect of such enfranchisements, and also over or against any ecclesiastical corporation interested therein, as such commissioners respectively would have had if such enfranchisement had been effected with the consent of the Church Estates Commissioners, and under the provisions of the said act of the fourteenth and fifteenth of her Majesty or any tical corporation within the meaning of the said lastact continuing the same. But where any ecclesiasmentioned act, or the said Ecclesiastical Commissioners have only a reversionary interest in the ma
norial rights extinguished by enfranchisement, the consideration for such enfranchisement shall be dealt with in the manner directed by the 39th section of "The Copyhold Act, 1852," until the time when the said reversionary interest in the same manorial rights would, if the same had not been extinguished, have come into possession, when the said consideration, or any Government securities in which it may have been invested, shall, upon petition to the Court of Chancery, be paid or transferred to the said Church Estates Commissioners, who shall be considered the parties become absolutely entitled to such money, to be dealt with as if they had come into possession thereof in consequence of an enfranchisement effected under the said act of the fourteenth and fifteenth of her Majesty.
6. Mode of effecting compulsory enfranchisements. -When any lord or tenant shall, under the provisions of "The Copyhold Act, 1852," or of this act, require the enfranchisement of any land held of a manor, he shall give notice in writing (the lord or his steward to the tenant, or the tenant to the lord or his steward), of his desire that such land shall be enfranchised; and the consideration to be paid to the lord for such enfranchisement shall, unless the parties agree about the same, be ascertained under the directions of the Copyhold Commissioners, and upon a valuation to be made in the manner following; that is to say
Where the manorial rights to be compensated shall consist only of heriots, rents, fines certain, and licenses at fixed rates to demise or fell timber, or any of these, or where the land to be enfranchised shall not be rated to the poor's rate at a greater amount than £20, then the valuation shall be made by a valuer to be nominated by the commissioners, subject, however, to this proviso, that if the parties agree to recommend to the commissioners any person to be the valuer, such person shall be nominated by the commissioners.
But when the manorial rights to be compensated do not consist only of rents and heriots and fines certain, or the land to be enfranchised is rated to the poor's rate at a greater amount than £20, then the valuation shall, unless the parties agree to refer it to one valuer, be made by two valuers, one to be appointed by the lord, and the other by the tenant; and such two valuers, before they proceed, shall appoint an umpire, to whom any points in dispute between them shall be referred; and in case the valuer or valuers or umpire, as the case may be, shall not make a decision, and deliver the particulars thereof in writing to the lord or the steward and to the tenant, and to the Copyhold Commissioners, within forty-two days after the appointment of such valuers, or reference of the matter to the umpire, as the case may be, then the commissioners shall fix the consideration to be paid or rendered to the lord; and in any case where, after notice to the lord or to the steward or the tenant so to do, either party shall neglect or refuse, for twenty-eight days, to appoint his valuer, the commissioners shall appoint a valuer for him as soon as may be after the expiration of such twenty-eight days; and in any case where any valuers shall, for the space of fourteen days after the appointment, be unable to agree in the appointment of an umpire, the commissioners shall appoint an umpire.
7. The commissioners may, by an order under seal, extend the time within which this act directs that any valuer be appointed, or any act to be done by such valuer be performed.
8. Valuations may be remitted by the commissioners to the valuer or umpire by whom they were respectively made, and such valuer or umpire shall thereupon reconsider the same, and may, if he shall see fit, amend the valuation.
9. After the valuation has been made, or upon the receipt of the agreement of the parties, the commissioners, having made such inquiries concerning the circumstances of the case as to them shall seem fit, and having duly considered the applications made to them by the parties, may frame an award of enfranchisement in the terms of the valuation, and in such form as they shall provide, and may confirm the same; and such confirmed award shall have the same force and validity for all purposes of enfranchisement or otherwise as a deed of enfranchisement now has under the provisions of the copyhold acts, or would have had under any provision of the copyhold acts which is by this act repealed; and for all purposes of declaring the amount, nature, and particulars of the compensation, and for attaching thereto the remedies provided by the copyhold acts, the said confirmed award shall have the same force and validity as an award made by valuers or umpires under the provisions of the copyhold acts.
10. Calculation of rent-charges. rent-charge hereafter granted under the provisions of the copyhold acts shall be a rent-charge varying with the price of corn, such rent-charge shall not be calculated in the manner now directed by the copyhold acts, but shall be calculated upon the same averages and variable in the same manner as a tithe commutation rent-charge; but this amendment shall apply only to corn rent-charges hereafter to be imposed, and not to any already existing under the authority of the copyhold acts, but these last-named corn rentcharges shall retain their former character and in
11. The commissioners shall not confirm any award of enfranchisement where the consideration is a gross sum of money immediately payable, or land, until the receipt of the person entitled to receive the consideration or compensation money has been produced to them, or the conveyance of the land has been confirmed by them.
12. If the lord refuse to receive the enfranchisement money it shall be dealt with as is provided in cases where the lord is only entitled for a limited
13. Decision of questions.-When any question shall arise as to the necessity of or right to any admission, or the fines or fees payable in respect thereof, or as to whether land is capable of being dealt with under this act, the same shall be heard and decided by the commissioners, upon such requisition and subject to such appeal as is required and given by the copyhold acts in cases now within the provisions of the eighth section of "the Copyhold Act, 1852."
14. Use of soil.-After enfranchisement, whether under the voluntary or compulsory proceedings of "the copyhold acts," the owner of the lands so enfranchised shall, notwithstanding any reservation of mines or minerals in the said acts or in any instrument of enfranchisement contained, have full power and right to disturb or remove the soil so far as may be necessary or convenient for the purposes of making roads or drains or erecting buildings or obtaining water, or for digging stone or brick or other earth to be used upon the land enfranchised, or for any other purposes necessary or convenient to