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There are very few freehold or copyhold titles to which a clear sixty years' title can be shown. It has become, therefore, almost a matter of course to insert a stipulation that the title shall commence with a specified deed or document which is less than sixty years old. And it is probable that, even under the new act, a similar condition will often be necessary,

with a view to guarding the vendor against having Selection of a to show a forty years' title. To select the best inroot of title.

strument to form a “root of title," as it is called, is often somewhat difficult. Without attempting to lay down any definite rule on this point, we may mention that the further back the title goes the more attractive it is likely to prove to an intending purchaser (although not to so great an extent as might be supposed), and that, on the other hand, it is essential to have a clear root of title, standing of itself independently of any other instrument, and with which the subsequent dealings with the property are connected by a well-defined and natural growth. In endeavoring to combine these advantages of a long and of a clear title, it may be remembered that, other things being equal, a conveyance to a purchaser for value is the best root of title : or, failing that, a mar

riage settlement made by a person acting as the Vendor of owner of a fee-simple. In the absence of any condileaseholds

tion on the subject, a vendor of leaseholds (excepting must show lessor's title. when the lease has been granted by a corporation

under a disabling statute 1) cannot, at present, enforce the contract unless he can show that the original lessor had a right to demise the property in question. He must also, if the lease is less than sixty years old, show the lessor's title for such a period as is necessary, when added to the time for

| Fane v. Spencer, 2 Madd. 438; 1 Dav. Con. 478.

2 Purvis v. Rayer, 9 Pri. 488; Souter v. Drake, 5 B. & Ad. 992; Hall v. Betty, 4 Man. & Gr. 410.


which the property has been held under the lease, to
make up a sixty years' title to the property. It ap-
pears, however, to be doubtful whether a purchaser
insisting on these points could compel the vendor to
complete the purchase.

But a vendor of leasehold property can scarcely ever produce his lessor's title, nor is it desirable that he should do so, even if he can. A stipulation has, therefore, always been inserted in every properly framed contract of sale of leaseholds, with a view to guard the vendor against liability in this respect. The condition should also, if necessary, limit the length of leasehold title which is to be shown, since, in the absence of agreement, the vendor of leasehold property must produce the lease under which he claims, however old it may be. If the property is held by a sub-lease the purchaser should also be precluded from inquiring into the title of the sublessor.

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The Vendor and Purchaser Act 18743 has pro- Vendor and vided that in the completion of contracts entered Act 1874.

Purchaser into after the 31st of December, 1874, and subject to any stipulation to the contrary in the contract, the intended assignee of a term of years shall not be entitled to call for the title to the freehold. The condition under discussion will, consequently, be unnecessary when the act comes into operation, so far as regards production of the freeholder's title by a vendor of leaseholds. But the act does not apply to an assignment of a sub-lease. In that case, therefore, a stipulation against calling for the title of the sub-lessor will still be necessary; as may be also one limiting the length of leasehold title to be shown.

1 1 Platt on Leases, 618.
8 37 & 38 Vict. c. 78, $ 2.

2 Frend v. Buckley, L. R. 5 Q. B. 213.

Condition Besides fixing a date from which the title is to should prohibit investi. commence, and prohibiting a demand for any earlier gation by the title, the condition should also provide against the purchaser.

purchaser's making any investigation at all as to any prior title, or founding any objection on such prior title, as appearing by recitals contained in any of the title-deeds or otherwise. For a mere condition as to the commencement of the title, or one prohibiting the purchaser from making any inquiry as to any earlier title, will be held to mean nothing more than that there shall be no obligation upon the vendor to produce any earlier title, and not to preclude the purchaser from making investigations on

his own account. And this part of the condition will, it is apprehended, continue to be necessary in every case, even in that of a sale of leaseholds. For the Vendor and Purchaser Act only takes away the right of a purchaser of a term of years to “call for” the title to the freehold. It would appear, therefore, that he still remains entitled to make inquiries for himself, and to avail himself of any objections to completing the purchase which he may thus be enabled to raise.

The fifth condition provides against inquiries about dower, which it may be difficult or impossible to answer, and which since the Dower Act 2 can seldom be of any value, by providing that it shall be assumed that every former owner of any part of the property, whose widow (if any) would have been entitled to dower, and is not mentioned in the abstract, did not leave a widow. If any of the property is copyhold the condition should extend to freebench.


I Shepherd v. Keatley, 1 Cr., Mee. & R. 117, 127; Waddell v.
Wolffe, L. R. 9 Q. B. 515.

2 3 & 4 Wm. IV. c. 105.

A purchaser is entitled, in the absence of stipula- Sixth

Condition. tion, to have at the vendor's expense strict proof of

Recitals. every statement of fact appearing on the abstract; and also the verification of the abstract itself, by a comparison of it with the originals of all the deeds or documents abstracted or recited which are in the vendor's possession, and even of those which are not, unless they are more than sixty years old. It often happens that strict proof cannot, except at great expense, be given of matters as to which there can be little real doubt, as, for instance, the death of a former trustee, or the solemnization of a marriage. In order, therefore, to relieve a vendor from the heavy burden which might, otherwise, be imposed upon him by a captious or over-cautious purchaser, it is conditioned that every deed and in the case of copyholds) entry on, or copy of, court roll, and also every document which is more than a specified number of years old (generally twenty), shall be considered conclusive evidence of every thing recited, noticed, assumed, or implied therein.

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The Vendor and Purchaser Act 18742 enacts 3 that in the completion of any contract of sale of land made after the 31st of December 1874, and subject to any stipulation to the contrary in the contract, recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions. This condition will, therefore, be unnecessary after the act takes effect,

1 Prosser v. Watts, 6 Madd. 59. 3 37 & 38 Vict. c. 78. 3 S. 2.

except in cases where it is desired to render unimpeachable recitals, &c., less than twenty years old.

Seventh This condition is followed up by the seventh, which
Expenses of

throws upon the purchaser all expenses attendant Searches, &c. upon the production of any muniment of title not in

the vendor's possession; and of producing and obtaining evidence, such as copies of registers, wills, and so on, required by the purchaser for the verification of the title. There can be little doubt that these stringent conditions do often prevent a willing purchaser from insisting upon being supplied with information which is really necessary to make a satisfactory title; but they seem to have very little effect in deterring purchasers, who probably calculate on putting the same obstacle in the way of inquiries by subsequent purchasers.

Identity of

The eighth condition is necessary when, from the removal of landmarks such as hedges.or walls, it is impossible accurately to identify the component parts, or “parcels," of the property sold with those mentioned in older deeds. It provides that the purchaser shall be satisfied, on this point, by a comparison of the description of the property in the particulars with that in the title-deeds, fortified, if necessary, by declarations of the purchaser or of other persons, evidencing long and undisputed possession of the property under those title-deeds.

The ninth condition provides against the sale being annulled on account of there being any error, mistake, or omission, in the particulars of the property sold. It is either to the effect that in such case compensation shall be given or taken, as the case may be, or else stipulates against any compensation


1 See as to this Flower v. Hartopp, 6 Beav. 476.

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