PART IV.

OF INVESTIGATION OF TITLE AND CONDITIONS RESTRICTING THE SAME.

CHAPTER XI.

EVIDENCE OF TITLE.

When the purchaser has satisfied himself that a primâ facie title is disclosed by the abstract, it becomes necessary to consider how the abstracted documents ought to be verified, and what evidence must be called for with regard to the various facts, such as birth, death, marriage, etc., which are alleged in the abstract.

The cost of procuring evidence as to the vendor's title falls on the purchaser, but where what is required is not evidence as to a pre-existing fact, but the fact itself (e.g., a surveyor's certificate that a house has been completed to the satisfaction of the lessor), the cost falls on the vendor (a). It is conceived that the principle applies to the case of a certificate of discharge of estate duty where the duty has not in fact been paid, and the certificate

(a) Re Moody and Yates (1885), 30 Ch. D. 344.

is given for the purposes of the sale upon the commissioners being satisfied that it will be paid in due course (b). The various points likely to suggest themselves on perusal of the abstract are arranged alphabetically in order to facilitate reference.

Abstracted documents are proved by the production of the originals except in the case of instruments on record (c). The purchaser should satisfy himself that all abstracted documents are produced from the proper custody, since he may be affected with notice of the equitable rights of a third party having the custody of the title deeds. The stamps should be examined, and it should be seen that all necessary parties have duly executed the deeds, and that they contain proper receipts. With reference to attestation, execution by attorney, dates, receipts, etc., the reader is referred to the appropriate headings.

Acknowledgments (d).—In the case of acknowledgments by married women made since December 31st, 1882, a memorandum of acknowledgment indorsed on the deed is sufficient evidence. An acknowledgment made prior to that date must be proved by an office copy of the certificate filed in the proper office of the Supreme Court, where an index of such acknowledgments is kept (e).

Acts of Parliament.-A King's printer's copy of an Act of Parliament is sufficient evidence of any

(b) No charge is made by the commissioners, but the correspondence leading up to the grant generally involves some small

expense.

(c) See heading "Record."

(e) Conveyancing Act, 1882, s. 7 (8).

(d) Supra, p. 53.

Act affecting the title of the vendor, and the statute 8 & 9 Vict. c. 113, s. 3, renders it unnecessary to prove that the copy was printed by the King's printers. By the Documentary Evidence Act, 1882 (f), a copy of an Act purporting to issue out of his Majesty's Stationery Office is equally admissible. Private Acts not printed by the King's printers must be proved by examined copies.

Alterations appearing in a deed are, in the absence of evidence to the contrary, presumed to have been made before the deed was executed. According to the rule in Pigot's Case (g) an alteration, made after the execution of a deed, by one of the parties or even, it would seem, by a stranger, renders the deed void; but this rule only applies when the alteration is material (h). An alteration in a document not under seal, if assented to by the parties, is valid (i).

Appointments.-See ATTESTATION.

Assent of Executors.-Where the vendor is selling as legatee of leasehold property, the purchaser must satisfy himself that the executors have assented to the bequest, and the same rule applies to the case of a sale by the devisee of freeholds if the testator died after January 1st, 1898. An assent in writing should, if possible, be obtained, although it has been

(ƒ) 45 & 46 Vict. c. 9, s. 2.

(g) (1614), 11 Rep. 26 b.

(h) Crediton v. Exeter, [1905] 2 Ch. 455. Quære, whether the rule in Pigot's Case would in any case be followed if the alteration was made by a stranger

(i) Stewart v. Eddowes (1874), L. R. 9 C. P. 311.

held that a parol assent is sufficient (k). An assent to the devise of a life estate operates as an assent to the devise in remainder (1), and the assent vests the property in the legatee in the case of a residuary as well as in the case of a specific bequest (m). As a general rule, an assent may be presumed when the legatee or devisee is in possession of the property; but if the executor is also tenant for life, it is frequently difficult to ascertain in what capacity he has taken possession (n). An assent in writing does not require a stamp (0).

Attestation. The execution of a deed is in practice always attested, although this is not requisite in the case of an ordinary conveyance. The following deeds require attestation, viz., assurances to charitable uses; deeds appointing new trustees of charity lands; bills of sale memorials in the Middlesex registry; and appointments under powers (p).

With regard to deeds exercising powers of appointment, it is provided by Lord St. Leonard's Act (g) that a deed executed after August 13th, 1859, in the presence of two or more witnesses in the way in which deeds are usually executed and attested shall,

(k) Re Pix, [1901] W. N. 165.

(1) Stevenson v. Mayor of Liverpool (1874), L. R. 10 Q. B. 81.

(m) Re Culverhouse, [1896] 2 Ch. 251; Austin v. Beddoe (1893), 41 W. R. 620.

(n) Coles v. Miles (1852), 10 Hare, 179; Fenton v. Clegg (1854), 9 Ex. 680.

(0) Kemp v. Inland Revenue, [1905] 1 K. B. 581.

(p) Taylor on Evidence, p. 797.

(g) 22 & 23 Vict. c. 35, s. 12.

so far as respects the execution and attestation thereof, be a valid execution of a power, notwithstanding that the instrument creating the power may require some other form of execution. If the appointment was executed before August 13th, 1859, or if, although executed since that date it is only attested by one witness, it is necessary to ascertain what formalities are prescribed by the instrument creating the power. It should, however, be borne in mind that equity will aid the defective exercise of a power in favour of a purchaser, mortgagee, creditor, wife, child, or a charity (r).

Attorney. If a deed is executed by attorney the power of attorney must be produced (s). The same rule applies to the surrender of copyholds by attorney; but not, of course, to an admittance. A power of attorney executed abroad in any part of His Majesty's dominions should be executed before a notary public, and certified under his seal (t).

If the instrument creating the power was executed before January 1st, 1883, evidence must be furnished that the donor was alive, and was not a bankrupt at the time of its being acted on (u). A trustee, executor, or administrator making a payment or doing an act bonâ fide under a power of attorney is not liable for the moneys paid or the act done by reason of the fact that the grantor was dead or had avoided the power, if at the time the power was exercised such

(r) Tollet v. Tollet (1728), Wh. & Tu., Vol. II.

(8) Re Airey, [1897] 1 Ch. 164.

(t) R. S. C., Order XXXVIII., r. 6.

(u) In re Oriental Bank Corporation (1884), 28 Ch. D. 640.