inquiry made by the purchaser, the purchaser is not precluded by the condition from raising the objection (u); and any misrepresentation (although not amounting to fraud) as to the prior title invalidates the contract (x).

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When Conditions misleading. It sometimes happens that a title cannot be proved in every step, and a condition should in that case be inserted precluding the purchaser from making any objection or requisition as to the intermediate title to the premises between the root of title and some subsequent instrument. A purchaser is bound by the conditions restricting his right of inquiry, unless he can show that they are misleading. A condition is misleading if it contains a statement by the vendor which he knows to be untrue (y); or if the vendor, knowing he has a bad (as opposed to a doubtful) title, tries to palm it off upon the purchaser (z).

But where a vendor cannot explain a particular transaction, he may stipulate that the purchaser shall not inquire into it; and if he believes a statement to be true, but is not in a position to establish it by legal proof, he may, by an express condition, preclude the purchaser from insisting on such proof (a). If this were not so, it would be impossible to protect a vendor against a difficult and

(u) Warren v. Richardson (1830), You. 1; Smith v. Robinson (1879), 13 Ch. D. 148.

() Nottingham Patent Brick and Tile Co. v. Butler (1886), 16 Q. B. D., at p. 790.

(y) In re Banister (1879), 12 Ch. D. 131.

(z) Scott and Alrarez's Contract, [1895] 1 Ch., at p. 605. (a) In re Sandbach and Edmondson's Contract, [1891] 1 Ch. 99.

doubtful title, and many properties would become absolutely unsaleable. Thus when it was an open question whether a rent which had not been paid for fifty years had been released, a vendor was held to be justified in requiring the purchaser by the conditions to presume a release, and in describing the property as freehold in the particulars (b).

Such Title as the Vendor has.-A vendor may stipulate for the production only of such title, or evidence of title as he may have; and a purchaser, under such a stipulation, will be bound, although the title may be defective (c); but this condition does not relieve the vendor from the obligation to make out the best title he can from the materials he possesses, or from paying off a mortgage on the property (d). A stipulation that a purchaser shall be entitled to the production only of such of the documents of title as are in the vendor's possession, will not preclude the purchaser from requiring a good title to be deduced and otherwise satisfactorily verified (e); and where the contract states as a fact that the vendor has power to sell the fee, the purchaser is entitled to require the vendor to show such power (f).

(b) Blaiberg v. Keeves, [1906] 2 Ch. 175.

(c) Freme v. Wright (1819), 4 Madd. 364; Wilmot v. Wilkinson (1827), 6 B. & C. 506; Duke v. Barnett (4846), 2 Coll. C. C. 327 ; Hume v. Pocock (1866), L. R.1 Ch. 379. But as to specific performance, see p. 373.

(d) Keyse v. Haydon (1853), 20 L. T. 244; Goold v. Birmingham, Dudley, etc. Bank (1888), 4 T. L. R. 413.

(e) Southby v. Hutt (1837), 2 My. & Cr. 207.

(f) Johnson v. Smiley (1853), 17 Beav. 223.

A condition that "the vendor's title is accepted by the purchaser" is not binding if the vendor has failed to disclose onerous covenants affecting the property. The purchaser has a right to assume when such a condition is inserted that the vendor has disclosed what it was his duty to disclose (g).

SECTION 9.

PRODUCTION OF TITLE-DEEDS FOR INSPECTION.

In the absence of stipulation to the contrary, the vendor must produce for examination with the abstract all documents of title since the root of title (h), except instruments on record, whether in his possession or not, and although he may only have a covenant or acknowledgment for their production. It is the duty of the purchaser to require that all title-deeds be produced for his inspection, and an omission to make inquiry as to the title-deeds, although not "fraudulent or culpable," has been held to be such gross negligence as to postpone the purchaser of the legal estate to a prior equitable mortgagee (i), and even to a subsequent equitable estate the creation whereof has been rendered possible by the possession of deeds which ought to have passed into the custody of the purchaser (k). It was held in an old case that a purchaser who agrees not

(g) In re Haedicke and Lipski's Contract, [1901] 2 Ch. 666.

(h) Conveyancing Act, 1881, s. 3 (3).

(i) Oliver v. Hinton, [1899] 2 Ch. 264; Berwick & Co. v. Price, [1905] 1 Ch., at p. 640.

(k) Walker v. Linom, [1907] 2 Ch. 104.

to require an abstract is nevertheless entitled to inspect the title-deeds (1).

If a deed has been lost or destroyed, it is incumbent on the vendor to produce sufficient evidence of loss, and also to prove the execution and delivery of the lost document (m). In this case, therefore, it is desirable to provide by an express condition that no objection or requisition shall be made in respect of the loss and non-production of the deed.

The Conveyancing and Law of Property Act, 1881, s. 3 (6), provides:

"On a sale of any property, the expenses of the production and inspection of all Acts of Parliament, inclosure awards, records, proceedings of courts, court rolls, deeds, wills, probates, letters of administration, and other documents, not in the vendor's possession, and the expenses of all journeys incidental to such production or inspection, and the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the vendor's possession, and all attested, stamped, office, or other copies or abstracts of, or extracts from any Acts of Parliament or other documents aforesaid, not in the vendor's possession, if any such production, inspection, journey, search, procuring, making, or verifying is required by a purchaser, either for verification of the abstract, or for any other purpose, shall be borne by the purchaser who requires the same; and where the vendor retains. possession of any document, the expenses of making (1826), 4 L. J. (o.s.) Ch. 213, supra,

(1) Harding v.

p. 257.

(m) Supra, pp. 256, 257.

any copy thereof, attested or unattested, which a purchaser requires to be delivered to him, shall be borne by that purchaser."

Notwithstanding this sub-section, it is still the duty of the vendor, as we have seen, to furnish a proper and complete abstract of title at his own expense, even when the contract provides for "free conveyances" (n). But when it comes to verifying the abstract by the production of deeds not in the vendor's possession, the whole expense is thrown on the purchaser by this section, unless a contrary intention is expressed in the contract of sale (o). It seems that a vendor who has not any of his titledeeds in his possession may enter into a contract of sale without disclosing that fact, or making any condition, throwing the expense upon the purchaser of ascertaining where they are. Thus, where the purchaser makes a requisition as to the production of the title-deeds, the vendor may safely answer, "I do not know where they are; and if you want to know, I will find out at your expense" (p).

SECTION 10.

CUSTODY OF TITLE-DEEDS.

The custody of the title-deeds after completion is frequently the subject of special conditions.

(n) In re Johnson and Tustin (1885), 30 Ch. D. 42, supra, pp. 150, 151.

(0) Conveyancing Act, 1881, s. 3 (9); and ef. In re Willett and Argenti (1889), 60 L. T. 735.

(p) In re Stuart and Olivant and Seadon's Contract, [1896] 2 Ch. 328.