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purchaser, although the purchaser must pay the costs of a conveyance or surrender by the vendor, he is not bound to bear the expense of procuring the concurrence of other proper parties (n). Again, where by the conditions a proper assurance and "every other instrument required for getting in or releasing any outstanding estate, right, or interest, etc.," is to be prepared by and at the expense of the purchaser, the expense of procuring the concurrence of mortgagees still falls on the vendor (o). On the other hand, if the condition stipulates that the assurance and "every other act and thing required by the purchaser for perfecting or completing the vendor's title, or otherwise shall be prepared, obtained, made and done by and at the expense of the purchaser," the contract throws the expense of procuring the concurrence of mortgagees on the purchaser (p), although the vendor must, at his own expense, furnish an abstract deducing a title to any outstanding legal estate (q).

SECTION 14.

APPORTIONMENT AS BETWEEN THE LAND SOLD AND OTHER LAND.

Rent. When property subject to a lease at an entire rent is sold in lots, or a portion thereof only is sold, provision should be made by the contract for

(n) Paramore v. Greenslade (1853), 1 Sm. & G., at p. 544. (0) In re Sander and Walford's Contract (1900), 83 L. T.

316.

(p) In re Willett and Argenti, W. N. (1889), 66.

(q) Adam's Trustees v. Frost, [1907] 1 Ch., at pp. 703, 704.

the apportionment of the rent, and if the tenant's concurrence in the apportionment cannot be obtained (without which no legal apportionment can be made (r)), the purchaser should be precluded from taking any objection on that account.

So, too, in the converse case of a lessee selling a property in lots which is held under one demise, unless the lessor is willing to concur, some provision for apportionment must be made in the conditions (s). A provision that the assignee shall pay the apportioned rent and keep the assignor indemnified against it will not increase the ad valorem stamp duty on the conveyance (t).

It is usual to provide that the purchaser of the largest lot shall take an assignment of the lease, either upon an undertaking to grant sub-terms (less one day) to the other purchasers, or subject to subterms previously granted to the other purchasers by the vendor. Such underleases to contain all necessary covenants for indemnifying the grantees of the underleases against loss or damage for non-performance of covenants or non-payment of rent in respect of any lots other than those sold (u). It is a wellknown conveyancer's expedient, when the property sold is held with other property under one lease, to carry out the sale by an underlease in order to avoid

(r) Bliss v. Collins (1822), 5 B. & A. 876.

(8) As to apportionment of leaseholds under the Lands Clauses Act, see 8 & 9 Vict. c. 18, s. 119.

(t) Swayne v. Commissioners of Inland Revenue, [1900] 1 Q. B. 172.

(u) Browne v. Paull (1856), 26 L. T. 232.

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an apportionment of the rent; it has recently been held that this expedient may be resorted to by trustees exercising the ordinary trust for or power of sale (x).

Tithe Rent-charge.-Where the owner of property subject to one entire tithe rent-charge is selling the property in lots, it is desirable to insert a condition protecting the vendor from the trouble and expense of an apportionment under s. 72 of the Tithe Act, 1836 (y). But where lands charged with one entire rent-charge have become vested in several owners, and one of those owners sells his property, he cannot be required to apportion the rent-charge (under s. 14 of the Tithe Act, 1842 (z)) between his property and the other lands subject to it (a).

Rent-charges. Formerly the release of part of land subject to an annuity or other rent-charge released the whole of the land charged. This inconvenience was got rid of by s. 10 of Lord St. Leonards' Act (b), which enacts that the release from a rent-charge of part of the hereditaments charged therewith shall not extinguish the whole rent-charge, but shall operate only to bar the right to recover any part of the rent-charge out of the

(x) Judd and Poland's Contract, [1906] 1 Ch. 684.

(y) 6 & 7 Will. 4, c. 71. An apportionment may be made by the Board of Agriculture.

(2) 5 & 6 Vict. c. 54.

(a) In re Ebsworth and Tidy's Contract (1889), 42 Ch. D., at p. 50.

(b) 22 & 23 Vict. c. 35, s. 10.

hereditaments released. If the terre-tenant of the unreleased portion does not concur in the release, he is only liable to a proportionate part of the rentcharge in respect of such unreleased land (c); but if he concurs, the unreleased portion remains subject to the entire rent-charge (d).

Where the owner of the rent-charge has not concurred in an apportionment, an owner of a portion of the land, subject to the rent-charge, can be sued for the whole amount thereof, but has a right of action over against the owners of the other portions (e). If, therefore, the owner of the rentcharge is unwilling to release the land sold, some special stipulation as to apportionment should be made. An improvement rent-charge created under the Improvement of Land Act, 1864, may be apportioned by the Board of Agriculture under ss. 68-71 of that statute, and an apportionment of fee-farm rents may be made under the Inclosure Act, 1854 (ƒ). As between the owners of the rentcharge, an apportionment may be made without the consent of the terre-tenant so as to keep alive the right of each owner to distrain for his part (g).

(c) Price v. John, [1905] 1 Ch. 744.

(d) Booth v. Smith (1884), 14 Q. B. D. 318.

But a

(e) Christie v. Barker (1884), 53 L. J. Q. B. 537. rent-charge is apportionable if it is reserved on a grant of land, and the grantee of the land is evicted from a portion of the land by title paramount. See Hartley v. Maddocks, [1899]

2 Ch. 199.

(f) 17 & 18 Vict. c. 97, ss. 10—14.

(g) Rivis v. Watson (1839), 5 M. & W. 255. As to apportionment of rent-charges under the Copyhold Act, 1894, see 57 & 58 Vict. c. 46, s. 28.

SECTION 15.

APPORTIONMENT AS BETWEEN VENDOR AND
PURCHASER.

Rent. As already stated, where there is a time fixed for completion, the vendor is entitled to the rents up to that time (h). It would seem, however, from modern decisions, and especially from the dicta of COZENS-HARDY, LJ., in two recent cases (i), that, in the absence of any express stipulation as to rents, interest or outgoings, the time fixed for completion is not the crucial date, and that the purchaser does not become entitled to the rents and profits, and bound to discharge the outgoings, until he can prudently take possession, that is to say, from the time when a good title was first shown (k).

The Apportionment Act, 1870 (), provides that after August 1st, 1870, all rents and other periodical payments in the nature of income shall be considered as accruing from day to day, and there seems no reason why this should not include the case of apportionment of rent between vendor and purchaser (m), but it is usual and desirable to insert an express stipulation as to apportionment. If the vendor remains in possession after the date fixed by the contract for completion, he cannot as against the purchaser retain out of the rents so received arrears

(h) Fry on Specific Performance, p. 621.

(i) Barsht v. Tagg, [1900] 1 Ch. 234; Bennett v. Stone, [1903] 1 Ch. 524.

(k) In re Highett and Bird's Contract, [1902] 2 Ch., p. 217. (1) 33 & 34 Vict. c. 35.

(m) Dart's Vendors and Purchasers, 915.

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