of rent accrued due at the date of the contract, or before the date fixed for completion (n).

Outgoings. The liability to outgoings is coterminous with the right to receive the rents (o), and therefore, where a time for completion is fixed, as from which the purchaser is to receive the rents, it is presumed that the vendor is liable to outgoings up to that date only (p). Where no time for completion is fixed, then, in the absence of express stipulation, the expenses and outgoings must be borne by the vendor up to the time when the purchaser could prudently have taken possession of the premises sold, i.e., when a good title was first shown (q).

Provision for Apportionment. It is usual, however, to expressly provide in the conditions that, upon completion, all rents, profits, rates, taxes, and outgoings shall be apportioned, if necessary, as from the date fixed for completion. Some taxes, such as property tax, and some rates, such as poor rates, are apportionable, and, accordingly, would be apportioned under this clause.

With regard to expenses incurred before completion under the Public Health, Metropolis Management, or London Building Acts, if such liabilities are a charge upon the property, the vendor is liable, provided that the charge accrues before the date fixed for com

(n) Plews v. Samuel, [1904] 1 Ch. 464.

(0) Fry on Specific Performance, p. 631.

(p) But see dictum of COZENS-HARDY, J., in Barsht v. Tagg, [1900] 1 Ch. 234, 235.

(q) Carrodus v. Sharp (1855), 20 Beav. 56.

pletion (r), or in the case of an open contract, before a good title was first shown (s). Under s. 257 of the Public Health Act, and also under the Private Streets Works Act, 1892, the expenses incurred by the local authority become a charge upon the premises so soon as the works have been completed for which such expenses were incurred (t).

On the other hand, if such expenses are a charge upon the owner, and not upon the property, the vendor of freeholds is not liable on an open contract (u); but he is liable if he has contracted to discharge all "outgoings" up to the time of completion (r). In the case of leaseholds a vendor is. bound to perform all the covenants in the lease up to the time for completion, and therefore, even under an open contract, he must pay the expenses of complying with a dangerous structure notice which would not have been given if he had performed the covenants of the lease (y). 'If the contract gives the vendor an option to receive the rents and profits after the date fixed for completion in lieu of interest, this does not impose on him any obligation to discharge

(r) Re Waterhouse (1899), 44 Sol. J. 645.

($) In re Bettesworth and Richer (1888), 37 Ch. D. 535; Stock v. Meakin, [1900] 1 Ch. 683.

(t) In re Allen and Driscoll's Contract, [1904] 2 Ch. 226.

(u) Egg v. Blayney (1888), 21 Q. B. D. 107. It is a doubtful

point whether expenses under the London Building Acts are chargeable upon the premises. See In re Highett and Bird's Contract, [1903] 1 Ch., at pp. 291, 294.

(x) Midgley v. Coppock (1879), 4 Ex. D. 309; Tubbs v. Wynne, [1897] 1 Q. B. 74.

(y) In re Highett and Bird's Contract, [1902] 2 Ch. 214 [1903] 1 Ch. 287.

outgoings which become payable between the time fixed for completion and the actual completion of the purchase ().

SECTION 16.

COVENANTS, ALLOTMENTS, ETC.

In sales by fiduciary vendors and mortgagees, it is not unusual to insert a special condition that the vendors will covenant only that they have not incumbered; although the absence of such a condition would not, it is assumed, render such vendors liable to enter into any other covenants if it is stated in what capacity they sell (a).

It seems doubtful whether an ordinary vendor may not stipulate by the conditions that he shall not enter into covenants for title (b). When trustees sell by direction of the tenant for life, he must enter into the usual covenants for title (c), and a condition that trustee vendors shall only covenant against incumbrances does not preclude the purchaser from insisting on a covenant as beneficial owner from a tenant for life whose consent is necessary (d).

When the property sold consists of an allotment under an inclosure award, or an allotment taken in

(z) Barsht v. Tagg, [1900] 1 Ch. 231.

(a) Cf. Conveyancing Act, 1881, s. 7 (1) (f).

(b) In re Scott and Alvarez's Contract, [1895] 1 Ch., at p. 606.

(c) Earl Poulett v. Hood (1868), L. R. 5 Eq. 115.

(d) In re Sawyer and Baring's Contract (1884), 53 L. J. Ch.

exchange (e), it is usual to stipulate that the purchaser shall not be entitled to call for the production of the title to the property in respect of which the allotment was made.

In the case of enfranchised copyholds it was usual to provide that the purchaser should not call for production of the manorial title unless the enfranchisement had been effected under the Copyhold Acts, but now the Conveyancing and Law of Property Act, 1881, s. 3 (2), provides that where land of copyhold or customary tenure has been converted into freehold by enfranchisement, then, under a contract to sell and convey the freehold, the purchaser shall not call for the title to make the enfranchisement.

Fixtures. As we have already seen, there must be an express stipulation as to fixtures if the purchaser is to make any further payment in respect thereof. It is often very difficult to determine what articles are fixtures properly so called, and what are mere movable chattels (f), but the question seems seldom to have arisen as between vendor and purchaser. Tapestries have in a number of cases been held to be fixtures; so also have pictures in panels, vases, statues, stone garden seats, and even dog-grates, while, on the other hand, a stuffed bird collection. affixed to the walls of a gallery was held to be a movable personal chattel.

(e) See General Inclosure Act, 1845 (8 & 9 Vict. c. 118), ss. 92, 93. The same rule would apply where land is taken by an order of exchange under s. 147.

(f) Dart, p. 607.

SECTION 17.

LEASEHOLDS.

The Lessor's Title.-Formerly, on a sale of leaseholds, if it was desired to negative the purchaser's right to call for the lessor's title, a special stipulation to this effect was inserted in the conditions.

Now, however, as we have seen, the Vendor and Purchaser Act, 1874 (g), provides that, under a contract to assign a term of years, the purchaser is not entitled to call for the title to the freehold. This is extended by the Conveyancing Act, 1881 (h), which enacts that, under a contract to sell and assign a term of years derived out of a leasehold interest in land, the intended assign shall not have the right to call for the title to the leasehold reversion (i).

The effect of these statutes is to preclude the purchaser of a lease or underlease from calling for the lessor's title unless he expressly stipulates in the contract that he may do so.

Notwithstanding these enactments, the purchaser of a lease or underlease has constructive notice of, and is bound by, restrictive covenants affecting the freehold, or contained in the superior lease (k), and a purchaser of an underlease who intends to spend

(g) 37 & 38 Vict. c. 38, s. 2, r. 1.

(h) 44 & 45 Vict. c. 41, s. 3 (1).

(i) But he can call for an abstract of the underlease which is being sold to him and of the devolution thereof. See Gosling v. Woolf, [1893] 1 Q. B. 39.

(k) Patman v. Harland (1881), 17 Ch. D. 353; and cf. Clements v. Welles (1865), L. R. 1 Eq. 200.