by the tenants in the case of ppties held by one tenant being separated into two or more lots or pts of lots, & shl not require the consent of the tenants to such apportionmt or make any requon in respt thof. [A legal apportionmt of any land-tax, tithe rent-chge, or other outgoing, or of any rents payable by the tenants, shl, nevs, if desired by any pchaser, be effected by the vendors, as far as circes will admit, & at the expse in all respts of such pchaser, or, "at the jt expse of the pchasers concerned thrin," but the complon of the pchase shl not be thby delayed, & the vendors shl, in respt of any unsold lot, for the ppose of this condon stand in the place of the pchaser.] VII. THE vendors shl not be called upon to furnish any evidce beyond that shown by the munimts or docts in their posson of the rents & services under wch the ppty is held, or what parlar portions of the ppty [respive lots] are subjt to the quit-rents, land-tax, or other outgoings specified in the parlars. As to copy hold payments, quit rents, &c. authority. VIII. IF bfe the sale any moy shl have been expended in Charges complyg with any requiremt enforceable agst the vendor & by local made bfe the sale by the Municipal Corporation, Local Board of Health or other Local Authority of the Borough or district within wch the ppty is situated in respt of such ppty or of the making, repairg, paving or flagging of the roads, streets, or passages adjoing the same, the vendor shl & will bfe the time fixed for the complon of the pchase, pay & dischge the same, & supply to the pchaser the necy evidce thof, but if after the sale & bfe the complon of the pchase, the vendor shl have expended any moy in complyg with any such requiremt as afsd, the pchaser shall on the complon of the pchase repay to the vendor the amt so expended by him, & in case any such last-mentd requiremt shl not have been complied with bfe the complon of the pchase, the pchaser shl indemnify the vendor in respt thof, but the vendor shl upon receivg notice of any such requiremt inform the pchaser thof, & give him the option of complyg thwith in lieu of the vendor, & shl not expend any moy for the ppose afsd unless the pchaser shl refuse or neglect to comply with such requiremt. Identity (a). The same. Quantity. Identity and quan tity. IX. IDENTITY, QUANTITY, MISDESCRIPTION. I. THE pchaser shl not require any proof, beyond what is afforded by the munimts themselves, of the identity of the ppty with that descd in any of the munimts [prior to a convce in the yr, or for distinguishg the portions held under the different titles. [But shl be entled to a declon to be made at his own expse that the pchased ppty has been held accordg to the title shown for yrs & upwards]. II. THE vendors will, if required, but at the expse of the pchaser requirg the same, furnish or procure such evidce or informon as may be in their power, for the ppose of identify. ing any lot or pt of a lot as descd in the parlars with the descriptions contd in the munimts, or of reconcilg or connectg the quantities or descriptions where the same differ; but no requon for any such ppose or orwise connected with the identificon of the pcels shl be persevered in by any pchaser, after the vendors or their solors shl have decld their inability to comply thwith; & the title to any lot or pt of a lot shl not be objected to in respt of any such defect of proof of identity or any failure to define the pts of the ppty held under difft titles, but the pchaser shl in that case be entled to a declon, to be made at his own expse, that the pchased ppty has been held in conformity with the title as deduced for upwards. yrs & III. THE Contents & dimensions of the ppty as stated in the parlars & plan havg been taken from an actual survey, are believed & shl be taken to be correct, although the same may differ from the results of other surveys, or from the contents mentd in some of the munimts [or, the quantities contd in the book of referce to the ordnce map (b) for the sd parish of -]. IV. No objon shl be taken on the ground that any of the old (a) This condition amounts to a contract that the muniments show identity, and if they do not a good title is not shown, Curling v. Austen, 2 Dr. & S. 129. (b) As to the Ordnance Survey, see ELPH. INTROD. 91. descriptions & measuremts do not accord with the psnt state of the ppty, as shown in the parlars & plan. stipula V. VARIOUS alterons havg taken place by the removal of Identity. fences, enclosures, change of names, & orwise, the vendors shl Various not be required to identify or connect any pt of the ppty sold tions with the descriptions contd in any of the abstracted munimts, nor to acct for any apparent variance as to quantity, abuttals, or orwise, nor to explain or reconcile any apparent diffces in the abstracted descriptions, nor to distinguish the psnt or former copyhd pt of any lot from the freehd pt thof, or the pts held under different titles. VI. ANY misstatemt or omission in the parlars shl not annul Misdescription. the sale, & as the premes may be viewed, such misstatemt or omission, if discoverable by inspon, shl not be the subjt of compenson, but if the same be not so discoverable a reasble abatemt or compenson shl be made, &c., see GENL CONDONS, pp. 241, 242. X. RESERVATIONS (c). way. I. THE sale [of lot is subjt to a right of way, road, or Right of -] passage [of the width of feet] for all pposes, or "for foot passengers," or, "for the owners & occupiers of lot & their families & servants, & others, with or witht horses & other animals, carts, carriages, & other vehicles," or, "for the pposes for wch the same is now used," or as the case may be, to be reserved or grted to the vendors, or "to the pchaser of lot if sold, or if not to the vendors," betn the points marked A & B on the plan, or, "to & from lot as shown in the sale plan," & the convce shl be framed accdly, [& in case of diffce as to the mode of effectg such reservon or grt the same shl be settled by the vendors' counsel]. (c) See also CONVEYANCES ON SALE, PARCELS AND RESERVATIONS. As to the power of limited owners to sell subject to reservations, see the Settled Land Act, 1882, s. 4 (6), s. 17 (1). For a form of reservation to the vendor of the right to build on adjoining land so as to exclude any implied grant of an easement of light, see Contracts for SALE, p. 348 As to sales subject to reserva tions. Sale of surface without II. THE vendors reserve to themselves the mines, beds, & quarries of coal & ironstone, & other metals, stone, & minls mines (a). within & under the whole of the ppty, with all necy or pper powers, rights, & easemts for searchg for, winng, workg, gettg, & carryg away the same whether by underground or surface workgs, [but not so as to let down the surface whether built upon or not], pper compenson being pd to the pchasers for all damage done to the surface or the bldgs thron, & for the occupon of the surface in or about the exercise of such rights & powers (b); & subjt to the obligon on the pt of the vendors to restore the surface when the mines or minls shl have been worked out, or permanently ceased to be worked, & the convces shl be framed accdly [& in case, &c., as in last form]. The same. Another form. Right to get in crops. Right to use drains. As to sale of surface without mines. III. THE Coal & ironstone & other mines & minls (except only marl, gravel, & sand wch can be got witht going under or passg through any seam or vein of coal or ironstone) are reserved out of the psnt sale, with full power for the vendors & all psons claimg under them to sink any pits or shafts, or to erect or construct any bldgs, engines, machy, roads, tramways, waterworks, waterways, airways, or other works or conveniences necy or desirable for the ppose of gettg, workg, carrying away, convertg, or disposg of such mines & minls, or for any ppose connected thwith, & to stack & lay up any minls & refuse wch may be raised out of any such mines, makg all reasble compenson to the surface owners & occupiers for the time being for such damage as may be done in the course of gettg & workg such mines & minls, & the convces shl be framed accdly [& in case, &c., as in form I.]. IV. THE vendors reserve the right to gather in & sell the growg crops & fruits at any time bfe the pchaser is let into posson. V. THE vendor reserves the right to use for the drainage and (a) As to the right to support, see STEPHEN on SUPPORT, Love v. Bell, 9 App. Cas. 286; Bell v. Earl Dudley, 1895, 1 Ch. 182. Trustees with power of sale may sell the surface without the mines, Trustee Act, 1893, repealing and by s. 44 re-enacting 25 & 26 Vict. c. 108 (passed in consequence of Buckley v. Howell, 29 Beav. 546). This provision is extended to any person having power of sale by the Trustee Act, 1894, s. 3; and to sales under the Settled Estates Act, 1877 (40 & 41 Vict. c. 18), s. 19. (b) As to the condition for compensation being enforceable against the assignees of the vendors, see Aspden v. Seddon, 1 Ex. D. 496. sewerage of his adjoing ppty, and any future bldgs thereon, all (if any) drains & sewers in or under the ppty sold & at psnt used for the ppses afsd. XI. RESTRICTIONS as to BUILDING, MAINTENANCE of I. THE Sevl lots [or, Lots to inclusive] are sold & will be conveyed subjt to the followg condons & stipulons for one of a land or Sale sub jet ot restrictive restrictive Covenants (c) It may be taken as now established that at law the burden of a As to the covenant between vendor and purchaser as to the user, &c., of land (unless burden of operating as a grant), never runs with the land so as to affect a purchaser from the covenantor; Austerberry v. Oldham Corporation, 29 Ch. D. 750, running where the previous authorities were fully examined; 1 Smith's L. C., notes with the to Spencer's Case, 9th ed. 104. But in equity a restrictive covenant (i.e., land. negative or prohibitory nature, such as against building on the carrying on objectionable trades, &c.), as distinguished from affirmative covenants (such as to erect or maintain buildings), will be binding on purchasers (including of course lessees) taking with notice (Tulk v. Moxhay, 2 Ph. 774); which notice may be constructive only, as to which the law is not altered by the enactment as to constructive notice in the Conv. Act, 1882, s. 3, see sub-sec. (2); and such notice will be implied against a purchaser or lessee who neglects to make or debars himself by the contract from making the usual examination of title (which if made would have brought to light the restriction, Patman v. Harland, 17 Ch. D. 353; Nottingham Brick Co. v. Butler, 16 Q. B. D. 778; Re Cox, [1891] 2 Ch. 109). Negative covenants of this nature are not open to objection on the score of perpetuity (L. & S. W. R. Co. v. Gomm, 20 Ch. D. 562; Mackenzie v. Childers, 43 Ch. D. 265), nor as being in restraint of trade (Catt v. Tourle, 4 Ch. 654; Earl of Zetland v. Hislop, 7 App. Cas. 427; 2 Dart, V. & P. 865). It is proper that the covenant should in point of form be entered into by the grantee to uses or owner of the legal estate, and should be expressed to bind his assigns, though the obligation of the covenant as attaching in equity on future purchasers with notice does not turn on technical considerations such as this, but on the general intention as evidenced by the deed; see Re Fawcett, 42 Ch. D. 150, where the covenant was held to be merely personal, and therefore not binding on a subsequent purchaser. It has been suggested that section 62 of the Conv. Act, 1881 (by which Suggested the Statute of Uses was extended so as to enable easements and other rights expedients in or over land to be created by way of limitation of the use, as to the need for making for which see 3 Dav. Prec. 1217, note), might possibly be made available as a means of converting a right under a restrictive covenant into a legal land. right, so as to be enforceable even against purchasers without notice; this bind the covenants |