CHAPTER II. OF A VENDOR'S TITLE (a). SECTION I. Of the Requisite Length of Title (aa). CH. 2, s. 1. formerly BEFORE the stat. 3 & 4 Will. 4, c. 27, a purchaser had a PILT. 10, right to require a title commencing at least sixty years sixty years' previously to the time of his purchase; because the old title Statute of Limitations could not in a shorter period confer required. a title (b). And the Statute of Limitations of Will. 4 did not in effect introduce any new rule on the subject; for, although it conferred a title in forty years in ordinary cases instead of sixty years, yet in many instances a forty years' title was quite insufficient; for adverse possession against a tenant for life during his whole life would not affect a remainderman or reversioner (c). Indeed, a title for a shorter period than sixty years was not marketable (d). And in the case of an advowson, a hundred years' title at the least is necessary (e). And in other Sixty years' cases, even sixty years was sometimes insufficient. For always instance, if it might reasonably be presumed from the contents of the abstract that estates tail were subsisting, (a) On this subject, the reader is referred generally to Lord St. Leonards' "Law of Vendors and Purchasers" (an invaluable mass of law and practice). The present chapter chiefly consists of short extracts of a few leading points from that work. (aa) See supra, p. 576, note (a). (d) 1 Jarm. & Byth. by Sweet, 60, n. (¿). (c) Sudg. Concise View, 267, title not sufficient. PT. III.T. 10, the purchaser might demand the production of the prior CH. 2, s. 1. Stat. 37 & 38 s. 1. Right to production of prior title. By the stat. 37 & 38 Vict. c. 78, s. 1, it is enacted, that "In the completion of any contract of sale of land made after Dec. 31, 1874, and subject to any stipulation to the contrary in the contract, forty years shall be substituted as the period of commencement of title which a purchaser may require in place of sixty years, the present period of such commencement; nevertheless earlier title than forty years may be required in cases similar to those in which earlier title than sixty years may now be required." 1617. In every case where the statement in the abstract, or its silence, leads to a fair inference that the prior title may disclose an existing defect, the purchaser may require it to be produced; although, where it is not in the seller's power, he cannot object to the title upon mere suspicion (g). If nothing appears on the face of the deeds comprised within the period through which a purchaser is entitled to investigate the title, which throws a reasonable doubt or suspicion on the anterior title, the want of the prior instruments, though referred to or recited in the abstracted deeds, is not material (h). But where an assurance depends for its validity upon something which had been previously done, the whole transaction should be stated upon the abstract, although the abstract may thereby be carried beyond sixty years. Thus, an appointment should not be abstracted without previously showing the creation of the power, and the ceremonies requisite to the valid exercise of it; nor a post-nuptial settlement executed in pursuance of articles antecedent to the marriage, without first abstracting the articles at length, that (f) Sugd. Concise View, 265; 1 (h) 1 Jarm. & Byth. by Sweet 62. CH. 2, s. 1 it may be seen whether or not the settlement is in con- PT. III.T. 10, formity with them (i). 1618. SECTION II. Of the Kind of Title which is requisite. ex CH. 2, s. 2. Implied In contracts for the sale of real estate, an agreement to PT. III.T.10, make a title is always implied, unless the liability is pressly excluded. And an agreement generally to sell, expressing the interest in the subject, includes all vendor's interest (k). 1619. not agreement the title to all to make a the vendor's interest. Where a contract is entered into for the purchase of “a Freehold, freehold," the purchaser is entitled to have a clear freehold title, and not a title encumbered with any covenant or condition (). 1620. title. A purchaser cannot be compelled to take a title, if it is Doubtful doubtful, in the opinion of the Court, although the Court itself may have a favourable opinion of the title; for the Court has no means of settling the question as against adverse claimants, or of indemnifying the purchaser, if its own opinion should turn out not to be well founded (m). But still he will not be permitted to object to a title on account of a bare possibility or suspicion (n). And if the Court is clearly of opinion that the title is good, it may not be deterred from enforcing specific performance, by the fact that one of the conveyancing counsel of the Court, or a judge of the Court below, considered the title (i) 1 Jarm. & Byth. by Sweet, 67. (k) Sudg. Concise View, 13. (1) Phillips v. Caldeleugh, L. R. 4 Q. B. 159. (m) Rogers v. Waterhouse, 4 Drewry, 329; Pyrke v. WaddingVOL. I. ham, 10 Hare 7, 10; Sykes v. Sheard, (n) Sugd. Concise View, 280, 283 -4. SS CH. 2, s. 2. Title with Epitable PT. IIIT.10, doubtful (). A purchaser is not bound to accept, nor a vendor to give, a title with an indemnity (p). Nor will a indemnity. purchaser be obliged to take an equitable title, unless the title. Court sees that the legal estate can be got in (q). But Destruction he will be compelled to take a title depending upon the destruction of contingent remainders, or upon the Statute Limitations, of Limitations (r). 1621. of contin gent remainders. Statute of Title incomplete. Compensa. tion. Lesser's title. It is no objection that, at the time of the agreement, matters remained to be done to complete the title, which in their nature were capable of being effected before the completion of the purchase (s). 1622. Some objections properly constitute subjects of compensation, while others do not. Thus, small rents may be subjects of compensation, although larger ones cannot (†). But there are some rights (such as a right of sporting) which, although in themselves of small value, are incapable of compensation, and therefore, if undisclosed, vitiate the contract (u). 1623. Before the stat. 37 & 38 Vict. c. 78, s. 2, unless there was a stipulation to the contrary, there was in every contract for the sale of a lease (even though it were more than sixty years old), an implied undertaking, at Law and in Equity, to make out the lessor's title to demise, as well as that of the vendor to the lease itself, even though there was a very short residue of the term, and the value of the property was very small, and no premium was taken for the lease (v). But by the stat. 37 & 38 Vict. c. 78, s. 2, rule 1, (0) Hamilton v. Buckmaster, L. R. 3 Eq. 323; Beioley v. Carter, L. R. 4 Ch. Ap. 230; Radford v. Willis, L. R. 7 Ch. Ap. 7; Bell v. Holtby, L. R. 15 Eq. 178. (p) Sugd. Concise View, 219, 277. (q) Sugd. Concise View, 280; Freeland v. Pearson, L. R. 7 Eq. 216, 219. (r) Sugd. Concise View, 283. (8) Sugd. Concise View, 184, 186. (t) Sugd. Concise View, 276. (u) Sugd. Concise View, 218. (2) Sugd. Concise View, 263; 1 Jarm. & Byth. by Sweet, 70, 551; Souter v. Drake, 5 B. & Ad. 992; Frend v. Buckley, L. R. 5 Q. B. (Ex. Ch.) 213. CH. 2, s. 2. it is enacted that, "subject to any stipulation to the con- Pr. III.10 trary," "under a contract to grant or assign a term of years, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the freehold." And a purchaser of a lease held under a bishop cannot call for the lessor's title (a). 1624. lands Lands allotted under Inclosure Acts become liable to Title to the uses of the estates in respect of which they were allotted. allotted; and therefore, upon the sale of such lands, it is necessary to investigate the title to the original estates (y). 1625. lands taken Under Inclosure Acts, the allotments taken in exchange Title to are usually impressed with the title of the property given in exchange in lieu of them, and discharged from their original uses (2). But if the property has been derived under a common law exchange or an exchange by mutual conveyances with eviction clauses, the title to the estate given in exchange, as well as of the estate taken in exchange, must be shown from the usual period down to the date of the exchange; unless, in the case of a common law exchange, it can be proved that the lands given in exchange have been aliened by the other party (a). 1626. franchised If the estate was copyhold, and has been enfranchised, Title to enthe lord's title to the freehold will be required, as well as land. the copyholder's title before its extinguishment (b). 1627. property by derived under a Reversions and remainders in the Crown were not Title to destructible by recovery, nor can they now be barred an enrolled assurance; and it is therefore necessary, in grant from deducing a title under a grant from the Crown, to set forth (x) Sugd. Concise View, 268; 1 Jarm. & Byth. by Sweet, 70. (y) Sugd. Concise View, 271. . (2) 4 Jarm. & Byth. by Sweet, 6, 7; see also Sugd. Concise View, 271. (a) 1 Jarm. & Byth. by Sweet, 75; Sugd. Concise View, 271; 4 Jarm. & Byth. by Sweet, 3, 5; Watk. Conv. 3rd ed. by Prest. 181. (b) Sugd. Concise View, 270; 1 Jarm. & Byth, by Sweet, 83. the Crown. |