T. 10, Cu. 3. is binding (o). But a condition stipulating that the time PART III. appointed, after the delivery of an abstract, for the taking of objections, shall be of the essence of the contract, means after the delivery of a perfect abstract, so far as it could be furnished at the date of delivery (p). And the purchaser is not precluded from taking objections which arise out of evidence called for before the time limited (q), or from objecting that the vendor has no power to make a title at all; as where the sale is under a power of sale which has not yet arisen (r). 1645. to range of title. A purchaser is frequently precluded by a condition from Condition as calling for a title antecedent to a certain period, and sometimes a very recent period; as the vendor's conveyance or a late Inclosure Act, &c. (s). But this does not preclude the purchaser from showing that such anterior title is defective (t). Where, therefore, such anterior title is defective, the vendor should further stipulate that he shall not be considered as answerable for any defects of title which may be discovered (u). And even this would not preclude the purchaser from objecting, where there is a false recital concealing a defect of title prior to the date fixed upon, and the sale is made by a Court of Equity (2). 1646. A special condition of sale, limiting the extent of title, is no excuse for a purchaser not insisting on the production of a deed beyond those limits, of which he had actual or constructive notice (y). 1647. Where a vendor knows of a deed affecting the title, he does not protect himself from disclosing it by a condition (0) Sugd. Concise View, 15. (p) Sugd. Concise View, 194; Want v. Stallibrass, L. R. 8 Ex. 175. (2) Sugd. Concise View, 15, 16. (r) Want v. Stallibrass, L. R. 8 Ex. 175. (s) 1 Jarm. & Byth. by Sweet, 505. (t) 9 Jarm. & Byth. by Sweet, 3. See also Sugd. Concise View, 14. (u) 9 Jarm & Byth. by Sweet, 3. (x) Else v. Else, L. R. 13 Eq. 196. (y) Peto v. Hammond, 30 Beav 495. T. 10, CH. 3. PART III of sale providing that no requisition should be made in respect of a specified deed, " or any other prior to" a certain date for it would be most mischievous to allow a vendor to suppress facts known to him affecting the title, and yet compel a purchaser to accept it (2). 1648. conditions as to evidence It is a common practice to restrain a purchaser from calling for evidence of extrinsic facts (as heirship, intestacy, death, &c.) which are recited or taken notice of in deeds of a certain antiquity, as, for instance, in deeds thirty years old, unless the circumstances of the title require that a more recent period should be fixed upon (a). And by the stat. 37 & 38 Vict. c. 78, s. 2, rule 2, it is enacted that, "subject to any stipulation to the contrary," "recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions." 1649. If a condition of sale, as a ground for excluding the purchaser from evidence of title to which he would otherwise be entitled of common right, makes an assertion of a fact, such assertion must be proved. Thus, if a condition states that, as certain lands were allotted in respect of a manor, and the manor, with the allotments, was purchased by the vendors' testator, the title of the vendors to the manor shall be conclusive evidence of their title to the lands; the purchaser is entitled to proof of the two assertions on which this condition is grounded (b). Where it is a condition of sale that no further evidence of the identity of the parcels shall be required than what is (2) Edwards v. Wickwar, L. R. 1 Eq. 68. (a) 1 Jarm. & Byth. by Sweet, 120, 121, 505. (b) Symonds v. James, 1 Y. & C. N. R. 487. T. 10, CH. 3. afforded by the abstract, or by the deeds, instruments, or PART III. other documents therein abstracted, and the descriptions in the different documents differ among themselves and from the description in the particulars of sale, the purchaser is entitled to have some proof of the identity aliunde. For, in the case supposed, the deeds themselves, do not afford evidence of the identity, but constitute the subject of the doubt as to the identity (c). Where it is stipulated that the vendor shall deduce a good title, and that he shall deliver up to the purchaser of the greater part in value of the estate all the title deeds and documents in his custody, but shall not be bound or required to produce any original deed or other documents than those in his possession and set forth in the abstract, the word " produce means "deliver up." The stipulation does not exempt the vendor from producing the deeds themselves for the purpose of verifying the abstract. For otherwise the vendor might have furnished an abstract of a good title, and yet he might not have one deed, or only some immaterial deeds, corresponding with the abstract, so that the abstract might be wholly unverified, and the purchaser might have no title at all (d). 1650. to errors and tions. A condition that misdescriptions and errors shall not Condition as annul the sale, but that a compensation shall be given misdescripfor the difference in value, does not extend to fraudulent errors or substantial misdescriptions (e). 1651. defect where estate is bought with all faults. Where a defect is a latent one, and the purchaser cannot Latent by the greatest attention discover it, if the vendor is aware of it and does not acquaint the purchaser with the fact, the contract is not binding at Law or in Equity, although he bought the estate with all faults (ƒ). 1652. (c) Flower v. Hartopp, 6 Beav. 476. (d) Southby v. Hutt, 2 My. & Cr. 207. (e) Sugd. Concise View, 20-1; Phillips v. Caldeleugh, L. R. 4 Q. B. (ƒ) Sugd. Concise View, 238. PART III T. 10, CH. 3. Condition as There must be express conditions where the seller intends to throw upon the purchaser the expense of searches, or to expenses. the expense of travelling to a distant place to examine the abstract with the deeds, or the like (g). Where the title deeds cannot be delivered up, it should be provided that the expense of attested copies thereof, and of covenants to produce them, shall be borne by the purchaser, as otherwise the expense will fall on the vendor; and if the property is sold in several lots, and the deeds are numerous, a large proportion of the purchase money may be thereby absorbed (h). 1653. to posses sion. By the stat. 37 & 38 Vict. c. 78, s. 2, rule 4, it is enacted that, "subject to any stipulation to the contrary," "such covenants for production as the purchaser can and shall require shall be furnished at his expense, and the vendor shall bear the expense of perusal and execution on behalf of and by himself, and on behalf of and by necessary parties other than the purchaser." 1654. Condition as As a general rule, where a contract for purchase provides that "possession" shall be given by a certain day, the word "possession" must be understood to mean possession with a good title shown (i). 1655. to interest. Condition as A condition for payment of interest, if, by reason of any "unavoidable obstacle," the contract cannot be completed by a day named, does not apply to a delay occasioned by the state of the title (k). 1656. Condition as to timber, A condition to pay interest, if," from any cause whatever," the purchase is not completed by the time fixed, does not apply to a case of delay occasioned by the misconduct of the vendor (1). 1657. If it is simply stipulated that the purchaser shall pay for (g) Sugd. Concise View, 24. (i) Tilley v. Thomas, L. R. 3 Ch. Ap. 61. (k) Sugd. Concise View, 495. (1) Williams v. Glenton, 34 Beav. 528. T. 10, CH. 3. timber, he must even pay for trees which are not strictly PART III. timber, but yet are considered such according to the custom. of the country (m). 1658. to fixtures. In the absence of any stipulation or indication to the Condition as contrary, common fixtures which would descend to the heir pass to the purchaser under the common conveyance. And therefore, where it is intended that the purchaser shall pay for fixtures, this should always be expressed (n). 1659. to deeds, On a sale, by auction, of lands in lots, the purchaser of Condition as the lot which is of the largest value is entitled to the custody of the deeds relating to all the property, unless there is a stipulation to the contrary. But if there is a condition that the purchaser of "the largest lot" shall have them, that means the largest in superficial acreage (o). 1660. By the stat. 37 & 38 Vict. c. 78, s. 2, rule, it is enacted that, “ subject to any stipulation to the contrary," where the vendor retains any part of an estate to which any documents of title relate he shall be entitled to retain such documents." 1661. on sale of If the estate is leasehold, and the vendor cannot procure Conditions an abstract of the lessor's title, this fact should be stated in leaseholds. the conditions, in order to preclude the purchaser from insisting upon the production of the lessor's title (p). Conditions intended to preclude objections on account of the lessor's title are to be construed with great strictness, and must be very unambiguous and conclusive to be of any avail. And a condition that the seller shall not be liable to produce the lessor's title, or that no requisition or inquiry shall be made respecting the title, does not exclude the purchaser from showing aliunde, without the aid of (m) Sugd. Concise View, 22-33. (n) Sugd. Concise View, 23; 9 Jarm. & Byth. by Sweet, 35. (0) Griffiths v. Hatchard, 1 K. & J. 17. (p) Sugd. Concise View, 25, 268, |