VI. PRACTICE AS TO THE PREPARATION OF THE PARTICULARS AND CONDITIONS WHERE THE SALE IS MADE UNDER A DECREE OR ORDER OF A COURT OF EQUITY.

VII. AS TO THE AGREEMENT WHERE THE SALE IS MADE BY PRIVATE CONTRACT.

VIII. DUTIES OF THE PURCHASER'S SOLICITOR PRIOR TO THE SALE.

I. INTRODUCTORY OBSERVATIONS.

No portion of a solicitor's practice involves more important duties and responsibilities than the conduct of a sale, whether he acts on behalf of the vendor or the purchaser.

Duties of a vendor's solicitor.]—The duties of a vendor's solicitor consist in ascertaining, first, his client's right and title to dispose of the property; the nature, extent, and value of such property, and whether there are any defects or imperfections in the title; and if so, how these defects or imperfections can be best remedied. Then comes the management of the sale; the advertising of the property; the preparation of the conditions of sale or contract; the contract itself, and the steps immediately following it, wherein may be included the preparation and delivery of the abstract to the purchaser; the answering of any objections or requisitions that may be made to the title, and the conduct of all such intermediate negotiations as take place before the title is either approved of, or rejected by the purchaser, or the contract itself is rescinded, or some steps are taken either on the one side or the other, to compel a specific performance of it. If the title is approved of, then the vendor's solicitor must see that the conveyance carries out the object of the contract; that his client receives the purchase money, and does not bind himself by any unusual covenants, or enter into any general warranty of title, or incur any liability under the purchase deed, beyond what is fairly required by the terms of the contract; all of which duties require considerable attention, whilst carelessness in the discharge of any one of them may prove of serious inconvenience, and possibly of even ruinous consequences.

Duties of the purchaser's solicitor.]-If the duties of a vendor's solicitor are important, those of the solicitor for the purchaser are no less so. The latter must not only see that the property which is the subject-matter of sale is properly conveyed to his client, but he must also ascertain that the vendor has a sufficient power of disposition over it

to enable him to confer an absolute and unimpeachable title on the purchaser, free from any drawbacks, charge, or incumbrance which may endanger the ownership, diminish the value of the property, or disturb the owner in the peaceable occupation and enjoyment of it.

Purchaser's solicitor must see that his client obtains a perfectly legal title.]-Neither will it be sufficient that the title is a safe holding one, and one under which a purchaser may continue in unmolested possession of the property, without danger of eviction or disturbance from any one: for the title which a purchaser is entitled to require, and which it is the duty of his solicitor to see that he obtains, is a legal title, unburdened with charges or incumbrances, and unclogged with outstanding legal estates; such a title in fact as he may always be able to set up in his defence in an action of ejectment, or compel any future purchaser to accept.

Mischiefs likely to arise from carelessness in any course of the transaction.]—As so much care and vigilance, therefore, are required, it necessarily follows that, if a purchaser's solicitor conducts his client's business carelessly during the course of the transaction, he may do him an infinity of mischief. Even at the very outset of the affair, by heedless management in arranging the terms of the contract, or looking in too cursory a manner through the conditions of sale, he may deprive his client of his fair right to investigate the title, which, if properly looked into, would disclose such defects that no purchaser in his senses would be induced to accept it; whilst results, equally pernicious in their consequences, may arise from omitting to carry out the terms of the contract; as where it is stipulated, that unless a purchaser shall make his objections or requisitions within some certain specified time, he shall be taken to have accepted the title unconditionally, and the time specified is permitted to pass without such objections or requisitions having been made; in which case the purchaser will not only be precluded from making them afterwards, but will have bound himself to take the title with all its defects, and may thus have a purchase forced upon him, which, instead of proving a valuable acquisition, may turn out to be so fettered with claims and drawbacks of one kind and another, as not only to deteriorate very materially from its worth, but absolutely to expose him to eviction by some claimant who can show a better title; and even where the claims are of such a nature as not to deprive the purchaser of the property outright, they may nevertheless be sufficient to

reduce the value of the purchase to a very lamentable extent, and possibly give rise to actions and suits which may eventually involve the unlucky owner in heavier expenses than the property itself is actually worth.

Evils likely to arise from a negligent investigation of the title.] -The same evils also which would arise from a purchaser being precluded from a fair investigation of the title, and the right to take any objections to it, if found defective, may also proceed from his solicitor conducting such investigation in so negligent a manner as not to discover whether or not there really are any grounds for making such objections.

Mischiefs which may be incurred from the purchaser's solicitor neglecting to search for judgments.]—And even where a title is wholly free from objection, the same mischiefs we have already mentioned may ensue to a purchaser by neglecting to search for judgments which may be entered up against the vendor, and which may amount to a much larger sum than the purchase-money; which latter incumbrances it is the business of the purchaser's solicitor to see properly discharged by the vendor, and satisfaction entered up before he allows his client to complete his purchase.

II. PRACTICAL OBSERVATIONS AS TO THE PROPRIETY OF INVESTIGATING THE VENDOR'S TITLE, AND HIS INTEREST IN THE PROPERTY BEFORE OFFERING IT FOR SALE.

First steps to be taken by vendor's solicitor in the conduct of a sale.]—We have just before mentioned that the first step a vendor's solicitor ought to take in the conduct of a sale is to ascertain his right to dispose of the property, the nature, extent, and value of such property, and whether there are any defects or imperfections in the title, and if so, how those defects and imperfections can be best cured or rectified.

First inquiries he should make of his client.]—A general outline of all these matters a solicitor can generally obtain from the client himself, and of whom he should also inquire what evidence of title he is able to procure; and whether the deeds are in his possession, or in the hands of other parties, and in the latter case whether he has any, and what means of obtaining their production.

How he should proceed where the property is already in mortgage.]—If, as often happens, the property is already in mortgage, it will be necessary to apply to the mortgagee or his solicitor for a sight of the deeds, and to be furnished with

the abstract of them, which, if not already prepared, the mortgagee's solicitor may insist on his right of preparing at the costs of the vendor, who must also defray all the expenses incurred in respect of the production and inspection of such deeds and other documents of title, which in reality the mortgagor himself has only access to by sufferance; for a mortgagee has a right, if he pleases, to refuse either to permit an inspection of the deeds or to furnish an abstract of them: (Bycroft v. Sibel, 20 L. T. Rep. 107; 1 Hughes Pract. Mort. 6.)

Mortgagor hus no power to compel mortgagee to produce the deeds, or to furnish an abstract of them.]-The only remedy a mortgagor has in a case of this kind is to pay off the mortgage, and then call upon the mortgagee to deliver up the deeds, which the latter will be then compelled to do. If, therefore, the mortgagor has no abstract in his possession, and the mortgagee refuses to furnish him with one, he has little chance of carrying on a sale to any purpose, as no one would be willing to make an offer for the purchase of a property the owner has no means of showing a title to. All the inconveniences thus incurred might have been prevented by the foresight of inserting in the mortgage deed a clause to the effect, that in the event of any contract being entered into for the sale of the property, the mortgagee would produce the deeds, and grant extracts or abstracts of them : (see the form, Concise Precedents, vol. 2, p. 5, note A., 2nd edit.)

Grounds upon which mortgagee is justified in refusing to produce the documents of title.]-This arrangement very few mortgagees would object to, for having satisfied themselves of the goodness of the title before they advanced their money on the property, they incur no risk of exposing its weakness, which is the real and only substantial ground of a mortgagee's refusing its inspection; still, as it rarely happens that when the sale or transfer of a mortgage is actually contemplated, a mortgagee refuses to produce the deeds or furnish an abstract of them, the inconvenience which might be supposed to arise from the arbitrary exercise of his power in this respect has not been much felt in practice.

Vendor's solicitor should investigate title.]-Having procured the necessary access to the deeds, the vendor's solicitor should proceed to investigate the title as narrowly as he would do if he was working through it on behalf of a pur[P. c.]

chaser. He should ascertain if there are any defects, and if so, whether they admit of remedy; and how such remedy may be best applied, and if the imperfections are incurable, he should determine whether it might not be prudent to abandon the sale altogether, as no purchaser could, or ought to be compelled to complete his contract when the title is incurably defective; so that placing property thus situated in the market, must necessarily expose the weakness of the vendor's estate, and thus may possibly be the means of affording information to parties having claims upon the property, of which they were previously ignorant, and which claims may be asserted in consequence of the knowledge thus acquired; so that, instead of effecting a sale, the vendor will be much more likely to lose his property, or at any rate, to become involved in litigation and expenses from which he might have altogether escaped, if upon discovering his inability to make a marketable title, or enforce a specific performance, he had adopted the prudent course above suggested.

Necessity of vendor's solicitor using precautions to prevent vendor from incurring unnecessary expenses, even where his title is unimpeachable ]—But even where a title is perfectly safe, and free from every claim that can possibly be set up against the property, it will still be necessary that a vendor's solicitor should protect his client from incurring any unnecessary expenses in the deduction of the title, or in supplying evidence in support of it, which though in reality conferring no important benefit on a purchaser, the latter has, nevertheless, a right to insist upon being supplied with at the vendor's expense, unless the vendor protects himself by an express stipulation, either that he shall not be obliged to comply with such requisitions, or that if he does so, it shall be at the expense of the purchasers. It often happens that some of the earlier deeds or documents are lost, or the vendors may be unable to compel their production, or can only procure it at a vast expense in proportion to the amount of the purchase money; and other minor points may arise, which would entail very heavy costs upon a vendor to clear up, which a purchaser in the absence of any stipulation to the contrary has a right to insist upon, so that in sales of small property the expenses a vendor has thus been put to, have sometimes exceeded the total amount of the purchase money; and may, in like manner, occur in the sales of property even of large value, where the title deeds are numerous, and the property is sold