sold, and should provide a means of determining what are and what are not to be such fixtures (t). timber and certained. It is ordinarily stipulated that the amount to be paid for Price of crops, timber and fixtures shall be settled by valuation, and crops &c., that the sum so ascertained shall bear interest as from the fixtures, time fixed for completion. When the valuation is to be made how asin a specified manner, it is a condition precedent, and, if it fails, the purchaser cannot be compelled to submit to a valuation by the Court, or to any other terms; but the case of an agreement to sell "at a fair valuation is essentially different in that case, no particular means of ascertaining : the value is pointed out, and there is nothing, therefore, to preclude the Court from adopting any means adapted to the purpose (u). "Fair valuation." &c. A condition is commonly inserted that the property shall Easements be taken subject to all rents and rights of way and water, and other easements, if any, charged or subsisting upon it; but such a condition does not relieve the vendor of his obligation to disclose such liabilities, where known to exist (v). brances that can The conditions should state in what manner it is pro- Incumposed to deal with any incumbrances subject to which the property is sold (w). It will often be expedient to provide not be disthat the purchaser shall take an indemnity (x). In such a charged. case the conditions should be explicit as to its terms. If an (t) Cf. 1 Dav. 522. (u) Leake, 1135; see also Cumberland v. (Bowes or) Glamis, 15 C. B. 348; 3 C. L. R. 149; 24 L. J. C. P. 46; 1 Jur. N. S. 236; Vickers v. Vickers, L. R. 4 Eq. 429; 36 L. J. Ch. 946; Dinham v. Bradford, L. R. 5 Ch. 519; Richardson v. Smith, L. R. 5 Ch. 648; 39 L. J. Ch. 877; Smith v. Peters, L. R. 20 Eq. 510; 44 L. J. Ch. 613. (v) Dart, 156; cf. Gale v. Squier, 5 Ch. D. 625; 46 L. J. Ch. 672. (w) The mere fact of there being incumbrances is no objection to the title, if the vendor can require them to be paid off; Sidebottom v. Barrington, 4 Beav. 110. See now 44 & 45 Vict. c. 41, s. 5. (x) See Bainbridge v. Kinnaird, 32 Beav. 346. Apportionment of rent charge; -of rent service; -of rent ties of incumbrance is not likely to be enforced, it may be sufficient to preclude the purchaser from making any objection in respect of it. Where land is sold in lots subject to a rent charge, it is usual to stipulate that each purchaser shall pay an amount apportioned to his lot in the particulars and shall procure an apportionment, if he desires one, at his own expense (y). When the reversion of land in lease is being sold in lots, or the reversion of part only of such land is being sold, the consent of the tenant to an apportionment of the rent should be obtained, or the conditions should provide for such apportionment (z). Upon the sale of a leasehold in lots the rents and liabilities and liabili- under the lease will have to be apportioned. This is done, leasehold. sometimes by means of cross powers of distress and entry; sometimes by an assignment of the lease to the largest purchaser in value, he granting under-leases, with mutual covenants for indemnity, to the other purchasers (a). General of vendor 3. Conditions relating to the title to the property. In the absence of stipulation, a vendor of real estate is obligations bound to deduce and verify a title extending over at least as to title. the forty years preceding the day of sale; and this obligation involves the delivery to the purchaser of an abstract of title covering that period, the production of all the deeds and documents stated in the abstract, the identification of the property described in the particulars with the property described in the several instruments of title, and the strict (y) Dart, 130. It is not unusual, upon a sale in lots, for the vendor to reserve power to withdraw lots, should the principal or any described lot or lots not be sold. (z) Ib. 131. (a) Ibid. and 171. As to building estate, see ib. 175. proof of all facts and matters forming a link in the chain of title, except such as are stated or recited in any document twenty years old, in which case the statement or recital is sufficient primâ facie evidence of their truth (b). ment of title. When it is inconvenient to give a forty years' title, for Commenceinstance, by reason of part of the title being wanting, a condition will be employed providing that the abstract shall commence with a deed of more recent date. Sales of small properties with a thirty years' title, or even considerably less, are far from uncommon. If the vendor's title is Where positively defective, it will be desirable, either to state the title defecdefect in the conditions and stipulate that no objection shall be made in respect of it (c), or, sometimes, to refer the purchaser to the documents of title and provide that he shall take such title as they disclose, or, perhaps, to offer the property for sale with only such title as the vendor may have (d). tive. A condition merely debarring the purchaser from requiring As to prethe production of the title anterior to a certain period does cluding not preclude him from seeking out aliunde and showing an actual defect in the anterior title (e). objections. (b) 1 Prid. 1. Unless there be a condition to the contrary, the abstract Advowmust go back, in the case of an advowson, at least 100 years, and in the sons &c. case of a reversionary interest, to its creation; Dart, 293, 294; and the creation of a long leasehold must be shewn; Frend v. Buckley, L. R. 5 Q. B. 213. (c) Sellick v. Trevor, 11 M. & W. 722; 12 L. J. Ex. 401; cf. Smith v. Robinson, 13 Ch. D. 148; 49 L. J. Ch. 20; 44 & 45 Vict. c. 41, s. 3, sub-s. 3. (d) Smith v. Watts, 4 Drew. 338; Keyse v. Heyden, 20 L. T. O. S. 244; Freme v. Wright, 4 Madd. 364; Wilmot v. Wilkinson, 6 B. & C. 506; 9 D. & R. 620; Spratt v. Jeffery, 10 B. & C. 249; 5 Man. & R. 188; Hume v. Pocock, L. R. 1 Ch. 379; cf. Duke v. Barnett, 2 Coll. C. C. 337; Johnson v. Smiley, 17 Beav. 233. (e) Shepherd v. Keatley, 1 C. M. & R. 117; 4 Tyrw. 571; Southby v. Hutt, 2 My. & C. 207; cf. Edwards v. M'Leay, 2 Swans. 287; Coop. 308; Hyde v. Dallaway, 4 Beav. 606; 6 Jur. 119; Dick v. Donald, 1 Bli. N. S. 655; Sellick v. Trevor, 11 M. & W. 722; 12 L. J. Bolton v. Board. Enfranchised Under the Vendor and Purchaser Act, 1874 (ƒ), a recital in a conveyance more than twenty years old that the vendor was seised in fee simple is sufficient evidence of the fact, and no prior abstract of title can be demanded, except so far as the recital is proved to be inaccurate; and in such cases a forty years' title is not required (g). Subject to any stipulation to the contrary, where land of copyholds. copyhold or customary tenure has been converted into freehold by enfranchisement, there, under a contract to sell and convey the freehold, the purchaser has no right to call for Leaseholds. the title to make the enfranchisement (h); under a con Underlease. Renewable leaseholds. Lessee has notice of lessor's title. tract 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 is not entitled to call for the title to the freehold (i); and under a contract to sell and assign a term of years derived out of a leasehold interest in land, the intended assign has no right to call for the title to the leasehold reversion (j). Upon the sale of renewable leaseholds it will probably be Ex. 401; Rhodes v. Ibbetson, 4 De G. M. & G. 787; 23 L. J. Ch. 459; & 45 Vict. c. 41, s. 3, sub. -s. 3. (f) 37 & 38 Vict. c. 78, s. 2. (g) Bolton v. London School Board, 7 Ch. D. 766; 47 L. J. Ch. 461; cf. Best v. Hamand, 12 Ch. D. 1; 48 L. J. Ch. 503. (h) Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 3, sub-s. 2. The section only applies to sales made after 31 December, 1881; ib. sub-s. 10. (i) 37 & 38 Vict. c. 78, s. 2, rule 1. The section does not alter the rule that a lessee has constructive notice of his lessor's title; Patman v. Harland, 17 Ch. D. 353; 50 L. J. Ch. 642; nor does it supersede the necessity for the usual condition that the lessor's title shall not be inquired into, and no objection shall be made in respect of it; see Hume v. Bentley, 5 De G. & Sm. 520. As to bishop's leases, see Fane v. Spencer, 2 Madd. 438; and Dart, 290. (j) 44 & 45 Vict. c. 41, s. 3, sub-s. 1. A leaseholder undertaking to grant an underlease still impliedly promises that he has a good title to let; Stranks v. St. John, L. R. 2 C. P. 376; 36 L. R. C. P. 118. necessary to provide against the production of the title prior to the subsisting lease (k). held under Upon a sale of property held under a grant from the Property Crown, e. g. tithes, the vendor should protect himself against being required to produce the original grant, if it is not in Crown. his possession (1). grant from Subject to the conditions, where the estate sold has been Exchanges. taken in exchange at common law, the vendor must show the titles, down to the exchange, to both estates (m); but if it has been taken in exchange from the Church or under an inclosure act, he will only have to show, down to the exchange, the title to the land given in exchange (n). ments. Upon a sale of lands held under an inclosure act (0), it Allotwill often be expedient to negative the purchaser's primâ facie right to evidence of the validity of the award; and attention must be paid to the rule that, when an allotment has been made in respect of lands held under different titles, all such titles must be produced and proved (p). waste, and If the title to any part of the property commences with a Lands grant of waste by the lord of the manor, the purchaser should formerly be precluded from requiring evidence of the lord's right to encroachmake grants of waste; and, similarly, if a strip of the land ments. sold has been inclosed from the high road, the vendor should protect himself by a stipulation against having to produce evidence of prior title to such inclosure. abstract On a sale in lots, a purchaser of two or more lots held Right to wholly or partly under the same title has only a right to one on sale in abstract of the common title, except at his own expense (g). lots. (k) Dart, 171. (l) Ib., 166, 295, 353-6. (m) Bustard's Case, 4 Rep. 121; Sugd. 372. (n) Dart, 287. (0) Except 6 & 7 Will. IV. c. 115, and 3 & 4 Vict. c. 31. (p) Dart, 164, referring to 1 Dav. 462. (q) 44 & 45 Vict. c. 41,s. 3, sub-s. 7. H |