Restrictive of purchaser's right to abstract, when expedient.

"Abstract," in conditions as to time, means "perfect abstract."

Effect of non-delivery of, on conditions as to time.

Condition for time of completion, and as to interest.

(c) Sug. 431; Home v. Wing-field, 3 Scott, N. R. 340.

(d) Hobson v. Bell, 2 Beav. 17.

(e) Morley v. Cook, 2 Ha. 111.

(f) Blacklow v. Laws, 2 Ha. 40; Southby v. Hutt, 2 Myl. & Cr. 211.

(g) And see also infra, Ch. VIII.

Should provide lor payment of interest in all events.

Effect of the condition.

De Visme v. Be Visme.

(h) Vide infra, Ch. X.

(i) See Greenwood v. Churchill, 8 Beav. 413; Esdaile v. Stephenson, 1 Sim. & St. 122.

(j') S. C.; see the judgment in De Visme v. De Visme, 1 Mac. & G. 336.

(k) Denning v. Henderson, 1 De

G. & S. 689; 12 Jur. 89.

(I) Perry v. Smith, 1 Car. & M. 554.

(m) De Visme v. De Visme, 1 Mac. & G. 336; vide infra, Ch. XIII. as to payment of interest.

It is usual upon a sale by auction, to provide, that the vendor shall, upon payment of the purchase-money, execute proper conveyances to the respective purchasers, of the lots purchased by them respectively; such conveyances, etc., to be prepared by and at the expence of the respective purchasers, and by them tendered for execution at a specified time and place the condition is scarcely necessary; for the contract in itself gives the purchaser a right to a conveyance upon payment of his purchase-money; and he is, prima facie, bound at his own expence to prepare and tender it (o).

If, where property is sold in lots, any part comprised in two or more lots be upon lease at one entire rent, or if all or any part of the property comprised in one lot, be let together with other property at one entire rent, the conditions must provide for its apportionment; and, although not strictly necessary; it may, by way of precaution, be well to provide, that the concurrence of the tenant shall not be required (p).

Condition for payment of rent in lieu of interest, not usurious.

For preparation and execution of conveyance.

For apportionment of rent, on sale of reversion.

(n) Spurrier v. Mayoss, 1 Ves. jun. 527.

(o) Sug. 263; Poole v. Hill, 6 Mee. & W. 835.

Upon the sale of land used for agricultural purposes, it may be often necessary to insert a condition as to the growing crops being taken and paid for by the purchaser.

If the property be in lease at the time of sale the purchaser will, of course; be subject, in this respect, to the rights of the tenants: if, however, it be in hand, and nothing be said as to the crops, they will belong to him from the day fixed for completion: and it is conceived that the vendor will not be at liberty previously to remove them in an immature state.

There should be a condition as to fixtures, if the purchaser is to pay for any; common fixtures would probably beheld to be included in a contract for sale, and would pass by the conveyance, unless a contrary intention could be collected from the instrument (q).

Payment for timber by the purchaser, if intended, must be provided for by the conditions ( r).

The expression "timber," includes oak, elm, and ash, everywhere; and, by local custom, beech (s) and various other trees; even trees which are primarily fruit trees, as cherry, chestnut, and walnut (t); no wood, however, is timber until of twenty years' growth (u) as a general rule, pollards would seem not to be timber; if sound they may, however, be timber by local custom: and the expression "timber and timber-like trees," would seem, to include sound pollards (v): an exception, in a lease, of "all timber and other trees, but not the annual fruit thereof" would seem not to include garden or orchard fruit trees, unless by local custom (w); the term "fruit" being considered to refer to the mast of timber trees.

As to crops, etc.

Right to, if no condition.

A* to fixtures.

As to payment for timber.

What is

" timber."

(p) 3 Dav. Conv. 73.

(q) Sug. 3", and cases cited.

(r) Sng. 36; see Higginson v. Clowes, 15 Ves. 516.

(s) Aubrey v. Fisher, 10 East, 446.

(t) Duke of Chandos v. Talbot, 2 P. Wms. 600.

(u) Foster v. Leonard, Cro. Eliz.l.

(v) Rabbett v. Raikes, Woodfall's Landl. and Ten. 457; and see 2 P. Wms. 606.

It is generally provided, upon a sale by auction, and often upon a sale by private contract, that any misdescription, mistake, or error in the particulars, either way, shall not avoid the sale, but shall be the subject of compensation.

Notwithstanding this condition, the mis-statement, if wilful or designed, amounts to fraud, and, even at Law, avoids the contract as against the purchaser: if it arise simply from negligence, Equity will, notwithstanding the condition, refuse a specific performance at the suit of the vendor, if the error be not a fair subject for compensation (x): at Law, cases have occurred, in which the opinion was entertained that, however gross the negligence, the purchaser is bound, if there be no fraud (y); but this opinion has not been followed (z): and the rule at Law seems now to be as laid down by Tindal, C. J.; viz., "that where the misdescription, although not proceeding from fraud, is, in a material and substantial point, so far affecting the subject-matter of the contract that it may reasonably be supposed that, but for such misdescription, the purchaser might never have entered into the contract at all, in such a case the contract is avoided altogether, and he is not bound to resort to the clause of compensation: under such a state of things he may be considered as not having purchased the thing which was really the subject of the sale" (a).

And where a vendor, who has the means of knowledge,and is bound to use due diligence, misdescribes his property upon any important point, it seems probable that the facts would in themselves be deemed conclusive as to fraud (b): e.g., a statement in particulars that the estate was about one mile from Horsham, when in fact it was upwards of three miles distant (c); and, in another case, a material mis-statement, upon the sale of a house, as to the amount of the ground rent (d), and, in a later case, a description of dilapidated property, as "good and substantial but unfinished buildings (e)," seem to have been considered, at Law, to be, from their very nature, fraudulent.