Whether trustees can use condition as to misdescriptions.

As to deeds; prima facie liability of vendor to produce, and deliver up on completion, or furnish attested copies.

(p) Sherwood v. Robins, Mood. & Malk. 194; and see 8 Cl.. & Fin. 792.

(q) Lord Brooke v. Rounthwaite, 5 Ha. 298.

(r) Ridgway v. Gray, 1 Mac. & G, 109.

(s) White v. Cuddon, 8 Cl. & Fin. 766.

(0 Sugden, 449.

(u) Cooper v. Emery, 1 Phil. 388. It seems doubtful whether the rule extends to deeds inrolled merely for safe custody and not under any statutory provision; see 9 Jarm. Conv. by Sweet, 10.

(v) As to what is sufficient evidence of loss, see Green v. Bailey, 15 Sim. 542; Fitzwalter Peerage, 10 Cl.. & Fin. 953; Hart v. Hart, 1 Ha. 1.

(w) Bryant v. Busk, 4 Russ. 1; see however as to this, infra, Ch. VIII.

(x) Bovghfon v. Jewell, 15 Ves. 176.

On a sale in lots, it is generally requisite to provide for the ultimate custody of the deeds; the purchaser of the largest lot is usually made to take them and covenant for their production: where the intention is that they shall belong to the purchaser whose purchase-money amounts to the largest sum, it may occasionally be well to provide for the contingency of the two largest purchasers buying to an equal amount.

Every condition intended to relieve the vendor from his primd facie liability to deduce a marketable title, and verify the abstract by proper evidence at his own expense, must be expressed in plain and unambiguous language (d).

As to attested copies; solicitor's liability for omitting condition.

Course to be adopted upon sale of part of mortgaged estate.

As to ultimate custody of deeds, on sale in lota.

Restrictive of purchaser's rights to title and

(y) Dare v. Tucker, 6 Ves. 460.

(z) Vide infra, 316,

(a) See Cooper v. Emery, citedl in

1 Hayes on Conv. 573.

(b) Bouyhton v Jewell, 15 Ves. 176. (c) Sug. 457.

For instance, a condition that he shall not be bound to produce any original deed or other document than those in his possession and set forth in the abstract, was held not to relieve him from his liability to verify the abstract; for non constat that because he has only certain specified deeds in his possession he cannot prove his title (e).

So, on an agreement by a vendor to sell a lease "as he held the same" for twenty-eight years, a condition that the purchaser should not require the lessor's title, would not, it appears, prevent the latter from showing that the lease was invalid (f).

So, upon a sale of an underlease, described simply as a lease, a stipulation that the vendor should not be called upon to prove his title, was held to be worthless, when it appeared that the original lease comprised other premises, and contained covenants embracing both properties, and exposing the purchaser to eviction through the default of the holder of such other premises (g).

It may be doubted whether, in the absence of express stipulation, the common condition, as to recitals being evidence, would bind the purchaser to accept recitals as evidence of conclusions of Law (h).

But a clear stipulation as to title is binding on a purchaser; e. g., an agreement by Assignees of a bankrupt to sell his estate "under such title as he recently held the same, an abstract of which may be seen" (i); and a condition that the purchaser should accept the vendor's title " without dispute" (k). evidence, must be explicit.

Against production of deeds. Vendor still bound to verify abstract aliunde.

Against production of lessor's title; purchaser may prove lease void.

Or mere underlease, with joint liability of original covenants.

As to recitals being evidence.

Condition if explicit will bind purchaser.

(d) Osborne v. Harvey, 7 Jur. 229, V. C. K. B.; and see Clarke v. Faux, 3 Russ. 320.

(e) Southby v. Hutt, 2 Myl. & Cr. 207; and see Dick v. Donald, 1 Bli. N. S. 655.

(f) See Sug. 391; and see judgment in Shepherd v. Keatley, 1 Cro.

M. & R. 127, 128, disapproving of Spratt v. Jeffery, 5 Man. & R. 138; but see 2 Coll. 341.

(g) Blake v. Phinn, 3 C. B. 976; see Fildes v. Hooker, 3 Madd. 193.

(h) 9 Jarm. Conv. by S. 4.

(i) Freme v. Wright, 4 Madd. 364.

A condition, however, that the abstract shall commence with a specified document, merely precludes the purchaser from objecting to the title as commencing at too recent a period (l); so that, if the instrument in question do not form a good root of title, he may require the earlier title; so, a mere condition against production of the earlier title, would not preclude him from requiring the production of recited instruments which appear from their recitals to be of a suspicious character (m)•

Nor will a mere condition against production, in any case prevent a purchaser from investigating and objecting to the earlier title, if he have the collateral means of doing so (n)•

If, therefore, the earlier title merely be wanting, the condition should provide for the abstract commencing with a specified document, (the nature and effect of which should be stated, if it be of such a kind as not to form a satisfactory root of title; e. g., a recovery deed); and the purchaser should be precluded from requiring the production of the earlier title, or of any earlier documents which may be recited or noticed in the abstracted title: if the earlier title be defective, or if the recited missing instruments are of a suspicious character, the condition should be extended, so as to preclude him from requiring, investigating, or making any objection to the earlier title, or any document prior to the commencement of the abstract, although subsequently recited or referred to.

And when a vendor, although not having a marketable,has still a safe holding title, it may be prudent, in using very special conditions, to state, that an abstract of the title may be inspected before the sale.