Nor with document which throws a doubt on earlier title.

Need not in all cases commence with a document.

But evidence of possession is not sufficient, if modern deeds are lost or destroyed.

Wherever commenced should thence be regularly continued-keeping separate titles separate.

(t) Coussmaker v. Sewell, Sug. 486.

(u) See Nouaille v. Greenwood, Turn. & R. 26.

(v) See Prosser v Watts, 6 Madd. 59; 1 Jarm. Conv. by S. 63 and 64;

1 Hayes, Conv. 566.

(w) Sug. 431.

(x) Cottrell v. Watkins, 1 Beav. 365.

(y) Bryant v. Busk, 4 Russ. 1; Sug. 460.

Documents affecting merely equitable interests give rise to considerations of greater difficulty; Sir E. Sugden states generally, that the solicitor "should abstract every document upon which the title depends, or upon which any difficulty has arisen: wherever he begins the root of the title, he ought to abstract every subsequent deed" (a): this, however, it is conceived, must be understood to mean every document upon which the purchaser's title will necessarily depend; if, for instance, the vendor be possessed of a document declaring that a prior owner who purchased, apparently on his own account, was in fact a trustee, or, that a mortgage-debt was trust-money, the title of the vendor who has notice of the trust may depend upon various instruments which would be altogether immaterial to a purchaser destitute of such notice; and it would, it is conceived, be unusual and highly improper, for the solicitor to allow notice of such a trust to appear upon his abstract: this, however, it must be admitted, is, pro tanto, a departure from the general principle, that it is for the purchaser's solicitor, and not the vendor's, to judge of the materiality of the muniments of title: but it is sanctioned by convenience and universal practice. Other cases may perhaps occur in which a document may be, without material risk, suppressed; as, for instance, where a good title is shown to the legal estate, and a charge, which clearly operated merely in equity, has been paid off and no trace of it appears upon the subsequent title; the difference between the suppression of such an instrument and a legal mortgage is evident; the equitable charge has no operation as against a subsequent purchaser for valuable consideration without notice, and his title, therefore, is not dependent on the sufficiency of the release; nor does there seem to be any good reason for making a distinction between an equitable charge by deed, and a mere memorandum accompanying an old equitable mortgage by deposit, which, except upon special grounds, is never abstracted; but, in the case of a legal mortgage, the purchaser's title at Law will depend (theoretically if not practically) upon the legal validity of the deed of reconveyance, whether its existence be known to him or not: still, even in the case of the equitable charge, it seems at least probable that a solicitor who suppresses it, under the idea that it is unimportant to the title, does so at his own risk (b); and it is submitted, that such a course should rarely, or never, be taken, in respect of an instrument which is so framed that it could by possibility affect the legal estate; as, for instance, a mortgage of an equity of redemption, drawn as a conveyance with a proviso for redemption; and which, although merely a charge in Equity if the first mortgage be valid in Law, would yet pass the legal estate supposing it not to have been effectually transferred by the prior instrument.

All documents affecting legal estate to be abstracted.

Documents should be abstracted in chief.

Statements of matters of pedigree.

Suppression of instruments evidencing immaterial or satisfied equities - how far justifiable.

(z) Supra, p. 139. (a) Sug. 432.

Deed which may operate on legal estate should never be suppressed.

(b) See Sug. 432.

The loss of a deed of a date subsequent to the commencement of the abstract, is no objection to the title, if, under all the circumstances, the clear presumption be that the instrument, if produced, would not throw any difficulty about the title (c); this doctrine, however, must be applied with the greatest hesitation to cases where modern deeds are lost, and no satisfactory evidence exists of their contents (d).

The abstract should notice all judgments and other subsisting charges upon the property (e).

The general rules for abstracting documents are ordinarily known, and may be found in full, in Sir E. Sugden's treatise, and in the first volume of Mr. Sweet's valuable edition of Mr. Jarman's work on conveyancing.

Copies of wills abstracted, (if at all of an informal character,) and of private Acts of Parliament upon which the title depends, should accompany the abstract.

A statement of the evidence which the vendor is able to produce in support of the title may conveniently accompany the abstract; this, however, is not often attended to.

Cases not unfrequently occur of complicated titles, in which the solicitor who prepares the abstract will be justified in laying it before counsel on behalf of his own client; this remark applies particularly to heavy mortgage transactions, in which considerable expense to the mortgagor may frequently be saved by the delivery in the first instance of a perfect and well-verified abstract.

As to loss of modern deeds.

Judgments, etc, should be noticed.

Should be accompanied by copies of wills and private Acts.

And by statement of evidence.

As to consulting counsel thereon on behalf of vendor.

(c) Minchin v. Vance, 2 S. Atk. Conv. 386, b.

(d) Vide infra.

(e) Sug. 445.

An abstract may be written so illegibly, or upon paper of such an inconvenient size or substance, as to justify the purchaser's solicitor or counsel in declining to receive it(f).

The non-delivery of a perfect (g) abstract on the day named, discharges the purchaser from any conditions binding him to make objections, etc, within a specified time after delivery (h); and, at Law, relieves him altogether from the contract (i): in Equity, however, the purchaser will be bound if either he neglect to apply for the abstract within a reasonable time before the day fixed for its delivery (j), or if, upon its being subsequently tendered, he receive it without objection (k): but the wilful neglect on the part of a vendor to prepare the abstract within proper time, when pressed by the purchaser to do so, will, even in Equity, entitle the purchaser to avoid the contract so soon as the time fixed for completion is elapsed (l): where the purchaser's solicitor intends to rely upon the non-delivery of the abstract upon the day named, or (if no day have been named) within a reasonable time before the day fixed for completion, he should decline to receive it; or, if forwarded to him under circumstances which gave no opportunity for its rejection, he should at once return it, and without reading it (m).

Where it is important to the purchaser to complete (if at all) at or about the time fixed for completion, and the abstract, having been called for, is delivered so late as to render it doubtful whether this can be accomplished, the most expedient course would appear to be, to return it unread; offering, however, to receive it again, without prejudice to the purchaser's right to annul the contract, if, on investigating the title, it should be found impossible to complete at (or within some short specified period after) the time originally fixed for completion.

How to be copied.

Effect of non-delivery of abstract, on purchaser's liability under the contract.

Non-delivery how to be taken advantage of

Suggested course of proceeding by purchaser.

(f) See Sug. 431.

(g) Vide supra, p. 131.

(h) Southby v. Hutt, 2 Myl. & C. 211.

(i) Sug. 289; Berry v. Young, 2 Esp. 640, n.

(j) Guest v. Homfray, 5 Ves. 818,

823; Jones v. Price, 3 Anst. 924.

(k) Sug. 290; Smith v. Burnam, 2 Anst. 527.

(l) Sug. 290; Seton v. Slade, 7 .Ves. 2Gb.

(m) See 7 Ves. 278.