Of the formalities of deeds.

Notwithstanding mutilation.

Of livery of seisin.

Of appointment of Inclosure Commissioners.

Of deeds having been duly stamped.

But not of forms required by Law on grounds of general policy.

Ald. 579; as to the statutory title which may be acquired under the recent Acts, and which is independent of the title which may be acquired under the ordinary doctrine of presumption (Welcome v. Upton, 5 Mee. & W. 398; Dewhirst v. Wrigley, 1 C. P. Cooper, 329), vide infra.

(f) As to loss of a seal, vide supra, p. 154.

(g) Gresley on Ev. 482.

(h) Lord Trimlestown v. Kemmis, 9 Cl. & Fin. 773, 775.

(i) Rees v. Lloyd, Wight. 123.

(j) Casamajor v. Strode, 5 Sim. 87, 98; 2 Myl. & K. 708.

(k) Hart v. Hart, 1 Ha. 1.

(l) Smith v. Henley, 1 Ph. 391; and see Blair v. Ormond, 1 De G. & S. 428.

(m) Doe v. Coombs, 6 Jur. 930, Q. B.

And it seems that, as a general rule between vendor and purchaser, the latter must admit, as presumptions, all matters which, in a Court of Law, the Judge would clearly direct the Jury to presume; but not matters as to which the Judge would leave it to the Jury to pronounce upon the effect of the evidence (o).

As respects evidence upon matters of fact, (other than documentary facts,) it may, it is conceived, be laid down as a general rule, that a purchaser can, in strictness, require evidence of all facts material to the title from the date at which its regular deduction commences, whether such facts are to be used as positive or negative proofs; that is, of all facts whose existence must be either proved or assumed in order to establish affirmatively the vendor's title, e. g., the heirship of a vendor who claims by descent; and of all facts whose existence must be either proved or assumed in order to establish such title merely by displacing the known or presumptive title of others; e. g., the failure, determination, or release, of some prior estate or incumbrance whose existence is either known or may be presumed as between vendor and purchaser: so, also, he may require a satisfactory explanation of matters which tend to impeach the validity of the abstracted instruments (p).

General rule of presumption between vendor and purchaser.

Evidence of matters of fact.

As to what facts the purchaser can require to be proved.

(n) Doe v. Waterton, 3 Barn. & Ald. 149; Wright v. Smythies, 10 East, 409.

(o) Emery v. Grocock, 6 Madd. 54; Hillary v. Waller, 12 Ves. see p. 270; see Baldwin v. Peach, 1 Y.

& C, Ex. 453, which however was not a case between vendor and purchaser.

(p) See Hobson v. Bell, .3 Jur. 190: a case of erasures.

But, as a general rule, a purchaser cannot compel the vendor to procure evidence for the purpose of negativing mere possibilities, although he may require him to answer, to the best of his knowledge, any relevant question on the subject, and to furnish all evidence in his possession or power; e.g., where a power has been created, and there is no trace of its subsequent execution, the purchaser, although he can require the vendor and his solicitors to state whether to their knowledge or belief the power was ever exercised, and may, perhaps, compel the vendor to make a statutory declaration upon the point, cannot, it is conceived, call for such a declaration by any other person; neither can he require the vendor to search for judgments or other incumbrances; so, neither, where the title commences with a conveyance by a person who conveys as heir at law, can the purchaser require any other evidence of the ancestor's intestacy than such (if any) as is in the vendor's possession (q); so, where a vendor is or has been married, the purchaser should inquire whether any settlement was executed on his marriage, and, if this were the case, may require to see the settlement if in the vendor's possession or power; but if the vendor cannot produce it or a copy, the purchaser, it is conceived, must rest content with his assurance or statutory declaration that it did not affect the property in question, although, as a matter of prudence, he should, of course, make inquiries of the wife's family on the subject: in fact, the general rule would seem to be, that, where a prima facie title is shown, the purchaser can require no evidence, not in the vendor's possession or power, tending to negative any matter the existence of which may not be presumed either from the contents or nature of the abstracted documents or by the ordinary rules of law or equity.

Negative evidence cannot be required if not in vendor's possession or power, but vendor must, if he can, answer all relevant questions.

(q) Sug. 486.

And it seems that, where a prima facie title is shown, the purchaser cannot require from the vendor a general explanation of circumstances which the purchaser may consider to be of a doubtful character, but must confine himself to questions directed to the particular defect which he apprehends; where, for instance, a tenant for life with power of appointment exercised such power in favour of his eldest child, and the father and child then concurred in mortgaging the property, (a transaction which is prima facie valid under the authority of M'Queen v. Far-quhar (r),) upon a suit for specific performance, and an examination of the vendor upon interrogatories, an interrogatory as to the existence of an underhand agreement that the child should join in the mortgage was not excepted to by his counsel, and appears to have been considered unobjectionable by the Court; but a general interrogatory as to "what was his motive or object in making the appointment" was held to be inadmissible (s).

And where an appointment had been made under similar circumstances in favour of an eldest child who joined with the parents in mortgaging the estate, and upon the mortgagee attempting a sale one of the younger children gave notice to the purchaser not to complete, stating that the appointment was a fraud upon the power, but not alleging any fact in support of this assertion, and did not follow up the notice by any proceeding, it was held, that a good title was shown, and that the notice did not oblige the vendor to render any further explanations (t).