Where, however, a will had been executed in favour of (inter alios) the medical man and solicitor of the testator, and the heir at law disputed the will and brought an ejectment, but a verdict was given for the defendants, it was, nevertheless, held by Lord Cottenham, that a purchaser could require the devisees to file a bill to establish the will against the heir (u).

But vendor showing a prima facie, title need not answer mere general fishing questions; and need not give explanations in respect of an adverse notice which has not been acted on; but ha9 under special circumstances been required to prove in equity a will already established by a verdict at law.

(r) 11 Ves. 467.

(s) Pearse v. Pearse, 1 De G. &

S. 12, 16, & 17.

(t) Green v. Puls ford, 2 Beav. 70.

It has also been held, that the purchaser cannot require the vendor to disclose confidential communications made by him to his solicitors or counsel, or cases laid before counsel respecting the property, although the same were made and prepared merely on behalf of the vendor, and not during a suit, or during a dispute or after the threat of a suit (v).

Where the title is derived through an heir who took possession upon the ground of the assumed invalidity of his ancestor's will, which professed to deal with the estate, a purchaser may require the production of the will or evidence of its contents (w): so, on a sale by a devisee or party claiming under him, the purchaser may require the production of any subsequent will or codicil, or evidence of its contents (x): what the rule may be in cases where a will is known to have existed, but there is nothing to indicate that it purported to affect the property in question, seems to be more doubtful; the purchaser would, no doubt, be entitled to see either the original or the best evidence of its contents which the vendor had the means of supplying (y); but if none such could be procured, and, after making inquiries on the subject, no special grounds for supposing the estate to be affected by the will were found to exist, the purchaser, it is conceived, would be obliged to take the title (z).

And it is the universal practice, where a descent has occurred within a recent period, to require proof of the Ancestor's intestacy as respects the property offered for sale, even although no trace of a will appears on the title; how far this can in strictness be insisted on, (except as respects evidence which the vendor may have in his own possession or power,) is perhaps doubtful; the length of time which may be considered sufficient to render such evidence unimportant must depend upon the state of the particular title: where an estate has been repeatedly sold or mortgaged, an interval of thirty or forty years is generally considered satisfactory.

Vendor need not disclose confidential communications.

Whether he must produce will as negative evidence of heir's prima facie title.

How far bound to furnish proof of intestacy.

(u) Grove v. Bastard, 12 Jur. 385; 2 Ph. 619.

(v) Pearse v. Pearse, 1 De G. & S. 12.

(w) Stevens v. Guppy, 2 Sim. & St. 439.

(x) See, and consider, Howarth v. Smith, 6 Sim. 161.

(y) See Cooper v. Emery, Hayes on Conv. 573, 3rd ed.

(z) See the remarks of V. C. Wigram,2 Ha. 260.

And a purchaser is not entitled to copies of any instruments which are produced merely to negative a possibility, and which he could not have compelled the vendor to produce if they had not been in his possession,.

The unsupported statutory declaration of the vendor as to a matter of fact material to the title, and peculiarly within his own knowledge, is not such evidence thereof as a purchaser is bound to accept («).

The want of evidence of matters of fact, (other than documentary,) as well as of the existence of documents conferring a title, may, however, be supplied by presumption; and the rule laid down in Emery v. Grocock (b), as to a purchaser being bound to presume whatever a Judge at Law would clearly direct a jury to presume, applies (it is conceived) generally, although not universally (c), to questions of matters of fact between vendor and purchaser (d).

Thus, where, in 1801, an allotment under an Inclosure Act was made to A. in lieu of four acres of common field land, the Court, in 1847, assumed, in the absence of evidence to the contrary, that the four acres formed part of five acres and a half of common land comprised in a deed dated in 1784 (e); but the vendor was held bound to make inquiries on the subject, and to produce the best evidence in his power of the five acres and a half having formed the only commonable land belonging to the allottee (f).

Purchaser cannot require copies of documents produced as negative evidence.

Want of proof of material facts may be supplied by presumption.

Presumption of identity of parcels.

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

(b) Supra, p. 162; 6 Madd. 54.

(c) See Sug. 444.

(d) See Lapham v. Pike, Rolls,

1831; cited in Atkinson on Marketable Titles, 397.

(e) Major v. Ward, 5 Ha. 604.

So, also, where a person, whose name and description correspond with those of a person previously named in the title, deals with the property in a manner consistent with the supposition of the two being identical, such identity must, in the absence of any reasonable grounds for suspicion, be assumed by a purchaser; this doctrine seems to be supported by a decision in the case of the Braye Barony (g), where it was held sufficient to identify A. [described in the ancient record, as of B.] with a person named A. in the pedigree, to show aliunde that the latter held land in B.

Seisin may be presumed from facts which tend to show that the ancestor or testator acted as if he were the owner of the premises; e. g., the production of leases which he has granted, and which have been followed by possession or payment of rent (h), or of a grant of an annuity by a person in possession, and which states that A. B. is the legal owner of the fee (i); or the production of receipts for rent given to persons who are proved aliunde, (e. g., by the production of land-tax assessments, entries in parochial rate-books, etc.,) to have been in the occupation of the premises, or by the declarations of such occupiers that they held of the party in question: but mere personal occupation, although sufficient to raise a presumption of title in chap. VIII.