This section is from the book "A Treatise On The Law Of Vendor And Purchaser Of Real Estate And Chattels Real", by T. Cyprian Williams. Also available from Amazon: A treatise on the law of vendor and purchaser of real estate and chattels real.
The writer can hardly put forward a treatise on the law of Vendor and Purchaser of Land without an apology for adventuring upon the field successively occupied by so eminent a Real Property lawyer as Lord St. Leonards, and a writer of such profound knowledge of conveyancing and great literary skill as Mr. Dart. His excuse is that so many years have elapsed and so many and great changes have been made in the law, not only since Mr. Dart first wrote, but even since he himself supervised an edition of his book, that there appears to be room for a re-statement of the principles of the law of sale of land from the standpoint of the present time. Such a statement of the law it has been the writer's aim to make; and he has particularly endeavoured to give a readable account of it.
This book is intended for the use of those engaged in the practice of conveyancing, whether as counsel or solicitors. Its design has therefore been to discuss the incidents of a contract for the sale of land as they are usually presented to the notice of conveyancers; that is to say, in order of time. And the scheme of the work is to treat first of the normal course of such a contract, where it has been made between persons of full capacity and is duly brought to completion, and to examine afterwards the grounds for avoiding the contract, such as incapacity, mistake, fraud or misrepresentation, and the remedies to be pursued in case of its breach. Thus the book begins with a statement of the law relating to the formation of a contract for the sale of land. It then gives a brief general account of the rights, obligations and remedies of the parties who have concluded such a contract; and the terms of an open contract are particularly set out (a) in the same form in which the special provisions of a contract for sale are usually expressed. After this, the usual conditions of sale are dealt with; and the reader's attention is then directed to the vendor's obligation to show a good title and its discharge. The subject of the investigation of title is considered, first generally, and afterwards with regard to a variety of special points or subjects, all of which are of constant occurrence in the work of advising on title. In selecting the subjects to be so discussed and in determining upon their mode of treatment, the writer has necessarily had to take into account the exigencies of the law and practice at the present time; and he has often been constrained to deal at some length with topics which may be thought to be ephemeral, and which would be disposed of by a statement of very different proportion, if he could regard nothing else than the ideal form of a literary composition. Thus he has devoted the whole of one chapter to the subject of devolution on death, and the death duties (b), regarded from the conveyancer's point of view. But his reason is that on these subjects the law has been so lately recast by the Land Transfer Act, 1897, and the Finance Acts, that its interpretation has not yet been settled; whilst the questions which are raised by these statutes occur upon almost every title. At the end of the dissertations on particular points arising on the investigation of title, or on particular titles, the main thread of the discourse is again taken up in the chapter on the effect of the contract pending completion. This is followed by an account of the completion of the contract, dealing with the acts to be performed from the time of the acceptance of the title down to the execution of the conveyance.
At this point the first volume concludes (c), the reader having been conducted throughout the whole of the normal course of a contract for the sale of land. In the second volume it is proposed to treat of the parties' position after completion (as with regard to a want of title not ascertained until after that time") and with the avoidance of the contract and the remedies for the breach thereof, as already mentioned. The second volume will also include a chapter on the sale of registered land, a subject which would have been considered in the present volume, but for the delay in promulgating the new Land Transfer Rules.
(a) Pp. 39, 41 sq. (b) See above, p. xi.
(c) See above, pp. v, n., xi.
The writer has not attempted to compile an encyclopaedia of the law of sale of land. His object has been rather to treat of the main principles of the law and practice incident to such sales than to note every special circumstance which may possibly attend them. His belief is that a sound knowledge of these principles is by far the best aid to the solution of the particular problems which are encountered in practice. And his hope is that, in this respect, his book may be found a useful guide to those gentlemen who are obliged (as constantly happens in small transactions) to advise on difficult questions of conveyancing without the assistance of counsel.
Perhaps the writer may be allowed to say that he has not avoided the discussion of points of law or practice, which are not exactly covered by decided cases, or settled by the opinion of conveyancers or text writers of acknowledged eminence; nor has he hesitated to criticise judicial decisions or dicta, which appear to him to be of questionable authority. Thus, he has discussed the following amongst other questions: - Whether, after the acceptance of a bidding at an auction, either party can revoke the authority conferred by him upon the auctioneer to sign a memorandum of the contract (d); whether the purchaser's right to a good title is an implied term of the contract or a collateral right (e); whether a vendor under an open contract has the right of re-sale on the purchaser's failure to observe the terms of the contract (f); whether a voluntary conveyance is a good root of title under an open contract (g); at what time the purchase-money is payable on a sale of land situate in a compulsory registration district (A); and to what extent the usual remedies for securing payment of a rent-charge in fee are obnoxious to the rule against perpetuities (i). He has tried to elucidate the mystery of what is called "the compound settlement " in connection with sales under the Settled Land Acts (k). and he has respectfully protested (l) against the decision in the late case of lie Cornwvallis West and Munro's Contract (m). He has likewise considered the important point - on which, he is aware, his is vox clamantis in deserto - whether a conveyance by a tenant for life under the Settled Land Acts can override a mortgage by the remainderman (n). And he has adverted to the difficulties now raised where a limited owner pays estate duty out of his own pocket and so becomes entitled to a charge for the amount paid (o); with regard to the charge of estate duty on the death of several joint mortgagees not appearing to be trustees (p); where a purchaser receives notice of some unregistered process of execution (q); and with regard to the effect of orders made in exercise of bankruptcy jurisdiction in creating a charge on land (r). He has suggested (s) that the assignee of part of land let on lease, who pays the rent for the whole under threat of distress, may have a remedy which was overlooked in the case of Johnson v. Wild(t). And he has criticised the decisions in Bolton v. London School Board (u), Re Selous (x), Re Williams and Neil-castle's Contract (y) and the late case of Re Highett and Bird's Contract (z). Besides this, he has inquired into the advantages of official over private searches (a). He has made a strong effort to convince his readers of the great hardship which may befall a purchaser by private contract, whose advisers tamely submit to the incorporation in the contract of the conditions usual on London sales by auction (b). He has dealt with the subject of the investigation of title in view of a mortgage .(c). And he has treated at some length of the law of restrictive covenants (d), a subject on which many important decisions have been given during the last few years, and on which the latest leading case (e) is of such recent date that it has not yet been reported in the Law Reports. He has moreover taken account, from the outset (f), of the additional burthen laid on conveyancers' shoulders by the development of the doctrine, which culminated (g) in the extraordinary case of Scott v. Alvarez (h).
 
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