"Where the solicitor acts for both vendor and purchaser.

Solicitor's lien is commensurate with his client's right to withhold the deeds.

Subject to the old solicitor's lien thereon; Colegrave v. Manley, T. & R. 400; Heslop v. Metcalfe, 8 Sim. 622, 3 My. & Cr. 183, 189; Griffiths v. Griffiths, 2 Hare, 587, 590, 592; Robins v. Goldingham, L. R. 13 Eq. 442; Re Hawkes, L898, 1 Ch. 1. 18-20, 25, 26; & Rapid Road Transit Co., 1909, 1 Ch. 96, 99: Bee:also the cases cited in the two previous notes.

(A) Re Safety Explosives, Ltd., ubi sup.

(i) See Hicks v. Keat, 3 Jur. 1024; Re Mosely, 15 W. R. 975; Re Snell, 6 Ch. D. 105; Re. Mason and Taylor, 10 Ch. D. 729; Mac-v. Lister, 37 Oh. D. 88, 94; Branton v. Electrical Engineering Corpn. 1892, 1 Ch. 434, 439; all cases of solicitors acting both for mortgagor and mortgagee.

(k) Blunden v. Desart,2 Dru. & War. 405, 418, 419; Pelly v. Wathen, 1 De G. M. & G. 16, 23, 24; Re Hawkes, 1898, 2 Ch. 1, 7. 13.

(l) Wakefield v. Newbon, 6 Q. B. 276: Re Llewelin, 1891, 3 Ch. 145

(m) Above, p. 125.

W

In connection with the production of the abstracted documents, we may mention that the purchaser is entitled to require that every document, on which the proof of the title to the lands sold depends, shall be so stamped, if necessary, as to be available as evidence in a court of justice; insufficiently stamped documents not being, as a rule, receivable in evidence except on payment of a penalty (q). If therefore any such document, which is required by law to be stamped, be unstamped or insufficiently stamped, the vendor is bound to procure it to be properly stamped at his own expense; and the purchaser should require him to do so (r). In consequence of this liability, vendors often specially stipulated, where necessary, that it should be no objection to the title that any abstracted document appeared to be unstamped or insufficiently stamped, and that the purchaser should bear the expense of procuring any such document to be duly stamped. But it is now enacted (s) that every condition of sale framed with the view of precluding objection or requisition upon the ground of absence or insufficiency of stamp upon any instrument executed after the 16th day of May, 1888, and every contract, arrangement, or undertaking for assuming the liability on account of absence or insufficiency of stamp upon any such instrument or indemnifying against such liability, absence, or insufficiency, shall be void. So that if any such special stipulation be now made, it must be limited to instruments executed before or on that day (t). Such stipulations should not of course be made unless there be reason to suppose that some document of title is insufficiently stamped.

Stamps.

(n) Smith v. Chichester, 2 Dru. & War. 393; Petty v. Wathen, 1 De G. M. & G. 16.

(o) Davies v. Vernon, 6 Q. B. 443, 447.

(p) Blimden v. Desart, 2 Dru. & War. 405, 420, 421, 427-431.

(q) See Stat. 54 & 55 Vict. c. 39, ss. 14, 15, replacing 33 & 34 Vict.

C. 97, ss. 15 - 17, and 17 & 18 Vict, c. 125, ss. 28, 29; Sug. V. & P. 566.

(r) Whiting to Loomes, 14 Ch. D. 822; 17 Ch. D. 10; Re Lovell and Collard's Contract, 1907, 1 Ch. 249; above, p. 45; for a distinction, see Expte. Birkbeck Freehold Land Society, 24 Ch. D. 119.

With regard to the evidence necessary to prove the facts as distinct from the documents stated in an abstract, what a purchaser requires is testimony reduced to writing so that it may be preserved as a muniment of title. So far as the facts may be proved by written evidence admissible in a court of justice, a purchaser is entitled to call for such evidence, if it can be obtained. But if none such can be procured, he must accept other evidence such as it is the established practice to receive on sales. For example, in the matters of pedigree, to prove the facts of birth, marriage and death the purchaser is in the first instance entitled to require certificates of baptism or birth, of marriage and of burial: but if these cannot be found, the vendor may not only have recourse to other evidence admissible in litigation, as statements of deceased members of the family or entries in a family Bible or register, but in default of such testimony he may proffer statutory declarations of living members of the family or even of strangers.

Evidence of facts required on sales.

(s) Stat. 54 ft 56 Vict. ..39, s. 117, replacing 51 & 52 Vict.

C. 8, 8. 20.

(t) 1 Key ft Elphinstone, Prec. Conv. 255, 203, 1th ed.: 240, 251, 8th ed.; see above, p. 78.

9(2)

The written declaration of a living member of the family as to a matter of pedigree may become good evidence after his death, but is inadmissible in court in his lifetime; whilst the like declaration of a stranger can never be evidence admissible in litigation (u): but on sales such declarations are nevertheless received (x).

The purchaser is entitled, pursuant to his right to require proof of all facts material to the title, to call for evidence, not only that the events stated in the abstract took place, but also that other events, of which the occurrence must necessarily have affected the title, did not happen. That an event did not happen is in many cases a matter of inference rather than of positive proof: but if the event be such that its occurrence must necessarily have rendered the title different from that stated, the purchaser is entitled to require some evidence from which its absence may reasonably be inferred. For example, if it were stated in the abstract that A., a former owner, died leaving B., his only sister, his heiress-at-law, evidence must be given, not only that A. died on the date specified, that his father died before him, and that B. was the child of the same parents as A., but also that A. died intestate, that he left no issue, that he left no brother or any issue of any brother surviving him and that he had no other sister. The production of letters of administration is the evidence usually required on sales in proof of intestacy; facts like the want of issue or the number of children born of a marriage can only be inferred, after the death of the husband and wife, from a declaration by some member of the family or familiar friend that he never knew or heard of there being any issue, or more than certain specified children of the marriage; and such declarations are the evidence usually obtained (y). So where title was made under a voluntary settlement executed in 1845 on trust for the settlor for life and afterwards on trust for sale, but with a power of revocation, and under a conveyance after the settlor's death in execution of the trust for sale, it was admitted that the purchaser was entitled to proof, first, that the voluntary settlement had not been avoided by a subsequent conveyance for value, and secondly, that the power of revocation had never been exercised. But it was held that, there having been long possession in accordance with the alleged title, sufficient evidence was afforded by a declaration of the settlor's solicitor that he believed that the property remained in the settlor's possession till his death, and that he (the solicitor) had never heard of any sale of the property or of any exercise of the power of revocation (a). And it was further considered that, apart from this declaration, the necessary evidence was afforded by a recital in the conveyance made after the settlor's death that the property had been sold by auction pursuant to the trust for sale; the truth of which the purchaser was bound to assume under the stipulation making recitals in deeds twenty years old prima facie- evidence of the facts recited (a). This case appears to show that, whenever a power of appointment has been created, and title is deduced as in default of appointment, the purchaser is entitled to require evidence from which it may reasonably be inferred that the power was never exercised. But where the cesser of a power, as by the death of the donee thereof, is clearly shown, long possession and conveyance for value under the title in default of appointment are of themselves facts raising a presumption that the power was never exercised; and it seems that, in such circumstances, the purchaser must allow due weight to this presumption, and cannot require other evidence beyond what is in the vendor's possession or power or is afforded by his statutory declaration (b).