We have already (p) adverted to the effect which negotiations upon the title may have upon the vendor's rights under the ordinary conditions limiting a time for taking objections, and giving him the power to rescind the contract.

It may be observed, that a solicitor purchasing from his client, cannot insist upon any objections to the title which he - or his then partner in the case of a firm - considered unimportant when acting for the client upon his original purchase (q).

Care should be taken not to make frivolous or unnecessary objections or requisitions; objections clearly frivolous, made and persisted in, would certainly indispose, even if they did not prevent (r), a Court of Equity from enforcing the contract at the suit of the purchaser: it perhaps seldom happens, upon the perusal of a long abstract, that either solicitor or counsel confines his requisitions within the strict limits of his client's rights; but it is of importance that no untenable requisition should be persisted in; for instance, where a purchaser had required unnecessary evidence, and had in consequence been refused that to which he was really entitled, he was not allowed his costs, although he obtained a decree for specific performance (s): we may here refer to a modern case, where, when a purchaser from a mortgagee alleged that the latter was unable to deliver possession, and insisted on the concurrence of the mortgagor, although the mortgagee offered to deliver possession, it was held, in a suit for specific performance, that the mortgagee was entitled to a decree with costs if then able to deliver possession, and the Court refused to inquire whether, when his offer to deliver possession was not accepted, he was able to perform it (t).

"Month" means prima facie a lunar month.

Effect of negotiations upon condition as to objections.

Solicitor purchasing cannot object to title which he accepted for his client.

Danger of frivolous objections and requisitions, or of withholding objections, etc, whether it amounts to waiver.

(o) Lang v. Gale, 1 Mau. & S. 111; Simpson v. Margitson, 11 Q. B. 23; and see Sir E. Sugden's remarks, V. and P. 283, on Hipwell v. Knight,

1 Y. & C. Ex. 401. (p) Supra, 72.

(q) Beevor v. Simpson, Taml. 69. (r) Sug. 291.

And, on the other hand, a purchaser should be careful not to hold back important objections or requisitions; if he knowingly do so, the question may arise whether he has not impliedly waived them (u); and where a purchaser puts a vendor to expenses in complying with requisitions, etc, and then takes and insists on a fatal objection, which he originally had the means of discovering, it seems probable that if a bill were filed by the vendor for specific performance and dismissed, the Court would not dismiss it with costs, without allowing to the vendor, by way of setoff, the expenses so incurred by him (v); although it does not appear that he could otherwise recover them (w).

We have already considered (x) what expressions will negative the purchaser's prima facie right to a marketable title; he will, however, be bound, not only by express stipulation, but also by a clear notice of the state of the title, given to him before entering into the agreement (y).

As to costs incurred by vendor before fatal objection.

Purchaser's prima facie right to a good title.

(s) Newall v. Smith, 1 Jac. & W. 263.

(t) Allen v. Martin, 5 Jur.239, R.

(u) See Sir E. Sugden's remarks on Magennis v. Fallon, V. and P.407

(v) See and consider Deverell v. Lord Bolton, 18 Ves. 505, 514, 515.

(w) See Sug. 428.

(x) Supra, p. 66 et seq.

But a purchaser may, after the contract, either expressly or impliedly, waive, either wholly or in part, his right (whether it be absolute or qualified) to a marketable title, or to the usual evidences thereof.

We have seen that a purchaser is not bound by his counsel's approval of the title (z); if, however, counsel waive a requisition or objection, and the purchaser adopt his opinion and deal with the vendor on that view, he cannot afterwards repudiate it (a). Where a purchaser, having taken several objections, expresses himself willing to accept the title upon a specified objection being removed, this waiver of the other objections is merely conditional upon the removal of the specified objection; so that, if such objection be not removed and a bill be filed against him for specific performance, he is entitled to a general reference as to title (b). Acceptance of the title, as abstracted, is not a waiver of the purchaser's right to have the abstract verified (c): nor will the Court imply a waiver of any objection which is not clearly raised by the contents of the abstract (d); nor does a purchaser, by waiving his right to an abstract, necessarily waive objections to the title which are otherwise known to him (e).

And waiver need not be express; it may be implied, either from letters or mere acts of the party.

For instance, where a purchaser who had been let into possession - but which, as it was according to the contract, does not appear to be very material - and who had retained the abstract for a considerable period without objection, and had altered and let the premises, wrote a letter to his solicitor for the purpose of its being communicated to the vendor, and therein expressed his "vexation at the delay which had happened about payment," and his gratification "at the liberality and patience shown" to him, this was held to amount to an admission that the title was approved (f): and the same decision was come to in a later case, where a purchaser took possession under the contract, paid part and gave security for the residue of the purchase-money, and mortgaged her interest under the contract (g).

May be waived.

Purchaser not bound by his counsel's opinion, unless he adopts it.

Effect of acceptance of title subject to specified requisition.

Waiver may be implied from apologies in letter for nonpayment of purchase-money.

(y) Ogilvie v. Foljambe, 3 Mer. 64.

(z) Deverell v. Lord Bolton, 18 Ves. 505.

(a) Alexander v. Crosby, 1 Jones & Lat. 666.

(b) Lesturgeon v. Martin, 3 Myl.

& K. 255.

(c) Southby v. Hutt, 2 Myl. & Cr. 217.

(d) Blacklow v. Laws, 2 Ha. 47.

(e) Sidebotham v. Barrington, 3 Jur. 947.

The preparation of the conveyance, cannot, in general, be much relied on as evidence of waiver (h); where, however, in the case of a lease, the lessee, without previously requiring a title to be shown, approved of a draft lease furnished by the lessor, and took possession under the contract, he was held to have waived all objections to the title (i): so, where a purchaser of a leasehold house, after transmission to him of the original lease, prepared a draft assignment, and made various objections as to repairs and other matters, but did not require the production of the lessor's title, the Court seems to have considered that he had waived its production (j).

An attempted resale of the property, is, in general, immaterial; except that the actual or attempted resale of merely a portion of the estate, may, as between the original vendor and purchaser, show that the latter did not consider such portion material to the enjoyment of the residue (k).

From payment for, and dealing with, property.

Preparation or approval of conveyance, when a waiver.

Attempt to resell, no waiver: - to resell part, effect of.

(f) Margravine of Anspach v. Noel, 1 Madd. 310.

(g) Haydon v. Bell, 1 Beav. 337. (h) See Sug. 402.

(i) Warren v. Richardson, You. 1. (j) Clive v. Beaumont, 1 De G. & S. 397; Smith v. Capron, 7 Ha. 191. (k) See l Madd. 170.

Possession of the property by the purchaser is the fact most frequently relied on as furnishing evidence of waiver of objections to the title; its importance, however, depends upon the circumstances attending its acquisition and retention.

The strongest case against the purchaser, is, where he forcibly, or without the consent of the vendor, takes possession: forcibly taking possession, was held in an early case to amount to a waiver of an objection for want of title to an important part of the estate (l).

Possession, however, if taken in accordance with the clear intention of the parties as evidenced by the terms and subject-matter of the contract (m), or with the consent of the vendor (n), is not in itself, as a general rule, any waiver of the purchaser's right to a good title, or of any pending negotiations upon the title: where, however, the purchaser was, upon his own application, let into possession, this was held to be a waiver of an objection (viz., a right of sporting over the property) which appeared upon the face of the abstract delivered three months previously, but had not been made the subject of remark by the purchaser or his solicitor (o): it is material here to observe, first, that the purchaser's general requisitions upon the title appear (p) to have been made prior to the application for possession; and secondly, that the objection was of a permanent character, and not probably capable of removal; the case may, perhaps, be held to show, that the acceptance of possession amounts to an implied waiver of any known objection, which the purchaser knows, or may reasonably believe, cannot be removed; or has not formed part of his previous requisitions upon the title, (supposing any requisitions to have been already made). but may amount to waiver of objections, which are irremovable, or have not been in(l) Calcraft v. Roebuck, 1 Ves. jun. 221.

Possession, how far to be relied on as evidence of waiver.

Forcible possession a waiver.

Possession taken under contract, or with vendor's leave, no waiver; except under special circumstances.

(m) Stevens v. Guppy, 3 Russ. 171.

(n) Burroughs v. Oakley, 3 Sw.59

(o) Burnett v. Brown, 1 Jac. & W. 168.

(p) See 1 Jac. & W. 171.

The grant of a lease by the purchaser to a tenant in possession is equivalent to taking possession (q).