(4.) As to the investigation of the title; - payment and application of purchase-money; - possession; - and preparation and execution of the conveyance.

Delivery of the abstract may, if necessary, be compelled by an order obtained on motion (s); and, if dissatisfied with the title shown thereby, the purchaser may procure an order that the title be referred to the Master; upon which reference the proceedings will be similar to those in a suit for specific performance (t): contrary to the rule which prevails in ordinary sales, the Court will compel the purchaser to take an equitable title (u); but only where the legal estate is outstanding without any claim of interest on the part of the person in whom it is vested (w); nor will it compel him to take a doubtful equitable title (x); nor, perhaps, where there is material error in the decree, to wait until the same is rectified (y). In a late case, where a purchaser had accepted the title and paid in his purchase-money, he was discharged from the contract upon a deed being discovered which showed that the plaintiffs could not make a title to more than a moiety of the estate (z): but a purchaser, who, having discovered a supposed defect in the title, buys in the interest of the party who alone could take advantage of it, will not be allowed the benefit of the general rule as to doubtful titles (a).

It is stated by Sir E. Sugden (b), that, in every case, the purchaser is entitled to the costs of the motion for a reference of title, and to the costs of that reference: it appears, however, from a recent case (c), that the decision, upon which the above proposition was founded, is mis-reported; and that the Court only held that the purchaser was not liable to pay costs, on the Master reporting in favour of the title: if, however, the title were made out before the Master, on grounds not appearing on the abstract, he would be entitled to receive costs (d). If the title prove bad, the purchaser is entitled to receive his costs, charges, and expenses, out of the fund in Court (if any) (e), or, if there be none, from the plaintiff, who may recover them in the suit (f): it is said to have been held by Sir J. Leach that, where exceptions are allowed to the Master's report in favour of the title, the Court will not thereupon direct that the purchaser be discharged and his costs be paid, but that some specific application must be made for the purpose (g). And it appears that, where the title is decided to be bad, the purchaser must be actually discharged by order, before there can be a resale (h).

Abstract - and title.

Costs of reference.

(s) Dan. Ch. P. by H. 11G8.

(t) Ibid. 1200.

(u) 14 Sim. 312; and see Sug. 525.

(w) Craddock v. Piper, 14 Sim. see p. 312; and see 3 Ves. 23.

(x) Marlow v. Smith, 2 P. Wms. 201.

(y) Lechmere v. Brasier, 2 Jac. &

W. 287; but see Sherwood v. Bever-idge, 13 Jur. 1042, V. C. K. B.

(z) Ward v. Trathen, 14 Sim. 82; S. C. 8 Jur. 303.

(a) Sheppard v. Doolan, 3 Dru. & W. 1.

(b) Sug. 76, citing Camden v. Benson, 1 Keen, 671.

Where the sale has taken place under circumstances which, in the case of an ordinary sale, would be a defence to a suit for specific performance, except with a variation, but would not be a ground for rescinding the contract, the Court, as the property must be sold, is obliged to decide whether the sale is to be carried into effect, or the property is to be resold: but, so far as possible, the rules which regulate such cases between ordinary vendors and purchasers will be adapted to purchases under orders of the Court (i).

(c) See Flower v. Hartopp, 8 Beav. 200.

(d) Fielder v. Higginson, 3 Ves. & B. 142; the purchase in which case seems to have been made under a decree; see 2 Sim. & St. 117.

(e) Reynolds v. Blake, 2 Sim. & St. 117; Att.-Gen. v. Corp. of Newark,

8 Sim. 71; Calvert v. Godfrey, 6 Beav. 97.

(f) Berry v. Johnson, 2 Y. & C. Ex. 564, 565; Smith v. Nelson, 2 Sim. & St. 557.

(g) Hide v. Hide, 1 C. P. Coop. N. R. 379.

(h) Williams v. Wace, ibid.

Although the practice has varied (k), it is now clearly the rule of the Court, that, on a special case, as where the purchaser is entitled to relieve himself from paying interest, the Court will receive the purchase-money on his application, without his accepting the title (l): but the order will not be made except in a special case (m) j nor will it be extended so as to let him into possession (n): and where a purchaser, without the authority of the Court, enters into possession, although with the consent of the vendor's solicitor, he will be held to have accepted the title (o), and will be at once ordered to pay in his purchase-money (p).

When the purchase-money is paid into Court, it will not, without the purchaser's consent, be applied in discharge of incumbrances, on the ground of his delay in preparing the draft conveyance (q): it is, however, usual, upon paying in the money, expressly to ask that it may not be paid out again without notice to the purchaser; an order to which effect prevents the distribution of the fund without the purchaser's consent given in Court, or upon his non-appearance and an affidavit of his having been served with a copy of the order for setting clown the cause on further directions, or of the petition for distribution (r); in a late case Lord Langdale appears to have held that, although the estate was sold for payment of debts, the Court ought not to distribute the fund until an effectual conveyance could be made to the purchaser (s).

Purchase-money may, under special circumstances, be paid in without accepting title.

As to its application and distribution.

(i) Alvanley v. Kinnaird, 2 Mac. & G. 1, 8.

(k) See Sug. 73; Denning v. Henderson, 1 De G. & S. 689; and Rutter v. Marriott, 10 Beav. 33.

(l) Per Lord Cottenham in De Visrne v. De Visme, 1 Mac. & G. 344; Hindle v. Dakins, 1 C. P. Coop. N. R. 378; Morris v. Bull, 1 De G. & S. 691, n.