The purchaser, upon completion, is entitled (subject to the exceptions hereinafter noticed) to all deeds and other muniments of title, however ancient, which are in the possession or power of the vendor (a): and it is conceived that the vendor, (unless he retain property held under a common title,) has in general no right to keep copies of any documents other than those which subject him to some future personal liability.

Where, however, the purchaser does not buy all the estate, but a part either remains in the vendor or is sold to another purchaser, the practice (in the absence of agreement) is, for the holder of the largest portion to take the deeds and covenant for their production: but the fact of the vendor having already covenanted for production to a former purchaser, will not, in the opinion of Sir E. Sugden (b), justify him in refusing to deliver the deeds, if the second purchaser will allow notice of the covenant to appear in or upon his conveyance, and will covenant to perform the prior covenant: this covenant by the second purchaser would, of course, be entered into with the first purchaser, if the vendor's covenant was made determinable upon his procuring, or the first purchaser will accept, such a substituted covenant; or otherwise with the vendor himself, and would then take the shape of a covenant to produce the deeds, etc, and to indemnify him against liability under the former covenant.

Where property is sold under a trust for sale in a settlement, which goes on to declare trusts of the purchase money (whether the same is to continue money or to be reinvested in real estate), it is conceived, that the existence of the trusts gives no right to the trustees to retain the settlement; but the purchaser must covenant to produce it, even although he buy the entire property: in order to avoid this difficulty, it is usual, where an absolute conversion is intended, to settle the money by a deed distinct from that containing the trust for sale: or, perhaps, the proper rule in cases of several sales under a settlement may be, that, unless the trustees retain a sufficient part of the estate to warrant its retention, it should be deposited for the benefit of all parties until performance of the trusts, and then delivered to the largest purchaser upon his entering into covenants for its production: the right to the deed considered as an instrument creating terminable trusts, may, perhaps, be considered as governed by a case (b) in which, upon the purchase of a part of an estate in lease, the Court thought that the counterpart of the lease ought to be deposited for the benefit of all parties.

Purchaser's right to delivery of muniments of title.

Where he purchases only part of the estate.

Vendor having covenanted to produce deeds to other parties not therefore entitled to retain them.

Sale under a settlement.

(a) Sug. 454; 1 Jarm. Conv. by S. 63; Austin v. Croome, 1 Car. & M. 653; Smith v. Chichester, 2 Dru. & W. 393

(b) Sug. 456.

"Where a mortgagee of distinct properties belonging to distinct mortgagors transfers the mortgage debts by one deed without their consent, he will have to pay for the necessary attested copies of the deed which he has thus made common to the several titles, and of the necessary covenants for its production (c).

And the purchaser, it appears (d), has no right either to the custody, or to a copy, or to a covenant for the production, of instruments produced merely as negative evidence to satisfy him that they contain nothing affecting the title (e).

If the deeds themselves are not delivered, the purchaser (in the absence of stipulation) may require attested copies at the vendor's expense (f). It has been observed by Lord Eldon, that purchasers set an undue value upon these copies; that, except as between the parties themselves, they are waste paper upon an ejectment (g): nevertheless they are, it is conceived, of considerable practical importance, if the property is likely to be resold; for the ordinary condition, making them evidence without production of the originals, seldom prejudices a sale; whereas the absence both of originals and attested copies might often cause a serious deficiency in price.

Deposit of the settlement until completion of the trusts.

Deposit of lease on purchase of the reversion.

Liability of mortgagee settling several mortgages by a single deed.

Purchaser not entitled to deeds used as negative evidence.

Purchaser's right to attested copies of originals not given up.

(b) Shore v. Collett, G. Coop. 234.

(c) Capper v. Terrington, 1 Coll. 103.

(d) Vide supra, pp. 158, 166.

(e) Sug. 458.

(f) Dare v. Tucker, 6 Ves. 460; Boughton v. Jewell, 15 Ves. 176; Berry v. Young, 2 Esp. 640.

The right, however, seems to be confined to such documents as are necessary to make out a marketable title (h): nor does it seem to extend to copies of Court Roll, or deeds enrolled under Statutes which require enrolment (i), or, in Sir E. Sugden's opinion, to "deeds enrolled for safe custody in a Court of Record," or "wills registered and accessible" (k); but the practice in this respect does not appear to be settled (l). If, however, the vendor is in possession of attested copies of enrolled deeds, etc, the purchaser can claim them, unless larger property, held by the same title, is retained by the vendor or sold to another purchaser (m).

And the purchaser, as respects deeds of which he can claim attested copies at the vendor's expense, is also entitled (at the like expense) to a covenant for the production of the originals, and also to a covenant for the production of such copies of Court Roll, and instruments on record as are in the vendor's possession or power (n); but the expenses of future production are borne by the purchaser (o).

And it must be remembered, that although the purchaser cannot require the production of original copies of Court Roll, or enrolled deeds, etc, if not in the possession or power of the vendor, he yet may, and should in all ordinary cases, inquire into the reason of their non-production; that is, if their date and character warrant the supposition that they may be denied with an improper motive: for in the well known case of Whitbread v. Jordan (o), the omission of a mortgagee to make inquiry on the subject was, under the particular circumstances, attributed to wilful blindness (p); and a similar decision has been pronounced by Sir L. Shadwell, V. C, in a very recent case (q).

Restriction upon such right.

Purchaser also entitled to covenant for production of originals.

Absence of copies of Court Roll and deeds where production cannot be enforced should be explained.

(g) 6 Ves. 460.

(h) Dare v. Tucker, 6 Ves. 460; Cooper v. Emery, 1 Phill. 388.

(i) See Cooper v. Emery, ubi supra; Campbell v. Campbell, Sug. 4 75.

(k) See Sug. 476.

(l) 9 Jarm. Conv. by S. 10. (m) Sug. 476.

(n) Berry v. Young, 2 Esp. 640, n.; Cooper v. Emery, 1 Phill. 388. (o) Berry v. Young, ubi supra.