That abstract shall commence with sperci-fied document.

Does not preclude objections.

Sow to be framed when early title lost or defective.

Production

(k) Duke v. Barnett, 2 Coll. 337; and see Sir Edward Sugden's remarks, V. and P. 395, 396, on Cattell v. Corrall, 3 Y. & C. 413; and see Corrall v. Cattell, 4 Mee. & W. 734; but see also Smith v. Ellis, 14 Jur. 682

(l) Sellick v. Trevor, 11 Mee. & W. 722.

(m) S. C.

(n) Shepherd v. Keatley, 1 Cro. M. & R. 117.

It is often requisite to insert conditions providing for defects in evidence of the identity of the parcels; such conditions, however, will not relieve the vendor from the necessity of pointing out what the entire property is which he intends to convey; nor, (unless expressly framed to meet the case,) will they do more than provide for mere deficiencies in evidence; that is, they will not provide for repugnacies.

For instance, a condition that a certain plot of land could not be properly identified by the vendor, but it being fairly presumed that the purchaser, by inquiry in the neighbourhood, would be able to ascertain its true situation, he was to accept the plot by the description only contained in the conveyance deed of it, was held worthless, even at Law, when it appeared that the plot did not exist or could not be discovered (o).

So, a condition that no further evidence of identity of the parcels should be required than what was afforded by the deeds, instruments, and other documents abstracted, did not preclude a purchaser from requiring further evidence on the ground of the descriptions of the parcels in the abstracted documents varying from those in the particulars and from each other (p).

In the case of copyholds, the generality and vagueness of the descriptions on the Court Rolls are unimportant, if the vendor can show that the property has been actually held under such descriptions (q).

The Courts, it may be remarked, look with jealousy on conditions negativing a purchaser's right to the usual and reasonable evidences of title; they should not be used to a greater extent than is necessary, as their tendency is to damp the sale; and this, not so much by diminishing the biddings of parties who actually attend, as by keeping away others who are alive to their objectionable character; it cannot, however, be denied, that the prejudicial effect of even the most stringent conditions is practically far less than might be reasonably anticipated.

Of abstract before sale sometimes advisable.

As to identity of parcels.

When part of property cannot be found; or descriptions are inconsistent; vague descriptions of copyholds sufficient.

Stringent conditions not favoured by Court.

(o) Robinson v. Musgrove, 2 Moo. & R. 92.

(p) Flower v. Hartopp, 6 Beav. 476

(q) Long v. Collier, 4 Russ. 267.

And it may be observed, that, on a sale in lots, the vendor should either verify the abstract at his own expense, or the expense of verification should be divided among the purchasers in some specified proportion; otherwise the purchaser who first calls for evidence may be at the sole cost of procuring it.

"There must be express conditions where the vendor intends to throw upon the purchaser the expense of such searches as are usually made by the vendor, of travelling to a distance to examine the abstract with the deeds, or the like" (r).

If the estate be subject to incumbrances which cannot be discharged, they must be mentioned in the particulars or conditions; it often happens that property is subject to charges which, from particular circumstances, (such as there being other ample security,) are never likely to be enforced, although they cannot be immediately released; in such cases it is advisable to state the facts as clearly and openly as possible, and stipulate that the purchaser shall make no objection in respect of the matters so mentioned; if, as may often be the case, an indemnity be offered, its nature should be explicitly stated (s).

It has become very usual to insert conditions restrictive of the time within which objections may be taken to the title; and enabling the vendor to annul the sale, if objections are taken which he is unable to remove; the latter condition, in fact, is inserted by many practitioners, as a matter of course, in all but the very plainest cases; and its insertion by a mortgagee, selling under a power with a title believed to be marketable but somewhat complicated, was approved of by a late very eminent conveyancer: if the condition be for rescinding the contract in case the title shall not prove "satisfactory" to the purchaser, this will not authorize him to make any other than the usual objections (t).

Abstract on sale in lots, should be verified at vendor's expense.

As to expense of searches, Sec.

As to indemnity against charges, etc.

As to time for objections, etc.

(r) Sug. 38.

(s) See 3 Dav. Conv. 68. A condition to give a specified indemnity will be specifically enforced in equity; Walker v. Barnes, 3 Madd. 247.

This condition, however, cannot be relied upon by a vendor who knowingly enters into the contract with a clearly defective title to a portion of the estate: for instance, where a person, entitled in remainder subject to a life estate, contracted to sell the fee simple in possession, hoping that the tenant for life would concur, which she refused to do, the purchaser was allowed to take the reversion with a compensation, although there was a condition for rescinding the contract if a good title could not be made, which condition the vendor wished to enforce (u).

Nor will the condition enable a vendor to refuse to show a title, or, perhaps, in any case, to rescind the contract as against a purchaser who is at once willing to waive the objection or requisition and take the property without compensation (v): but it will enable a vendor, who has in fact a good title, to rescind the contract, upon an untenable objection being taken and persisted in (w).