This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Generally, every person who has an interest in the land has an equitable right to the production of all deeds which affirmatively prove his title, but not to those which do not (u). It is a general principle in Equity that a person
6hall not be compelled to produce his title deeds merely to gratify the curiosity of a person having no estate or interest in the property to which they relate (x).
Equitable right to production.
(n) Rippingall v. Lloyd, (1833) 2 N. & M. 410; 5 B. & Ad. ,742.
(o) Sug. 14th ed. 431.
(p) Re Ebsworth and Tidy, (1889) 42 Ch. D. 23, 34; 58 L. J. Ch.665.
(q) Sug. 14th ed. 431.
(r) Gosbell v. Archer, (1835) 2 A. & E. 500; 4 L. J. N. S. K. B. 78.
(s) Jarmain v. Egelstone, (1831) 5 C. & P. 172.
(t) Pegg v. Wisden, (1852) 16 Beav. 239; 16 Jur. 1105.
(u) Sampson v. Swettenham, (1820) 5 Mad. 16; Pickering v. Noyes, (1823) 1 B.&c. 262; Bolton v. Corp. of Liverpool, (1833) 1 My. & K. 88; 1 L. J. N. S. Oh. 166; Minet v. Morgan, (1873) 8 Ch. .361; 42 L. J. Ch. 627; Owen v. Wynn, (1878) 9 Ch. D. 29; Lyell v. Kennedy, (1882) 20 Ch. D. 484; 51 L. J. Ch. 409; (1883) 8 A. C. 217; 52 L. J. Ch. 385.
Where estates are held in severalty under separate titles created by a single instrument - as in the case of a settlement, exchange, or partition (y), - the owner for the time being of any one such estate, or, it is conceived, any part of it, may enforce production of such instrument. As between owners of several estates held under the same title, he who can get possession of the deeds has a right to retain them (z); and an owner of a part cannot recover the deeds from a person having no title without the consent of his co-owners, but he can enforce production of them (a).
Of estate held under several titles created by single instrument.
Where a portion of an estate has been sold by the owner, who retains the deeds, the purchaser can, it appears, enforce their production upon a resale (b), unless there has been an express or implied agreement to the contrary.
Purchaser of portion of estate.
The legal estate in settled land settled before the 1st January, 1926, vested automatically on that date in the tenant for life or statutory owner (c); although for some purposes a vesting deed is also required (d). In the case of land settled on or after the 1st January, 1926, the legal estate vests in the tenant for life or statutory owner on the execution of the appropriate vesting instrument (e). Whether a settlement is executed before or after 1926, the tenant for life or statutory owner will be entitled to the custody of the title deeds. The S. L. Act, 1925, s. 98 (3), provides that the trustees of the settlement are not to be liable on account of any vesting instrument or other documents of title relating to the settled land (other than securities for capital money!) being placed in the possession of the tenant for life or statutory owner; provided that where, if the settlement were not disclosed, it would appear that the tenant for life had a general power of appointment over or was absolutely entitled to the settled land, the trustees, before handing over the documents, are to require that notice of the principal vesting instrument be written on one of the documents under which the tenant for life acquired his title.
(x) Per Graham, B., Compton v. Grey, (1826) 1 Y. & J. at p. 158.
(y) Lord Banbury v. Briscoe, (1680) 2 Ch. Ca. 42; Sug. 14th ed. 442; and see Shore v. Collett, (1815) G. Coop. 234; and A.-g. v. Lambe, (1838) 3 Y. & C. 16(2; 2 Jur. 698; S. C. at the Rolls, 11 Beav. 213; Riccard v. Inclosure Commrs., (1854) 4 E. & B. 329; 24 L. J. Q. B. 49. The order in Harrison v. Coppard, (1803) 2 Cox, 318, seems to have been by consent; and see Elton v. E., (1860) 27 Beav. 632; 6 Jur. N. S. 136, where the Court made it a term of the delivery of the partition deed to one of several parceners, that the deed itself should be enrolled in Chancery, and a covenant given for its production.
(z) Foster v. Crabb, (1852) 12 C. B. 136; 21 L. J. C. P. 189; Davies v. Vernon, (1844) 6 Q. B. 443.
(a) Wright v. Robotham, (1886) 33 Ch. D. 106; 55 L. J. Ch. 791.
(b) Fain v. Ayers, (1826) 2 S. & S. 533. In this case the purchaser claimed to be entitled to a covenant for production under the covenant for further assurance, but this particular point was not decided.
(c) L. P. Act, 1925, 1st Sch. Pt. II. para. 5 and para. 6 (c). (d) S. L. Act, 1925, s. 13 and 2nd Sch.
If wanted for a proper purpose, the production could be enforced against a tenant for life by a vested remainderman, or by a purchaser from him (f). By s. 137 (9) of the L. P. Act, 1925, the liability of the estate owner of the legal estate affected to produce documents and furnish information to persons entitled to equitable interests therein correspond to the liability of a trustee for sale to produce documents and furnish information to persons entitled to equitable interests in the proceeds of sale of the land.
Vested remainderman can enforce production.
It seems that the heir of a person who died before 1926 will be entitled to production of the title deeds, where he is unable to prove his title in ejectment without the aid of some instrument under which a devisee claims (g), or where the deeds relate to his pedigree (h).
Heir, when entitled to production.
(e) See S. L. Act. 1925, s. 4 (1) and s. 6. For cases where the legal -estate is already vested in the tenant for life or statutory owner at the date of the execution of the vesting instrument, see the proviso to s. 4 (2) of the S. L. Act, 1925.
(f) Lord Lempster v. Lord Pomfret, (1753) 1 Dick. 238; Davis v. Lord Dysart, (1855) 20 Beav. 405; 21 Beav. 124; 24 L. J. Ch. 381; 25 L. J. Ch. 122; Pennell v. Lord Dysart, (1859) 27 Beav. 542; Chichester v. Marquis of Donegal, 4 Ch. 416. As to the rights of a contingent remainderman to require production, see Noel v. Ward, (1816) 1 Mad. 322. (g) Bennett v. Glossop, (1844) 3 Ha. 578.