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.
By the L. P. Act, 1925, &. 10, it is provided that where title is shown to a legal estate in land, it shall be deemed not necessary or proper to include in the abstract an instrument relating only to interests or powers which will be overreached by the conveyance of the estate to which title is shown; but this does not affect the liability of any person to disclose an equitable interest or power which will not be so overreached, or to furnish an abstract of any instrument creating or affecting the same. A solicitor is not to incur liability on account of an omission to include in the abstract an instrument which under the section is to be deemed not necessary or proper to be included, nor is any liability implied by reason of the inclusion of any such instrument (q).
For the purpose of conditions as to time, an abstract is said to be "perfect," if it is as perfect an abstract as the vendor is able to furnish at the time of delivery (r); though the title shown by it may be defective. An abstract is, in the stricter sense of the term, "perfect" or complete, when it shows a perfect title (s); that is, when it shows that the vendor is either himself competent to convey to, or can otherwise procure to be vested in, the purchaser, the legal and equitable estates free from incumbrances (t). If, on the face of the abstract delivered, the vendor has shown, say, a thirty years' title (u), and if for the purpose of supporting that title, it is necessary to show that a person died intestate, or any other fact - if the facts are alleged with sufficient specification on the abstract - then it shows a good title, though the proof of the matters shown may be ,the subject of ulterior investigation (x).
When " perfect" within meaning of conditions of sale.
When " perfect" as showing a sufficient title.
(q) Sub-s. (2). And see Abstracts in 6th Sched. to L. P. Act, 1925, and the Epitome in Prideaux, 22nd ed. vol. i. ch. 5.
(r) Morley v. Cook, (1842) 2 Ha. at p. 111; 12 L. J. Ch. 136; see, at law, Blackburn v. Smith, (1848) 2 Ex. 783; 18 L. J. Ex. 187; Steer v. Crowley, (1863) 14 C. B. N. S. 337; 32 L. J. C. P. 191; Want v. Stalli-brass, (1873) L. R. 8 Ex. 175, 179; 42 L. J. Ex. 108; Gray v. Fowler, (1873) L. R. 8 Ex. 249, ,279; 42 L. J. Ex. 161, in which the passage in the text was approved.
(s) 2 Ha. 111; Sug. 14th ed. 427; 1 Pros. 42, 207.
(t) See and consider Lord Braybrooke v. Inskip, (1803) 8 Ves. at p. 436; Boehm v. Wood, (1820) 1 J. & W. 419, 421; (1823) T. & R. 332; Jumpson v. Pitchers, (1844) 1 Coll. 13, 15; 13 L. J. Ch. 166; Sug. 14th ed. 423.
(u) See L. P. Act, 1925, s. 44.
The non-registration, for instance, of deeds which can be registered (y); the existence of incumbrances, when the incumbrancers can be compelled to receive their money and join in the conveyance (z); the outstanding of the legal estate in a trustee (a); are not (b) regarded as imperfections of title.
Certain imperfections in, not considered defects of title.
But where vendors cannot give to or procure for the purchaser a valid discharge for the purchase-money, the title is defective (c).
Title defective where no discharge can be given for purchase-money.
If the legal estate is outstanding, the abstract must show in whom it is vested (d), and that the vendor can get it in; but when it is shown that the legal estate can be got in, the abstract is perfect (e).
Must show where outstanding legal estate is vested.
Where an estate is sold free from land-tax or tithe rent-charge, the abstract should set out the certificate of redemption or other instrument of discharge, unless there is a condition binding the purchaser to accept less conclusive evidence. The existence of land-tax, or insufficient proof that it has been redeemed, renders the title defective, if the estate is sold free from the tax (f); so also, where land is sold free from tithe or tithe rent-charge. Where the estate is sold subject to land-tax or tithe rent-charge (that is, where it is not expressly sold free from the same), its existence need not be mentioned (g); though it is usual and convenient to state the amount in the particulars: a statement so made must of course be verified.
Must show that land-tax or tithe rent(x) Per V.-c Kindersley, in Parr v. Lovegrove, (1857) 4 Dr. at p. 177; 4 Jur. N. S. 600; and see Oakden v. Pike, (1865) 13 W. R. 673; 34 L. J. Ch. 620; also Steer v. Crowley, sup.
(y) Stowell v. Robinson, (1837) 3 Bing. N. C. 928, 935; 6 L. J. N. S. C. P. 326.
(z) Townsend v. Champernowne, (1827) 1 Y. & J. 449; and sec 2 Moll. 583; but not if their concurrence cannot be compelled; see Page v. Adam, (1841) 4 Beav. 269; 10 L. J. N. S. Ch. 407; Sug. 14th ed. 425.
(a) Berkeley v. Dauh, (1810) 16 Ves. 380; Sellick v. Trevor, (1843) 11 M. & W. at p. 728; 12 L. J. Ex. 140. See Sched. I. Part II. of L. P. Act, 1925, which contains provisions for the automatic vesting in the persons equitably entitled of legal estates outstanding at the commencement of the Act.
(b) But see formerly, at law, Hanslip v. Padwick, (1850) 5 Ex. at pp. 622, 623; 19 L. J. Ex. 372.
(c) Forbes v. Peacock, (1843) 12 Si. 528; (1846) 1 Ph. 717; 15 L. J. Ch. 371.
(d) Wynne v. Griffith, (1826) 1 Rus. 283.
(e) Camberwell Bldg. Soc. v. Holloway, (1879) 13 Ch. D. 754, 763; 49 L. J. Ch. 361; Kitchen v. Palmer, (1877) 46 L. J. Ch. 611; and see Avarna v. Brown, (1844) 14 Si. 303; 14 L. J. Ch. 30.
Charge has been redeemed where the estate is sold free.
Lord Eldon expressed (h) the rule (as to when an abstract is perfect) to be that the abstract is complete, "whenever it appears that, upon certain acts done, the legal and equitable estates will be in the purchaser"; but the existence of incumbrances which cannot be discharged on or before the time fixed for completion (i) is as a general rule considered merely a matter of conveyance, and not as defects of title (k). And this doctrine has been extended to cases where the property was mortgaged to an amount considerably exceeding its value (l); but if, by reason of an agreement for the continuance of the charge or otherwise, the vendor has no right to call on the incumbrancer to join in the conveyance (m), the conclusion, it seems, would be different, except, perhaps-, where the vendor can show that the incumbrancer consents to join within a reasonable time (n). In the case of an ordinary mortgage the vendor can, of course, always obtain the immediate concurrence of the mortgagee after the time originally fixed for redemption by paying six months' interest in lieu of notice (o). Lord Langdale observed, "Where an interest is vested in a party to secure a right, the satisfaction of which right entitles the party who has sold the estate to call for a conveyance, then the Court considers it a question of conveyance only; but I think it has never gone further than that" (p). It may be considered at all events that the title is perfect, whenever it appears that under the contract the purchaser either already has, or will necessarily before the time fixed for completion be able to acquire, an immediate and indisputable right to the legal and equitable estates; even though the absence of parties, or other circumstances, may considerably delay the conveyance (q).
Existence of incumbrances.
(f) Buchanan v. Poppleton, (1858) 4 C. B. N. S. at p. 40; 27 L. J. C. P. 210.
(g) Farrer, Conditions of Sale, 2nd ed. p. 264.
(h) Lord Braybrooke v. Inskip, (1803) 8 Ves. at p. 436. See also the judgment of Jessel, M. R., in Camberwell Bldg. Soc. v. Holloway, (1879) 13 Ch. D. 763; 49 L. J. Ch. 361.
(i) See Forster v. Boggart, (1850) 15 Q. B. 155; 19 L. J. Q. B. 340. A mortgagee need not receive his money before the day fixed for redemption, though previously tendered with interest up to such day; Brown v. Cole, (1845) 14 Si. 427; 14 L. J. Ch. 167; unless he has demanded or taken steps to compel payment of it; Bovill v. Endle, 1896, 1 Ch. 648; 65 L. J. Ch. 542. Since the Judicature Acts time is not of the essence of the contract at Law when it is not in Equity. See the L. P. Act, 1925, s. 41, taking the place of Jud. Act, 1873, s. 25 (7).
(k) Townsend v. Champernowne, (1827) 1 Y. & J. 449; Savory v. Underwood, (1856) 23 L. T. (O. S.) 141; Kitchen v. Palmer, (1877) 46 L. J. Ch. 611; and see Re Baker and Selmon's Contract, 1907, 1 Ch. 238; Re Spencer and Hauser's Contract, 1928, Ch. 598.
(l) Stephens v. Guppy, and Rawson v. Tasburgh, cited 1 Y. & J. 450.
Title good though immediate conveyance not procurable.