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.
On a sale of property in lots, the purchaser of two or more lots held wholly or partly under the same title, has a right to no more than one abstract of the common title, except at his own expense (r).
On sales in lots.
(m) See Magennis v. Fallon, (1828) 2 Moll. 561; Page v. Adam, (1841) 4 Beav. 269; 10 L. J. N. S. Ch. 407.
(n) Re Head's Trustees and Macdonald, (1890) 45 Ch. D. 310, 317; Re Baker and Seltnon's Contract, 1907, 1 Ch. 238.
(o) Johnson v. Evans, (1889) W. N. 95; 61 L. T. 18. As to right of equitable mortgagee, see Fitzgerald's Trustee v. Mellersh, 1892, 1 Ch. 385; 61 L. J. Ch. 231.
(p) Sidebotham v. Barrington, (1841) 3 Beav. at p. 528; 10 L. J. Ch. 302.
(q) As to when a good title is first shown, see Sherwin v. Shakspear, (1853) 17 Beav. 267; 5 D. M. & G. 517; Bridges v. Longman, (1857) 24 Beav. 27; Parr v. Lovegrove, (1857) 4 Dr. at p. 177; 4 Jur. N. S. 600; Lyle v. Earl of Yarborough, (1859) John. 70.
(r) L. P. Act, 1925, s. 45 (5), which takes the place of Conv. Act, 1881, s. 3 (7).
Upon the sale of lands allotted under an Inclosure Act, the abstract down to the award must be that of the title to the lands in respect of which the allotment was made (s): and when the allotment has been made indiscriminately in respect of lands held under different titles, all such titles must be shown by the abstract (t). If the Act omits the usual clause assimilating the tenure, an allotment is freehold, though made in respect of customary lands: and this. notwithstanding the Act directs that allotments shall be held to the same uses, etc, as the lands in respect of which they are allotted (u).
On purchase of allotments.
Tenure of allotments.
Where the estate has been taken in exchange under mutual conveyances with eviction clauses, the abstract must, down to the exchange, show the titles to both estates (x). Where the land exchanged is registered under the L. R. Act, 1925 (y), a registered disposition is required to give effect to the exchange.
Of land taken in exchange.
Where the estate has been taken in exchange under the Acts authorising the exchange of ecclesiastical property (z), or under an Inclosure Act, or the provisions of the Common Fields Exchange Act, 1834, the title down to the exchange must be that of the estate given in exchange. Where an exchange, as in the case of exchanges of common-field land under the Common Fields Exchange Act, 1834, is only authorised to be made by or with the consent in writing of persons having certain specified interests in both estates (a), an abstract can scarcely be perfect, unless it disclose at least so much of the prior title to the estate taken in exchange as may be sufficient to show that the transaction was within the provisions of the Act.
Of land taken in exchange from the Church or under Inclosure Acts.
(s) Sug. 14th ed. 373. See Be Alms Corn Charity, 1901, 2 Ch. 750; 71 L. J. Ch. 76, where lands allotted under an Inclosure Act in lieu of great tithes were held to be subject to a corn charge to which the tithes were subject.
(t) See and consider King v. Moody, (1826) 2 S. & S. 579; 4 L. J. (O. S.) Ch. 227; Major v. Ward, (1847) 5 Ha. at p. 604; 12 Jur. 473.
(u) Doe v. Davidson, (1813) 2 M. & S. 175; Doe v. Hellard, (1829) 9 B. & C. 789; 8 L. J. (O. S.) E. B. 79.
(x) Bustard's case, (1602) 4 Co. 121 a; Sug. 14th ed. 372.
(y) Which takes the place of the L. T. Acts, 1875 and 1897. . (z) See Phil. Ec. Law, 2nd ed. p. 1306 et seq. See, as to confirmation of void exchanges by the tithe-commutation commissioners, Tithe Act, 1842, s. 7; and B. v. Tithe Commrs., (1849) 19 L. J. Q. B. 177, 505; exchange of charity lands held valid, though the consenting Bishop was a trustee of the charity: A.-g. v. Bp. of Worcester, (1851) 9 Ha. 328; 21 L. J. Ch. 25.
Where the estate has been taken in exchange under the general provisions of the Inclosure Acts, 1845 to 1882 (b), the single title alone is necessary; s. 105 of the Inclosure Act, 1845, makes the award, when confirmed, conclusive evidence that the directions of the Act have been complied with, and provides that every allotment, exchange, etc. mentioned in the award, shall be binding and conclusive on all persons whomsoever: this section does not, however, make the award conclusive as to the title of the allottee (c): and the same is the case as respects private exchanges under s. 147 of the Act (d). If the title is described in the particulars or conditions as arising under an exchange by virtue of an award under an Inclosure Act, it is sufficient if the abstract show a title by award in respect of other lands and common rights, without showing the particulars of the exchange: and if the agreement is that the title shall commence with the award, the purchaser cannot require the title of the lands given in exchange for those contracted to be sold (e). The practice is to state precisely the title intended to be given.
(a) See Common Fields Exchange Act, 1834, ss. 2, 4, and 25, in which note the words "according to the provisions," etc.; and the Inclosure Act, 1836, 8. 35. See also the Inclosure Act, 1840, s. 1, which, in cases falling within the Act, makes the award conclusive evidence that the provisions of the general Inclosure Act, and of the Inclosure Act, 1886, have been complied with, and that all necessary consents have been given; but query whether this meets the difficulty in the case of an exchange; it would rather seem to refer merely to such consents as are requisite to the validity of the inclosure. See Duke of Beaufort v. Neeld, (1845) 12 C. & F. 248; 9 Jur. 813; Doe v. Gore, (1837) 2 M. & W. 320. The above enactments have now all been repealed by the Commons Act, 1899.
(b) Amended by the Commons Act, 1899.
(c) Jacomb v. Turner, 1892, 1 Q. B. 47; Collis v. Amphlett, 1918. 1 Ch. 232, 242; and see as to partitions by the commissioners, Inclosure Acts, 1848 and 1852.