Section 4

The abstract must always commence with a document of at least the requisite age, which is or which has been agreed upon as a proper root of title (h). Where a vendor commences his abstract with a document more than thirty years old, but which is insufficient per se as a root of title, the purchaser, it is conceived, is entitled to require a further abstract going back to a good root of title and not to an inspection only of the document forming such earlier title (i). But a purchaser cannot require, nor would the vendor's solicitor be justified in furnishing, an abstract of deeds prior in date to that which would constitute a good root of title (k).

Commence-ment of abstract.

The rule above stated does not affect the principles upon which a purchaser is entitled to assume that the document specified as the commencement of the title, discloses a good root of title. Hence where this is not the case, it is necessary to state the nature or effect of the document in the conditions or agreement (l).

The first abstracted documents should not be dependent for their validity upon any previous instrument; and should contain nothing raising a fair doubt whether the parties claiming the interests there purported to be dealt with, were in fact entitled so to deal with them. Thus, a general devise in a will of real estate is an insufficient root of title, there being nothing to show that the property in question was intended to, or could, have passed by it: the conveyance to the testator should be abstracted; or, if there are no earlier deeds, evidence should be furnished of his seisin at the date of his will: even a specific devise is not an eligible root of title (m). It must be borne in mind that wills coming into operation by the death of a testator after 1925 do not affect the title to the legal estate; the probate is the material document.

Must commence with what description of document as a root of title.

(g) See Walker v. Bentley, (1852) 9 Ha. p. 632; Leach on Tithes, 6th ed. p. 101, nn. (a), (6). (gg) Cf. L. P. Act, 1925, s. 42 (3).

(h) Re Cox and Neve, 1891, 2 Ch. 118; 64 L. T. 733.

(i) Re Cox and Neve, sup. See L. P. Act, 1925, s. 45 (1): and Wolst. & Cherry, vol. i. pp. 205, 206.

(k) 1 Jarm. Conv. 3rd ed. 64.

(l) Re Marsh and Earl Granville, (1883) 24 Ch. D. 11; 53 L. J. Ch. 81; and see Re Wallis and Grout's Contract. 1906. 2 Ch. p. 206.

Not with will containing general devise.

A lease is not a proper commencement of an abstract of title to the fee simple, where the vendor has earlier documents; except, perhaps, in cases where, independently of the mere fact of the demise (which might be attributed to a power, or to a mere chattel interest in the grantor), the instrument contains matter which furnishes a fair presumption that he was the absolute owner in fee. A vendor, however, in possession of earlier documents, could not be advised under an open contract (except under very special circumstances) to commence his abstract with a lease, as it would almost inevitably lead to expensive discussions with the purchaser. And where a lease is relied on, it is necessary, unless it expired before the time of living memory, to show that the lessee had actual possession of the estate (n).

Whether with a lease.

If the document with which the vendor proposes that the abstract of title should commence is a voluntary conveyance, this fact should be stated in the conditions (o).

Voluntary conveyance.

An instrument relied upon as an exercise of a power should be preceded by the instrument creating the power; and the admittance to copyholds (prior to 1926) should be preceded by the surrender or devise; and a recovery deed or a disentailing assurance, if it disclose an entail, by the deed creating the entail (p). "If, however, such deed is lost, and possession has gone along with the estates created by the recovery for a considerable length of time, and the presumption is in favour of the recovery having been duly suffered," the loss of the deed, and want of evidence of its contents, are no objection to the title (q); and the same principle would probably apply in the case of the absence of a deed creating a power (r); or in the case of the loss of an ancient lease, on a sale of long leaseholds (s).

Nor with instrument dependent for its validity on previous instrument.

(m) See Parr v. Lovegrove, (1857) 4 Dr. 170; 4 Jur. N. S. 600; Be Banister, (1879) 12 Ch. D. 131; 48 L. J. Ch. 837; and see Be Atkinson and Horsell's Contract, 1912, 2 Ch. 1.

(n) Clarkson v. Woodhouse, (1793) 5 T. R. 412; Burt. Comp. pl. 428.

(o) Be Marsh and Earl Granville, (1883) 24 Ch. D. 11; 53 L. J. Ch. 81; cf. Noyes v. Patterson, 1894, 3 Ch. 267; 63 L. J. Ch. 748.

Except in certain cases - loss of prior instrument.

It should be observed that after 1925 an express power of sale given by deed or will cannot as a rule be relied upon for making title to land, excepting so far as the S. L. Act powers may be extended by an express power. If the first abstracted document contain recitals or other matter throwing a reasonable doubt upon the title as respects the contents or construction of the earlier documents, the purchaser may require the vendor, not only to produce, but also to abstract, so much of the prior title as may be sufficient to remove such doubt; but, in the absence of such reasonable doubt, the mere fact of earlier documents being recited would not entitle the purchaser to an abstract of them, even where he may require their production if in the vendor's possession or power (t): and it is sufficient to produce (without abstracting) an instrument which is required simply "to establish a fact or negative an inference" (u) . In cases coming within s. 45 (1) and (6) of L. P. Act, 1925, the burden lies on the purchaser to show that recitals to which the sections apply are inaccurate (x).

Nor with document which throws a doubt on earlier title.