Section 4

In the preparation of special conditions it should be borne in mind that a purchaser, unless precluded by the conditions or by statute from so doing, may require evidence of all matters of fact upon which the title depends (s).

Facts stated must be proved.

In the case of inclosed land, an award under s. 105 of the Inclosure Act, 1845, is not conclusive as to title in the thing allotted, for the person taking the allotment has the same title in the thing allotted as he had in that in respect of which the allotment was made(t). Nor is the award plan conclusive as to boundaries (u). Where the estate in respect of which the allotment is made is conveyed to the purchaser prior to the actual award, the right to the allotment goes with it (x). It is generally proper to insert a condition in respect to any reservations or liabilities under the Act or award. Such a reservation, e.g., of mines and the right to work them.(y), will, if expressed in general terms, affect lands sold by the commissioners for the payment of expenses, as well as ordinary allotments (z).

As to inclosed lands.

Reservations under award.

(q) Ockenden v. Henley, (1868) 1 E. B. & E. 485; 27 L. J. Q. B. 361; Shuttleworth v. Clews, 1910, 1 Ch. 176.

(r) Essex v. Baniell, (1875) L. R. 10 C. P. 538.

(s) Symons v. James, (1842) 1 Y. & C. C. C. 487. See Johnson v. Smiley, (1853) 17 Beav. 233; 22 L. J. Ch. 826.

(t) See Jacomb v. Turner, 1892, 1 Q. B. at p. 51.

(u) Collis v. Amphlett, 1918, 1 Ch. 232.

(x) Doe v. Willis, (1829) 5 Bing. 441; 7 L. J. O. S. C. P. 170; Sug. 14th ed. 374; and see the Inclosure Act, 1845, s. 84; Williams v. Phillips, (1881) 8 Q. B. D. 437, 441; 51 L. J. Q. B. 102.

(y) Which includes the right to sink shafts: Hayles v. Pease and Partners, 1899, 1 Ch. 567; 68 L. J. Cn. 222.

(z) Duke of Buccleugh v. Wakefield, (1870) L. R. 4 H. L, 377; 39 L. J. Ch. 441; Bell v. Love, (1883) 10 Q. B. D. at p. 568; (1884) 9 A. C. 286; 52 L. J. Q. B. 290; 53 ib. 257.

Where the property comprises strips of waste land recently inclosed, some special stipulations as to title are almost invariably necessary (a).

As to land formerly waste.

In some districts it seems to have been a common practice for parties to inclose such strips with the permission of the lord of the manor, upon payment to him of a small annual sum, but without any assurance or written agreement; and then to deal with them as freehold, subject to a chief rent. In such a case the tenure seems to be merely that of a yearly tenancy.

As between landlord and tenant, encroachments by the tenant during his tenancy are presumed to be held by the tenant as part of the demised premises, and must accordingly be given up at the end of the term (b); but the facts may negative this presumption (c). It is not necessary that the encroachment should be contiguous to the land held by the tenant; but Only that it should be in such proximity as to lead to the presumption that his position as tenant enabled him to approve (d). The title of the landlord will not be affected by the circumstance of his mere assent to the encroachments (e); but if the landlord subsequently to the encroachment re-demises the original tenement by a description which excludes the encroachment, it has been said that the presumption of accretion is excluded (f). In the absence of an express stipulation to the contrary, there is in Equity an implied agreement that the tenant is to hold any encroachment upon the same terms as his original lease (g). Where part of the property consists of an encroachment, and either the ordinary presumption, or the evidence rebutting it, is doubtful, a special stipulation as to title will be necessary. It is doubtful whether the doctrine of encroachments applied in the case of copyholds (h), or to other than waste lands (i).

Encroachments.

(a) See, as to the presumption of ownership of such strips, Steel v. Prickett, (1818) 2 Stark. 463; Doe v. Pearsey, (1827) 7 B. & C. 304; 5 L. J. 0. S. K. B. 310; Grose v. West, (1816) 7Taun. 39; and Scoones v. Morrell, (1839) 1 Beav. 251.

(b) See Doe v. Jones, (1846) 15 M. & M. 580; 16 L. J. Ex. 58; Whitmore v. Humphries, (1871) L. R. 7 C. P. 1, 6. As to encroachments in cases where land is affected by a trust, see A.-g. v. Corp. of Cashel, (1843) 3 D. & War. 294, 309; East Storehouse Urban Council v. Willoughby, 1902, 2 K. B. 318.

(c) See Doe v. Massey, (1851) 17 Q. B. 373; 20 L. J. Q. B. 434; Andrews v. Hailes, (1853) 2 E. & B. 349; 22 L. J. Q. B. 409; Doe v. Tidbury, (1854) 14 C. B. 304; 23 L. J. C. P. 57; Kingsmill v. Millard, (1855) 11 Ex. 313; Hastings (Lord) v. Saddler, (1898) 79 L. T. 355.

(d) Earl of Lisburne v. Davies, (1866) L. R. 1 C. P. 259; 35 L. J. C. P. 193.

(e) Whitmore v, Humphries, (1871) L. R. 7 C. P. 1; 41 L. J. C. P. 43.

Upon a sale of tithes held as lay property, or of other property held under a grant from the Crown, the vendor should protect himself from being required to produce the original grant, if it is lost or not in his possession.

Tithes held as lay property.

Where (land of copyhold or customary tenure has been converted into freehold by enfranchisement, then, under a contract to sell and convey the freehold, the purchaser cannot call for the title to make the enfranchisement (k).

Enfranchised copyholds.

By the L. P. Act, 1922, s. 128, copyhold land is by virtue of that Act enfranchised, and ceases to be of copyhold or customary tenure. But the land so enfranchised remains subject to the manorial incidents (kk), until the same are extinguished under the provisions of s. 138 of that Act.

Where the copyhold title depended upon grants, made by the lord of the manor, of part of the waste, it is, in general, expedient to provide that no evidence shall be required of such grants being authorised by the custom of the manor.

Copyholds formerly waste.