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.
The purchaser, upon completion, is entitled (subject to the exceptions hereinafter noticed) to all deeds and other muniments of title, however ancient, which are in the possession or power of the vendor (y): and the mere fact that in order to obtain the deeds the vendor may be caused trouble and expense is no answer to the purchaser's demand that they should be handed over (z); and it is conceived that the vendor, (unless he retain property held under a common title,) has in general no right to keep copies of any documents other than those which subject him to some future personal liability (a). Under s. 205 of the L. P. Act, 1925, "land" includes an easement in or over land; and accordingly an instrument proving the extinguishment of an easement over land not sold may be retained with the other title deeds of the retained land (aa).
Purchaser's right to deeds, attested copies, etc.
Purchaser's right to delivery of muniments of title.
(t) S. L. Act, 1925, as. 29 (4) and 119, and 5th Sch.
(u) Be Perks, (1853) 1 Sm. & G. 545.
(x) Be Divers, (1855) 1 Jur. N. S. 995.
(y) Sug. 14th ed. 433; 1 Jarm. Conv. 3rd ed. 63; Austin v. Croome, (1842) Car. & M. 653; Smith v. Chichester, (1842) 2 D. & War. 393; and see inf. p. 607.
(z) Re Duthy and Jesson, 1898, 1 Ch. 419; 67 L. J. Ch. 218.
(a) See Be Wade and Thomas, (1881) 17 Ch. D. 348, 352.
(aa) Re Lehmann and Walker, 1906, 2 Ch. 640.
Under s. 45 (9) (a) of the L. P. Act, 1925 (taking the place of s. 2 (5) of the V. & P. Act, 1874), where the vendor retains any part of the land to which any documents of title relate, he is entitled to retain such documents. This enactment does not authorise a vendor of land to retain a mortgage deed merely because it also comprises policies of assurance (b); but in such a case the purchaser must give a statutory acknowledgment to the vendor. By s. 45 (9) (b) of the L. P. Act, 1925, a vendor is entitled to retain a document of title consisting of an instrument creating a trust which is still subsisting, or an instrument relating to the appointment or discharge of a trustee of a subsisting trust.
Where he purchases only part of the estate.
Sale under a settlement.
Where the consideration for the sale is a rent-charge issuing out of the land sold, it has been stated that it is customary for the vendor to retain the title deeds of the land on which the rent is charged (c); but it is submitted that such a custom could not be upheld.
Sale in consideration of a rent-charge.
Where the whole property is sold to different purchasers, the practice (in the absence of agreement) is for the purchaser of the portion of largest value (d) to take the deeds and covenant for their production; where property is put up for sale by auction and all is not sold at once, but is disposed of in successive sales, it is a question of fact whether the sales constitute one sale or several; if several, then the purchaser of the last lot is entitled, in the absence of stipulation, to the title deeds (e).
Where the whole estate is sold to different purchasers.
A mortgagee on being paid off is not entitled to keep a copy of the mortgage deed, even, it seems, though made at his own expense (f). And a purchaser, it appears, has no right either to the custody, or to a copy, of instruments produced merely as negative evidence to satisfy him that they contain nothing affecting the title (g); nor can he require an acknowledgment of his right to their production, unless they are in the custody or power of the vendor.
Purchaser not entitled to deeds used as negative evidence.
(b) Re Williams and Duchess of Newcastle. 1887, 2 Ch. 144; 66 L. J. Oh. 543.
(c) Copinger on Rents, 74.
(d) Griffiths v. Hatchard, (1855) 1 K. & J. 17; 23 L. J. Ch. 957; Cunnyngham v. Hume, (1839) 1 Ir. Eq. R. 150; and see sup. p. 144.
(e) Re Lowe, L. J. Newspaper, Feb. 9th, 1901.
(f) Re Wade and Thomas, (1881) 17 Ch. D. 348; 50 L. J. Ch. 601.
(g) Sug. 14th ed. 436.
If the deeds themselves are not delivered, the purchaser (in the absence of stipulation (h)) may require attested copies. But the expense of making any copy, attested or unattested, of any document retained by the vendor is, by s. 45 (4) of the L. P. Act, 1925 (which takes the place of s. 3 (6) of the Conv. Act, 1881), thrown on the purchaser (i). It was observed by Lord Eldon, that purchasers set an undue value upon these copies; that, except as between the parties themselves, they are waste paper upon an ejectment (k). Nevertheless they are of considerable practical importance, if the property is likely to be re-sold: for to insert a condition making them evidence without production of the originals, seldom prejudices a sale; whereas the absence both of originals and attested copies - supposing the former to have been subsequently lost or destroyed - might seriously do so.
Purchaser's right to attested copies of original not given up.
In like manner, subject to any stipulation to the contrary, such acknowledgments of the right to production, or covenants for production, and such undertakings or covenants for safe custody of documents as the purchaser can and does require are to be furnished at his expense, and the vendor is only to bear the cost of perusal and execution on behalf of and by himself and necessary parties other than the purchaser (l).
Purchaser also entitled to covenant for production of originals.
A mortgagee concurring in the sale, and retaining the deeds in respect of property of large value held by him as owner under the same title, would prima facie be bound to covenant for their production (m), or give a statutory acknowledgment.
Mortgagee holding deeds as owner of other land.
(h) As to such a stipulation, see Cotton v. Scudamore, (1855) 1 K. & J. 321; Boughton v. Jewell, (1808) 15 Ves. 176; Griffiths v. Hatchard, (1854) 1 K. & J. 17; 23 L. J. Ch. 957.
(i) Formerly, these expenses, in the absence of a contrary agreement, were thrown on the vendor. See Dare v. Tucker, (1801) 6 Ves. 460; Boughton v. Jewell, (1808) 15 Ves. 176; Berry v. Young, (1788) 2 Esp.
(k) Dare v. Tucker, (1801) 6 Ves. 460; see Doe v. Brydges, (1843)
7 Sc. N. E. 333. 339.
(l) L. P. Act, 1925, s. 45 (8), taking the place of the V. & P. Act. 1874, s. 2 (4), as modified by the Conv. Act, 1881, s. 9 (8). As to the effect of acknowledgments for production and undertakings for safe custody, see s. 64 of L. P. Act, 1925; sup. pp. 499, 500.