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.
Every vendor is presumed to have his title deeds in his own possession, or at any rate to have the power of producing them; and, though he may only have a covenant for their production, he is bound to produce them for the purpose of verifying the abstract (a); nor is the rule affected by 8. 45 of the L. P. Act, 1925, which (re-enacting s. 2 of the V. & P. Act, 1874) provides (b) that the inability of a. vendor to furnish a purchaser with an acknowledgment of his right to production and delivery of copies of documents of title or with a legal covenant to produce and furnish copies of documents of title, shall not be an objection to title in case the purchaser will, on the completion of the contract, have an equitable right to the production of such documents (c).
Vendor bound to produce deeds.
The vendor may produce the deeds either at his own known residence (d), or upon or in the immediate vicinity of the estate (e), or in London (f); and the purchaser in such cases pays for the necessary journeys of his own solicitor. If the deeds are in London, a country solicitor must employ a town agent to examine them, and cannot charge for a journey for that purpose; unless his client, (knowing the practice of the profession to be the other way,) requests him to undertake it (g); but a London solicitor need not employ an agent in a country town to examine deeds, but may send a clerk (h).
Where to be produced, and expense of producing.
(a) Bippingoll v. Lloyd, (1833) 2 N. & M. 410; 5 B. & Ad. 742. (b) Sub-s. (7).
(c) See Re Johnson and Tustin, (1885) 30 Ch. D. 42; 54 L. J. Ch. 889; Be Stuart and Olivant, 1896, 2 Ch. 328; 65 L. J. Ch. 576. (d) Sug. 14th ed. 429. (e) 1 Jarm. Conv. 4th ed. 91. (f) Sug. 14th ed. 429.
By s. 45 (4) of the L. P. Act, 1925 (taking the place of s. 3 (6) of the Conv. Act, 1881), the purchaser must bear the expenses (where he requires them to be incurred for the purpose of verifying the abstract or any other purpose) of the production and inspection of documents not in the possession of the vendor or his mortgagee or trustee (i), and the expenses of procuring certificates, declarations, evidences and information not in the possession of the vendor or his mortgagee or trustee, and of all copies or abstracts of documents not in the possession of the vendor or his mortgagee or trustee; and where the vendor or his mortgagee or trustee retains any document, the expenses of making any copy which a purchaser requires, must be borne by such purchaser. These provisions, however, do not relieve a vendor who has sold under an open contract from the expense of procuring and making an abstract of a deed forming part of the thirty years' title (k), although such deed be not in his possession (l), nor from the expense of procuring the title deeds for the purpose of handing them over on completion (m).
Expense of production when deeds not in vendor's possession.
Where the conditions of sale reserve to the vendor the option of producing the deeds at any one of several specified places, he must give to the purchaser reasonable notice of the place selected for the purpose (n). In the case of a grant from the Crown, it is sufficient if the vendor's solicitor inform the purchaser where it may be seen (o); but the vendor must, at the purchaser's expense (p), produce office copies or extracts of proved wills and records, and cannot require the purchaser to examine the originals at the public offices (q).
Notice of place of production.
(g) Alsop v. Lord Oxford, (1833) 1 M. & K. at p. 566; 2 L. J. N. S. Ch. 174; Horlock v. Smith, (1837) 2 M. & C. at p. 523; 6 L. J. N. S. Ch. 236; Re Tryon, (1844) 7 Beav. 496; 2 L. T. (O. S.) 516.
(h) Sec Hughes v. Wynne, (1836) 8 Si. 85; affirmed 1 Jur. 720.
(i) This alters the rule laid down in Re Willett and Argenti, (1889) W. N. 66, that documents in the possession of a mortgagee or trustee for the vendor cannot be treated as in the possession of the vendor.
(k) See s. 45 (1) of the L. P. Act, 1925.
(l) Re Stamford and Knight, 1900, 1 Ch. 287; 69 L. J. Ch. 127; Re Ebsworth and Tidy, (1889) 42 Ch. D. 23; Re Stuart and Olivant, 1896, 2 Ch. 328; Re Johnson and Tustin, (1885) 30 Ch. D. 42; 54 L. J. Oh. 869; Re Moody and Yates, (1885) 30 Ch. D. 344; 54 L. J. Ch. 886; Re Wallis and Grout's Contract, 1906, 2 Ch. 206.
(m) Re Duthy and Jesson, 1898, 1 Ch. 419; 67 L. J. Ch. 218.
Grants from Crown.
Instruments on record.
The purchaser's solicitor ought to examine the deeds before laying the title before counsel; and if the title prove bad, in the absence of any stipulation to the contrary, the purchaser may recover the expenses from the vendor; but, in order to do this, he must prove the existence of a valid contract for sale (r); and he should not, before the deeds are produced, prepare his conveyance (s).
Examination of deeds before investigation of title.
In one case (t), where the purchaser's solicitor, after retaining the abstract for five months without making any requisitions, applied to the vendor's solicitor to ascertain where the deeds might be examined, it was held that (but for the fact that it was not alleged in the pleading) there had been an acceptance of the title.
Whether an acceptance of the title.