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.
(1) A purchaser may require to be furnished with an abstract prepared in the usual way (a); even though he has agreed to accept the title (b). He may retain it, during negotiations' upon, and even after rejection of, the title, until the dispute is finally settled, for the purpose of showing the grounds of such rejection (c); and in the interim he may maintain trover for it, even against;the vendor (d). But when the contract is finally abandoned by both parties, he must return the abstract and may not retain a copy of it (e): counsel's opinion and observations he may, it appears, retain if written upon separate paper (f); or, if written upon the abstract itself, he may erase them before returning it (a).
Purchaser's right to abstract.
His right to retain.
Must be given up, if contract abandoned.
The purchaser of a mere contract for sale, however, is not entitled to require his immediate vendor to show the original vendor's title (h); as the subject-matter of the sub-sale is, not the property itself, but the rights of. the purchaser under the original contract.
Where he buys a mere contract for sale.
(a) Borne v. Wing field, (1841) 3 Sc. N. E. 340; 10 L. J. C. P. 295; Re Johnson and Tustin, (1885) 30 Ch. D. 42; 54 L. J. Ch. 889; lie Priestley and Davidson, (1892) 31 L. R. Ir. 122; Re Wallis and Grout's Contract, 1906, 2 Ch. 206.
(b) Morris v. Kearsley, (1837) 2 Y. & C. 139; Keyse v. Hayden, (1852) 20 L. T. (O. S.) 244.
(c) Roberts v. Wyatt, (1810) 2 Taun. 268, 278; Sug. 14th ed. 428.
(d) Roberts v. Wyatt, sup.; but see Langslow v. Cox, (1819) 1 Chit. 98.
(e) Roberts v. Wyatt, sup.
(f) Ib.; but see Sug. 14th ed. 428, and Alexander v. Crosbie, (1840) 2 Ir. Eq. E. 141, 143.
(g) Wood v. Court, 2 S. Atk. Conv. 463.
(h) See Kintrea v. Preston, (1856) 1 H. & N. 357; 25 L. J. Ex. 287; Phipps v. Child, (1857) 3 Dr. 709.
The vendor, as a general rule, pays for the abstract (i); but on sales to a company under the L. C. C. Act, 1845, whether voluntary or compulsory, and whether made by absolute or limited owners, the costs of the abstract (in the absence of agreement) are thrown on the company (k): and similar provisions (l) are contained in most of the earlier railway and other similar Acts. Such costs seem to be included in any general stipulation throwing on the purchaser the costs of the contract (m).
Costs of abstract.
A solicitor, who merely furnishes a copy of a former abstract, is not justified in making the usual charge for preparing an abstract de novo ,(n). Cases, however, may often occur in which the adaptation of an old abstract to the existing circumstances of the sale may require so much skill and labour as to justify more than a mere charge for a stationer's copy. But the scale prescribed by Sched. I. to the rules under the Solicitors' Remuneration Act, 1881, applies even though no abstract is furnished, provided everything necessary to making out the title is done (o). This does not, however, enable a solicitor, on a direct subsale of the whole of the property originally contracted to be purchased, to charge scale fees as on two distinct transactions (p).
Of copy abstract.
(i) Sug. 14th ed. 406; Re Johnson and Tustin, (1885) 30 Ch. D. 42; 54 L. J. Ch. 889; Re Stamford and Knight, 1900, 1 Ch. 287; 69 L. J. Ch. 127; Re Wallis and Grout's Contract, sup.
(k) Ib. a. 82.
(l) See Re London and Greenwich R. Co., (1843) 3 Ha. 22; 12 L. J. N. S. Ch. 513.
(m) See Ex p. Addie's Charity, (1843) 3 Ha. 22, 25; 12 L. J. N. S. Ch. 513.
(n) M'culloch v. Gregory, (1855) 1 K. & J. at p. 291; 24 L. J. Ch. 246.
(o) See Re Read, 1894, 3 Ch. 238; 63 L. J. Ch. 831; Re Lacey, (1883) 25 Ch. D. 301; 53 L. J. Ch. 287; Re Keeping and Gloag, (1888) W. N. 49; and see Re Sec. of State for War and Denne, (1885) 33 W. R. 120; 54 L. J. Ch. 45; Ex p. Mayor of London, (1887) 34 Ch. D. 452; 56 L. J. Ch. 308; Wellby v. Still, 1894, 3 Ch. 641; 63 L. J. Ch. 931.
(p) See cases in last note, and Re Romain, 1903, 1 Ch. 702; 72 L. J. Ch. 309.