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.
Were it not so, a copy of the conveyance to the vendor might, in many cases, take the place of an abstract; besides which, the omission to abstract a document in chief may proceed from a desire to avoid noticing matters of a suspicious character occurring in such document, but which are not noticed in the recital (c). It is convenient to introduce, in their proper places, direct statements of deaths, marriages, and other matters of pedigree; and not, as is frequently done, to trust to the recitals in the abstracted documents: and in cases of complicated descents, etc, a regular pedigree should accompany the abstract.
(p) 1 Jarm. Conv. 4th ed. 55. Since 1925, a disentailing assurance can only affect the equitable interest.
(q) Coussmaker v. Sewell, (1791) Sug. 14th ed. 366; and see Re Atkinson and Horsell's Contract, 1912, 2 Ch. 1.
(r) See Nouaille v. Greenwood, (1822) T. &; R. 26.
(s) Cf. Trend v. Buckley, (1870) L. R. 5 Q. B. 213; 39 L. J. Q. B. 90.
(t) See Prosser v. Watts, (1821) 6 Mad. 59; 1 Jarm. Conv. 4th ed. 52. 53; 1 Hayes, Conv. 566. (u) Sug. 14th ed. 416.
(x) See Bolton v. London School Board, (1878) 7 Ch. D. 766: 47 L. J. Ch. 361; Re Marsh and Earl Granville, (1883) 24 Ch. D. 11; 53 L. J. Ch. 81.
It is not essential that the origin of the title should be shown either by deed or will; in the absence of documents it may be sufficient to produce evidence of such long uninterrupted possession, enjoyment, and dealing with the property, as to afford a reasonable presumption that there is an absolute title in fee simple (y). But the proof of title by evidence of possession is not admissible in cases where documents forming part of the modern title are lost or destroyed: in such cases the vendor must prove their contents and execution (z).
Need not in all cases commence with a document.
As a general rule, the recitals in any document which is abstracted as a root of title, should, so far as they may in any way affect the estate comprised in the contract, be set out fully; even though the purchaser may be precluded from founding any requisition or objection thereon.
Recitals in first document should be fully abstracted.
The title, wherever taken up, should be thence continued either in chronological or some other regular order. Where separate parts of the estate are held under separate titles, such titles should be traced separately so long as they remain distinct: every subsequent document dealing with the legal estate (except expired leases), should be abstracted (a). A. mortgage, for example, and a reconveyance are not to be suppressed under the notion that the title has been thereby brought back to its original state (b); such may, or may not, have been the case, and is a point to be determined by the advisers of the purchaser, not of the vendor.
Wherever commenced should thence be regularly-continued.
All documents forming a material part of the title should be abstracted in chief; the introduction of them merely as recitals in other abstracted instruments (which is not uncommon, especially in the case of wills), is insufficient:
Documents should be abstracted in chief.
(y) Cottrell v. Watkins, (1889) 1 Beav. at p. 365; 3 Jur. 283; and sec Be Atkinson and Horsell's Contract, 1912, 2 Ch. 1.
(z) Re Halifax Commercial Banking Co. and Wood, (1898) 79 L. T. 536; Sug. 14th ed. 438.
(a) See Gray v. Fowler, (1873) L. R. 8 Ex. 249, 265; 42 L. J. Ex. 161.
(b) As to the danger and impropriety of suppressing a mortgage, see Heath v. Crealock, (1874) 10 Ch. 22; 43 L. J. Ch. 169; 44 ib. 157.
Statements of matters of pedigree.
Documents affecting merely equitable interests gave rise, prior to 1926, to considerations of difficulty. Lord St. Leonards states that the solicitor "should abstract every document upon which the title depends, or upon which any difficulty has arisen; wherever he begins the root of the title, he ought to abstract every, subsequent deed" (d). The difficulty here referred to will continue to be of importance even after 1925 (e). Where a good title is shown to the legal estate, and a charge, which clearly operated merely in Equity, has been paid off and no trace of it appears upon the subsequent title, such charge is not always abstracted. But the abstract must comprise every document which could by possibility affect the legal estate (ee).
Suppression of instruments evidencing immaterial or satisfied equities -how far justifiable.
In Drummond v. Tracey (f), it was held that a vendor was not justified in suppressing a letter creating an equitable charge, which was intended to be paid off; and that he would not have been justified in doing so, even if the charge had been actually satisfied: and this view is supported by Lord St. Leonards (g). But the practical inconvenience of any such rule is great, and in practice it has been all but universally ignored. Thus, to take a common instance, a solicitor, conducting a sale of his client's property, may make an advance in anticipation of the sale, and as a security take an informal equitable charge upon the property or the expected sale-proceeds, out of which on completion of the purchase the debt is satisfied. The existence of such an incumbrance is seldom, if ever, disclosed. Its suppression cannot prejudice the purchaser: but its introduction upon the face of the title would be a probable source of future difficulty and expense.
Drummond v. Tracey.
Suppression of equitable charges.
(c) Re Stamford and Knight, 1900, 1 Oh. 287, 289; 69 L. J. Ch. 127, where the statement in the text is quoted from an earlier edition of this work with approval by North. J.
(d) Sug. 14th ed. 407; and see Re Stamford and Knight, sup.
(e) Despite s. 10 (1) of the L. P. Act, 1925, cited inf., p. 299.
(ee) See Palmer v. Locke, (1881) 18 Ch. D. 381; 51 L. J. Ch. 124.
(f) (1860) John. 608, 612.