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.
In Bolton v. London School Board (x), it was held by Malins, V. C, that a recital in a conveyance more than twenty years old that the vendor was seised in fee simple was sufficient evidence (under s. 2 of the V. & P,. Act, 1874) of the fact, and that no earlier abstract could be demanded, except so far as the recital could be proved to be inaccurate. But this decision has met with general disapproval in the profession, and it was expressly dissented from by Swinfen Eady, J., in Re Wallis and Grout's Contract (y).
By the L. P. Act, 1925, s. 45 (1) (taking the place of s. 3 (3) of the Conv. Act, 1881), a purchaser of any property must assume, unless the contrary appears, that the recitals contained in the abstracted instruments, of any (document forming part of the title prior to the time fixed, or prescribed, for the commencement of title are correct, and give all the material contents of such document, and that the same was duly executed by all necessary parties. In spite of this provision it is open to a purchaser to show aliunde that the title is bad (z).
Of documents made before date of commencement of title.
Where the evidence of some fact on which the title depends is insufficient, and there are no better means of verification, it is frequently provided that the purchaser shall, in proof of such fact, be satisfied with a statutory declaration. If the declaration remains to be made, its proposed effect should be clearly stated; or better, a draft of it referred to: and, if practicable, the proposed declarant specified; a clause being added, providing for the substitution of some other competent person in the event of the death, refusal, or incapacity of the person so specified; there should be no question as to the competency of the declarant to speak to the facts which he alleges (a). Where, as frequently happens, the declarant states what he cannot possibly know except by hearsay, his declaration is of small value as evidence.
As to statutory declarations being accepted as evidence.
(v) See Buchanan v. Poppleton, (1858) 4 C. B. N. S. 20; 27 L. J. C. P. 210.
(x) (1878) 7 C. D. 766; 47 L. J. Ch. 461.
(y) 1906. 2 Ch. 206, 210. (z) Re Cox and Neve, 1891, 2 Ch. 109.
A vendor, it is conceived, is bound to answer, to the best of his information, all relevant questions put to him in respect to the property which he has contracted to sell, or the title thereto; unless the prima facie liability in this respect is expressly negatived by the conditions or by statute. In Re Ford and Hill (b), it was held that no answer need be returned to such a requisition as the following: - "Is there, to the knowledge of the vendors or their solicitors, any settlement, deed, fact, omission, or any incumbrance affecting the property, not disclosed by the abstract?" The general principle is lucidly stated by Lord Younger (then Younger, J.) in Re Chafer and Randalls Contract (c), as follows: - "There is, in all cases on this subject, the underlying principle in Re Ford and Hill, that the vendor is to be taken to have supplied an abstract of all material documents, and that the responsibility cast upon him by statute relieves him from being questioned as to the sufficiency, so far as this point is concerned, of the abstract. But it does not shut out the purchaser from a specific inquiry based upon a doubtful or ambiguous expression in a particular deed. In order, however, to support such an inquiry, the purchaser must show that the expression in question would, under the doctrine of constructive notice, fix him with a liability unless he makes the inquiry "(d).
Vendor bound to answer relevant questions.
(a) See as to this. Nott v. Riocard, (1856) 22 Beav. 307; 25 L. J. Ch. 618.
(b) (1879) 10 Ch. D. 365; 48 L. J. Ch. 327. (c) 1916, 2 Ch. p. 15.
Where a large estate held under several different titles is sold in lots, it is usually provided that a purchaser of a lot of less than a certain value shall not require any title to be shown; or, where the property has been settled, it may be provided that such a purchaser shall only be entitled to an abstract commencing with the vesting deed; and where the property has been in settlement for a sufficient time, that a statutory declaration of twelve years' possession under the vesting deed shall be conclusive evidence of identity of the parcels. But where the different titles prior to the settlement are shown, this condition as to identity will not preclude a purchaser from requiring identification of the . parcels described in the abstract of his lot prior to the union of titles; and the purchaser of one lot may, in such a case, be entitled to abstracts of all the titles. This difficulty should be provided against by a special condition.
Sale in lot of land held under several titles.
Although mere general or doubtful expressions in the contract (whether in conditions or otherwise), suggesting, but not specifying, a flaw in the vendor's title, may not bind the purchaser (e), he is bound by a clear (f) stipulation as to title, e.g., an agreement by assignees of a bankrupt to sell his estate, "under such title as he recently held the same, an abstract of which may be seen" (g); or that the purchaser should only have the receipt and conveyance of A. (an equitable mortgagee), and the assignees (h); an agreement by ordinary vendors to convey "such title as they have received from A. and B." (i); and a condition that the purchaser should accept the vendor's title "without dispute" (k), or should accept "such title as the vendor has" (l); so, an agreement that the lessor's title shall "not be inquired into" (m), or "shall not be required, investigated, or objected to" (n), has been held to preclude objections arising on the face of documents procured by the purchaser aliunde. It is otherwise, however, if the condition is merely directed against requisitions, and does not preclude inquiry in other directions (o); or where the vendor himself discloses the objection to the title (p). The Court, moreover, will not force a title where the purchaser could at once be turned out of possession (q). But a purchaser was held bound, where a breach of trust, invalidating the title, was clearly stated in the conditions (r); so where a purchaser was precluded from objecting that no payment had been made for twenty years of a rent the subject of sale (s). A condition binding a purchaser, if he considered the legal estate outstanding, to be at the expense of getting it in, was, formerly, not uncommon, and was held to throw on him the risk of making out in whom the legal estate was vested (t);