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.
(d) See further as to the rule in Re Ford and Hill, Wilkes v. Spooner, 1911, 2 K. B. 473, 486.
(e) See Edwards v. Wickwar, (1865) 1 Eq. 68; S. C, ib. 403; 35 L. J. Ch. 309; Re Banister, (1879) 12 Ch. D. 131; 48 L. J. Ch. 837; and see Beyfus v. Lodge, 1925, 1 Ch. 350.
(f) Seaton v. Mapp, (1846) 2 Coll. 556, 562; Forster v. Hoggart, (1850) 15 Q. B. 155; 19 L. J. Q. B. 340; Worthington v. Warrington, (1848) 5 C. B. 635; 17 L. J. C. P. 117; Lethbridge v. Kirkman, (1855) 2 Jur. N. S. 372; 25 L. J. Q. B. 89.
(g) Freme v. Wright, (1819) 4 Mad. 364; Blenkhorn v. Penrose, (1881) 29 W. R. 237.
(h) Groom v. Booth, (1853) 1 Dr. 548; 22 L. J. Ch. 961.
(i) Wilmot v. Wilkinson, (1827) 6 B. & C. 506; Ashworth v. Mounsey. (1863) 9 Ex. 175; 23 L. J. Ex. 73.
(k) Duke v. Barnett, (1846) 2 Coll. 337; 15 L. J. Ch. 173; and Molloy v. Sterne, (1838) 1 Dr. & Wal. 585; Anderson v. Higgins (1844) 1 J. & L. 718; and Lord St. Leonards' remarks in Sug. 14th ed. 340, on Cattell v. Corrall, (1839) 3 Y. & C. 413; 9 L. J. N. S. Ex. Eq. 37; and see Corrall v. Cattell, (1839) 4 M. & W. 734; 8 L. J. N. S. Ex. 225.
(l) Keyse v. Heydon, (1853) 20 L. T. O. S. 244; Tweed v. Mills, (1865) L. R. 1 C. P. 39; Re Hasdicke and Lipski, 1901, 2 Ch. at top of p. 669; 70 L. J. Ch. 811.
(m) Hume v. Bentley, (1852) 5 De G. & S. 520; 21 L. J. Ch. 760; Waddell v. Wolfe, (1874) L. R. 9 Q. B. 515; 43 L. J. Q. B. 139.
(n) Re National Provincial Bank and Marsh, 1895, 1 Ch. 191; 64 L. J. Ch. 255.
(o) Darlington v. Hamilton, (1854) Kay, 550; 23 L. J. Ch. 1000; Re National Provincial Bank and Marsh, 1895, 1 Ch. 191, 196, 197; 64 L. J. Ch. 255.
(p) Smith v. Robinson, (1879) 13 Ch. D. 148; 49 L. J. Ch. 20.
(q) Re Scott and Alvarez, 1895, 2 Ch. 603; 64 L. J. Ch. 821.
(r) Micholls v. Corbett, (1865) 3 D. J. & S. 18.
(s) Hanks v. Palling, (1856) 6 E. & B. 659; 25 L. J. Q. B. 375.
(t) Sheernes W. W. Co. v. Poison, (1861) 3 D. F. & J. 36.
But by the L. P. Act, 1925, 8. 42 (3), such a condition is nugatory (u).
As a general rule, if facts are fully disclosed, their legal effect need not be stated (x). If a fact is believed to be true, and there is a condition requiring it to be assumed, it is not necessary that the condition should point out the specific defect intended to be covered (y). But where an agreement was entered into for sale of leaseholds containing onerous covenants, of the existence of which the purchaser had no knowledge when he signed the contract, a clause - "The vendor's title is accepted by the purchaser " - was held not to be binding on the purchaser (z).
If the conditions clearly show that only a possessory title is to be given, the purchaser cannot ask for a marketable one (a). But a vendor is not at liberty to require a purchaser to assume as a good root of title that which documents within his possession show not to be a good root of title, even though such documents may show a title good on other grounds (b).
Conditions when misleading'.
If, instead of simply stating the material facts, and then stipulating that the purchaser shall accept such title and interest as the detailed circumstances confer on the vendor, and no other, - in which case (in the absence of fraud) the purchaser would probably be bound to take the title, whatever it might be - the conditions go on to state, not as a conclusion of law from the narrated circumstances, but as a positive and distinct fact, that the vendor has a right to sell the property, the purchaser, inasmuch as such right may have arisen from separate and independent sources, is entitled to require such right to be proved (c).
(u)See inf. p. 156.
(x) Smith v. Watts, (1858) 4 Dr. 338; 28 L. J. Ch. 220.
(y) Re Sandbach and Edmondson, 1891, 1 Ch. 99; 60 L. J. Ch. 60; Blaiberg v. Keeves, 1906, 2 Ch. 175.
(z) Re Haedicke and Lipski's Contract, 1901, 2 Ch. 666; and see Beyfus v. Lodge, 1925, Ch. 350; Allen v. Smith, 1924, 2 Ch. 308.
(a) Re Banister, (1879) 12 Ch. D. 131; 48 L. J. Ch. 837; Smith v. Robinson, (1879) 13 Ch. D. 148; 49 L. J. Ch. 20; Rosenberg v. Cook, (1881) 8 Q. B. D. 162; 51 L. J. Q. B. 170.
(b) Re Banister, (1879) 12 Ch. D. 131; 48 L. J. Ch. 837; Re Sandbach and Edmondson, 1891,1 Ch. 99; 60 L. J. Ch. 60.
A condition that the abstract shall commence with a specified document, the peculiarities or deficiencies of which as a root of title are not noticed, seems merely to preclude the purchaser from objecting to the title as commencing at too recent a period; so that if the instrument in question is apparently an imperfect root of title, he may require the imperfection to be remedied (d).
Deed commencing title.
By s. 45 (1) of the L. P. Act, 1925, re-enacting s. 3 (3) of the Conv. Act, 1881, the purchaser of any property is not, in the absence of stipulation to the contrary, to require the production, or any abstract or copy, of any deed, will, or other document, dated or made before the time prescribed by law, or stipulated for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; nor is he to require any information, or make any requisition, objection, or inquiry, with respect to any such deed, will, or document, or the title prior to that time, notwithstanding that any such deed, will, or other document, or that prior title, is recited, covenanted to be produced, or noticed; and he shall assume, unless the contrary appears, that the recitals, contained in the abstracted instruments, of any deed, will, or other document, forming part of that prior title, are correct, and give all the material contents of the deed, will, or other document so recited, and that every document so recited was duly executed by all necessary parties, and perfected, if and as required, by fine, recovery, acknowledgment, inrolment, or otherwise. The sub-s. contains a proviso that it is not to deprive a purchaser of the right to require the production or an abstract or copy of (1) a power of attorney under which any abstracted document is executed, or (2) any document creating or disposing of an interest, power, or obligation which is not shown to have ceased or expired, and subject to which any part of the property is disposed of by an abstracted document, or (3) any document creating any limitation or trust by reference to which any part of the property is disposed of by an abstracted document (e).