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.
Matters prior to commencement of title.
(c) See Johnson v. Smiley, (1868) 17 Beav. at p. 233; 22 L. J. Ch. 828.
(d) Re Marsh and Earl Granville, (1883) 24 Ch. D. 11.
The test whether a condition is fair and explicit is whether it discloses all facts within the knowledge of the vendor which are material to enable the purchaser to determine whether or not he will buy the property, subject to the stipulation limiting his right to the ordinary length of title. Accordingly, where a contract entered into in 1882, provided that the title should commence with an indenture dated the 18th October, 1845, and that the earlier title should not be investigated or objected to, and it appeared from the abstract that the indenture was a voluntary and revocable conveyance, it was held that the condition was misleading, and did not bind the purchaser (f).
Test of fairness of conditions.
A condition against production will not (except perhaps in a special case (g)), prevent a purchaser from investigating and objecting to the earlier title, if he have the collateral means of doing so (h); and, though bound to accept the title as it stands, he may yet require to be satisfied, to the beet of the vendor's ability, as to what that title really is (i). So, though a purchaser is bound by the condition to accept certain specified evidence as sufficient proof of a material fact, he may yet require to be satisfied that the vendor has no better evidence in his possession; and may, it would seem, insist on a statutory declaration to that effect (h).
Mere condition against production.
(e) The last sentence of this proviso appears to overrule Be Earl of Arran and Knowlesden's Contract, 1912, 2 Ch. 141.
(f) Be Marsh and Earl Granville, (1883) 24 Ch. D. 11; 53 L. J. Ch. 81; cf. Be Scott and Alvarez, 1895, 1 Ch. 596; 64 L. J. Oh. 376; Re Wallis and Grout's Contract, 1906, 2 Ch. 206.
(g) Hume v. Pocock, (1866) 1 Ch. 379; 35 L. J. Ch. 731.
(h) Shepherd v. Keatley, (1834) 1 C. M. & R. 117; 3 L.j. N. S. Ex. 288; Darlington v. Hamilton, (1854) Kay, 558; 23 L. J. Ch. 1000; Waddell v. Wolfe, (1874) L. R. 9 Q. B. 515; 43 L. J. Ch. 139; and see Else v. E., (1872) 13 Eq. 196; 41 L. J. Ch. 213; Harnett v. Baker, (1875) 20 Eq. 50; 45 L. J. Ch. 64; Nottingham Brick Co. v. Butler, (1886) 16 Q. B. D. 778; 55 L. J. Q. B. 280; Be Cox and Neve, 1891, 2 Ch. 109; Be Nisbet and Potts' Contract, 1905, 1 Ch. 391; 1906, 1 Ch. 386; Beyfus v. Lodge, 1925, 1 Ch. 350.
If, therefore, the earlier title is merely wanting, the condition should provide for the abstract commencing with a specified document, the nature and effect of which should be stated, if it is of such a kind as not to form a satisfactory root of title (l).
How to be framed when early title lost or defective.
The rule laid down in Reeve v. Berridge (m) that it is prima facie the duty of a vendor to disclose all that is necessary to protect himself, and not the duty of the purchaser to demand inspection of title deeds before contract, applies to sales by auction as well as to sales by private contract (n).
It is often requisite to insert conditions providing for defects in evidence of the identity of the parcels; such conditions, however, will not relieve the vendor from the necessity of pointing out what the entire property is which he intends to convey; nor (unless expressly framed to meet the case) will they do more than provide for mere deficiencies in evidence; that is, they will not provide for repugnancies, nor for an entire absence of evidence (o).
Identity of parcels.
A condition that "the purchaser is not to require any further proof of the identity of the property than is furnished by the title deeds themselves," is insufficient in the absence of proof of identity as to the whole or part of the property (p). It is, in effect, a contract that the deeds shall show identity; and if they do not, a good title is not made (q).
When part of property cannot be identified;
(i) See Keyse v. Heydon, (1852) 20 L. T. O. S. 244; Morris v. Kearsley, (1837) 2 Y. & C. 139.
(k) Bird v. Fox, (1853) 11 Ha. at p. 48.
(l) Be Marsh and Earl Granville, (1883) 24 Ch. D. 11; 53 L. J. Ch. 81.
(m) (1888) 20 Q. B. D. 523; 57 L. J. Ch. 265.
(n) Be White and Smith, 1896, 1 Ch. 637; 65 L. J. Ch. 481; Molyneux v. Hawtrey, 1903, 2 K. B. 4(87.
(o) Curling v. Austin, (1862) 2 Dr. & S. 129.
A condition that no further evidence of identity of the parcels should be required than what was afforded by the deeds, instruments, and other documents abstracted, did not preclude a requisition for further evidence when the descriptions of the parcels in the abstracted documents varied from those in the particulars and from each other (r).
Or descriptions are inconsistent.
Upon a sale of intermixed lands of different tenures, under the common condition as to identity, the purchaser was held entitled (s) to have the land of each tenure pointed out and distinguished by its boundaries (t).
On sale of lands of different tenures.
The Courts look with jealousy on conditions negativing a purchaser's right to a substantially good title, or to the usual and reasonable evidences of title. It has been observed (u), that in some cases it would be almost a fraud for a vendor to bring a title to market with a condition that the purchaser should accept it. At any rate, such conditions should not be used to a greater extent than necessary, as their tendency is to damp the sale; not so much by diminishing the biddings of parties who actually attend, as by keeping away others who are alive to their objectionable character. The prejudicial effect of the most stringent conditions is, however, far less than might be anticipated.
Stringent conditions not favoured by Court.
(p) Curling v. Austin, (1862) 2 Dr. & S. 129.
(r) Flower v. Hartopp, (1843) 6 Beav. 476; 8 ib. 199; 12 L. J. Ch. 507.