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.
(s) Monro v. Taylor, (1848) 8 Ha. 51; 21 L. J. Ch. 525.
(t) See Dawson v. Brinckman, (1858) 3 M. &, G. 53; Crosse ,v. Lawrence, (1852) 9 Ha. 462; 21 L. J. Ch. 889; and sup. p. 146.
(u) Parker, V.-c., in Hume v. Bentley, (1852) 5 De G. & S. at p. 527; 21 L. J. Ch. 760. See, too, Jackson v. Whitehead, (1860) 28 Beav. 154; Re Banister, (1879) 12 Ch. D. 131; 48 L. J. Ch. 837; Re Haedicke and Lipshi, 1901, 2 Ch. 666; 70 L. J. Ch. 811; Allen v. Smith, 1924, 2 Ch. 308; Beyfus v. Lodge, 1925, Ch. 350.
Conditions as to conveyance.
It was usual to provide that the purchaser should bear the expense of getting in and procuring the surrender or release of any outstanding legal estate or term; but such a condition did not extend to a mortgage term which was on foot at the time of sale, even though provision might have been made for satisfying the mortgage (y). It should be borne in mind that under the transitional provisions of the L. P. Acts, 1922 (as amended) and 1925, legal estates which were outstanding at the commencement of the Acts have in most cases been got in and vested in the persons who immediately after such commencement were best entitled to call for the same, or in trustees for sale, or in the Public Trustee. By s. 42 (3) of the L. P. Act, 1925, a stipulation contained in any contract for the 6ale or exchange of land made after the commencement of the Act, to the effect that an outstanding legal estate is to be traced or got in by or at the expense of a purchaser, or that no objection is to be taken on account of an outstanding legal estate, is to be void. And sub-s. (2) of the same section makes void a stipulation that a purchaser of a legal estate shall pay or contribute towards the costs of obtaining a vesting order or the appointment of trustees, or the preparation, stamping, or execution of a conveyance on trust for sale, or of a vesting instrument under the S. L. Act, 1925.
Expense of getting in outstanding estate.
A condition is usually inserted that the property shall be taken subject to all rents, rights of way and water, and other easements (if any) charged or subsisting thereon (z). The effect of such a condition is not to relieve the vendor from the necessity of disclosing these liabilities, if he is aware of them (a), but simply to protect him, if it should afterwards transpire that the property is subject to some rent, right, or easement, in favour of a third person, of which he was ignorant at the time of sale; and where one tenant has acquired a right of way against another tenant, under the same landlord, and both tenements are simultaneously sold by the landlord under a condition that they are to be taken subject to, and with the benefit of, all subsisting rights of way, the purchaser of the one tenement gains no right of way against the purchaser of the other (b); the meaning of the condition being that if there are any rights of way as against the vendor, the purchaser shall take subject to them.
(x) Paramore v. Greenslade, (1853) 1 S. & G. 541; 23 L. J. Ch. 34. Cf. Re Sander and Walford, (1900) W. N. 183; 83 L. T. 816.
(y) Strange v. Hawkes, (1856) 2 Jar. N. 8. 388. Cf. Re Willett and Argenti, (1889) 60 L. T. 735.
(z) See General Conditions of 1925, No. 19.
If the estate is subject to incumbrances which cannot or are not intended to be discharged, they must be mentioned in the particulars or conditions (c). It sometimes happens that property is subject to charges which, from particular circumstances (such as there being other ample security), are never likely to be enforced, though they cannot be immediately released (d); in such cases it is advisable to state the facts as clearly and openly as possible, and to stipulate that the purchaser shall make no objection in respect of the matters so mentioned; if, as may often be the case, an indemnity is offered, its nature should be explicitly stated. A condition that a purchaser shall presume the extinction of a charge upon the ground of its non-recognition for a specified period is not binding, if the charge, though not so described, is in fact reversionary (e). A condition to give a specified indemnity will be specifically enforced (f).
Indemnity against charges, etc.
(a) Heywood v. Mallalieu, (1883) 25 Ch. D. 357; 53 L. J. Ch. 492; Nottingham Brick Co. v. Butler, (1886) 16 Q. B. D. 778; 55 L. J. Q. B, 280; Re Cox and Neve, 1891, 2 Ch. 109; Wauton v. Coppard, 1899, 1 Ch. 92; 68 L. J. Ch. 8; Dougherty v. Oates, (1900) 45 Sol. J. 119.
(b) Daniel v. Anderson, (1862) 8 Jur. N. S. 328; 31 L. J. Ch. 610; and see Suffield v. Brown, (1864) 4 D. J. & S. 185; 33 L. J. Ch. 249; Russell v. Harford, (1866) 2 Eq. 507; Delaparelle v. Vestry of St. Marlin-in-the-fields, (1890) 34 Sol. J. 545. Cf. Fahey v. Dwyer, (1879) 4 L. R. Ir. 271. See 1 Key & Elph. 12th ed. pp. 497 - 8, n.
(c) See Torrance v. Bolton, (1872) 8 Ch. 118; 42 L. J. Ch. 177; Carlish v. Salt, 1906, 1 Ch. 335.
(d) This difficulty can be got over under s. 191 of the L. P. Act, 1925, which takes the place of and extends a. 5 of the Conv. Act, 1881; see Re G. N. R. Co. and Sanderson, (1884) 25 Ch. D. 788; 53 L. J. Ch. 445; Re Freme, 1895, 2 Ch. 256, 778; 64 L. J. Ch. 862; or under L. P. (Amend.) Act, 1926, s. 1.
It is usual to provide that all requisitions and objections not made within a fixed time from the delivery of the abstract shall be considered waived, and that, subject to the objections made by that time, the title shall be deemed to be accepted; and to limit the time within which further requisitions, in answer to replies furnished by the vendor, must be made (g). Sometimes time, in respect of the making of requisitions, or further requisitions, is expressed to be of the essence of the contract, but this is unnecessary (h).