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.
Delivery of abstract.
(g) Farrer v. Lacy Hartland, (1886) 31 Ch. D. 42.
(h) Mcmanus v. Fortescue, 1907, 2 K. B. 1.
(i) Compton v. Bagley, 1892, 1 Ch. 313; 61 L. J. Ch. 113.
(k) Sag. 14th ed. 406; Home v. Wingfield, (1841) 3 Sco. N. R. 340; 10 L. J. C. P. 295.
(l) Southby v. Hutt, (1837) 2 My. & C. 207; Sherwin v. Shahspear, (1854) 5 D. M. & G. 517; 23 L. J. Ch. 177, 899; Upperton v. Nicholson, (1871) 6 Ch. 436; 40 L. J. Ch. 401.
(m) Upperton v. Nicholson, sup.
When the lots are small, and the title is voluminous, it may be well to stipulate that no purchaser, whose aggregate purchase-money shall not amount to a specified sum, shall be entitled to an abstract, (or an abstract going back beyond a certain date,) except at his own expense; but in such case it may be prudent to state that a full abstract will be deposited with the vendor's solicitor, or elsewhere, for inspection by purchasers and their solicitors. By the L. P. Act, 1925, s. 45 (5), it is provided that on a sale of any property in lots, a purchaser of two or more lots, held wholly or partly under the same title, shall not have a right (in the absence of express stipulation) to more than one abstract of the common title, except at his own expense. Although a purchaser pays for his own conveyance, it may sometimes be desirable to preclude a purchaser of several lots from requiring separate conveyances; which, as it is conceived, he may require, if not so precluded.
Restriction of porchaser's right to abstract.
Where he buys several lots under the same title.
If any other condition refers to "the delivery of the abstract," this, in any question as to time, will be held to mean the delivery of a perfect abstract (n): i.e., an abstract as perfect as the vendor could furnish at the time of delivery (o); though it may be ,an abstract of a defective title (p); and if it contains, with sufficient fulness, the effect of every instrument (q) which constitutes the title, it will be deemed sufficient to satisfy the condition; and time will begin to run against the purchaser as from the date of its delivery (r). An abstract as,delivered is presumed to be perfect, unless the contrary is shown (s).
"Abstract" means "perfect abstract."
(n) Hobson v. Bell, (1839) 2 Beav. 17; 8 L. J. N. S. Oh. 241; see inf. p. 283.
(o) Morley v. Cook, (1842) 2 Ha. at p. 111; 12 L. J. Ch. 136.
(p) Blackburn v. Smith, (1848) 2 Ex. 783; 18 L. J. Ch. 187; Want v. Stallibrass, (1873) L. R. 8 Ex. 175, 179; 42 L. J. Ex. 108; Pryce-jones v. Williams, 1902, 2 Ch. at p. 521; 71 L. J. Oh. 762.
(q) I.e., the instrument and its effect, not merely a recital of it on some other instrument; see Re Stamford, Spalding and Knight, 1900, 1 Ch. at p. 290; 69 L. J. Ch. 127.
(r) Oakden v. Pike, (1865) 34 L. J. Ch. 620.
(s) Ward y. Ghrimes, (1863) 9 Jur. N. S. 1097. See Gray v. Fowler, (1873) L. R. 8 Ex. 249, 279; 42 L. J. Ex. 161, where the passage in the text is cited with approval by Blackburn, J.
In order to guard against the rule that where the vendor fails to deliver a perfect abstract within the time specified, the purchaser is relieved from any condition binding him to object to the title within a given period after delivery of the abstract (t), it is not unusual to provide in the conditions that "an abstract shall, as regards any objection or requisition, be considered perfect, if it supply the information suggesting the same, though it may be otherwise defective."
It is usual, and proper, in every case to specify the day on which the purchase is to be completed, and from which the purchaser is to have possession, or (if it be in lease) receipt of the rents and profits of the estate, and to pay interest (which may be reserved according to an ascending scale) (u) upon the purchase-money, if not then paid; and up to which day the vendor is to pay the outgoings (x). It was formerly the practice to provide that the arrangement as to payment of interest, etc. should hold, whatever might be the cause of delay in completion (y): and it was always considered that the purchaser must, under such a condition, pay interest during the time spent in clearing up the title (z): though, of course, it would not justify the vendor in wilful delay (a). But where the expression is, "if from any cause whatever the purchase-money shall not be paid on, etc, the purchaser making default shall pay interest," etc, the purchaser is held exempted from payment of interest when the delay arises from the state of the title; inasmuch as that is not his default (b). Where the agreement was that the purchaser should pay interest from the day fixed for completion, if completion "should be delayed on his part," and the vendor and his trustee were ready to complete on the day named, but the purchaser was not prepared, and afterwards, when the purchaser was ready, the vendor's trustee refused to concur, it was held that interest was not payable after the latter date (c).
Condition as to completion, and interest.
Delay "from any cause whatever."
(t) Blacklow v. Laws, (1842) 2 Ha. 40; Southby v. Butt, (1837) 2 M. & C. 211; Gray v. Fowler, (1873) L. Rt. 8 Ex. 279; 42 L. J. Ex. 161.
(u) Herbert v. Salisbury and Yeovil R. Co., (1866) 2 Eq. 221. .
(x) The word "next," as an attribute of the day for completion, is generally to be read not with the month which immediately precedes it, but with the whole description; e.g., "the 25th day of December next" means the next 25th day of December, not the 25th day of next December: Dawes v. Charsley, (1886) W. N. 37, 78.
(y) 1 Dav. 2nd ed. 520. "Completion" in such conditions means payment of the purchase-money: Lewis v. South Wales R. Co., (1852) 10 Ha. 113; 22 L. J. Ch. 209.
(z) See Greenwood v. Churchill, (1845) 8 Beav. 413; 14 L. J. Ch. 143; Esdaile v. Stephenson, (1822) 1 Sim. & St. 122; Sherwin v. Shakespeare, (1854) 5 D. M. & G. 517.