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.
Verification of abstract.
Cost of production.
(n) Nicoll v. Chambers, (1801) 11 C. B. 996; 21 L. J. C. P. 54; and see Lethbridge v. Kirkman, (1855) 2 Jur. N. S. 372; 25 L. J. Q. B. 89.
(o) Cordingley v. Cheeseborough, (1862) 4 D. F. & J. 379; 31 L. J. Ch. 617; Re Terry and White, (1886) 32 Ch. D. 14; 55 L. J. Ch. 345.
(p) Whittemore v. W., (1869) 8 Eq. 603; 38 L. J. Ch. 17.
(q) Lee v. Rayson, 1917;, 1 Ch. 613.
(r) Berry v. Young, (1788) 2 Esp. 640, n.; Sug. 14th ed. 447.
(s). Cooper v. Emery, (1844) 1 Ph. 388; 13 L. J. N. S. Ch. 275.
(t) Harvey v. Philips, (1743) 2 Atk. 541.
(u) As to what secondary evidence is sufficient, see Re Halifax and Wood, (1899) 79 L. T. 536.
(x) Bryant v. Busk, (1827) 4 Rus. 1.
When the sale is completed, the purchaser, if he cannot have the original title deeds, is entitled, at his own expense, to an acknowledgment for production (a), and to attested copies of the originals (b); this right, however, does not seem to extend to old deeds not necessary to make a title (c); nor to copies of Court roll (d), or instruments of record; nor to documents used merely as negative evidence. It is now the practice to stipulate that an acknowledgment shall extend to probates and letters of administration granted after 1925 (e). This is of importance having regard to the statutory provisions as to endorsements thereon.
Acknowledgment of right to production.
(y) This provision does not relieve the vendor from the duty to furnish a complete abstract of title: Re Johnson and Tustin, (1885) 30 Ch. D. 42; 54 L. J. Ch. 889; Re Moody and Yates, (1885) 30 Ch. D. 344; 54 L. J. Ch. 886; Re Stamford, etc. Co. and Knight, 1900, 1 Ch. 287; 69 L. J. Ch. 127; Re Wallis and Grout's Contract, 1906, 2 Ch. (206; or from his liability to hand over the title deeds on completion at his own expense: Re Duthy and Jesson, 1898, 1 Ch. 419; 67 L. J. Ch. 218; but only from the expense, when he has furnished a complete abstract, of producing documents not in his possession, even if constituting the root of title: Re Stuart and Seadon, 1896, 2 Ch. 328; 65 L. J. Ch. 576. The words "or his mortgagee or trustee " in s. 45 (1) (a) are an addition to the words in s. 3 (6) of the Conv. Act, 1881.
(z) Re Wright and Thompson's Contract, 1920, 1 Ch. 191.
(a) As to the expense, see inf.
(b) L. P. Act, 1925, s. 45 (4) (b). As to the old law, see Boughton v. Jewell, (1808) 15 Ves. 176.
(c) See Dare v. Tucker, (1801) 6 Ves. 460; Offen v. Harman, (1859) 29 L. J. Ch. 307; 1 De G. F. & J. 253.
(d) Cooper v. Emery, (1844) 1 Ph. 388; 13 L. J. N. S. Ch. 275: Agg-gardner, (1884) 25 Ch. D. 600; 53 L. J. Ch. 347.
(c) See the General Conditions of 1925, No. 34 (5).
By s. 45 (7) of the L. P. Act, 1925, which takes the place of e. 2 (3) of the V. & P. Act, 1874, the inability of a vendor to furnish a purchaser with an acknowledgment of the right to production and delivery of copies of documents of title, or with a legal covenant to produce and furnish documents of title, is not to be an objection (in the absence of any stipulation to the contrary), in case the purchaser will, on completion, have an equitable right to the production of such documents.
By s. 64 of the L. P. Act, 1925, which takes the place of s. 9 of the Conv. Act, 1881, an "acknowledgment" of the right to production and delivery of copies is substituted for the old covenant for production. Such an acknowledgment binds every person having possession or control of the documents to which it relates so long as he has such possession or control. By the same section, a statutory undertaking is substituted for the covenant for safe custody. Such acknowledgment and undertaking should be given by the person retaining possession of the documents. The word "retains," in the section, would seem to mean "holds, and is not handing over to the purchaser." Accordingly, a mere temporary possession - e.g., that of a mortgagor who has borrowed the title deeds from his mortgagee in order to show them to the purchaser - would appear to be sufficient. By s. 45 (9) of the L. P. Act, 1925 (re-enacting and extending s. 2 (5) of the V. & P. Act, 1874), a vendor is entitled to retain the documents of title where he retains any part of the land to which the documents relate, or the document creates or relates to a trust which is still subsisting.
Where vendor retains part of the estate.
By s. 45 (8) of the L. P. Act, 1925, such acknowledgment and undertaking as a purchaser can and does require are to be furnished at his expense, the vendor bearing the expense of perusal and execution on behalf of and by himself and any necessary parties other than the purchaser; and the purchaser is also to bear the expenses of searching for, procuring, verifying, and producing certificates, evidences, and information not in the possession of the vendor or his mortgagee or trustee, and all attested, stamped, office, or other copies or abstracts of documents not in the possession of the vendor or his mortgagee or trustee (sub-s. (4)).
At whose expense to be prepared.
On a sale in lots, it is generally requisite to provide for the ultimate custody of the deeds, which, in the absence of stipulation, go to the purchaser of the lot largest in value (f); or rather, it is conceived, to the purchaser whose aggregate purchase-money of land, held under the same title, amounts to the largest sum. If, however, there is any lot which may fairly be considered a principal lot, the purchaser of it is usually made to take the deeds and give the usual statutory acknowledgment for their production; where the intention is that they shall belong to the purchaser whose purchase-money amounts to the largest sum, it may occasionally be well to provide for the contingency of the two largest purchasers buying to an equal amount. The expression "largest lot" in such a condition means the lot of largest superficial area (g). Under a condition giving the deeds to the purchaser of the "largest lot," such purchaser is entitled to them as against the purchaser of lots of a larger aggregate area (k). Such a condition fixes, by its acreage, though not by name, the lot which is to carry with it the right to the deeds. When the vendor retains any part of the land to which the deeds relate, he is now, subject to any stipulation to the contrary in the contract, entitled to retain them (i).