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.
Where the title is derived through an heir who took possession upon the ground of the assumed invalidity of his ancestor's will, which professed to deal with the estate, a purchaser may require the production of the will or evidence of its contents (/). So, on a sale by a devisee or party claiming under him, the purchaser may require the production of any subsequent will or codicil, or evidence of its contents (g). What the rule may be in cases where a will is known to have existed, but there is nothing to indicate that it purported to affect the property in question, seems to be more doubtful. The purchaser would, no doubt, be entitled to see either the original or the best evidence of its contents which the vendor had the means of supplying (h); but if none suck could be procured, and, after making inquiries on the subject, no special grounds for supposing the estate to be affected by the will were found to exist, the purchaser, it is conceived, would be obliged to take the title (i).
Whether he must produce will as negative evidence of heir'spn'w & facie title.
(d) Grove v. Bastard, (1848) 2 Ph. 619; 17 L. J. Ch. 351; but the will being established, Lord Truro made him pay costs in the suit for specific performance; 1 D. M. & G. 69; and see M'culloch v. Gregory, (1855) 1 K. & J. 286; 24 L. J. Ch. 246.
(e) Pearse v. P., (1846) 1 De G. k S. 12; 16 L. J. Ch. 153; and see further as to confidential communications ante litem molam, Mac-farlan v. Bolt, (1872) 14 Eq. 580; 41 L. J. Ch. 649.
(f) Stephens v. Guppy, (1825) 2 S. & S. 439; 6 L. J. Ch. 164.
(g) See Howarth v. Smith, (1833) 6 Si. 161.
(h) See Cooper v. Emery, (1844) 1 Hayes, Conv. 573.
(i) See the remarks of Wigram, V.-c, in West v. Reid, (1843) 2 Ha. at p. 260; 12 L. J. N. S. Ch. 245, 249.
Where codicils are referred to, but not abstracted, on the alleged ground that they do not affect the subject-matter of the contract, the purchaser should require them to be produced, to show that such is the case.
Codicils described as immaterial should be produced.
It is the practice, where a descent has occurred which is not recited in a deed twenty years old, to require proof of the ancestor's intestacy as respects the property offered for sale, even though no trace of a will appears on the title. How far this could be insisted on (except as respects evidence which the vendor may have in his own possession or power) is doubtful. The length of time which may be considered sufficient to render such evidence unimportant must depend upon the state of the particular title.
How far vendor bound to furnish proof of intestacy.
The unsupported statutory declaration of the vendor as to a matter of fact material to the title, and peculiarly within his own knowledge, though very often accepted in practice, is not such evidence thereof as a purchaser is bound to accept (k); though statutory declarations by disinterested persons form in many cases the only evidence available to the conveyancer, and may be sufficient as between vendor and purchaser, such declarations except in cases where the general rule is relaxed by reason of the deaths of the declarants, and of the declarations being in respect to matters of pedigree, and made by members of the family, or being against the pecuniary or proprietary interests of the declarants, are not evidence in hostile litigation with third parties.
Statutory declaration of vendor when insufficient.
The want of evidence of matters of fact (other than documentary) may, however, be supplied by presumption;, and the rule laid down in Emery v. Grocock (l), that a purchaser is bound to presume whatever a Judge would clearly direct a jury to presume, applies (it is conceived!) generally, (though not universally (m), to questions of matters of fact between vendor and purchaser (n).
Want of proof of material facts may be supplied by presumption.
(k) Hobson v. Bell, (1839) 2 Beav. 17; 8 L. J. Ch. 241.
(l) (1821) 6 Mad. 54; sup. p. 325.
(m) See Sug. 14th ed. 399; and Games v. Bonnor, (1885) 33 W. R. 664; 54 L. J. Ch. 517.
(n) See Lapham v. Pike, Rolls, 1831; cited in Atkinson on Marketable Titles, 397.
Thus, where, in construing an ancient deed, a question arises at to what passed by the terms of a particular grant, modern usage and enjoyment for a number of years is evidence to raise a presumption that the same course was adopted from an earlier period; and so to prove a similar usage and enjoyment at the date of the deed (o). Evidence of user contrary to the rights of the parties under a deed cannot, however, be accepted to vary the terms of the deed where it is on the face of it free from ambiguity (p).
Modern usage as evidence of what passed under ancient grants.
Where, in 1801, an allotment under an Inclosure Act was made to A. in lieu of four acres of common field land, the Court, in 1847, assumed in the absence of evidence to the contrary, that the four acres formed part of five acres and a half of common land comprised in a deed dated in 1784 (q), but the vendor was held bound to mate inquiries on the subject, and to produce the best evidence in his power of the five acres and a half having formed the only commonable land belonging to the allottee (r).
Presumption of identity of parcels.
Where a person, whose name and description correspond with those of a person previously named in the title, deals with the property in a manner consistent with the supposition of the two being identical, such identity must, it is thought, in the absence of any reasonable grounds for suspicion, be assumed by a purchaser. In Braye Barony (s), it was held sufficient to identify A. - described in the ancient record, as of B. - with a person named A. in the pedigree, to show aliunde that the latter held land in B.
Of identity of individuals.
(o) See Lord Waterpark v. Fennell, (1859) 7 H. L. C. 650; 5 Jur. X. S. 1135, where the question was as to what was included in the term "village" in a lease granted in 1704; and see Duke of Beaufort v. Mayor of Swansea, (1849) 3 Ex. 413; He Belfast Bock Act, (1867) 1 I. R. Eq. 128; Healy v. Thome, (1870) 4 I. R. C. L. 495; Brew v. Haren, (1877) 11 I. R. C. L. 198; Bex v. Osbourne, (1803) 4 Ea. 327; A.-g. v. Forster, (1805) 10 Ves. at p. 338; Bailiffs, etc. of Tewkesbury v. Bricknell, (1809) 2 Tann. 120; Corp. of Hastings v. Ivall, (1874) 19 Eq. 558, 581; 22 W. R. 724; Fan Dieman's Land Co. v. Table Cape Marine Board, 1906, A. C. 92.