Having considered the formation of a contract for the sale of land, let us pass on to examine its terms. As we have seen (a), such contracts generally contain special stipulations varying the rights and obligations of the parties as denned by law. And a conveyancer's business in connection with sales of land includes drawing up the conditions of a sale by auction, a task in which he is engaged exclusively in the vendor's interest; arranging the terms of a private contract, when he may be acting for either party, making requisitions on title for the purchaser or answering them on the vendor's behalf, and settling the conveyance on either side. It is obvious that these duties cannot be efficiently discharged without an accurate knowledge of the position of the parties to any open contract, and a clear understanding of the conditions generally made in more formal agreements. Our object therefore will be to ascertain the rights and obligations implied by law on a contract to sell land, when the parties, the property and the price are the only terms defined; and to consider at the same time the stipulations by which the contractors' legal relations are commonly modified. And our design is first to take a general view of the contract and the remedies for enforcing it, and then to examine more fully each incident of the sale in turn, as far as possible, in order of time according as each part of the contract has to be performed.

Conveyancers' duties on sales.

(a) Above, p. 17.

When two persons have entered into the relation of vendor and purchaser by duly signing a contract for the sale of land, their chief duties are these: - The vendor is bound to show a good title to the property sold (b), and for that purpose to deliver at his own expense to the purchaser a proper abstract of title to the property, showing the dealings therewith and devolution thereof during the period for which title is by law or express agreement required to be shown (c). In the absence of special stipulation this period is, as a rule, forty years (d). The vendor is also bound to verify the abstract by producing proper evidence of all the deeds, wills and other documents appearing on the abstract and of all material facts stated therein, such as births, deaths, marriages or bankruptcies (e); and he is bound to prove the identity of the property sold with that to which the documents of title relate (f). But the purchaser, in the absence of stipulation to the contrary, must now bear the expense of producing all documents of title, which are not in the vendor's possession (g), and of procuring all other evidence of title which the vendor has not in his possession (h). The purchaser also bears all expense of the examination of the title deeds by his solicitor (i). The vendor is further bound to produce land corresponding substantially in all respects with the description contained in the contract and available to be transferred to the purchaser in fulfilment of the agreement (k). If the title shown be accepted, the vendor is bound to convey the property to the purchaser free from all incumbrances: unless of course the purchaser should have agreed to take the property subject to any specified incumbrances (l). The vendor is therefore bound, on payment of the purchase-money, to execute a proper deed of conveyance to the purchaser of the estate sold (m), and to put the purchaser into possession of the laud so assured (n). And in the deed of conveyance the vendor must give the usual vendor's covenants for title (o). But the purchaser must bear the expense of preparing this conveyance; although, in the absence of special stipulation, the expense of the concurrence therein of all necessary parties other than the vendor (such as mortgagees or incumbrancers) and of the execution thereof by the vendor will fall on the vendor (p). The vendor is also bound to hand over to the purchaser on completion all deeds and other muniments of title relating solely to the property purchased (q); and must, as a rule, furnish the purchaser, at the purchaser's expense (r), with a proper statutory acknowledgment of right to production and undertaking for safe custody of all such documents, necessary to make a good title, as may be withheld from the purchaser, either because they relate to other property retained by the vendor or because their custody rightly belongs to some other person than the vendor (s). The chief duties of the purchaser under a contract for sale of land are to examine the evidence of title offered by the vendor, and if and when a good title is shown, to accept the title, to prepare a conveyance of the property and tender the same to the vendor for his execution, and thereupon to pay the price (t) and to take the conveyance accordingly (u).

Outline of the effect of the contract.

(b) Flureau v. Thornhill, 2 W. Bl. 1078; Souter v. Drake, 5 B. & Ad. 992; Doe d. Grau v. Stanion, 1 M. & W. 695, 701; Lysaght v. Edwards, 2 Ch. D. 499, 507; Ellis v. Rogers, 29 Ch. D. 661, 670, 672. In the last-mentioned case, Cotton, L.J., suggested a question whether the right to a good title is an implied terra in the contract or a collateral right given by the law. It is submitted, however, that the obligation to show a good title on a sale of land is not an undertaking collateral to in the sense of independent of the main contract. Cotton, L. J., quoted the authority of Lord St. Leonards (Sug. V. & P. 16) and Parke, B. (Doe d. Gray v. Stanion, ubi sup.), for the view that this obligation is an implied term of the contract. The opposite view he rested upon a dictum of Grant, M. R., in Ogilrie v. Foljambe, 3 Mer.53, 64. On examining this dictum, however, it appears that Grant, M. R., meant to say nothing more than that in the particular case before him the purchaser's right to have a good title was not provided for by the written agreement between the parties. It is true that he spoke of the controversy between the parties, as to what title the purchaser could require, as being collateral to the agreement, because no term in the written agreement was sought to be varied or added to; and said that the right to a good title was a right not growing out of the agreement between the parties but given by law. But this surely means no more than that, in the particular case before him, the extent of the purchaser's right to require a good title was a matter depending, not on the express, but on the implied terms of the contract. As the failure to show a good title, on the sale of land, is such a breach of contract as discharges the purchaser from the necessity of performing his part of the agreement, it seems clear that the obligation to show a good title is an integral part of the agreement; see Duke of St. Albans v. Shore, 1 H Bl. 270, 278; Seaward v. Willock, 5 East, 198, 202: Souter v. Drake, Ellis v. Rogers, ubi sup.; Brewer v. Broadwood, 22 Ch. D. 105, 109; below. Chap. XVIII., Sec. 2. This would not be the case, if the obligation to prove title were strictly collateral to the contract of sale. Breach by the vendor of a strictly collateral warrauty upon a sale does not discharge the purchaser from the main contract, as in the case of a warranty of quality on the sale of specific goods, where the buyer has had the opportunity of inspecting them; Street v. Blay, 2 B. & Ad. 456; Heyworth v. Hutchinson, L. R. 2 Q. B. 447; Benjamin on Sale, 448, 741, 748, 749, 2nd ed.; Sale of Goods Act, 1893 (stat. 56 & 57 Vict. c. 71), ss. 53, 62 61); see below, Chap. XIV., Sec. 1.