(l) Johnson v. Evans, W. N. 1889, p. 95.

The reader must bear in mind the distinction between showing a good title on the abstract and showing a good title in the sense of completely discharging the vendor's obligati6n to show or make a good title. That is a matter depending on proof, not mere statement of title, and is not accomplished until an abstract showing a good title has been duly verified by production of the proper evidence (n). Thus, although a good title is shown on the abstract, notwithstanding the existence of mortgages exceeding the amount of the purchase-money, the vendor cannot of course make a good title if he be unable to pay off such mortgages or procure the mortgagees to release their charges.

Distinction between showing a good title on the abstract and proving it.

A good title then is shown on the abstract, if it appear that the vendor has an equitable right in the land sold, by virtue of which he is, or may by doing-acts which are independent of others' consent, immediately become entitled to direct the conveyance to the purchaser of all the estate sold (o). And where a future day is fixed for completion of the contract, a good title is sufficiently shown on the abstract if it appear that the vendor will certainly have such an equitable right as above mentioned before the time fixed for completion, although he have not and cannot immediately procure such right (p). But it is otherwise if any part of the estate contracted for be outstanding in some person, whom the vendor has no right to direct to convey, and the vendor cannot procure such right without the other's consent. In such case a good title in the vendor is not shown. This may be illustrated, not only by the example already given of land subject to a mortgage not to be paid off during a certain term, but also by the instances of lands subject to dower, or a jointure rent-charge (q) or restrictive covenants (r), or of lands, under which the mines and minerals are not the vendor's (s), or of land sold as held for a term of a certain number of years, which is in fact determinable earlier at the lessor's option (t). A fortiori, the purchaser can object to the title, where it appears that the whole title is in some third person whose conveyance the vendor has no right, legal or equitable, to direct. Nor is the case altered by the fact that the vendor offers to procure the concurrence of such third person, and the latter is willing to give it; so long as the latter is under no obligation enforceable in a court of justice to convey according to the vendor's direction (u). On this point a recent case (x) is very instructive. Two persons sold land as trustees for sale. It appeared from the abstract that the trust for sale did not arise until after the death of a tenant for life, who was still living: but the vendors, on this objection being pointed out, offered to procure a conveyance from the tenant for life under the Settled Land Acts. This the purchaser declined; and the vendors endeavouring to oblige him to take this title in a vendor and purchaser summons, it was held that he was justified in his objection thereto. The court pointed out that the vendors themselves could make no title, having no immediate right to convey, and that the proposed conveyance could only be effectually secured by a new contract made with the tenant for life; an arrangement, into which the vendors had no right to require the purchaser to enter.

(m) See Esdaile v. Stephenson, 6 Madd. 366; Lewin v. Guest, 1 Russ. 325; Sug. V. & P. 425; I Dart, V. & P. 284, 5th ed.; 324, 6th ed.; 320, 7th ed.

(n) See Southby v. Hutt, 1 My.

& Cr. 207, 212, 213; above, pp. 115 sq. In actions for specific performance of contracts for sale of land the usual inquiry directed as to title is whether a good title can be made to the property sold, and if so, when it was first shown that such good title could be made; Seton on Judgments, 2226, 6th ed. The inquiry when a good title was first shown relates to the time when it was first shown upon the face of the abstract; but the inquiry, whether a good title can be made, means whether the vendor can prove a good title by the usual evidence; Parr v. Lovegrove, 4 Drew. 170; 4 Jur. N. S. 600; Sug. V. & P. 424, 425; see however Halkett v. Dudley, 1907, 1 Ch. 590, 606, where Parr v. Lovegrove was not cited, and Parker, J., appears to have overlooked this distinction.

Good title not shown if any estate outstanding in one, whom the vendor has no right to direct to convey.

(o) See note {g) to p. 165, above.

(p) Dart. V. & P. 284, 5th ed.;

324, 6th ed.; 320, 7th ed.: see Noble v. Edwardes, 5 Ch. D. 378;

Bellamy v. Debenham, 1891, 1 Ch.

412

(q)Esdailt v. Stephenson, 6 6 Madd. 366.

(r) Phillips v. Caldeleugh, L. R. 4 Q. B. 159; Pemsel v. Tucker, 1907, 2 Ch. 191, where the property sold was subject to a restrictive stipulation as to light, and a drain, which was a sewer vested in the local authority, ran under the land.

(s) Bellamy v. Debenham, 1891, 1 Ch. 412; Re Jackson and Haden's Contract, 1906, 1 Ch. 412, 424, 425.

(t) Weston v. Socage, 10 Ch. D. 736.

Be Bryant and Barningham's Contract

It appears however that if the purchaser propose to object to the title shown on the ground that the whole or some part of the estate contracted for in the land sold is outstanding in some person, whom the vendor has no right to direct to convey, he must insist on such objection at once, and must immediately repudiate the contract (y). If he require the vendor to remove the objection by obtaining the concurrence of the other person or persons entitled, or if he entertain (except without prejudice to his right to repudiate the contract) (z) any proposal made by the vendor so to remove the objection, he may lose his right to insist on the objection and may find himself obliged to perform the contract. For if the purchaser show himself willing to go on with the contract, the vendor may get in the outstanding interests, though they should amount to the whole title, and he will then be in a position to enforce the specific performance of the contract. And if in such case the vendor bring an action for that purpose, it will be no defence to allege that he could make no title by the time fixed for completion. For if the purchaser has continued to recognise the contract as binding, it will be sufficient to enable the vendor to enforce specific performance, if he can make a good title at the hearing (a) or even when the result of the usual inquiry as to title is certified (b). Besides this, if the contract contain the usual stipulation enabling the vendor to rescind in case of insistence on an unwelcome requisition, and the purchaser negotiate with the view of obtaining the removal of an objection, which would have justified him in repudiating the contract at once, the purchaser runs the risk of the vendor's exercising his power to rescind and so escaping the liability of paying the purchaser's expenses as damages (r).