Doubtfulness of the title.

Inquiry as to title.

(r) Marlow v. Smith, 2 P. W. 198; Shapland v. Smith, 1 Bro. C. C. 75; Cooper v. Denne, 4 Bro. C. C. 80, 1 Ves. jun. 565; Shef-field v. Mulgrare, 2 Ves. jun. 526: Roake v. Kidd, 5 Ves. 647; Vancouver v. Bliss, 11 Ves. 458, 464 - 466; Sloper v. Fish, 2 V. & B. 149; Blosse v. Clanmorris, 3 Bligh, 62, 71; Willcox v. Bellaers, T. & R. 491; Pyrke v. Waddimgham, 10 Hare, 1, 7, sq.: Collard v. Sampson, 4 De G. M. & G. 224; Parker v. Tootal, 11 H. L. C. 143, 15S; above, pp. 106, 107, & nn. (w, y), 153, 168, 332, 360.

(s) Above, pp. 75, 726, 727, 937, 938.

(t) Above, p. 75 & n. (b).

(u) Bennett v. Fowler, 2 Beav. 302; see above, p. 69.

(x) The right is the purchaser's only; Bennett v. Fowler, ubi sup., and the vendor is not entitled to raise any objection to his own title; Bradley v. Munton, 15 Beav. 460.

(y) Above, p. 132, n. (l).

(z) Upperton v. Nicholson, L. R. 6 Ch. 436, 442; above, p. 69 & n. (c). The inquiry as to title takes place in the judge's chambers; any point in dispute may be referred to one of the conveyancing counsel to the Court for his opinion: after which the point raised may be discussed before the master, and, if necessary, reserved for the decision of the judge in chambers or in court. The decision of the Court as to the title is then embodied in the master's certificate, which becomes binding on all parties to the action, unless within eight days an application be made to discharge or vary it; R. S. C. 1883, Ords. LI. r. 7, LV. rr. 65, 69, 70; Dan. Chan. Pract. 1136, 7th ed.; Dan. Chan. Forms, 7G7, 5th ed.; 2 Dart, V. & P. 1228; Fry, Sp. Perf. Sec. 1372, 1376, 3rd ed.

It is impossible to state exhaustively in what circumstances the Court will consider a title too doubtful to be forced upon an unwilling purchaser. The practice of the Court has fluctuated; and even the principles upon which it acts are by no means perfectly ascertained (g). By the labours of Sir Edward Fry (h), the decisions on this subject have been partially classified, and the substance of this classification is given below.

(a) Seton on Judgments, 2248, 6th ed.

(b) lb. 2249; above, pp. 937, 947 - 949, 971.

(c) Rose v. Calland, 5 Yes. 186, 188, 189; Pyrke v. Waddingham, 10 Hare, 1, 10; Osborne to Row-lett, 13 Ch. D. 774, 781; Re Ailesbury Settled Estates, 62 L. J. Ch. 1012.

(d) See Braybroke v. Inslip, 8 Ves. 417, 428; Pyrke v. Waddingham, 10 Hare, 1, 8.

(e) Above, p. 1005 & n. (r). (f) Above, pp. 971 - 973.

(g) See cases cited, below, p. 1008, n. (q); Fry, Sp. Perf. Sec. 882 - 888, 3rd ed.

(h) Sp. Perf. Sec. 890, 891,

In the first place, the Court will not oblige the purchaser to take the title where it is reasonably probable that its acceptance would involve him in litigation (i). In other words, the Court will not compel the purchaser to buy a law suit (k). But the litigation contemplated must be such as, in the opinion of the Court, may possibly be successful (l). And if a stranger to the contract assert some claim on the land sold, which the Court considers to be entirely unfounded, the Court will enforce the contract specifically, notwithstanding that the stranger have commenced proceedings against the vendor, and registered them as a lis pendens (m). Possibly the whole sum and substance of the rule about too doubtful titles is contained in the proposition that specific performance will not be decreed against a purchaser if it would expose him to the risk of litigation at suit of a stranger to the contract asserting, with apparent or reasonably possible right (n), a claim adverse to the title shown (o). But the following points should be particularly mentioned, though perhaps they are merely corollaries to this proposition.

Reasonable probability of litigation.

3rd ed. The reader is also referred to the summary of cases on this subject contained in 2 Dart, V. & P. 1137, 5th ed.; 1272, 6th ed.

(i) Cattell v. Corrail, 4 Y.& C. Ex. 228, 237; Pegler v. White, 33 Beav. 403; Re New Land Development Assn. and Gray, 1892, 2 Ch. 138, 145, 146, 147; Scott v. Alvarez, 1895, 2 Ch. 603, 613 (above, pp. 167, 168); Re Hollis's Hospital and Hague's contract, 1899, 2 Ch. 540, 555 (above, p. 600, n. (k) ).

(k) Rose v. Calland, 5 Ves. 186, 187; Sharp v. Adcock, 4 Russ. 374, 375.

(0 See Lyddal v. Weston, 2

Atk. 19; Glass v. Richardson, 9 Hare, 698, 701; Falkner v. Equitable Reversionary Society, 4 Jur. N. S. 1214, 1217, 1218 (the remarks referred to in the text are not reported in S. C., 4 Drew. 352); Mogridge v. Clapp, 1892, 3 Ch. 382, 396; Re Maskell & Goldfinches contract, 1895, 2 Ch, 525, 529; Re Marshall & Salt's contract, 1900, 2 Ch. 202, 204, 205.

(m) Bull v. Hutchens, 32 Beav. 615; above, pp. 524, 600, n. (k); see also Osbaldeston v. Askew, 1 Russ. 160; Minton v. Kirwood, L. R. 1 Eq. 449, 455, 3 Ch. 614.

(n) Cf. above, p. 963.

(o) See above, p. 1006.

As regards doubtful questions of law: - The Court considers the title too doubtful where there has been a decision of a Court of co-ordinate jurisdiction adverse to the title or to the principle on which the title depends, although the Court thinks that decision to be wrong (p); or where there has been a similar decision favourable to the title, but the Court is of opinion that the decision was not right (p). But at the present time the Court of Appeal, or other superior Court, does not consider the title to be too doubtful merely because a Court of inferior jurisdiction has pronounced a decision adverse to the title, if the Superior Court think that decision to be clearly wrong (q). Again, the Court will not oblige a purchaser to take a title depending on the construction and legal operation of some ill-expressed and inartificial instrument, if the Court consider that its own view of the question is open to reasonable doubt in some other Court (r). But if the title depend on a question of the general law of the land, the Court will, as a rule, decide the question and, if its opinion be in favour of the title, order the specific performance of the contract by the purchaser (s). And this rule applies also where the question, though one of construction, turns upon a general rule of construction, unaffected by any special context in the instrument (t). It has been held that, where the title depends on the construction of some general statute, the true construction thereof may, owing either to the absence of any decision or to the conflict of previous decisions, be regarded by the Court as a question sufficiently doubtful to justify the Court in not enforcing the contract specifically as against the purchaser (u). But the latest expression of judicial opinion in the Court of Appeal is that in this case also a Superior Court will follow the modern general rule, and will decide the question of construction, and, if necessary, oblige the purchaser to take the title accordingly (x).