Questions of law: previous adverse decision of equal Court, though doubted.

Previous favourable decision doubted.

Adverse decision of inferior Court.

Title depending on the construction of an ill-drawn instrument.

Title depending on a question of general law.

Title depending on some general rule of construction.

(p) Huttings v. Trinder, L. R. 10 Eq. 449, 454; and see Rose v. Calland, 5 Ves. 186. This rule applies equally where there have been previous conflicting decisions of Courts of co-ordinate jurisdiction; Re Carter & Kenderdine' s contract, 1897, 1 Ch. 77G, 778.

(q)Beioley v. Carter, L. R. 4 Ch. 230, 236, 240; Alexander v. Mills, L. R. 6 Ch. 124, 132; Radford v. Willis, L. R. 7 Ch. 7; Collier v. Walters, L. R. 17 Eq. 252, 2G0; Osborne to Rowlett, 13 Ch. 1). 774, 781; Re Carter and Kenderdine's contract, 1897, 1 Ch. 776. In earlier cases it had been held that the Court would not enforce specific performance, notwithstanding that its opinion was in favour of the title, if it considered that that opinion might fairly and reasonably be questioned by competent persons; Harlow v. Smith, 2 P. W. 198, 201; Price v. Strange, 6 Madd. 159, 164; Pyrke v. Waddingham, 10 Hare, 1, 7, 8; Collier v. McBean, L. R. 1 Ch. 81, 84; Hamilton v. Buckmaster, L. R. 3 Eq. S23, 328; Fry, Sp. Perf. Sec. 884, 3rd ed.

(r) James, L. J., Alexander v. Mills, L. R. 6 Ch. 124, 132.

(s) James, L. J., Alexander v. Mills, L. R. 6 Ch. 124, 132; Forster v. Abraham, L. R. 17 Eq. 351, 354; Osborne to Rowlett, 13 Ch. D. 774; Re Carter & Kenderdine's contract, 1897, 1 Ch. 776.

Title depending on the construction of a general statute.

With respect to questions of fact: - The Court may consider the title too doubtful where it depends on the establishment by oral evidence of facts of a complicated nature (y); especially where the witnesses necessary to repel an adverse claim may be dead or difficult to find when the claim is asserted (z). And where the title depends on a presumption of fact, it is considered to be too doubtful if it would be the duty of a judge charging a jury upon the evidence offered, not to direct them that they were bound to find in favour of the presumption, but to leave them to draw their own conclusion from the evidence (a). This principle is illustrated where a title depends upon some fact of a negative nature, which is not capable of positive proof, but is really a matter of inference only (b). Thus we have seen that a purchaser will not be forced to accept a title depending on the fact that the vendor had no notice of some equitable incumbrance (c). Other examples of the application of this rule are where the fact to be established is that there was no creditor capable of taking advantage of an act of bankruptcy by the vendor (d), or that a voluntary settlement was not avoided under the old law by a subsequent conveyance for value (e). But where the title depends on a fact, which is capable of positive proof and is satisfactorily proved (/), or where it depends on a presumption of fact, and a judge would be bound to direct a jury to find in favour of the presumption, the purchaser will be obliged to perform the contract specifically (g). The Court may consider the title too doubtful, where the facts stated in support of it raise the presumption (though not an irrebuttable presumption) that it is invalid in some respect; as that an appointment abstracted was a fraud upon the power (h). On the other hand, where the facts neither amount to proof nor raise any presumption of the invalidity of the title, but merely give ground for a suspicion of fraud or other like defect, which might render the title invalid in equity, and a good title to the legal estate is shown on the face of the abstract (i), the Court will not absolve the purchaser from the obligation of performing the contract specifically (k). It should be noted, however, that if the facts stated raise a suspicion of some defect in the title at law, the purchaser will have no protection in case the suspicion be well-founded (l). The law applicable to these circumstances appears to be this: - On the one hand, the Court will never presume fraud (m); the presumption is that everything has been rightly done (n); and the vendor is entitled to the benefit of this rule, and cannot be called upon to give evidence to disprove any mere suggestion by the purchaser of some hypothetical fact, which would adversely affect the title (o). But against this, it appears that where there is a real ground of suspicion of some matter which would cause a defect in the legal title to the property sold, the Court may, unless the suspicion be removed by sufficient evidence, pronounce the title to be too doubtful to be forced on the purchaser, or may at least do so if its acceptance would leave him exposed to the reasonable probability of adverse litigation (p).

Questions of fact.

Title depending on a presumption of fact.

(t) Radford v. Willis, L. R. 7 Ch. 7, 11.

(u) C. A., Palmer v. Locke, 18 Ch. D. 381, 388; Re Thackwray & Young' s contract, 40 Ch. D. 34, 38, 39.

(x) Mogridge v. Clapp, 1892, 3 Ch. 382, 396, 401; Re Carter & Kenderdine's contract, 1897, 1 Ch. 776; Cozens-Hardy, L. J., Re Hand/nan & Wilcox's contract, 1902, 1 Ch. 599, 609; see also Wentworth v. Humphrey, 11 App. Cas. 619, 622, 625, 626.

(y) Re Douglas & Powell's contract, 1902, 2Ch. 296, 314.

(z) Fry, Sp. Perf. Sec. 890 (i), 3rd ed.

(a) Above, p. 106 & n. (w).

Where the facts raise a presumption of the invalidity of the title.

Mere suspicion of an equitable defect.

(b) Above, p. 101.

(c) Above, pp. 107, 15S, 332, 130.

(d) Lowes v. Lush, 11 Ves. 517. (e) Above, pp. 105, 106, 373, 375

(/) Smith v. Death, 5 Madd. 371, 371; and see Spencer v. Topham, 22 Beav. 573 (above, pp. 905, 906); Re Bridges & McRae's contract, 30 W. R. 539; Games v. Bonnor, 54 L. J. Ch. 517, 33 W. R. 64; Kekewich, J., Mogridge v. Clapp, 1892, 3 Ch.