Purchaser under usual condition as to identity requiring further evidence.

The proper course for the purchaser's counsel to adopt in matters of this kind appears to be to require the vendor, in the first instance, to show such a title and furnish all such evidence as he would be obliged to show or produce in an action for specific performance at his own suit. And the purchaser's advisers should endeavour to secure compliance with such requisitions by their diplomatic conduct of the negotiations. If this fails to attain its object, the purchaser should be careful to insist only on such requisitions as the vendor is obliged to comply with at law. And he should withdraw all requisitions for any evidence of title, which the vendor would have to produce to obtain specific performance at his own suit, but need not show in order to discharge his contract at law. As we have seen (x), unless the vendor seek actively to enforce the specific performance of the contract, the purchaser has no means of obliging him to furnish such evidence.

Course to adopt in making requisitions.

(s) See above, pp. 109, 198. (t) Above, p. 89.

(u) Above, pp. 65, 72. (v) See the authorities cited in note (b) to p. 66, above.

It has been shown (y) that a condition of sale, requiring the purchaser to assume without proof the truth of some fact or facts stated, is not binding, as regards the specific performance of the contract, if the vendor know the statement made to be untrue. But if the vendor believe the statement made to be true and have no reason to suppose that it is incorrect, the condition is fully binding on the purchaser, although it do not appear from the contract what defect of title the assumption required is intended to cover (z).

Conditions requiring assumptions of fact.

If a purchaser buy under conditions limiting his right to inquire into the vendor's title, he will of course have no protection against any legal estates or rights, adverse to the vendor's interest, which might have been discovered by a complete investigation of the title. But this liability arises from the fact that legal estates or interests in land are rights directly enforceable against the land into whosesoever hands it may come (a); and it is no defence against persons seeking to enforce such rights that the purchaser made the fullest investigation of the vendor's title. With regard to equitable estates or interests adverse to the vendor's title, the case is different; and if the purchaser obtain the legal estate from the vendor without notice of such estates or interests he will not be bound thereby (a). But a purchaser, who buys under conditions limiting his right to investigate the title, has constructive notice of all equitable incumbrances, which he would have discovered if he had inquired into the vendor's title for the period during which the title is required to be shown by law (b). For it is considered that a purchaser is bound to inquire into his vendor's title; and he is not allowed to escape the consequences of such inquiry, as regards notice of equities apparent on the face of the title, by contracting not to investigate the title. The reason of this is obvious. If a purchaser under restrictive conditions were able to plead purchase of the legal estate without notice against a prior equitable incumbrancer, it would always be in the power of any one who held land subject to an equitable incumbrance, to deprive the incumbrancer of his right by a sale under conditions prohibiting inquiry into title; and a purchaser under special conditions is supposed to take all risks and to pay a diminished price in consequence (c).

Position of purchaser buying under special conditions as against persons claiming adversely to the vendor.

(x) Above, p. 88.

(y) Above, pp. L99, 200.

(z)Sandbach and Edmondson's Contract 1891, 1 Ch. 99;

Blaiberg v. Keeves, 1906, 2 Ch.

175

(a) See Wms. Real Prop. 2, 3, 65, 181, 571, 21st ed.; below, Chap. XI. Sec. 2 (Assignment by Party by the Contract).

14(2)

Purchaser not investigating title has constructive notice of equities which he might have discovered by-inquiry.

(a) See last note.

(b) Worthington v. Morgan, 16 Sim. 547; Peto v. Hammond, 30 Beav. 495; Wilson v. Hart, L. R. 1 Ch. 463; Carter v. Williams, L. R. 9 Eq. 678; Patman v. Harland, 17 Ch. D. 353; Re Cox and Neve's Contract, 1891, 2 Ch. 109, 117, 118; C. A., Re Nisbet and Potts' Contract, 1906, 1 Ch. 386, 404, 408, 410 (but as to the decision in this case, see the writer's criticism in 51 Sol. J. 141, 155); Perham v. Kempster, 1907, 1 Ch. 373, 379; see also Oliver v. Hinton, 1899, 2 Ch. 264; Berwick v. Price, 1905, 1 Ch. 632; Walker v. linom, 1907, 2 Ch.

104; below, Chap. VIII. Sec. 1.

(c) See the cases cited in the previous note. Fry. J., appears to have lost sight of these principles in holding in Keltlewell v. Watson, 21 Ch. D. 685, 708, that persons who purchased very small pieces of land without investigating the title, were not affected with constructive notice of an equitable incumbrance, which the usual investigation of title would have disclosed. There was no appeal from his decision on this point: but his views do not appear to have been accepted by the C. A. See 26 Ch. D. 501, 508.