This section is from the book "A Treatise On The Law Of Vendor And Purchaser Of Real Estate And Chattels Real", by T. Cyprian Williams. Also available from Amazon: A treatise on the law of vendor and purchaser of real estate and chattels real.
V. & C 401.
(f) Above, pp. 58, 59.
(q) See the cases cited above, p. 58: Patrick v. miner, 2 C. P. D. 342.
(h) Lloyd v. Rippingale, cited 1 Y. & C. 410; Parkin v. Thorold, 16 Beav. 59, 65; see above, pp. 62, 72.
(i) Hipwell v. Knight, 1 Y. &C. 401, 117; Barclay v. Messenger, 43 L. J. N. S. Ch. 449, 455.
(k.) Above, p. 575; Webb v. Hughes, L R. 10 Eq. 281, 286.
(l) Above, p. 59.
(m) Hipwell v. Knight, 1 Y. & C. 401, 416.
(n) Above, p. 408.
(o) See Withy v. Cottle, T. & R. 78; 1 Dart, V. & P. 419, 5th ed.; 484, 6th ed.; 497, 7th ed.
(p) Hudson v. Temple, 29 Beav. 536, 543.
(q) Coslake v. Till, 1 Russ. 376; Walker Y.Jeffreys. 1 Hare, 341, 348.
(r) Above, p. 488.
(s) Parker v. Frith, 1 S. & S. 199, n.; Maebryde v. Weekes, 22 Beav. 533; Fry, Sp. Perf. Sec. 1079 - 1082. 3rd ed.
As we have seen (d), where time is not originally of the essence of the contract, it may be made so, in the case of unreasonable delay by either party in the performance of his part of the contract, by a notice served on him by the other party and requiring him to do the acts, which he has so delayed to perform, within a specified time; provided that the time so specified allow him such a period commencing from the date of service of the notice as is reasonably necessary for accomplishing the acts required.
Making time of the essence, where not originally so, by subsequent notice.
(t) Above, p. 576. (u)Above, pp 67, 71.
(x) Webb v. Hughes, L. R. 10 Eq. 281, 286; Patriot v. Milner, 2 C. P. D. 342: and see Jones v.
Gardiner, 1902, 1 Ch. 191.
(y) Levy v. Lindo, 3 Mer. 81, 84; Gedye v. Montrose, 26 Beav. 16; Tilley v. Thomas, L. R. 3 Ch. 61.
(z) Sec Wright v. Howard, 1
S. & S. 190.
(a) See Jones v. Gardiner, 1902, 1 Ch. 191.
(b) See Boehm v. Wood, 1 J. A-W. 419, 122: Tilley v. Thomas, L. R. 3 Ch. 61, 07, 70; Webb v. Hughes, L. R. 10 Eq. 281, 286.
(c) Hipwell v. Knight, 1 Y. & C. 401; Webb v. Hughes, L. R. 10 Eq. 281.
(d)Above, p. 48
W
Here it may be mentioned that, if it be a term of the contract for sale that some condition shall be performed by the vendor, as that he shall procure a mortgagee of the land to allow the amount advanced to remain on the security, and a day be fixed for completion, time being of the essence of the contract in this respect, the vendor may, as a rule, well perform the condition at any time before the day fixed for completion (e).
Time for performance by vendor of a condition which is a term of the sale.
Completion of the contract consists on the part of the vendor in conveying with a good title the estate contracted for in the land sold and delivering up the actual possession or enjoyment thereof; on the purchaser's part it lies in accepting such title, preparing and tendering a conveyance for the vendor's execution, accepting such conveyance, taking possession and paying the price (/). But the performance of either party's duty in this respect cannot be exacted by the other unless he himself be ready to fulfil his own part of the contract. Thus the vendor cannot require payment of the price and call upon the purchaser to take possession unless and until he have shown a good title and be ready and willing to execute a valid conveyance to the purchaser; nor can the purchaser oblige the vendor to convey and give up possession of the land without himself accepting the title, tendering a conveyance for execution, accepting the conveyance and paying the price. And this is so, not only under an open contract, but also where a day is fixed for completion in the ordinary way, time not being of the essence of the contract; either party being at liberty in such case to decline to complete the contract, notwithstanding that the day tor completion arrive or be past, except on the terms of the other discharging his duty (g).
The acts to be performed on either side for completion.
(e) Smith v. Butler, 1900, 1 Q. B. 694, 699.
(f) Above, pp. 26, 33, 34, 46.
Let us first consider the purchaser's duties. The first steep towards completion required of him is to accept the title, if the title shown on the abstract and proved by the documents and other evidence produced for verification of the abstract be a good title according to the contract (h). No formal act or notification of such acceptance is required; it takes place when the vendor's last answer to the purchaser's last outstanding requisition is received without objection (i). Such acceptance, however, is merely an acceptance of the title so put forward by the vendor (A); it does not preclude objection to the title on account of defects subsequently discovered from other sources than the information supplied by the vendor, as from searches or other inquiries made by the purchaser (l), provided of course that the title agreed to be taken were not so limited by special stipulation as to preclude such objection (m). Neither does acceptance of the title prevent objections as to matters which are properly matters of conveyance rather than of title (n). It is important to observe this, as a part of the proper investigation of every title consists in searching for registered incumbrances, making inquiries of tenants or other occupiers as to the nature of their interests, or, where vacant possession is to be given on completion, ascertaining that the vendor is in possession; and these searches and inquiries should be so made as to extend over the very latest possible time before completion (o). And it may happen that an objection as to some matter of conveyance may be such as to justify the purchaser in refusing to complete the contract (p). We have seen (q) that the title may also be accepted by not sending in requisitions or objections within the time specially limited by the contract for that purpose. If the purchaser inadvertently accept a defective title put forward without fraud, and after-wards fail to pay the purchase money and the vendor rescind the contract and retain the deposit as forfeited on that account (r), the purchaser will not be enabled, on subsequently discovering the defect in the title, to recover the deposit (s).
The purchaser's duties Acceptance of the title.
Searches and inquiries to be made by the purchaser.
(g) Sec Martin v. Smith, 6 East, 555: Jones v. Mudd, 4 Ruas. 118; Poole v. Hill, 6 M. & W. 835: Tilley v. Thomas, L. R. 3 Ch 6l; Phillips v. Silvester, L. R. 8 Ch. 173, 176 - 178; Noble v. Edwardes, 5 Ch. D. Mostyn v. Mostyn, 1893, 3 Ch. above, pp. 60, 515, 516. (A) See above, pp. 35, 36. 105, 115, 143, 166, 178. 179.
(i) See oases cited above, pp. 26, n. (r). (50, n. (t): Re Highett and Bird's Contract, 1902, 2 Ch. 214, 1903, 1 Ch. 287. (k)Above, p. 189. (l) Above, pp. 189, 190; Re Jackson and Oakshott, 14 Ch. D. 8.01; Re Monckton and Oil 27 Ch. D. 555; Re Haedicke and Lipski,s Cotnract, 1901, 2 Ch. . 669, 670; Re Puekett and Smith's Contract, 1902, 2 Ch. 258
(m) Above, pp. 202 - 207.
(n)Above, pp. 164-166, 181, 188, 190: Mustyn v. Mostyn, 1893, 3Ch. 376; St Hughes and Ashley Contract, 1900, 2 Ch. 596.
37 (2)
Acceptance by not sending in requisitions in time.
Soper v. Arnold.
 
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