(p) See Broomfieldv. Williams, 1897, 1 Ch. 602; Pollard v. Gare, 1901, 1 Ch. 834; International Tea Stores Co. v. Hobbs, 1903, 2 Ch. 165.

(a) 2 Dart, V. & P. 744, 5th ed.; 838, 839, 6th ed.; 742, 743, 7th ed.; May v. Platt, 1900, 1 Ch. 616; see below, Chap. XIII. Sec.2.

(r) See Bayley v. Great Western Rail. Co., 26 Ch. D. 434, 441, 442, 452, 453; above, pp. 429, 430.

(s) See Wheeldon v. Burrows, 12 Ch. D. 31; Broomfield v. Williams, 1897, 1 Ch. 602, 610, 612; Pollard v. Gare, 1901, 1 Ch. 834; Cable v. Bryant, 1908, 1 Ch. 259; and consider the case cited in the previous note. As to drains, see Ewart v. Cochrane, 7 Jur. N. S. 925, 4 Macq. 117; Williams on Commons, 319, 324.

Where the vendor has stipulated in the contract for the reservation in his own favour of any easement or oilier right over the land sold, care must be taken that due effect is given to such stipulation in the conveyance; otherwise the vendor will have no remedy to assert his right but to sue for rectification of the conveyance (y).

Reservation-in the vendor's favour.

(t) Above, p. tint.

(u) See the cases cited above, p. 638, nn. (f), (h),(i).

See Bolton v. Bolton, 11 Ch,. D. 968; Barkehire v. Grubb, 18 Ch. D. 616, 620; Re Peek and London School Board, 1893, 2 Ch. 316; Re Hughes and Ashley's Contract, 1900, 2 Ch. 595: and consider Re Birmingham, etc Co. and Allday, 1893, 1 Ch. 342.

(y) See Teebay v. Manchester, etc. Rail. Co., 24 Ch. D. 572 . Williams on Commons, 322; below, Chap. XIII. Sec. 2.

The vendor may be entitled to some reservation over the property sold, not only by express agreement, but by implication from the circumstances surrounding the contract; as where the purchaser buys with notice of the fact that the adjoining property of the vendor is laid out for building, and access thereto across the land sold will obviously be necessary (z). And a vendor may by the like implication, as well as by express contract, be entitled to reserve to himself the unrestricted use of some adjoining land of his, which would otherwise have become subject to an easement or right (as to access of light) in the purchaser's favour (a); as where the purchaser of a house with windows overlooking land adjoining and retained by the vendor has notice that the land is laid out for building in a manner obviously inconsistent with the acquisition by the purchaser of any such right (b). But except by virtue of such express or implied contract, the vendor has no claim to the reservation in his own favour of any right over the land sold, or, where the exercise of some easement or privilege over any adjoining land of his would otherwise be necessary to the enjoyment of the property sold, to the reservation in his own favour of such right of free use of the adjoining land as will exclude the acquisition of such privilege or easement (c). For example, if a vendor offer for sale by auction in different lots a house and land adjoining, which the windows of the house overlook, and the land be sold at the auction, but not the house, the purchaser of the land will be entitled to build thereon so as to obstruct the access of light to the windows (d).

(z) Davies v. Sear, L. R. 7 Eq. 427.

(a) See above, p. 639.

(b) See Birmingham, etc. Banking Co. v. Ross, 38 Ch. D. 295; Godwin v. Sehweppes, Ld, 1902, 1 Ch. 926.

(c) See above, pp. 639, 640, and cases there cited.

(d) Ellis v. Manchester Carriage Co., 2 C. P. D. 13; Wheeldon v. Burrows, 12 Ch. D. 31; Bedding-ton v. Alice, 35 Ch. D. 317; Ray v. Hazeldine, 1904, 2 Ch. 17.

Whereas, if the house were sold but not the land, the purchaser would acquire by implication an easement of access of light over the land and the vendor would not be entitled to build so as to obstruct such access (e); unless, as we have seen, the purchaser bought with notice of the vendor's intention to build thereon in a manner inconsistent with the acquisition of such an easement (f). And if both lots were sold at the same time, the purchaser of the house would acquire an easement of the access of light over the land; for on a sale or conveyance at one and the same time to different persons of two tenements belonging to the same owner, there is implied, unless a contrary intention appear, a grant of all easements over one tenement which are necessary for the enjoyment of the other (g). Where two tenements belonging to one owner exercise each over the other some privilege necessary to their proper enjoyment, as where two houses are built together and supported by one party wall, then, on a sale or conveyance of one of the tenements, there will be implied, not only a grant of an easement of support in favour of the purchaser or other alienee, but also a reservation of the like easement to the owner retaining the other tenement (h).

If the property were sold subject to some particular incumbrance, which is to remain undischarged, such as a mortgage, restrictive covenants, an easement, or a subsisting tenancy for any term, the vendor is of course entitled to require that it shall be expressed in the conveyance that he conveys the land sold subject to the incumbrance in question. And the conveyancer acting for him should be particularly careful to see that this is done; as the statutory covenants for title, which are now usually incorporated in conveyances on sale, include covenants for right to convey and quiet enjoyment, subject only as expressed in the conveyance, and for freedom from incumbrances other than those subject to which the conveyance is expressly made (i). So that if the vendor omit to specify in the conveyance the incumbrance, subject to which he sold, and convey as beneficial owner, he lays himself open to an action on his covenants for title, to which his only defence would be to plead the terms of the contract for sale and counterclaim for rectification of the conveyance (k). Where the contract for sale contains the common stipulation (l) that the property is sold subject to all chief and other rents, rights of way and water and other easements (if any) charged or subsisting thereon, and to all leases, tenancies and occupations, whether mentioned in the particulars of sale or not, and to all rights and claims of lessees, tenants and occupiers, it may perhaps be argued that the vendor is in strict law entitled to insist that he shall convey according as he contracted to sell, namely, subject to these incumbrances; and that none the less, where the purchaser has inquired whether there are any such incumbrances (m) and received the reply that the vendor is not aware of any (n). For as we have seen (o), it is only against such incumbrances as the vendor was not aware of that this stipulation has any force; and the vendor certainly appears to be entitled to limit his liability under the statutory covenants for title, so that he shall not be sued for any defects of title so arising. But it is not, and has never been, the practice of conveyancers to insert in conveyances on sale any words qualifying, by reference to possible incumbrances of this kind, either the assurance made or the covenants for title entered into by the vendor (p); for it is understood that the stipulation in question is merely intended to protect the vendor against any objection to the title on account of incumbrances of the kind mentioned, which may exist without the vendor's knowledge, and may be discovered in the course of the investigation of title, and that the purposes of the clause are exhausted when the title has been investigated without the discovery of any such incumbrance (q). And it would be a great hardship on the purchaser for such words to be inserted in the conveyance, as they would put everyone taking uuder the conveyance upon inquiry, whether there were such incumbrances or not (r). It is thought, therefore, that the Court would not oblige a purchaser, who bought under such a stipulation, to accept a conveyance, in which the assurance made by the vendor was qualified by such words, especially when it is considered that under an innocent conveyance (s) the vendor assures the land described for such estate or interest only as he really has therein and subject to all legal liabilities actually affecting the same (t). But it is thought that the vendor would be entitled to insist on limiting the statutory covenants for title so that they should not extend to indemnify the purchaser against any incumbrance, whether known or unknown, subject to which the sale was expressly made. It is not, however, the practice to insist on such a limitation with regard to the possible incumbrances specified in the above-mentioned common condition of sale. If in any particular case it were desired to insist on this limitation of the covenants, it should be carried out by a clause expressly modifying the effect of the statutory covenants and not by expressing that the conveyance is made subject to the incumbrances mentioned in the condition. If it be stipulated in the contract for sale that the property is sold and shall be conveyed subject to the incumbrances above mentioned (u), the purchaser cannot object to the insertion in the conveyance of the same words as are contained in the contract (x). The vendor cannot oblige the purchaser to take a conveyance of the land sold subject to any other incumbrances than those subject to which the purchaser expressly or impliedly (y) agreed to buy (z).