(!) Marshall v. Powell, 9 Q. B. 779.

(m) See above, p. 36; Berry v. Young, 2 Esp. 640, n.; Wilde v. Fort, 4 Taunt. 334; Hanslip v. Padwick, 5 Ex. 615; Sug. V. &P. 257-9; Dart, V. & P. 417, 944, 945, 949, 5th ed.; 482, 1071, 1072, 1076, 6th ed.; 495, 984, 985, 990, 7th ed.

(n) Pincke v. Curteis, 4 Bro. C. C. 329; Redesdale, Ir. C, Lennon v. Napper, 2 Sch. & Lef. 684; Eldon, C, Seton v. Slade, 7 Ves. 265, 273-5; Radcliffe v. Warrington, 12 Ves. 326; Hearne v. Tenant, 13 Ves. 287; Hipwell v. Knight, 1 Y. & C. Ex. 401; Parkin v. Thorold, 16 Beav. 59; Roberts v. Berry, 3 De Gr. M. & G. 284; Fry, Sp. Perf. Sec. 1072, p. 489. In recent times, equity judges seem to have thought it necessary to allege that, notwithstanding the date of completion, expressly to make time of the essence of the contract.

(o) In Tilley v. Thomas, L. R. 3 Ch. 61, 67.

(p) 3 De G. M. & G. 284, 291.

(q) See below, Chap. XII. Sec. 1; Fry, Sp. Perf. Sec. 1075-1091, pp. 101-8.

(r) Stat. 36 & 37 Vict. c. 66, s. 26 (7), amended by 38 & 39 Vict. c. 77, s. 10.

When a day is fixed for the completion of the contract, without further special stipulation, the purchaser becomes entitled to the rents and profits and liable to discharge the outgoings as from that day, the vendor taking the profits and discharging the outgoings up to that day (s). And if the purchase be not completed on that day, and the delay be attributable to the purchaser, he is bound to pay interest on the purchase-money as from that day, whether he have entered into possession or not. But if the delay be attributable to the vendor, the purchaser is chargeable with interest (and consequently entitled to the profits and liable to the outgoings) only from the time when he either actually took or might safely have taken possession, the latter time being when a good title has been shown and verified (t). The purchaser may, however, discharge himself from the liability to pay interest, where the delay is attributable to the vendor's and not his own fault, by appropriating his money to the purchase in manner before explained (u). But, as we shall see, these matters and especially the payment of interest are usually provided for by special stipulation in formal contracts.

Effect of fixing a day for completion without further stipulation.

4. If it be intended that the fixtures or timber or other trees upon the property sold shall be paid for at a valuation in addition to the sum agreed on as the price of the land, a special stipulation to that effect must form part of the contract of sale: otherwise the purchaser will be entitled to have the fixtures and trees, as passing with the land, without extra payment (x). Such a stipulation is very commonly made, and the mode of valuation is usually specified; for instance, by two valuers to be appointed one by either party, or an umpire to be appointed by the valuers. But an agreement to sell property at a price to be ascertained by valuation made in a particular way does not result in an enforceable contract if that way be not pursued; for if the parties agree that the price is to be fixed by A., and A. do not fix it, the price is not reduced to the required certainty (y); and the Court will not, as a rule, provide other means of fixing the price, for that would be holding the parties bound by a contract different from that which they made (a). It is therefore proper to stipulate, after providing that fixtures or timber shall be taken at a valuation to be made in a particular manner, that failing such valuation they shall be paid for at a fair valuation or at their fair value. In such case, the Court will, it seems, direct a reference, if necessary, to ascertain the price (a).

Fixtures or timber to he taken at a valuation.

(s) Sug. V. & P. 627; above, pp. 49, 50.

(t) Pincke v. Curteis, 4 Bro. C. C. 329, 333, n.; Leach, V.-C, Esdaile v. Stephenson, 1 S. & S.

122, 123; Jones v. Mudd, 4 Buss. 118; Sug. V. & P. 627 sq.; 2 Dart, V. & P. 627, 628, 5th ed.; 708, 709, 6th ed.; 650, 651, 7th ed. (u) Above, p. 51.

5. It is usual to specify the instrument of disposition with which the title shall commence, especially if it be intended to confine the time, for which title is to be shown, within a shorter limit than the period fixed by law (b). No such stipulation is necessary if the vendor propose to deliver an abstract commencing with a good root of title (c) and extending over the whole period, for which title can by law be required to be shown. But if it be desired effectually to limit the purchaser's rights, as defined by law, in the matter either of the time for which he may require title to be shown or of the nature of the instrument with which the title is to commence, a fair and explicit stipulation to the effect desired must be made (d).

Commencement of title.

(x) Colegrave v. Dias Santos, 2 B. & C. 76.

(y) See above, p. 4.

(z) Milnes v. Gery, 14 Ves. 400; Blundell v. Brettargh, 17 Ves. 232; Collins v. Collins, 26 Beav. 306; Vickers v. Vickers, L. R. 4 Eq. 529; Fry, Sp. Perf. Sec. 354-367, pp. 161-7.

(a) See above, p. 4, n. (m); Sug. V. & P. 287, 288; 1 Dart, 7. & P. 221-3, 5th ed; 257-9, 6th ed.: 242-4,7th ed.; 1 Davidson, Prec. Conv. 522, 523. 607, 4th ed.; 435, 513, 619, 5th ed,

(b) See above, p. 33.

(c) Above, pp. 41, 42.

6. It is usual to provide that the purchaser's requisitions on or objections to the title, or anything else connected with the sale, shall be sent to the vendor's solicitors within a limited time (as twenty-one days) after the delivery of the abstract of title, that in this respect time shall be of the essence of the contract (c), and that in default of or subject only to any such requisitions and objections so made the purchaser shall be taken to have accepted the title (f). And it is sometimes stipulated that any replies to the vendor's answers to the requisitions must be made within a specified time (g). Where such stipulations are made, it is not desirable, in the vendor's interest, to provide that the abstract shall be delivered within a specified time; as if he should fail to deliver it within the period appointed, the condition limiting the time, within which the purchaser is to make his requisitions, will fail of effect (h). It is further held with regard to such stipulations that the time thereby limited only begins to run from the delivery of a perfect abstract, that is, as perfect an abstract as the vendor is able to furnish at the time of delivery, although it may not show a complete title (i). Hence it is sometimes provided in conditions of sale that, for the purpose of any requisition or objection, the abstract shall be deemed perfect, if it supply the information suggesting the same, although otherwise defective. Such a stipulation is sanctioned by the practice of eminent conveyancers: but it has never been decided how far it is efficacious; and as regards the enforcement of specific performance its operation would appear to be very limited (k). The stipulation, that in default of requisitions or objections made within the time limited, the purchaser shall be taken to have accepted the title, does not bind him to take the property sold, if on the face of the abstract the vendor show no title at all to convey the same, even though this objection were not taken within the time appointed (l).