This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
(b) Engel v. Fitch (1869), L. R 4 Q.B. 659.
Rules as to Mode of Proof.
I. He must deliver an abstract showing all the dealings with and the history of the land for a certain period.
The buyer cannot demand any abstract or copy of any document dated before that period (c).
These periods are -
(i.) In case of freeholds: he must start with a document at least 40 years old, which (a) deals with the whole legal and equitable estate in the land, (b) contains a description of the land, and (c) does not show any defect or doubt in the title. This is called "a good root of title."
He must then trace the history of the land, giving an abstract of all the documents dealing with the land and all facts which have affected it down to the date of the contract for sale.
(ii) In case of copyholds which have been enfranchised.
These are now freehold, but they really combine two titles in one, namely, the freehold title of the lord of the manor which he conveyed to the tenant (d), and the copyhold title of the tenant.
The buyer cannot claim proof of the title of the lord of the manor (e), and therefore, if the enfranchisement was less than 40 years ago, the buyer can claim proof of -
(a) the title to the copyhold from a root of title at least 40 years old, down to the enfranchisement.
(b) the title to the combined freehold and copyhold, from the deed of enfranchisement down to the contract for sale.
(iii.) In case of leaseholds.
E.g. land granted to A for 99 years. A builds a house and then assigns the lease to B for £500.
(c) Conveyancing Act, 1881, s. 3 (3).
(d) See p. 187.
(e) Conveyancing Act, 1881, s. 3 (2).
The buyer can always claim the production of the original lease, however old.
He cannot claim any proof of the title of the landlord to grant the lease, however new the lease may be (/), and the same rule applies to a sublease.
Thus (a) if the lease is more than 40 years old, the buyer can claim the original lease, and then an abstract starting again from a good root of title at least 40 years old.
(b) If the lease is less than 40 years old, he can claim the original lease and proof of all dealings since that date.
A in 1907 agrees to buy a leasehold house, the lease of which was granted in 1900, he cannot go further back than 1900.
This is very risky as he is deemed to have notice of everything which he would have found out if he had examined the freehold title back to a good root 40 years old. See Imray v. Odkshette (1897), 2 Q. B. 218.
(iv.) In case of Advowsons (see p. 178) 100 years' title, with a list of the presentations made during that period (g).
(v.) In case of Tithes (see p. 181) the original grant of the tithe, and the title traced from a good root, at least 40 years old, to the date of the contract for sale (h).
II. He must prove that the property described in the deeds is the same as the property which the buyer has agreed to buy.
This is called "proof of identity." It is often very difficult to prove beyond doubt that the property is exactly the same; especially as in old deeds the land is often described as being in the occupation of some person who is now dead, or by reference to field names which have fallen into disuse.
III. He must prove that the land is of the
(f) Vendor and Purchaser Act, 1874, s. 2.
(g) Dart, "Vendors and Purchasers," Vol. I, p. 329 (7th Edn.).
(h) Ibid. p. 331.
same size and same nature as the description under which it was sold.
If there is some very slight mistake in the description, the contract can be enforced, but the seller must pay back a small part of the purchase money as compensation.
Calcraft v. Roebuck (1790), 1 Ves. Junr. 221.
The whole property was sold as freehold. A very small piece turned out to be held by the seller as tenant at will.
The Court granted specific performance with compensation.
IV. He must prove that all the documents mentioned in the abstract were properly executed, and that all the events mentioned in the abstract happened.
(i.) The buyer must accept as true all statements and recitals (i) in deeds or documents which are more than 20 years old.
This does not enable the seller to produce a deed more than 20 years old which states that a certain person was then seised in fee simple, for though the buyer must accept that fact as prima facie true, he is still entitled to have the history of the estate proved to him for at least 40 years (k).
(ii.) On a sale of leaseholds, if the seller produces the receipt for the last quarter's rent, the buyer must presume that all the covenants in the lease have been observed.
V. He must produce all the documents set out in the abstract for the purpose of comparison with the abstract, and he must produce all evidence necessary to show that all material events mentioned in the abstract happened.
(i) See p. 282.
(k) Bolton v. London School Board (1878, 7 Ch. D. 766) has always been treated by conveyancers as wrongly decided, and has now been dissented from. See re Wallis and Grout's Contract,  2 Ch. 206.
Modification. - If the documents or the evidence of fact are not in his possession, he must still produce them, but the buyer must pay the cost of searching for them and producing them (l).
This is one of the few cases where the provision of an open contract are unduly severe to the buyer.
Re Stuart and Olivant's Contract (1896), 2 Ch. 328.
The seller agreed that the title should commence with an underlease dated the 13th October, 1865. He furnished a copy of this underlease to the buyer, and said he did not know where the original was, but would search for it at the buyer's expense.
Held, the seller need not search for the underlease unless the buyer undertakes to pay the cost of the search.