Until the conveyance is executed by all necessary parties, the vendor remains liable in respect of all defects in title: he must, for instance, refund the purchase money, if the purchaser having paid it, even although having taken possession, be evicted by an adverse claimant (y); so, if incumbrances be discovered, he must discharge them, or the purchaser himself may pay them off out of the unpaid purchase money (if any) (z): but the latter cannot retain any part of it as an indemnity against a contingent charge against which he has agreed to accept the vendor's covenant (a).

No escheat of trust and mortgage rates.

Interests of vendor, how far capable of being dealt with under act.

Vendor liable for incumbrances and defects of title until conveyance executed;

(w) Sect. 46. (x) Cited supra, p. 280.

It is conceived that, for the purpose of the above rules, mere execution of the conveyance by a married woman is insufficient, for she has still a locus poenitentiae; and that, until acknowledgment by her, the vendor's liability to discharge incumbrances, or make good defects in title, continues to subsist; but this liability, it is conceived, does not subsist between acknowledgment and the filing of the certificate.

And, in some cases, a purchaser may, even after the conveyance is executed, retain, out of unpaid purchase money, the amount of incumbrances which then come to and (in case of a married woman) acknowledged.

■ his knowledge (b).

All incumbrances which would affect the property in the hands of the purchaser, must, of course, be released, or paid off by the vendor, or out of the purchase money; and a person, to whom the vendor has, for valuable consideration and without notice of any particular incumbrance, assigned the unpaid purchase money, takes subject to the purchaser's right so to apply the same (c); we have seen (d) that judgments entered up against the vendor subsequently to the contract are a lien upon the amount remaining unpaid.

Retention of incumbrances out of unpaid purchase-money after conveyance executed.

Incumbrances must be paid off or released.

(y) Cripps v. Reade, 6 D. & E. 606; Johnson v. Johnson, 3 Bos. & P. 162; Sug. 680.

(z) Sug. 679.

(a) Vane v. Lord Barnard (a case of a marriage settlement), Gilb. Eq. R. 6.

(b) Vide infra, Chapter XIV (As To The Effect Of The Conveyance On The Relative Rights Of Vendor And Purchaser).

(c) Lacey v. Ingle, 2 Phil. 413.

(d) Supra, p. 119 and 233.

Where a puisne incumbrancer contracted for the purchase of the estate free from incumbrances, and took possession, but did not pay his purchase money, and afterwards bought in a prior incumbrance, it was held that he must, as in favour of the vendor's representatives, be considered to have applied the purchase money, on the day on which he took possession, towards satisfaction of the incumbrances, according to their priorities (e).

The Lands Clauses Consolidation Act, 1845, contains clauses which enable promoters of undertakings to dispense with the concurrence of incumbrancers who refuse to receive their money, or to release, or who cannot make out a satisfactory title (f); and also provisions applicable to cases where only a portion of the lands subject to the incumbrance is required for the purposes of the undertaking.