It appears to be clear that a purchaser, when in the authorized possession of the estate, may, to a certain extent, act as owner without thereby accepting the title; he may take a fall of underwood in due course (r); so, in the case of a timber estate, a fall of timber would, it is conceived, be no necessary acceptance of the title, although it might be restrained at the suit of the vendor upon the ground of its diminishing his security for the purchase-money (s); nor does it appear that any act of management of the estate in a due course of husbandry, or in a fair exercise of the supposed right of ownership if), would be of importance; thus it has been held by V. C. K. Bruce that, upon a purchase of four acres of land, stubbing up an osier bed of nine perches, levelling the land, and filling up a pond, did not amount to a waiver of title (u).

In fact, Sir E. Sugden states without qualification (v), that "acts of ownership after an authorized possession are of no importance;" the reported cases, however, scarcely seem to support so wide a proposition; and it is, perhaps, hardly maintainable upon principle (w): if the purchaser of a house and pleasure-ground, let into possession pending the investigation of the title, were to fell all the ornamental timber, he might, it is conjectured, find a difficulty in getting rid of his bargain upon the ground of the title being not strictly marketable. cluded in previous requisitions.

Granting lease equivalent to possession.

Purchaser in possession may generally act as owner, without thereby waiving title.

As by altering property.

Whether universally so.

(q) Ex parte Sidebotham, 1 Mont. & Ayr. 655. (r) 3 Sw. 170. (s) Supra, p. 118. (t) 1 You. 506.

(u) Osborne v. Harvey, 1 Y. & C. C. C. 116.

(v) V. and P. 401.

(w) See Donovan v. Flicker, Jac. 165; infra, p. 223.

At any rate, it appears that a distinction must be made between important acts of ownership committed previously to, and those committed after, the discovery of a serious objection to the title (x); for acts which materially affect the property are justifiable only under the purchaser's belief that he is in fact the owner.

And where a purchaser, who had been long in possession of the property, and had taken frivolous objections to the title, refused to receive any further explanations, and yet retained possession, he was held to have accepted the title (y).

And an act which amounts to a waiver of the purchaser's right to reject a defective title, is not necessarily a waiver of his right to compensation for the defect (z).

So, acts by a purchaser in possession, which might otherwise have been considered as a waiver of objections to the title to a portion of the estate, were held to be modified by his continuing to ask for the title (a).

A purchaser may (b), and as a matter of prudence should, decline to take possession while the title is in dispute, except under a special agreement; for, if he take possession and then reject the title, he may be ejected by the vendor, and cannot at Law claim any allowance for improvements or repairs; nor will Equity afford him any relief unless there has been fraud on the part of the vendor (c): upon taking possession, he becomes, in the absence of any special agreement (d), tenant at will to the vendor (e); whose right to recover possession by ejectment will be subject to the 7th section of the 3 & 4 Will. IV. c. 2 (f). When a purchaser in possession under the contract is advised to rescind the contract, and assert a paramount title to the property, he is not bound to give up possession before asserting such paramount title by making a formal entry (g).

Whether so after discovery of defect in title.

Retention of possession and refusal to discuss the title, held an acceptance.

Waiver of title not always waiver of compensation.

Modification of waiver by constant demand of title.

Purchaser rejecting title may be ejected without compensation for moneys expended.

(x) Dixon v. Astley, 1 Mer. 135; See 1 You. 507.

(y) See Hall v. Laver, 3 Y. & C. 196.

(z) See Calcraft v. Roebuck, 1 Ves. jun. 221.

(a) See 1 Madd. 170.

(b) Forteblow v. Shirley, 2 Sw. 223.

(c) Sug. 1029; Nicloson v. Words-worth, 2 Sw. 365.

If the contract be rescinded in Equity, even on the ground of fraud in the purchaser (h), the Court will, in general, direct an allowance to be made to the purchaser for substantial improvements and repairs (i); this allowance however, when the sale is set aside at the suit of the purchaser, will not extend to improvements, or even repairs - except such as are essential to the preservation of the property (j) - made subsequently to the discovery of the matter on which he grounds his right to relief, nor to a greater extent than is specifically prayed by the bill (k).

On the other hand, it has been recently decided, that, where the title proves defective, an action for use and occupation will not lie against the purchaser for the time during which he has been in possession under the contract (l): but if, after the contract is clearly abandoned, he retain possession, he will be liable in respect of such subsequent occupation (m): where a purchaser retained possession for eight years, without payment, and refused either to accept the vendor's defective title or to abandon the agreement, and upon a bill being filed by the vendor and the Master reporting against the title, still refused to accept it, he was ordered to account for the rents and profits and to pay the costs of the suit (n).

What allowances made when vendor has to sue in Equity for repairs, improvements, etc.; but purchaser not liable for use and occupation, if title bad, until it i3 rejected.

(d) Saunders v. Musgrave, 6 B. & C. 524.

(e) Doe v. Caperton, 9 Car. & P. 112; Doe v. Chamberlaine, 5 Mee. & W. 14.

(f) Doe v. Rock, 4 Man. & Gr. 30.

(g) Southcomb v. Bishop of Exeter, 6 Ha. 213.

(h) See Donovan v. Fricker, Jac. 165.

(i) Sug. 1028.

(j) Sug. 279.

(k) See Edwards v. M'Leay, 2 Sw. 282.

(l) Winterbottom v. Ingham, 7 Q. B. 611; and see Hearne v. Tomlin, 1 Pea. N. P. C. 253; Kirtland v. Pounsett, 2 Taunt. 145.

(m) Howard v. Shaw, 8 Mee. & W. 118.

Where C, a sub-purchaser from B., entered into possession, and then, pending a suit for specific performance by B. against A. (the original vendor), was induced by A. to give up possession under a mistake of facts, it was held that, upon a decree being made for specific performance of the contract between A. and B., and a conveyance being executed by A., C. could maintain use and occupation against him, for the time during which he had resumed possession (o).

Where a contract was rescinded upon the ground of fraud in the purchaser, the latter was compelled to reinstate a private house which he had converted into a shop (p): the fraud is not noticed by Sir E. Sugden in stating the case (q); and if, as may therefore be supposed to be his opinion, this was not the ground of the decision, the decision seems to be an authority for this very reasonable proposition, viz.: that alterations by the purchaser, although not in themselves a waiver of title, will yet deprive him of the aid of a Court of Equity in rescinding the contract, if they are such as change the nature or character of the property, and do not admit of reinstatement.