Report against title, and no exceptions - bill dismissed on motion.

Exceptions taken and allowed - reference back when directed.

If no exceptions, decree will be made on hearing, if vendor can then remove objections; removal of objections, an answer to purchaser's motion to be discharged.

(n) Walters v. Pyman, 19 Ves. 351; Whitcomb v. Foley, 6 Mad. 3.

(o) Taylor v. Martindale, 1 Y. & C. C. C. 658.

(p) See Sidebotham v. Barrington, 3 Beav. 524; 4 Beav. 110; 5 Beav. 261; and see Fraser v. Wood, 8 Beav. 342; Smith v. Capron, 13 Jur. 148, and Chamberlain v. Lee, 10 Sim. 444; the Master may, without any special order, receive further evidence in support of the title; Cot-trell v. Watkins, 1 Beav. 366; Twy-ford v. Trail, 3 Myl. & Cr. 645.

(q) See judgment of V. C. Wigram in Dawes v. Betts, 13 Jur. p. 416.

(r) Fraser v. Wood, 8 Beav. 339; and see Whittaker v. Whittaker, cited 10 Ves. 599, and Lechmere v. Brasier, 2 Jac. & W. 289.

(s) See Fraser v. Wood, supra.

(t) Esdaile v. Stephenson, Sag. 412.

(u) Dalby v. Pullen, 1 Russ. & M. 296.

(w) See Cowgill v. Lord Oxman-town, 3 Y. & C. 369, 377.

So if, the report being against the title, and there being no exceptions, the purchaser moves that he may be discharged from the contract, the vendor may show that the title has been perfected subsequently to the report; e. g., by a private Act of Parliament (y).

We have seen that, as a general rule, the purchaser may insist upon a reference as to title; and the Court will not tie him down to the objections raised upon the pleadings; he may, however, waive such prima, facie right wholly or in part; and if he clearly rest his objection merely upon what Lord Eldon describes as "one neat dry point," or, it is conceived, upon a plurality of neat dry points, the Court, being satisfied that no other question of title remains open, will make a decree without a prior reference (z): but he will not be compelled to take a defective title merely because, being plaintiff, he filed his bill with notice of the defect (a).

Where a purchaser was let into possession, and soon afterwards received the abstract and retained it for four years without objecting to the title, he was held to have waived his right to a reference (b); but in a later case it was held that, even after great delay and acquiescence (there being no express waiver), the Court will not compel the purchaser to complete if the title is manifestly bad (c).

Purchaser's general right to reference of title - how it may be waived.

By acquiescence.

Purchaser after great delay not forced to take clearly bad title.

(x) Paton v. Royers, 6 Mad. 256; Dawes v. Belts, 12 Jur. 416.

(y) Coffin v. Cooper, 14 Ves. 205.

(z) See Jenkins v. Hiles, 6 Ves. 653, 654, and V. C. Wigram's remarks in Lucas v. James, 7 Ha. 425.

(a) Stapylton v. Scott, 16 Ves.272

(b) Fleetwood v. Green, 15 Ves. 594; and see Margravine of Anspach v. Noel, 1 Mad. 310.

(c) Blachford v. Kirkpatrick, 6 Beav. 232; and see Warren v. Richardson, You. 1.

According to the old practice, there were two ways of framing a decree in a suit for specific performance: the one was to declare that the plaintiff was entitled to a specific performance if a good title could be shown, and then to direct a reference as to the title; the other, to refer the title to the Master, and to follow up that direction by a declaration that if a good title was shown the agreement ought to be specifically performed (d). The mere direction of the reference, seems, however, to be an implied declaration of the right to specific performance (e): so that, on the hearing on further directions, the Court will not enter upon any other defence set up by the answer (f); and such a declaration seems to have been at one time not un-frequently omitted (g). The present practice, however, in suits commenced by bill, and where, by reason of the contract itself having been disputed, the cause is heard before a reference to the Master, seems to be, to declare absolutely that the plaintiff is entitled to a specific performance of the agreement, and to refer it to the Master to inquire whether a good title can be made; not to declare that the plaintiff is entitled, etc, if a good title can be made (h): and, in such a case, the Court, in directing a reference, will not direct an inquiry as to when the title was first shown (i). We have already noticed the form of the order of reference which, in a suit commenced by claim, takes the place of the decree for specific performance on the original hearing (k).

Where the agreement was in writing, and a parol variation, not set up by the answer, came out on the cross-examination of the defendant's agent, who was one of the plaintiff's witnesses, the Court seemed to consider that this was a proper subject for inquiry before finally disposing of the case; but, on the plaintiff consenting to adopt the parol variation as part of the contract, specific performance was at once decreed with costs (l).

Decree for specific performance - its form.

Plaintiff may take a decree, adopting parol variation

(d) Per Lord Eldon in Stevens v. Guppy, 3 Russ. p. 182.

(e) See Mole v. Smith, Jac. 495. (f) Le Grand v. Whitehead, 1 Russ. 309.

(g) See Seton on Decrees, 210.

(h) Clive v. Beaumont, 1 De G. & S., see p. 408; Gibbins v. North Eastern Metropolitan Asylum, 11 Beav. see p. 5.

(i) s. c.

(k) Supra, p. 522.

The purchaser, it appears, may elect to take a defective title (m): "the covenants being so framed as not to leave the seller exposed to an action on account of the flaw: but where the conveyance would be merely void, and might embarrass persons claiming under the same title as the seller," the purchaser seems to have no such right (n).

We may here remark, that a decree for specific performance, in a suit between vendor and purchaser, is no protection against the adverse claims of persons not parties to the suit (o): except so far as that, if any particular question of title be decided in favour of the vendor, such decision forms a precedent which would probably be followed on a future occasion.