We will now turn our attention to various particular points, which constantly arise in advising on title. And first, as to the effect of stipulations limiting the vendor's obligation to show a good title. We will begin by remarking that the enactment substituting forty years for sixty, in the absence of stipulation to the contrary, as the time of commencement of title (a) appears to alter the rule of law on this point rather than to introduce into open contracts a new term depending for its efficacy on the contracting parties' consent. So that where a vendor shows forty years' title, he is considered to show title for the full period required by law, and the purchaser's rights are not regarded as being limited by special stipulation (b). But the other statutory limitations of the purchaser's right to require a good title do not appear to have the like effect. Thus the enactment in the Vendor and Purchaser Act, 1874 (c), removing the necessity of showing the freeholder's title on the grant or assignment of a lease, has been held to have no greater force than a special stipulation in the contract to the same effect, and so not to exempt the grantee or assignee of the lease from receiving constructive notice of the lessor's title (d). And, as we shall see, the provisions of the Conveyancing Act of 1881 (e), exonerating the vendor of lands held by underlease less than forty years old from the obligation of showing the title to any leasehold reversion, and relieving a vendor of enfranchised copyholds of the necessity of showing the title to make the enfranchisement, receive the same construction as special stipulations in similar terms. The rule fixing forty years before the date of the contract as the time of commencement of title is, as we have seen (f), very frequently superseded in practice by a special stipulation that the title shall commence with some instrument of more recent date. But whether the period for which title has to be shown be defined by the general rule or by special stipulation, the vendor's obligation is subject to the further limitation introduced into contracts for sale by sect. 3, sub-sect. 3 of the Conveyancing Act, 1881 (g). This enactment, the exact effect of which it is of the first importance to understand, runs as follows: "A purchaser of any property shall not require the production, or any abstract, or copy, of any deed, will, or other document dated or made before the time prescribed by law, or stipulated, for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; nor shall he require any information, or make any requisition, objection, or inquiry, with respect to any such deed, will, or document, or the title prior to that time, notwithstanding that any such deed, will, or other document, or that prior title, is recited, covenanted to be produced, or noticed; and he shall assume, unless the contrary appears, that the recitals, contained in the abstracted instruments, of any deed, will, or other document, forming part of that prior title, are correct, and give all the material contents of the deed, will, or other document so recited, and that every document so recited was duly executed by all necessary parties, and perfected, if and as required, by fine, recovery, acknowledgment, inrolment or otherwise."

The statutory limitations.

(a) Stat. 37 & 38 Vict. c. 78, s. 1; above, pp. 100. 101.

(b) See Re Marsh and Earl Granville, 24 Ch. D. 11; above, p. 101; Re Cox and Neve's Contract, 1891, 2 Ch. 109, 117, 118.

(c) Stat. 37 & 38 Vict. c. 78. s. 2 (rule 1); above, pp. 100 - 102.

(d) Patman v. Harland, 17 Ch. D. 353, 359.

Sect. 3 (3) of Conveyancing Act, 1881.

(e) Stat. 44 & 45 Vict. c. 41, s. 3 (1, 2); above, pp. 100, 101.

(f) Above, pp. 17, 84.

(g) Stat. 44 & 45 Vict. c. 41.

W

The incorporation or exclusion of these provisions in or from the contract is, however, a matter depending on the expression of the intention of the parties (h). And it is enacted (i) that nothing in this section shall be construed as binding a purchaser to complete his purchase in any case where, on a contract made independently of this section, and containing stipulations similar to the provisions of this section or any of them, specific performance of the contract would not be enforced against him by the Court. The statutory provisions therefore have no greater force than express stipulations to the same effect, and will receive the same construction as such stipulations (j). We have already noticed the manner in which special conditions of sale are construed in actions for specific performance (k). We will now show particularly in what manner the effect of the above provisions is practically limited, notwithstanding the sweeping character of the expressions used therein.

The first observation to be made is that this enactment is no qualification of the main rule that the vendor must show a good title, that is, that he must prove his right to convey what he sold. It refers entirely to the subordinate rule that the title for the last forty years, or whatever less period may be agreed upon, shall prima facie be evidence of a good title (l). If therefore the title shown in accordance with the agreement be defective, as where it discloses incumbrances irremovable without other persons' consent (m), the purchaser is not precluded by the above enactment from objecting to the title, notwithstanding that the incumbrances were created before the time fixed for the commencement of title. The leading authority for this is Phillips v. Cahl-cleugh (n). In that case, the plaintiff contracted to purchase of the defendants a house described as a freehold residence, subject to certain conditions of sale, and paid a deposit. The 5th condition provided that the abstract of title to the property should commence with a conveyance dated the 17th of April, 1860, and no purchaser should investigate or take objection in respect of the title prior to the commencement of the abstract. By the deed of the 17th of April, 1860, as abstracted, the premises were conveyed to Matthews and Beckett in fee subject to the covenants and conditions contained in an indenture of the 2nd of March, 1850, recited therein. The plaintiff made this requisition - "The vendors must show, notwithstanding any of the conditions of sale, that the covenants and conditions contained in the indenture of the 2nd of March, 1850, referred to in the first abstracted deed, do not in any manner affect the property, and that the purchaser incurs no liability in respect of them." To which the defendants made answer, "The purchaser's solicitors are referred to the 5th condition of sale." After some fruitless negotiations the purchaser brought an action to recover his deposit. And it was held that he was entitled to recover it. For the plaintiff had contracted to purchase a freehold house, which must mean a freehold free from all incumbrances; and the abstract delivered only showed a title to a freehold house incumbered by certain covenants. And it was held that the 5th condition of sale did not prevent the purchaser from taking this objection: for it merely restricted the length of time for which the purchaser could require a title to be shown; and did not absolve the vendor from the obligation of showing a good title to the freehold of the property sold, free from incumbrances, from the time at which it had been agreed that the title should commence. It should be noted that this case was an action at law brought before the Judicature Acts, and in no way depended upon any of the equitable doctrines peculiar to the granting or refusing the specific performance of a contract (o). Again, in Nottingham Patent Brick anil Tile Co. v. Butler (p), land was bought under a contract providing that the title should commence with an indenture dated the 20th of May, 1868, and incorporating the above enactment, and further providing that the property was sold subject to any matter or thing affecting the same, whether disclosed at the time of sale or not. The vendor's solicitor represented to the purchaser, before the contract was signed, that the property was not subject to restrictive covenants: but the purchaser, after having signed the contract, discovered from other sources than the vendor that there were restrictive covenants affecting the property and created by a title deed of earlier date than the 20th of May, 1868. He thereupon refused to complete, and brought an action to recover his deposit. The vendor counterclaimed the specific performance of the contract, and alleged in the Court of Appeal that he himself had bought without notice of the restrictive covenants, and so could give the purchaser an unincumbered title. The vendor was, however, aware of the existence of the covenants, having discovered them, as he said, by looking, after his purchase, at the deed creating them. It was held both by Wills, J. and the Court of Appeal that the purchaser was not precluded by the above provisions of the Conveyancing Act from insisting on his right to an unincumbered freehold title. The vendor's claim for specific performance was rejected, not only on the ground of his solicitor's misrepresentation, but also because the vendor, knowing of the defect in the title, did not call the purchaser's attention thereto in the contract, and so could not avail himself of the special condition that the property was sold subject to anything affecting the same (q). His claim to oblige the purchaser to take a title from him as a bona fide purchaser for value without notice of the covenants was dismissed for the reason that the fact, that he was such a purchaser, was disputable, and Courts of Equity regard titles depending on proof of facts, which may be immediately disputed and so land the purchaser in litigation, as too doubtful to force upon an unwilling purchaser. The return of the deposit was also ordered in both Courts: but the Court of Appeal rested the purchaser's right to this relief entirely upon the misrepresentation by which he was induced to enter into the contract; without which the Court considered that he would have been bound at law by the contract. Another case illustrating the effect of the above enactment and depending on the same principle as the case last cited is Re Marsh and Earl Granville (r). It was there stipulated that the title to a certain freehold estate should commence with a deed less than forty years old. This deed turned out to be a voluntary conveyance: but no mention of this fact had appeared in the conditions of sale. It was held in a vendor and purchaser summons taken out by the vendor that the purchaser was justified in refusing to complete the contract, unless title were shown for the full period of forty years; notwithstanding that the conditions of sale provided that the title earlier than the date of the voluntary conveyance should not be investigated or objected to. This was so decided on the ground that conditions curtailing a purchaser's right to require a good title as defined by law must be fair and explicit, or the vendor shall not enforce the specific performance of the contract according to the limiting conditions. And the Court further considered that, on a stipulation for the commencement of title with a deed less than forty years old, the purchaser is entitled to assume that the agreed root of title is a conveyance for valuable consideration. As we have seen (s), this judgment does not appear to oblige a vendor to put forward such a conveyance as the root of title when he agrees to show title for the full period required by law. In all other respects, however, the principles of Phillips v. Caldcleugh and Re Marsh and Earl Granville are constantly applicable whenever it is stipulated that title shall commence with an instrument of a particular date, whether that date be or be not less than forty years before the contract. And whenever such a deed fails in any of the requisites of a good root of title if), the purchaser is entitled to call for further evidence to supply the defect; and he is not precluded by the above enactment from insisting on this right to further evidence, even though proof can only be supplied by the investigation of the earlier title. For as we have seen (u), the vendor's obligation is to show title to the whole estate contracted to be conveyed in the lands sold throughout the entire period of forty years or such less time as may be agreed on. He must therefore prove title to the whole of such estate at the beginning and thenceforward until the end of such period. Thus on the sale of freeholds he must prove a seisin in fee free from incumbrances at the commencement of and throughout the number of years for which he has hound himself to show title; and he incurs a similar obligation on the sale of copyholds (v) or leaseholds (w).