Where the vendor has no title.

(e) Re Weston and Thomas' s Contract, 1897, 1 Ch.244; see above, p. 90.

(f) S. C.

(g) Bowman v. Hyland, 8 Ch. D. 588, commented upon in Re Deighton and Harris's Contract, 1898, 1 Ch. 458, and Re Jackson and Haden's Contract, 1905, 1 Ch. 603,607; 1906, 1 Ch. 412,419, 423, 425; see above, p. 169.

(h) Re Deighton and Harris's Contract, 1898, 1 Ch. 458. The vendor had sold a lease, and the abstract only showed title to an equitable interest in an underlease (see above, pp. 101, n. (i), 164). It should be noted that the purchaser did not at once repudiate the contract on this ground; he negotiated, requiring the objection to be removed and so treated the contract as still subsisting; see above, pp. 168, 169. The Court moreover treated the objection as relating to a matter of conveyance, not of title. See also Heppemtall v. Hose, 33 W. R. 30.

(i) Isaacs v. Towell, 1898, 2 Ch.

285

(k) Duke of St. Albans v. shore, 1 H. Bl. 270, 278; Seaward v. Willock, 6 East, L98, 202; Souter v. Drake, 6 B. & Ad. 992; and

Bee above, pp. 32, n. (b), 180, 181; L. Q. R. xix. 168-171; Holliwell v. Seacombe, 1906, 1 Oh. 426, 484; below, Chap. XVIII. 5 2; xix. Sec. 1.

(l) Weston v. Savage, 10 Ch. D. 730, which was an action by a purchaser as plaintiff to enforce actively his right of rescission and to recovver his deposit, and was expressly decided from a common law point of view (see 10 Ch. D. 741); Brewer v. Broadwood, 22 Ch. D. 105, 109, where the purchaser's right of rescission was allowed as a this kind cannot plead want of mutuality as a defence to the vendor's action for specific performance. All that is maintained is that the purchaser's right to rescind in such a case really rests on the common law principle that the vendor's obligation to show a good title at the time of the delivery of the abstract is a stipulation of which the performance is a condition precedent to the purchaser's liability under the contract; sec below. Chap. XIV. Sec. 1; XVIII. Sec. 2. The vendor cannot successfully sue on the contract at law because of his default in performing this condition; and he will not be relieved in equity by being allowed to pursue the equiitable remedy of specific performance, except where the vendor's breach is so trifling that the case is considered in equity to be a proper subject for specific performance with compensation at the vendor's suit (see above, p. 43, and below, Chap. XII. Sec. 4), or unless the purchaser by his conduct in continuing negotiations for removing the objection he has taken elects to treat the contract as still subsisting: above, pp. 168, 169.

Where the vendor has knowingly or recklessly made a material misrepresentation.

If the stipulation gives the right to rescind in case of insistence on a requisition or objection as to title only, the vendor will not be enabled to rescind if the purchaser insist on some requirement, which is a matter of conveyance, as the discharge of a mortgage (o). But it has long been usual expressly to extend the right to rescind to the case of objections as to matters of conveyance, and generally to objection in regard to any 1 matter relating to the sale (p); and where the contract is so expressed, the Court will give effect to it (q). The usual condition expressly empowers the vendor to rescind, notwithstanding any negotiation or litigation in respect of the objection or requisition insisted on (r). Such negotiation on the vendor's part is therefore no waiver of his right to rescind (s). And the vendor is enabled to rescind, although the condition contain no reference to pending litigation, during the continuance of any proceedings by the purchaser either for specific performance or to enforce the contract at law, and whether by action or vendor and purchaser summons (t): but not after final judgment has been given in any such proceedings (u). If the vendor take proceedings to enforce the contract at law or in equity, he waives his right to rescind: though he may revert to it, if he procure his proceedings to be effectually discontinued at his own cost before they come on to be heard (x).

Objection as to matter of conveyance.

(m) See Bowman v. Hyland, 8 Ch. D. 588.

(n) Be Jackson and Haden's Con-tract, 1906, 1 Ch. 412. of which case it is submitted that the statement in the text, rather than the headnote in the Law Report-, gives the exact point; see the remarks made in the judgments (pp. 421, 423,425), showing that the vendors had in fact made what amounted in law to a wrongful misrepresentation; Hollwell v. Stacombe ib. 420, 432 sq. As to wrongful misrepresentation, see below, Chap. XIV. Sec. 1; and as to the purchaser's right to specific performance with compensation, see above, pp. 43, 44, 65, 66; below, Chap. XII. Sec. 4.

A purchaser may of course waive any objection or requisition which he has taken or made as to title or otherwise. Such waiver may be either express or implied from any acts or conduct inconsistent with the maintenance of the objection (y). The express waiver of an objection or requisition needs no comment: though it may be observed that the acceptance of the title shown by the abstract is no waiver of the right to require the verification of the abstract (z), or of any objection not disclosed by the abstract (a). Whether the waiver of any objection is to be implied from the purchaser's acts is a question of fact to be determined by the consideration of all the circumstances of the case (b). The evidence usually offered to establish an implied waiver is the performance, without raising any objection, of acts which the purchaser is not bound to perform, or which a prudent purchaser does not usually perform until a good title has been duly proved (c); like entry into possession, or payment of the whole or part of the purchase money (d). With regard to taking possession, if the contract for sale expressly or impliedly provide that the purchaser shall be let into possession before completion, no waiver can be implied from the fact of the purchaser so taking possession (e). And so it is if after the contract the parties agree that the purchaser shall go into possession without prejudice to his right to require a good title (f). But if the purchaser take possession, otherwise than under an express provision in the contract, after an abstract of title has been delivered, but before completion, that is prima facie a waiver of all objections to title (g) appearing on the abstract (h), though not of other objections (i). Waiver of objection may also be implied from the purchaser's conduct, though he were in possession when he bought, or took possession before completion under an express provision in the contract or without prejudice to his right to a good title; as if he remain a long time without raising any objection as to title, and exercise decisive acts of ownership over the lands sold, like letting them, making-alterations in buildings or cutting timber, or accept time in regard to payment of the purchase money (k), or remain in possession after having had notice of an irremovable objection to the title (l). But as has been observed, in each case the whole of the circumstances must be considered, so that entry into possession or exercise of acts of ownership is by no means conclusive evidence of waiver. The question is, whether the pur-oliaser intended to waive the particular objection. Such acts therefore are no evidence of waiver if accompanied by insistence on the objection. Thus where negotiations as to title were continued after the purchaser had both taken possession and acted as owner it was held that no waiver of objections to title could be implied (m). Long delay in raising objections may also be evidence of waiver (n).