W

Vendor must convey in person.

Power of attorney when revoked.

(b) See King v. Smith, 1900, 2 Ch. 425, where a landowner's solicitor fraudulently procured him to execute a mortgage of his land; Jared v. Clements, 1903, 1 Ch. 428, a case of the forgery by a solicitor of a receipt for the money due on an equitable mortgage.

(c) Mitchel v. Neale, 2 Ves. sen. 679; Noel v. Weston, 6 Madd. 50; Sug. V. & P. 563; Dart, V. & P. 569. 570, 5th ed.; 641, 642, 6th ed.; 592, 593, 7th ed.

(d) Wallace v. Cook, 5 Esp. 117; Waston son v. King, 4 Camp. 272.

(e) Swill v. Lethwaite, 5 Esq. 158; Dawson v. Sexton, 1 L. J. Ch. 185.

(g) Story on Agency, Sec. 481.

(g) Watson v. King, 4 Camp. 272.

(h) Winch v. Keeley, 1T. R. 619; Alley v. Hotson, 4 Camp. 325.

(i) Story on Agency, Sec. 483.

(k) Parnham v. Hurst, 8 M. & W. 743.

(l) See Bromley v. Holland, 7 Ves. 3, 28; Brasier v. Hudson, 9 Sim. 1, 10; Spooner v. Sandilands, 1Y.&C. C. C. 390.

Execution of the conveyance by attorney

(m) Pearson v. Amicable Assurance Office, 27 Beav. 229, 233, 234; 8 Jarm. Conv . Pt. I. 39, 3rd ed.: 1 Davidson, Prec. Conv.

475, 476, n.. 4th ed.

Stat. 45 & 46 Vict. c. 39, s. 8.

(o) See above, p. 247, n. (c), as to the meaning of purchaser in this Act

(p) Sect. 9.

(q) See note (o). above.

(r) Sug. V. & P. 563 Dart, V. & P. 661, 5th ed. . 748, 6th ed.; 686, 7th ed.

47 (2)

It has already been mentioned that, if upon the investigation of title any of the deeds or documents of title appear to have been executed by attorney, the power of attorney ought to be abstracted and produced, and evidence must be furnished, if necessary, of the validity of the power at the time when it was exercised (t).

Execution of some title deed by attorney.

With respect to the payment of the purchase money to the proper persons, where the purchaser has notice of any incumbrance on the property sold, he must not pay the purchase money to the vendor, but must take care that the amount due to the incumbrancers in respect of their charges is paid to them direct (u); and not until all such claims have been satisfied should the surplus, if any, be paid to the vendor. As a rule, where money is payable to any one, payment must be made to him in person; payment to his solicitor, banker or other agent is no discharge, unless he expressly or impliedly authorised such payment (x). But on the completion of sales of land, the conveying party's solicitor is usually authorised to receive the money payable to him by the effect of the 56th section of the Conveyancing Act of 1881 (y). This provides that, where a solicitor produces a deed having in the body thereof or indorsed thereon a receipt for consideration money or other consideration (z), the deed being executed or the indorsed receipt being signed by the person entitled to give a receipt for that consideration, the deed shall be sufficient authority to the person liable to pay or give the same for his paying or giving the same to the solicitor, without the solicitor producing any other authority in that behalf. It is considered that, under this enactment, the production by a solicitor of such a deed as above mentioned has the same effect as, and no greater virtue than, an express authority to the solicitor to receive the money; and it was therefore held that, on a sale by trustees, the purchaser might decline to act on the authority so conferred, because it would in general be a breach of trust for trustees to allow their solicitor to receive purchase money payable to them (a). But it was afterwards enacted by the Trustee Act, 1888(b), now replaced in this respect by the Trustee Act, 1898 (c), with respect to the receipt of money or valuable consideration or property after the 24th of December, 1888, that a trustee may appoint a solicitor to be his agent to receive and give a discharge for any money or valuable consideration or property receivable by the trustee under the trust, by permitting the solicitor to have the custody of, and to produce, a deed containing any such receipt as is referred to in section 56 of the Conveyancing and Law of Property Act, 188]; and a trustee shall not be chargeable with breach of trust, by reason only of his having made or concurred in making any such appointment; and the producing of any such deed by the solicitor shall have the same validity and effect under the said section as if the person appointing the solicitor had not been a trustee. Since the law has been so altered, the purchaser on a sale of land by trustees may safely pay the purchase money to the trustees' solicitor on his producing the deed of conveyance containing a receipt and executed by them (d).

To whom the purchase money should be paid.

(t) Above, pp. 119, 120.

(u) See above, pp. 237 sq., 558, 566, 567, 625.

(x) Wilkinson v. Candlish, 5 Ex. 91; Viney v. Chaplin, 2 DeG. & J. 468, 477, 481; Bourdillon v.

Roche, 27 L. J. N. S. Ch. 681; Cat-terall v. Kindle, L. R. 2 C. P. 368; Withington v. Tate, L. R. 4 Ch. 288; Expte. Swinbanks, 11 Ch. D. 525.

Solicitor's authority to receive the purchase money on production of the conveyance.

On a sale by trustees.

(y) Slat. 44 & 45 Vict. c. 41. (z)Above . p. 695, and n. (f). (a)Re Bellamy and Metropolitan Board of Works, 24 Ch. D. 387.

(b) Stat. .51 & 52 Vict. c. 59, s.2.

Stat. 56 & 57 Vict. c. 53, 8. 17

Where a conveyance on sale is executed by attorney (c) the 56th section of the Conveyancing Act, 1881, does not authorise the payment of the purchase money to the solicitor of the attorney; it only operates as an authority from the principal for payment to his own solicitor (d). And where the conveyance is to be executed by attorney, and the attorney is expressly authorised to receive the purchase money, it must be paid to him in person (e). Here it may be noted that, if it be arranged that the conveyance shall be executed by attorney, as where the vendor is obliged to go abroad in the service of the Crown or on business before completion (f), the power of attorney should be expressed to be irrevocable for a fixed time under the Conveyancing Act, 1882 (g), and should, if the vendor be not a trustee, either authorise the attorney to receive the purchase money (in which case it must be paid to him in person) or appoint some solicitor therein named to be the principal's solicitor to receive the money on production of the executed deed of conveyance. If the principal be a trustee, he may well appoint an attorney to execute the conveyance for him (h): but in such case the power of attorney should follow the words above set out of the Trustee Act, 1898 (i), and appoint some solicitor to receive the purchase money on his behalf by producing the deed of conveyance under section 56 of the Conveyancing Act, 1881. This course, being authorised by statute, is free from objection; whilst a trustee may not otherwise expressly authorise his solicitor to receive purchase money for him except in a case of necessity (k).