Proper place for verification of the abstract.

Expense of examining title-deeds

(m) Sug. V. & P. 414, 417; 1 Dart, V. & P. 318, 5th ed.; 361, 6th ed.; 1 Davidson, Prec. Conv. 550-2 4th ed.; Halkett v. Dudley, 1907, 1 Ch. 590, 603, 604. It should be noted that proof of a public document by what is called an examined copy is not available on sales, as the admissibility in evidence of such a copy depends on the statements made on oath in Court of the person who examined the copy with the original; Crawford Peerage ,2 H. L.C. 544-5; Taylor, Evidence, Sec. 1389, 5th ed. And an attested copy, tha is a copy endorsed with a written and signed declaration that it is a true copy, is of no more use to a purchaser than an office copy, the declaration no1 being evidence admissible in subsequent litigation; see above, p. 122.

(n) If the deeds are to be examined in London, a country solicitor must employ a London agent for the purpose; and he cannot charge his client with the expense of a journey, even though undertaken at his client's request, in order to examine the deeds personally, unless he first explain to his client what is the regular practice. But a London solicitor need not employ a country solicitor as his agent to examine deeds, but may send his own clerk. See Alsop v. Oxford, 1 My.& K. 561; Hughes v. Wynne . 8 Sun. 85; Re Tryon, 7 Beav. 496; Sug. V. & P. 430; 1 Dart, V. & P. 407, 408, 5th ed.; 470. 471, 6th ed.: 481, 482, 7th ed.

(o) Sug. V. & P. 429; 1 Dart. V. & P. 107, 5th ed.; 170, 6th ed.; 481, 7th ed.; 1 Davidson. Prec. Conv. 554, 4th ed.

Not. in vendor's possession.

Deeds in possession of vendor's mortgagees or other persons than the vendor.

Here it may be mentioned that by the Conveyancing Act of 1881, where a mortgage has been made after the 31st December, 1881, the mortgagor, as long as his right to redeem subsists, is entitled from time to time, at reasonable times, on his request, and at his own costs, and on payment of the mortgagee's costs and expenses in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the custody or power of the mortgagee; and this enactment is to have effect, notwithstanding any stipulation to the contrary (t). A vendor of land, which is subject to a mortgage made after the year 1881, thus enjoys the right of access to the title-deeds for the purpose of preparing and verifying the abstract. But where the mortgage was made before the year 1882, the old rule remains in force that the mortgagee in possession of the title-deeds of the mortgaged property cannot be compelled to produce them for the inspection of the mortgagor or any one claiming through him, without being paid off (u). In such ease therefore the vendor must arrange with the mortgagee for production of the title-deeds (x). With Mortgagor's right of access to title-deeds in possession of a mortgagee under a mortgage made after 1881.

(p) Sharp v. Page, Sug. V. & P. 430; Hughes v. Wynne, 8 Sim. 85; 1 Dart, V. & P. 408, 5th ed.; 471, 6th ed.; 482, 7th ed.; 1 Davidson, Prec. Conv. 554, 4th ed.

(q) Stat. 44 & 45 Vict. c. 41, s. 3 (6), (9).

(r) See 1 Davidson, Prec. Conv. 461, 5th ed.

(s) Re Willett and Argenti, 5 Times L. R. 476; 60 L. T. N. S. 735.

Mortgagee's right where the mortgage was made before 1882.

(t) Stat. 44 & 45 Vict. c. 41, c. 16; see also sects. 1, 2.

(u Senhouse v. Earl, 2 Ves. sen. 450; Postlethwaite v. Blythe, 2 Swanst. 256, 257: Brawny. Lock-hart, 10 Sim. 420; Greenwood v. Rothwell, 7 Beav. 291; Chichester v. Donegal, L. R. 5 Ch. 497, 502. According to these cases the rule extends to the mortgage deed itself; and the decision to the contrary in Patch v. ward, L. R. 1 Eq. 436, appears to be incorrect. Where the mortgage was made before the year 1882, the old rule applies to documents modifying the terms of but not entirely superseding and discharging the contract of mortgage and executed after the year 1881; Burn v. London & South Wales Coal Co., 1890, W. N.

(x) With respect to the concurrence of any mortgagee [whatever be the date of his mortgage) in a sale by the mortgagor of the mortgaged property (see above, p. 47), the mortgagor's right, where the mortgage is in the usual form, evidencing an intention to confer a permanent security, and the day for redemption at law is past, and the mortgagee has made no express or implied demand for repayment of the mortgage money, is to redeem on payment of the whole amount due on the mortgage for principal, interest and costs [National Provin-eial Bank of England v. Games, 31 Ch. D. 582), and either after giving six calendar months' previous notice of his intention to redeem, or on payment instead of six calendar months' interest in advance Sharpnell v. Blake, 2 Eq. Ca. Abr. 603, p). 34; Johnson v. Evans, 1889, W. N. 95, 61 L. T. 18; Smith v. Smith, 1891, 3 Oh. 560, 562; Fitzgerald's Trustee v. Mellersh, 1892, 1 Ch. 385, 388, 389. Where the mortgagee has demanded, or has taken any legal proceedings to regard to any title-deeds, of which a vendor of land has a mere right to production (the right to possession of the deeds going with other land held under the same title (y), or otherwise not accompanying the land sold), the question, whether he can be prejudiced by the possessor of the deeds depositing them with a mortgagee, depends on the nature of his right to production of the deeds. If the right to production arise under a statutory acknowledgment taking effect by virtue of the Conveyancing Act of 1881 (z), the duty of production is incumbent on and may be enforced against not only the giver of the acknowledgment, but also every other person having possession or control of the deeds from time to time. Production of the deeds may therefore be enforced when they are in the custody of mortgagees or purchasers from the giver of the acknowledgment; and it is immaterial whether the mortgagee or purchaser had notice of the acknowledgment or not. If however the vendor have only an equitable right to production of the deeds, such as appears to arise without express agreement when land held under one title or the estate therein is severed, and the right to the custody of the deeds goes with some particular part of the land or estate (a), it seems that he may lose the benefit of such right in case the land or estate, to which the possession of the deeds is incident, be conveyed (together with the deeds) to a purchaser or mortgagee, who had no notice of the equitable obligation to produce the deeds (b). And it seems that this is equally the case, where the vendor has the benefit of a covenant to produce the deeds, but the landowner in possession of them has conveyed his land with the deeds to a purchaser or mortgagee having no notice of the covenant; for it is now considered that the burthen of a covenant to produce title-deeds does not run at law with the land, to the ownership of which the possession of the deeds is incident. But where a mortgagee or purchaser has taken the land with notice of an equitable right to production of the title-deeds, it is thought that he would be bound to give effect to it (c).