by the courts (y), and is often productive of the most serious consequences; for it not rarely happens, that there are incumbrances on an estate which can only be sustained in equity, and which will not bind a purchaser who obtains the legal estate, unless he had notice of them previously to completing his purchase. Now notice (*) to an agent, although one concerned for both parties, is treated in equity as notice to the purchaser himself; and, therefore, if the attorney know of any equitable incumbrance, the purchaser will be bound by it, although he himself was not aware of its existence.

And by these means, a purchaser may even deprive himself of the benefit to be derived from the estate lying in a register county: the register may be searched, and no incumbrance appear; yet if the attorney have notice of any unregistered incumbrance, equity will assist the incumbrancer in establishing his demand against the purchaser (a).

Another powerful reason why a purchaser should not employ the vendor's attorney is, that if the vendor be guilty of a fraud in the sale of the estate, to which the attorney is privy, the purchaser, although it be proved that he was innocent, will be responsible for the misconduct of his agent (b). In one case (c) a purchaser lost an estate, for which he gave nearly 8000l. merely by employing the vendor's attorney, who was privy to a fraudulent disposition of the purchase money.

With the exception of a vendor, or his agent, suppressing an incumbrance, or a defect in the title, it seems clear, that a purchaser cannot obtain relief against a vendor for any incumbrance, or defect in the title, to which

his covenants do not extend; and therefore if a purchaser neglect to have the title investigated, or liis counsel overlook any defect in it, he appears to be without a remedy (d).

To sum up the foregoing observations, a purchaser is entitled to relief, on account of any latent defects in the estate, or in the title to the estate, which were not disclosed to him, and of which the vendor, or his agent, was aware. In addition to this protection afforded him by the law, a provident purchaser will examine and ascertain the quality and value of the estate, and not trust to the description and representation of the vendor, or his agents; he will employ an agent and attorney not concerned for the vendor, and will have the title to the estate inspected by counsel (I).

Where it is stated upon a sale, even by auction, that the estate is in lease, and there is no misrepresentation, the purchaser will not be entitled to any compensation, although there are covenants in the lease contrary to the custom of the country; because, whoever buys with notice of a lease, is held conusant of all its contents (e). This rule, it should seem, ought, as between a vendor and purchaser, to have been confined to a contract actually executed by the conveyance of the estate and payment of the purchase money; but as the point has been thus decided, no person having

(d) See post. ch. 9

(e) Hall v. Smith, Rolls, 18 Dec.

1807, MS.; S. C. Ves. Jun. 426.

(I) This can seldom be effectually done, unless the abstract be carefully compared with the title-deeds: in doing which, the attention should be particularly directed to the descriptions of the parties, the recitals, the parcels, and the covenants for quiet enjoyment, free from incumbrances; which frequently lead to incumbrances and facts which have been suppressed. This should be particularly attended to, as a purchaser is bound by every deed or fact, to which an instrument in his possession leads, by recital or description. See post. ch. 16.

notice of any lease, or that the estate is in the occupation of tenants, should sign a contract for purchase of the estate without first seeing the leases, unless the vendor will stipulate that they contain such covenants only, as are justified by the custom of the country.

With respect to incumbrances, it remains to remark, that if a purchaser suspect any person has a claim on the estate which he has contracted to buy, he should inquire the fact of him, at the same time stating that he intends to purchase the estate; and if the person of whom the inquiry is made has an incumbrance on the estate, and deny it, equity would not afterwards permit him to enforce his demand against the purchaser (ƒ).

The enquiry should be made before proper witnesses, and as a witness may refresh his memory by looking at any paper if he can afterwards swear to the facts from his own memory; it seems advisable that the witnesses should take a note of what passes (g).

Where difficulties arise in making out a good title, the purchaser should not take possession of the estate, until Purchasers frequently take every obstacle is removed. this step, under an impression, that it gives them an advantage over the vendor; but this is a false notion; such a measure would, in most cases, be deemed an acceptance of the title (h', or would at least be a ground to leave it to a jury, to consider whether the party had not taken possession with an intention to wave all objections.

If, however, the objections to the title be remediable, and the purchaser be desirous to enter on the estate, he

(Ibbeston v. Rhodes, 2 Vern. 554; Amy's case, 2 Cha. Ca, 128, cited.

(g) See Doe v. Perkins, 3 Term Rep. 749, and the cases there cited; Burrough v. Martin, 1 Camp.

Ca. 112.

(h) See 3 P. Wms. 193; Calcraft ▼. Roebuck, 1 Ves. Jun. 226; 12 Ves. Jun, 27; and Vancou ver v. Bliss, 11 Ves. Jun. 464.

may

may in most cases venture to do so; provided the vendor will sign a memorandum, importing that the possession taken by the purchaser, shall not be deemed a waver of the objections to the title, or be made a ground for compelling him to pay the purchase money into court, in case a bill be filed, before the conveyance to him is executed. And a purchaser may, with the concurrence of the vendor, safely take possession of the estate, at the time the contract is entered into, as he cannot be held to have waved objections, of which he was not aware; and if the purchase cannot be completed on account of objections to the title, he will not be bound to pay any rent for the estate, unless perhaps the occupation of it has been beneficial to him (i).

A purchaser of any equitable right of which immediate possession cannot be obtained, should, previously to completing his contract, inquire of the trustee, in whom the property is vested, whether it is liable to any incumbrance. If the trustee make a false representation, equity would compel him to make good the loss sustained by the purchaser, in consequence of the fraudulent statement (k). When the contract is completed, the purchaser should give notice of the sale to the trustee. The notice would certainly affect the conscience of the trustee, so as to make him liable in equity, should he convey the legal estate to any subsequent purchaser; and it would also, perhaps, give the purchaser a priority over any former purchaser, or incumbrancer, who had neglected the same precaution (l).

It is very usual for auctioneers to prepare the particulars and conditions of sale; but this a vendor should never permit, as continual disputes arise from the mis-statements consequent upon their ignorance of the title to the estate. Where an estate has been in a family for a long time,

(i) Hearn v. Tomlin, Peake's Ca. 192; see Kirtland v, Pounsett, 2 Taunt. 145.

(k) Burrowes v. Lock, 10 Ves. Jun. 470.

(1) Vide infra, ch. 16.

or

or the title has not been recently investigated, it might be advisable for the owner to have an abstract of his title submitted to counsel, and any objections which occur to it, cleared up, previously to a contract being entered into for sale of the estate. By this precaution the vendor will prevent any delay on his part, which might impede the sale from being carried into effect by the time stipulated; and will, in many cases, avoid the expence necessarily attending tedious discussions of a title. Another advantage of this measure is, that if there should be any defect in the title which cannot be cured, it would be known only to the agents and counsel of the vendor. It is of the utmost importance to keep defects in a title, from the knowledge of persons not concerned for the owner. It has frequently happened, that persons concerned for purchasers, have communicated fatal defects in a vendor's title, to the person interested in taking advantage of them, by which many titles have been disturbed.

CHAP