carum (x), and the act of Edward must of course be construed with reference to this standard. Lord Kenyon seems to have thought it impossible to contend, that a custom should prevail that a less space of ground than an acre should be called an acre (y); but in several places the perch is measured with rods of different lengths, and notwithstanding Lord Kenyon's dictum, consuetudo loci est observanda (z), so that a greater or less space of ground than a statute acre may, in compliance with the custom of the place where the land lies, be called an acre. In some places the perch is measured by a rod of twenty four feet, in some by one of twenty feet (a), and in others by one of sixteen feet (b). And we are now to enquire in what cases the custom of the country in this respect shall or shall not prevail.

In adversary writs the number of acres are accounted according to the statute measure (c), but in fines, and common recoveries, which are had by agrcement and consent of parties, the acres of land are according to the customary and usual measure of the country, and not according to the statute (d).

So, which is more to our present purpose, where a man agrees to convey (e), or actually conveys (f) any given

(x) See 4 Inst. 274.

(y) Noble v. Durell, 3 T. Rep. 271; and see Hock in v. Cooke, 4 T. Rep. 314; Master of St. Cross v. Lord Howard de Walden, 6 T. Rep. 338.

(z) 6 Rep. 67, a.

(a) Crompt. on Courts, 222, who cites a case in the Exchequer, related to him by one of the Barons; and also 47 E. 3, [fo. 18, a, pl. 35.]; and see Barksdale v. Morgan, 4 Mod. 185.

(b) Co. Litt. 5 b.; see Dalt. c. 112, s, 25.

T3

(c) Andrew's case, Cro. Eliz. 476, cited.

(d) Sir John Bruyn's case, 6 Co. 67, a. cited; Waddy v. Newton, 8 Mod. 276; see Floyd v. Bethill, 1 Rolls Rep. 420, pl. 8; and see Treswallen v. Penhules, 2 Rolls Rep. 66; 12 Vin. p. 240.

(e) Some v. Taylor, Cro. Eliz, 665.

(ƒ) 47 E. 3, 18, a. pl. 35; 6 Co. 67, a.; Morgan v. Tedcastle, Poph. 55; Floyd v. Bethill, 1 Rolls Rep. 420, pl. 8; Andrew's case, Cro. Eliz. 476, cited.

number

number of acres of land, which are known by estimations or limits, there the acres shall be taken according to the estimation of the country where the land lies, be they more or less than the measure limited by the statute; for they pass as they are there known, and not according to the measure by statute.

But if a man possessed of a close containing twenty acres of land by estimation, which is not eighteen, grant ten acres of the same land to another, there the grantee shall have ten acres according to the measure fixed by the statute, because the acres of such a close are not known by parcels or metes, and bounds, and so this case differs from the one immediately preceding it (g). And it is said, that if one sells land, and is obliged that it contain twenty acres, the acres shall be taken according to the law, and not according to the custom of the country (h).

(g) Morgan v. Tedcastle, Poph.

(h) Wing ▼, Earle, Cro, Elia,

55%

267;

СИАР

CHAPTER VII.

OF THE TITLE WHICH A PURCHASER MAY REQUIRE

1. A PURCHASER has a right to require a title commencing at least 60 years previously to the time of his purchase; because the statute of limitations (a) (I) could not in a shorter period confer a title. In Paine v. Meller (b), Lord Eldon seemed to be of opinion, that an abstract not going further back than 43 years, was a serious objection to the title.

Even 60 years are not sometimes sufficient. For instance, if it may reasonably be presumed from the contents of the abstract, that estates tail were subsisting, the purchaser may demand the production of the prior title. The statutes of limitations cannot in such case be relied on; remainder men having distinct and successive rights, upon which at least the statute of James can only begin to operate as they fall into possession. It may be thought even in the common case of a man claiming by descent, a reversion expectant upon par

(a) 32 Hen. VIII. c. 2, 21 Jac. 1. c. 16. Vide post, and see Barn

well v. Harris, 1 Tauut. 430.
(b) 6 Ves. Jun. 349.

(1) The courts however are so anxious to protect a long possession, that no plaintiff is entitled to so little favour as a plaintiff in a writ of right; see Charlwood v. Morgan, Baylis v. Manning, 1 New. Rep. 64, 233; Maidment v. Jukes, 2 New. Rep. 429. T 4

ticular

ticular estates created by his ancestor's will, that a writ of right will not lie after 60 years from his ancestor's death, although the particular estates have but recently determined. But however this may be, the objection still remains, for an ejectment may be brought at any time within 20 years after the estate falls into possession.

So, if an abstract begin with a conveyance by a person who is stated to be heir at law of any person, the purchaser may require proof of the ancestor's intestacy.

To pursue this point is, in this place, impracticable, so numerous are the cases in which counsel are compelled to require the production of the prior title.

Of course a purchaser may, after notice of a defect in the title, by his conduct wave the objection; but Lord Eldon has determined, that where an abstract is laid before counsel who approves the title, his approbation is not to be taken as against the person consulting him, as a waver of all reasonable objections. The court cannot compel a specific performance, upon the ground of an opinion which it may think wrong. The purchaser may either take an opinion from some other counsel, or the one first consulted may correct his error in a further opinion (c). This, it may be ob served, was always the understanding of the profession.

II. Under this head we must consider the much agitated point, whether a purchaser of a leasehold estate can insist upon the production of the lessor's title.

The general practice of the profession is to call for an abstract of the title, but a lessee is not often able to comply with the demand. At the time the lease is granted, the

(c) Deverell v. Lord Bolton, 18 Ves. 505.

title is rarely investigated, or even thought of; and a lessor cannot be advised voluntarily to submit his title to the examination of strangers. As my Lord Eldon remarked (d), the Newcastle case is a good lesson upon this subject of production. The corporation produced their charters to satisfy curiosity; some persons got hold of them, and the consequence was, the corporation lost 7,000l. a year.

The numerous cases in the books where lessees, and persons claiming under them, have been evicted on account of defects in the titles of their lessors, strongly evince the danger of taking a lease without investigating the landlord's title. No title can be depended upon, however long the estate may have been in the same family. There may be a defect in a settlement, or the person in possession may have a partial estate only, with a power of leasing. All the leases of the Pulteney estate were set aside on account of a power of leasing not having been duly pursued; nor is this the only estate of which the leases have been vacated. Besides, without an abstract of the title, a purchaser cannot even ascertain that the lessor had not mortgaged the estate previously to granting the lease, in which case (as against the mortgagee) the lessee, and consequently any purchaser from him, would be a mere tenant at will (e); and his only remedy would be either to redeem the mortgage, or to bring an action on the lessor's covenant for quiet enjoyment.

A lessee is a purchaser pro tanto, and it should therefore seem that he is not only entitled to call upon the lessor for an inspection of his title, but would not meet with any favour if he neglected to do so; for no one's misfortune is so much slighted by the courts as his, who buys a thing in the realty, and does not look into the title (f). In Keech v.

(d) 8 Ves. Jun. 141.

(e) Keech v. Hall, Dougl. 21.
(f) See Roswel v. Vaughan,

Cro. Jac. 196; and Lysney v.Sel. by, 2 Lord Raym, 1118.

Hall