secured as aforesaid. The stipulation on the part of the purchaser on the execution of the convey. ance, will be to " well and effectually grant the said annuity, or clear yearly sum of, &c., unto the said [purchaser,] and to secure the same upon the premises, in manner as hereinbefore mentioned."

If the consideration be of stock, say, "In consideration of the capital sum of L. three per cent. consolidated bank annuities, to be transferred into the name, and for the use of the said [vendor,] in the books of the governor and company of the Bank of England" and the agreement to execute the conveyance will be, "upon the said sum of L. &c., being transferred," &c., and the purchaser, on his part, will agree "to transfer," &c.

determined

by valuation.

If the consideration is to be ascertained by Where the valuers, say, "At such price or sum of money, to be price is to be paid on, &c., next, as shall be ascertained and adjudged to be the value thereof, upon a survey and estimate to be made thereof, by A. B., of, &c., and C. D., of, &c., land-surveyors, or their umpire, to be chosen as hereinafter mentioned, and as in and by their or his award or umpirage in writing, shall be adjudged the worth and value of the premises hereinafter described, and to be paid by him the said [purchaser] to the said vendor,] at the time aforesaid, so as the award of the said A. B. and C. D. be made in writing, ready to be delivered to the parties requiring the same, on or before, &c., or in case of their disagreement, so as the umpirage of the umpire, so to be chosen by the said valuers, be made in writing, ready to be delivered to the said parties requiring the same, on or before, &c., and under the terms, stipulations, and agreements hereinafter contained." A stipulation should be added at the end of the agreement for making the submission a rule of court, at the instance of either of the parties.

i If the referees determine the price, the contract will be enforced, but not otherwise; Milnes v. Gery, 14 Ves. 400.

Delivery of abstract.

If it be the wish of the purchaser to make the time of delivering the abstract, and deducing a good title, the essence of the contract, a stipulation may be added as follows: "And if the said [vendor] shall not deliver an abstract of his title to the said premises to the said [purchaser,] or his solicitor, before, &c.; or if, in the opinion of counsel of the said [purchaser,] the said [vendor] shall not deduce a good title to the whole of the said premises, then, and in either of the said cases, this present contract shall, at the option of the said [purchaser,] be to all intents and purposes void, and all reasonable expenses, incurred in investigating the title, shall be borne by the said [vendor,] his heirs, executors, or administrators."

What agree

should con

tain.

OBSERVATIONS ON AGREEMENTS FOR PURCHASE.

It is considered that a few observations on this head may be useful, and they will be made applicable alike to sales by auction and by private contract.

Agreements for sale should, in all cases, containments for sale The names of the vendor and purchaser-Such a description of the premises as will sufficiently identify them, and prevent any mistake as to what is really intended to be the subject of the contract-The consideration-money, the time when it is to be paid, and a provision as to interest, in case of its nonpayment at that time-Any stipulations which the nature of the title may render necessary, as, for example, with reference to the time for which the title is to be shown, or the place where the deeds are to be As to deeds. inspected-A statement of what deeds cannot be given up The party who is to bear the expense of searching for judgments, getting in outstanding terms and legal estates, or discharging the premises from incumbrances -A statement of any defect in the title which is incur. able, or which the vendor wishes to avoid the expense of remedying-The times within which the sale is to be completed, and the preliminary steps

Defects in title.

taken-A statement of all incumbrances, which can- Incumbran not or are not intended to be discharged, as leases, ces. land-tax, chief-rent, ground-rent, annuities, rights of way, covenants affecting the premises or the titledeeds, local taxes peculiar to the place, as for keeping up banks or drains—A stipulation where so in- Covenants. tended that the purchasers are not to have their ordinary covenants-A statement of the party at whose expense any thing relating to the title, or the conveyance, is to be done; and, in fine-A stipulation as to every point where it is intended to depart from the course, which, in the absence of agreement, the law imposes upon the parties to a sale. To aid the practitioner in ascertaining which, an attempt will be made to state shortly what, in the absence of express stipulations, is the duty of a vendor or purchaser from the inception to the completion of the contract.

I will not here enter again into the question before discussed, as to the period for which a vendor ought to show a title.

k

chaser on a

A vendor must, at his own expense, make out his Duties of ventitle, and for such purpose must furnish an abstract dor or purof the title during the limited period for which sale. he must prove such title; and though earlier deeds may be referred to in those abstracted, he is not on that account bound to abstract them. Whether he is bound to produce those deeds in his possession, which relate to the title at a period for which he is relieved from verifying it, does not appear to be quite settled; but as production is enforced in all suits for specific performance, (the vendor being compelled, on leaving the deeds in the master's office, to swear that they are all the deeds in his possession,) it is conceived that the duty must be the same in cases of sales completed without the medium of a suit, and, iSee ante, p. 14.

See ante, p. 118.

*Clowes v. Higginson, 1 V. and B. 529. Prosser v. Watts, Madd. and Geld. 69.

indeed, no good reason can be alleged for a contrary practice, for the deeds can be of no use to the vendor, and if the concealment of a defect in the title which they would disclose is his object in retaining them, he would be disappointed, for that would be a sufficient ground for setting aside the sale, and compelling restitution of the purchaseProduction of money.TM The expense of producing the deeds to be compared with the abstract must be borne by the vendor, and where the deeds are at a distance, the purchaser must send to the place where they are, but the expense of doing so will fall upon the vendor. Sugd. V. and P. 1, 449, 5th edition. Hughes v. Wynne, 8 Sim. 85.

deeds.

Lessor's title.

A purchaser is not bound to rely upon facts stated in recitals, but is entitled to proof of all the facts stated in his abstract, forming a link in the title, except the execution of deeds, &c., thirty years old."

The vendor is not bound to produce original wills or other instruments on record, but he must supply the purchaser with official copies."

A person contracting for the sale of a leasehold interest, or for the grant of a lease, cannot, in the absence of any agreement to the contrary, enforce a specific performance of such contract without showing that the person granting the lease had full power to do so;P in other words, without showing the lessor's title. To this rule, however, there exists

m Edwards v. M'Leay, Coop. 308; 2 Swans. 287; Maddeford v. Austwick, 1 Sim. 89; 2 M. and K. 279; Dalby v. Pullen, 3 Sim. 29.

n Fort v. Clarke, 1 Russ. 601.

Campbell v. Campbell, Sugd. V. and P. 7, and 7 Jarm. Byth. 378.

P Fildes v. Hooker, 2 Merriv. 424; Ogilvie v. Foljambe, 3 Merriv. 53; Deverell v. Lord Bolton, 18 Ves. 505; Purvis v. Rayer, 9 Price, 488; White v. Foljambe, 11 Ves. 337.

As to whether this rule would be applied in sales of leases 60 years old, see 7 Jarm. Bythe, 370.

one exception in favour of lessees under a bishop, who are freed from the obligation of proving their lessor's title ; but if the purchaser refuses to complete his contract, on the ground of the non-production of the lessor's title, he cannot at law recover any deposit he may have paid. "

A vendor must make out such title as can be enforced at law; a purchaser cannot, therefore, ordiLarily be compelled to take an equitable estate ;t and though it is elsewhere noticed, it may be here observed, that a purchaser cannot be compelled to accept a conveyance executed, or (in the case of copyholds) a surrender made by attorney," and it is not advisable that he should, as the power of attorney is thereby made part of his title.

incumbran

ces.

The vendor must, at his own expense, free the Removal of premises from all incumbrances, and get in all outstanding estates. The vendor must not allow any terms to be merged without the purchaser's consent, and must bear the expense of the assignment of terms not previously assigned to attend the inheritance. The purchaser must pay the costs of the preparation of the conveyance, and of the assignment Conveyance. of any terms previously assigned to attend the inheritance, their execution being obtained by the vendor at his own expense." In the sale of copyholds, the expense of the surrender and admission, and the fine to the lord, falls upon the purchaser.*

V

Fane v. Spencer, 2 Mad. 438.

George v. Pritchard, 1 Ryan and Moody, 417. t Abel v. Heathcote, 2 Ves. 98.

"Mitchell v. Neale, 2 Ves. 679; Noel v. Weston, 6 Mad. 50; Rickards v. Barton, 1 Esp. 268.

Duke of Bolton v. Williams, 2 Ves. 155; 4 Bro. C. C. 297; 1 Atk. 96; but in the recent case of Reaves v. Gill, 1 Beav. 375, a vendor who had contracted to grant a lease was directed to pay the additional costs of the lease occasioned by another person whose concurrence was essential being made a party.