number of lots, for the purpose of enforcing a specific performance of his contract against the purchaser of certain of the lots. The main question in the clause was whether, upon the true construction of the conditions of sale, the plaintiff was or was not relieved from the obligation of verifying the abstract of his title by producing, for the inspection of the defendant or his solicitor, the several documents mentioned in the abstract, or by other satisfactory evidence. A subordinate question, was, whether, if that point should be decided against the plaintiff, the defendant had not, by his subsequent conduct, and upon the result of the dealings and correspondence which had taken place between the respective solicitors of the parties, waived all objection to the title. The conditions of sale, so far as they were material to the question between the parties, were the following: "4th. The vendor will, at his own expense, deliver an abstract of the title, to the purchaser, or his solicitor, of *the first seven lots, and Lot 33, within twenty-one days from the day of the sale, and deduce a good title; but as to such parts of the land as were allotted or taken in exchange under the award of the commissioners of the Appleton inclosure, the purchaser shall not be at liberty to require, and the vendor shall not be bound to show, any title thereto prior to the said award, from which period the title to such lands will be deduced. The purchaser shall, within the next twenty-one days after the delivery of the extract, declare in writing, his acceptance or disapproval of the title, after which he is to be precluded from raising objections: and in case objections are made within that period, the vendor shall be at liberty to vacate the sale, upon returning the deposit with interest, auction duty, or other further compensation. "5th. That upon payment of the remainder of the purchasemoney, on or before the time above mentioned, the vendor will convey the premises to the respective purchasers, who are to be at the expense of preparing their own conveyances. 6th. The vendor will deliver up, to the purchaser of the greater part in value of the said estates, all the title deeds and copies of deeds, and other documents in his custody, but shall not be bound, or required, to produce any original deed, or other documents than those in his possession and set forth in the abstract, or which relate to other property; and such purchaser is to enter into the usual covenants for the production of the title deeds to the purchaser or purchasers or proprietor of the remaining or other lots; but if the largest portion in value of the estate shall remain unsold, the vendor shall be entitled to retain the deeds, upon entering into such covenants; all such covenants to be prepared by and at the expense of the person or persons requiring the same, who may have attested copies of such deeds at his or their own expense." * The decree of Lord LANGDALE, made upon the hearing of the cause at the Rolls, declared that the defendant was not entitled to have the abstract of the title verified, except so far as the plaintiff could verify the same by the production of the deeds and other documents in his possession; and that subject to the plaintiff's procuring the execution of a certain deed of release (the purchaser's right to which had not been disputed), the defendant was bound to accept a conveyance of the estate, and should pay the costs of the suit. The defendant appealed from his Lordship's decree. Mr. Wigram and Mr. R. Perry, in support of the decree. Mr. Tinney and Mr. Bagshawe, for the appeal. The material facts of the case, and the principal arguments urged [and cases cited] in support of the decree, are stated and considered in the judgment. THE LORD CHANCELLOR : This was a bill by a vendor for specific performance of a contract of purchase, and praying that the defendant might be declared to have accepted the title. The premises in question were put up to sale by auction on the 7th of May, 1833, subject to certain conditions of sale. By the fourth of those conditions the vendor was to deliver an abstract of the title to the purchaser, or his solicitor, within twenty-one days of the day of the sale, and to deduce a good title; but as to certain lands allotted under an inclosure, the purchaser was not to be at liberty to require, and the vendor was not bound to show any title thereto, prior to the award; from which period the title was to be deduced. The purchaser was, within the next twenty-one days after delivery of the abstract, to declare his acceptance or disapproval of the title; and if objection were made the vendor was to be at liberty to vacate the sale and return the deposit. The fifth condition was that, upon payment of the remainder of the purchase-money, the vendor should convey the premises to the purchaser. The sixth was to the effect that the vendor should deliver up to the purchaser of the greater part in value of the estate all the title. deeds, and copies of deeds, and other documents, in his custody, but should "not be bound or required to produce any original deed, or other documents than those in his possession and set forth in the abstract, or which relate to other property;" and such purchaser was to enter into the usual covenants for the production of the title deeds to the purchasers of the remaining lots; or if the largest part should remain unsold, then the vendor was to enter into such covenants, and retain the deeds, and the purchasers were to have attested copies of such deeds at their own expense. The abstract of title was not delivered within the twenty-one days, so that no question arises as to the time specified in these conditions of sale. The abstract, when delivered, stated deeds and instruments which, it is admitted, if duly verified, showed a good title: but the question is, whether the vendor was bound to verify the deeds so abstracted, except so far as he had in his possession deeds enabling him to do so. In the margin of this abstract, against certain deeds of the 28th and 29th of November, 1813, was a note in these words: "An attested copy of these indentures will be produced, but not the originals, which are not in the possession or power of the vendor;" and in the margin of the abstract of another deed, of the 6th of August, 1818, there was the following note: "A copy of this deed will be produced, but not the original, which is not in the custody or power of the vendor;" and in the margin of the abstract of certain other deeds, of the 10th and 11th of September, 1832, there was the following note: "These deeds are not in the SOUTHBY V. HUTT. [ 211 ] and possession of the vendor and relate to other property; A long correspondence took place between Mr. Baker, the solicitor for the vendor, and Mr. Leake, the solicitor for the purchaser, from the effect of which, coupled with the notes in the margin of the abstract, it is contended, that whatever may be the proper construction of the conditions of sale, the purchaser had bound himself to accept a conveyance which he had caused to be prepared, without any verification of the abstract; but the first question is, what were the rights of the parties under the conditions of sale, unaffected by what afterwards took place. The decree has declared that the defendant is not entitled to have the abstract verified, except so far as the plaintiff can verify the same by the production of the deeds and other documents in his possession; and it then declares that the defendant is bound to accept the conveyance of the estate, executed as in the bill mentioned. If this be the true result of the conditions of sale taken by themselves, it is obvious that, however good the title might appear to be upon the abstract, the purchaser could not be sure of having any proof whatever of such title; because, at the time of the purchase, he must be supposed to be ignorant of what deeds or documents were in the possession of the vendor, and the conditions give him no information upon the subject. The vendor might have had an abstract of a good title, and not one deed, or only some immaterial deeds, corresponding with the abstract. If, by these conditions, the vendor was protected from the necessity of verifying some of the material deeds deducing his title, he must have been equally protected from verifying any of the deeds whatever. The case was necessarily argued for the respondent to this extent, that the conditions amounted to a declaration that the purchaser was to take such title as the vendor had, as was stipulated in Freme v. Wright (1): and undoubtedly a vendor may so stipulate; but he is bound, if such be his meaning, to make the stipulation intelligible to the purchaser. The purchaser, (1) 20 R. R. 313 (4 Madd. 364), in such a case, cannot object to any infirmity in the title or in the evidence to verify it; but could a purchaser so understand a contract by which it was stipulated that the *vendor should deliver an abstract and deduce a good title? It may be said that "to deduce" means to draw out and exhibit a good title upon the abstract but if the purchaser be not bound to verify any part of it, the deducing and exhibiting a good title upon paper would be mere mockery and delusion. The subsequent words of the fourth condition, however, put a construction upon this word "deduce," and prove that it means not only to exhibit upon paper, but to deduce and show a good title; for it provides that as to certain allotted lands-and that by way of exception to the generality of the obligation to deduce a good title-the purchaser shall not be at liberty to require, and the vendor shall not be bound to show, any title prior to the award, from which period the title shall be deduced. Can it then be doubtful whether the vendor, when as to the other lands he contracted to deduce a good title, did not so contract as to give to the purchaser a right to require, and to bind himself to show a good title? Had this fourth condition stood by itself, there could not have been any doubt upon the subject: but it is said that the sixth condition destroyed the whole effect of the contract so contained in the fourth condition, and converted a positive contract for a good title into a contract under which the purchaser might be obliged to take the estate without any title at all, and certainly without any means of proving a title. If such be the effect of the sixth condition, why contract by the fourth condition to deduce and show, thereby giving to the purchaser a right to require, a good title? Could it be the intention of the vendor to protect himself by one condition, from the obligation of performing that which, by a prior condition, he had contracted to do? Could any purchaser have so understood it? It is to be observed that the fourth, fifth, and sixth conditions follow the usual course of proceeding in completing a purchase. The fourth relates to the title; the fifth, to the payment of the purchase-money and the conveyance; and the sixth, to the delivery and custody of the title deeds. The latter provides that |