SOUTHBY บ. HUTT. [ *215 ] the vendor shall deliver to the purchaser of the largest portion of the estate, all the title deeds in his custody, but shall not be bound or required to produce any original or other documents than those in his possession, and set forth in the abstract, and which relate to other property. The exception is to the contract to deliver the title deeds. To the contract in the fourth condition to deduce and show a good title, there is no limitation or restriction; but to the contract to deliver up the title deeds after the completion of the purchase, there is a restriction limiting the obligation to produce, to such only as the vendor had in his possession. It was said that the word "produce" has a more general meaning than "deliver," and that it must therefore have been intended to apply to a production for the purpose of proving the abstract, and cannot be confined to production for the purpose of delivery. If the word, however, had been used in that sense, it would not have been confined to deeds in the possession of the vendor; because, for the purpose of proving the abstract, the production of deeds not in his possession, but of which he had the right or the means of procuring the production, would have been equally available. He must have intended to give the best proof of his title in his power; though he might have wished to guard against being called upon for more evidence in support of it, than he had at his command. He would therefore have stipulated that the purchaser should not, for that purpose, be entitled to call for any deeds which were not in his *possession, or the production of which he had not the means of procuring. With reference to the latter class, a clause confining the liability to the producing of deeds in his possession would plainly have been inapplicable; though that would be the natural limit of the obligation as to delivering up deeds on the completion of the purchase. Apparently, the framer of these conditions did not advert to the difficulty in proving the title, arising from the want of some of the title deeds, and therefore did not guard against it; although he did think of protecting the vendor from the obligation to deliver up any deeds except such as were in his own possession. It by no means follows that the vendor cannot prove his title, because he has not in his possession all the deeds necessary for that purpose. It could not, therefore, have been inferred by the purchaser, that the restriction as to the liability to deliver up certain deeds, was to apply to the liability to produce them for the purpose of proving the title; and if that inference was not obviously to be drawn from the conditions, will a court of equity compel a purchaser to take the estate without a title ? For these reasons, I cannot think that upon the terms of the conditions alone, the purchaser was bound to complete his contract, until he had a good title deduced and proved, either by the production of the deeds professed to be abstracted, or by such other evidence as would satisfactorily prove the statements in the abstract to be correct. Assuming that to be so, I have next to consider whether the notes in the margin of the abstract, coupled with the correspondence, deprive the purchaser of this right. The abstract professes to give the substance of various instruments, which it was admitted, if truly abstracted, show a good title; but the marginal notes in the abstract, when delivered, informed the purchaser that the originals of certain deeds were not in the possession or power of the vendor, but that attested copies would be produced. It by no means follows from this, that the most distinct and positive evidence might not be furnished of the existence and contents of those deeds. The earliest of them are of so late a date as the year 1813; the attesting witnesses may be forthcoming, and it may be known in whose possession the originals are. Much the same observations apply to the notes with respect to the deeds of August, 1818, and those of September, 1832. The note as to the latter merely is, that they are not in the possession of the vendor; but they may be in his power, and they are of so recent a date, that it is scarcely possible that any difficulty should exist in proving their existence and contents. These notes certainly informed the purchaser that he was not to expect to have those deeds delivered up to him upon the completion of his purchase; but did they inform him that the vendor was unable to give any proof of the existence or contents of documents set out in his abstract, and upon which his title depended? It was then said that the effect of the correspondence between the respective solicitors of the parties, amounted to an acceptance R.R.-VOL. XLV. 3 SOUTHBY t. HUTT. [ *216 ] of the title. If a purchaser accepts a title, he accepts it both as to law and fact. He agrees to take it as it stands, and he can no more object that it is not proved, than he can that it is not good in law. The decree, however, does not proceed upon any such ground. On the contrary, it assumes that the purchaser is entitled to have the abstract verified, so far as the plaintiff can verify the same, by the production of deeds and other documents in his possession; and although it assumes that this verification has not taken place, it decrees the purchaser to accept the conveyance. My present observation, however, is confined to this, that the decree does not proceed upon the ground that the purchaser had accepted the title; but that by the contract, the vendor was bound to verify the title only to a certain extent, and in a particular manner. So that if it should now appear that the letters amounted to an acceptance of the title, it will be a new point, and one not constituting any part of the ground upon which the decree stands. Before I examine the letters, it must be considered in what position the parties stood, according to my construction of the conditions of sale. The purchaser conceived himself entitled to have a good title made out; but he knew that his right to have a delivery of the title deeds was limited by the sixth condition. He saw upon the abstract a good title stated; but he was told by the notes that of certain deeds he could not have the possession. The question then upon the letters will be, whether the purchaser waived all proof of the abstract, which would amount to an acceptance of the title,--for he certainly accepted it, if proved as stated, or whether, according to the terms of the decree, he waived all proof except so far as the vendor might be able to afford such proof from the deeds and documents in his possession. (His Lordship here entered into a minute examination of the various passages in the correspondence upon which the plaintiff had relied as constituting or evidencing an acceptance of the title by the defendant. His Lordship then proceeded as follows:) I cannot find any thing in these letters amounting to a new contract as to the deeds, or to any waiver of such right as the purchaser had with respect to the deeds under the original agreement. It appears to me, that all the parts of this correspondence relied upon by the vendor as evidence of the purchaser having waived his right to have the abstract verified, were written under an expectation of having the abstract verified by an inspection of the title deeds, or some evidence of their existence and contents, before the completion of the purchase; and that the vendor's solicitor was fully informed, in September, 1833, of the existence of this expectation, and did not say or do any thing to remove this impression till the letter of the 9th of August, 1834, after his client had been called upon to execute a covenant for the production of the title deeds. The evidence of the defendant's solicitor confirms this, but does not carry the case further than the letters. Such being the view which I take of the transactions subsequent to the sale, it follows that the opinion I have expressed of the effect of the contract then entered into under the conditions of sale, must regulate my judgment upon the whole case. I am satisfied that there was nothing in the conditions of sale sufficient to lead the purchaser to understand that he would have no right to have any evidence of any title to the land sold, unless the vendor should happen to be in possession of deeds sufficient for that purpose, a circumstance of which the purchaser could know nothing. Whether that was the intention of the vendor or not, is immaterial, if he did not take proper measures to explain such intention to the purchaser. To state in the conditions of sale, that the vendor would deliver an abstract of title, and deduce a good title, except as to certain allotted lands, as to which he was not to be bound to show a good title prior to the award, from which period he was to deduce the title, was not the mode of informing a purchaser that he was not to require any evidence. whatever of title to any part of the property, except such as the vendor might have the means of proving from deeds which might be in his possession, and which might amount to nothing. The doctrine of Lord LYNDHURST in Dick v. Donald (1) is SOUTHBY "'. HUTT. [219] SOUTHBY v. HUTT. much in conformity with my view of this case. It is, therefore, impossible for me to concur in the opinion, that the purchaser has no right to have the abstract of the title verified, except as far as the vendor can verify the same, by the production of the deeds and other documents in his possession. Instead of that declaration, I must declare that the purchaser has accepted the title as set forth in the abstract, subject to the same being verified, and direct a reference to the Master to inquire and state, whether the vendor can make out and verify the title set forth in the abstract delivered to the purchaser. 1836. Jan. 30. Feb. 9, 10. Lord THORNTON v. BRIGHT (1). (2 My. & Cr. 230—255; S. C. 6 L. J. (N. S.) Ch. 121.) A real estate was settled to the use of a father for life, with remainder to the use of all and every or such one or more of his children, for such estate and estates, and in such parts, shares, and proportions, and with such limitations over, and charged with such annual or gross sums, such limitations over and charges to be to or for the benefit of the same children, some or one of them, and in such manner and form as the father should appoint. The father afterwards appointed the estate to trustees and their heirs, upon trust to pay the rents and profits thereof to his daughter, who was a married woman, for her sole and separate use during the life of her husband, without power of anticipation: Held, that the appointment of the estate to trustees for the separate use of the daughter during the joint lives of herself and her husband was a valid exercise of the power. By the settlement made in contemplation of a marriage between Samuel Heywood, barrister-at-law, afterwards Serjeant Heywood, and Susannah Cornwall, afterwards Susannah Heywood, dated the 26th of December, 1780, and a common recovery duly suffered in pursuance thereof, the whole townland and hereditaments of Ballygrubane in the county of Armagh, in Ireland, were settled and assured (subject to life estates therein deeds of the property in his custody," chaser only certain specified deeds the purchaser must take a bad title, or such title as appears by the deeds." -O. A. S. (1) In re Ridley (1879) 11 Ch. D. 645, 48 L. J. Ch. 563. |