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Vict. c. 41,

8. 3.

duction of the receipt for the last payment due for rent 44 & 45 under the lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase.

(5.) Where land sold is held by under-lease, the purchaser shall assume, unless the contrary appears (e), that

usual conditions of sale providing that documents twenty years old shall be conclusive evidence of the matters recited therein and that the leases and under leases and receipts for rent shall be conclusive evidence of the title of the lessors and of performance of the lessees' covenants cannot safely be dispensed with, see the 6th and 7th conditions of sale p. 3. At the same time it should be observed that no condition of sale couched in general terms can in every case prevent the purchaser from proving the contrary aliunde. In the case of Darlington v. Hamilton, Kay 550, it was even held that "it is quite clear that whatever may be the terms of the condition of sale if the purchaser obtain information aliunde that the title of the vendor is not clear and distinct he has a right to insist on the objection." This was apparently carrying the doctrine too far, see Best v. Hamand, L. R. 12 Ch. D. 1. But in the recent case of Re Banister, 12 Ch. D. 131, it was laid down by the Court of Appeal that a condition of sale is bad as misleading, 1. if it requires the purchaser to assume what the vendor knows to be false; 2. if it states that the state of the title is not accurately known when in fact it is known to the vendor. It is perhaps somewhat difficult to reconcile this decision,

which seems to amount to this that a vendor shall not take advantage of his superior knowledge to commit a fraud, with the decision in the case of Best v. Hamand, supra, also decided by the Court of Appeal, but by three different judges, in which it was held that a railway company could under a condition of sale force a purchaser to accept the title to what they required him to assume was superfluous land which they had a right to sell to him, when as a matter of fact they had never offered it in the first instance to the original owner in accordance with s. 128 of the Lands Clauses Consolidation Act, 1845, and consequently had no power to sell it to any one else. The case of Lawrie v. Lees, L. R. 7 Ap. Ca. 24, decides that a condition of sale, to the effect that the production of the receipt for the last rent due shall be conclusive evidence of the performance of the lessee's covenants or of the waiver of any breach, binds a purchaser where there has been a breach of covenant but there is nothing to show that the landlord intends to take advantage of it; in fact in the case in question he not only waived but approved of the breach. This case seems consistent with that of Re Banister.

(e) See note (d), p. 244.

44 & 45 the under-lease and every superior lease were duly granted;

Vict. c. 41,

s. 3.

and, on production of the receipt for the last payment due for rent under the under-lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the under-lease have been duly performed and observed up to the date of actual completion of the purchase, and further that all rent due under every superior lease, and all the covenants and provisions of every superior lease, have been paid and duly performed and observed up to that date.

(6.) On a sale of any property, the expenses of the production and inspection of all Acts of Parliament, inclosure awards, records, proceedings of courts, court rolls, deeds, wills, probates, letters of administration, and other documents, not in the vendor's possession, and the expenses of all journeys incidental to such production or inspection, and the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the vendor's possession, and all attested, stamped, office, or other copies or abstracts of, or extracts from, any Acts of Parliament or other documents aforesaid, not in the vendor's possession, if any such production, inspection, journey, search, procuring, making, or verifying is required by a purchaser, either for verification of the abstract, or for any other purpose, shall be borne by the purchaser who requires the same; and where the vendor retains possession of any document, the expenses of making any copy thereof, attested or unattested, which a purchaser requires to be delivered to him, shall be borne by that purchaser (ƒ).

(7.) On a sale of any property in lots, a purchaser of two or more lots, held wholly or partly under the same title, shall not have a right to more than one abstract of the common title, except at his own expense (g).

(8.) This section applies only to titles and purchasers on

(f) This clause may be supplemented by the 8th condition of sale,

see p. 4.

(g) See p. 2, cl. 3.

sales properly so called, notwithstanding any interpretation 44 & 45 in this Act.

(9.) This section applies only if and as far as a contrary intention is not expressed in the contract of sale, and shall have effect subject to the terms of the contract and to the provisions therein contained.

(10.) This section applies only to sales made after the commencement of this Act.

(11.) Nothing in this section shall be construed as binding a purchaser to complete his purchase in any case where, on a contract made independently of this section, and containing stipulations similar to the provisions of this section, or any of them, specific performance of the contract would not be enforced against him by the Court.

Vict. c. 41,

ss. 3-5.

tion of

death.

4.-(1.) Where at the death of any person there is sub- Complesisting a contract enforceable against his heir or devisee (h), contract for the sale of the fee simple or other freehold interest, after descendible to his heirs general, in any land, his personal representatives shall, by virtue of this Act, have power to convey the land for all the estate and interest vested in him at his death, in any manner proper for giving effect to the contract.

(2.) A conveyance made under this section shall not affect the beneficial rights of any person claiming under . any testamentary disposition or as heir or next of kin of a testator or intestate.

(3.) This section applies only in cases of death after the commencement of this Act.

Discharge of Incumbrances on Sale (i).

Discharge of incum

5.-(1.) Where land subject to any incumbrance, brances on whether immediately payable or not, is sold by the Court, Provision

(h) In this event the realty has become converted into personalty. But in most cases the concurrence of the heir or devisee will be required by the purchaser to prevent any question afterwards arising as to

whether the contract was enforce-
able against the heir or devisee.

(i) This section apparently gives
the Court the widest possible power
of discharging incumbrances. But
it is not to be expected that the

44 & 45

Vict. c. 41, s. 5.

freed therefrom.

or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payby Court ment into Court, in case of an annual sum charged on the for incum- land, or of a capital sum charged on a determinable intebrances, and sale rest in the land, of such amount as, when invested in Government securities, the Court considers will be sufficient, by means of the dividends thereof, to keep down. or otherwise provide for that charge, and in any other case of capital money charged on the land, of the amount sufficient to meet the incumbrance and any interest due thereon; but in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses, and interest, and any other contingency, except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in, unless the Court for special reason thinks fit to require a larger additional amount.

(2.) Thereupon, the Court may, if it thinks fit, and either after or without any notice to the incumbrancer, as the Court thinks fit, declare the land to be freed from the incumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court.

(3.) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.

Court will use these powers except
where owing to the mortgagor being
not sui juris or being out of the
kingdom, or owing to some other
cause, there is a difficulty in obtain-
ing a discharge from him in the
usual way, i.e., by giving six months'
notice to redeem, or by paying six
months' interest. The power given

to the Court does not extend to the case where a part only of the mortgaged property is sold producing enough to pay off part of the mortgage. For form of order under this section, see Patching v. Bull, 30 W. R. 244; Dickin v. Dickin, 30 W. R. 887; W. N. 1882, p. 113.

(4.) This section applies to sales not completed at the 44 & 45 commencement of this Act, and to sales thereafter made.

General Words (j).

Vict. c. 41,

ss. 5, 6.

General

words.

words in

6.-(1.) A conveyance of land shall be deemed to General include and shall by virtue of this Act operate to convey, conveywith the land, all buildings, erections, fixtures, commons, ances of land, hedges, ditches, fences, ways, waters, watercourses, liber- buildings, ties, privileges, easements, rights, and advantages what- or manor. soever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.

(2.) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to,

(j) This section does not comprise rights or easements formerly existing but extinguished by the union of the dominant and the servient tenements in the hands of one owner, such as a convenient path from one piece of land across the adjoining piece of land, but not of course a way of necessity which must always pass with any land sold. If, therefore, the purchaser is to have any such easement over any land retained by the vendor it should be specially granted in the conveyance. The form of general words in use before this Act frequently included "all

rights easements and appurtenances
to the hereditaments hereby granted
belonging or in anywise appertaining
or with the same or any part thereof
now or heretofore held occupied or
enjoyed." This was more satis
factory from the purchaser's point
of view than the rights and ease-
ments given to him by this section,
but it might afterwards be found
to have included more than the
vendor intended to sell, see Brett v.
Clowser, L. R. 5 C. P. D. 376;
Barkshire v. Grubb, 18 Ch. D. 616.
See also Willis v. Watney, 30 W. R.
424.

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