nion, yet, for the same reason, that ought, it should seem, to be returned with the abstract(h).

In a case where the purchaser returned the abstract to (*) the seller, to answer the queries and opinion of counsel, it was held, that he (the purchaser) might maintain trover against the seller for the abstract, although the seller himself might ultimately be entitled to the abstract. The temporary property of the purchaser in the abstract was sufficient to enable him to maintain the action(i).

The seller is bound to produce the deeds, in order that the abstract may be examined with them, although they are not in his possession, and the purchaser is not to be entitled to the custody of them. But, if they are in the possession of a third person, the purchaser's solicitor, it seems, must send to the place where the deeds are, in order to examine them with the abstract, and the seller must pay the expense of the journey (j)(I). journey(j)(1).

The strict rule seems to be, that the vendor must procure the fee to be vested either in himself, or a trustee for him; and that a purchaser is not compellable to bear the expense of a long conveyance, on account of the legal

(h) See and consider 2 Taunt. 270, per Mansfield, C. J. (i) Roberts v. Wyatt, 2 Taunt. 268.

(j) Sharp v. Page, Rolls, 1815, MS.

(I) Sale by assignees of a bankrupt. A settlement of 1763 was in the possession of a former purchaser, and there was only a covenant to produce a copy of it. A bill was filed by the assignees for a specific performance. The purchaser was informed that the settlement was in the possession of a gentleman in the country, and might be seen there. He was ready to covenant to produce it. The purchaser submitted to the Master that it was the duty of the sellers to produce the deeds stated in the abstract before the Master, or to the purchaser's solicitor in London. The Master stated, that he would make inquiry of conveyancers, what the practice in such cases was, and afterwards decided, that the purchaser's solicitor ought to send to Baldock, where the deeds were, to compare the abstract with the settlement, but that the sellers ought to pay the expenses of such journey.

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66

(*449)

estate having been outstanding for a length of time, or of the estate being subject to incumbrances which are to be paid off(k). It is not, however, very usual to insist upon (*)this, unless the title cannot be perfected without a private act of parliament; in which case, the expense of obtaining it is always borne by the vendor.

Unless there be an express stipulation to the contrary, >he expense of the conveyance falls on the purchaser(); who, as we have already seen, must in that case prepare and tender the conveyance (m). The expense attending the execution of the conveyance is, however, always borne by the vendor, but of course he does not pay the costs of the purchaser's attorney.

If the estate be copyhold, the purchaser must bear the expense both of the surrender to him and of his admission(n); and a vendor is not obliged to pay the fine due on the admission of the vendee, although he covenant to surrender and assure the copyholds at his own costs and charges (o); because, it is said, the title is perfected by the admittance, and the fine is not due till after(p).

If a draft be altered by either party, although the alteration be such as would be supported by the Courts, yet the draft as altered should not be ingrossed without a communication being first made to the other party(q).

(k) See 1 H. Blackst. 280.

(1) See 2 Ves. jun. 155; and note, this is the universal practice of the Profession.

(m) Supra, ch. 4.

(n) Drury v. Man, 1 Atk. 95, Sanders's edition.

(0) Graham v. Sime, 1 East, 632.

(p) Dalton v. Hammond, 4 Co. 28 a; Rex v. Lord of the Manor of Hendon, 2 Term Rep. 484; and see Fishe v. Rogers, 1 Rol. Abr. 506, (A.) pl. 1; 3 Burr. 1543; Lex. Cust. p. 163; Wood's Inst. p. 137; Gilb. Ten. 205; 1 Watk. Copy. 286; sed qu. and see Dalton v. Hammond, Cro. Eliz. 779; Mo. 622, pl. 851; and supp. to Co. Copy. s. 10; and Parkins v. Titus, MS.

(q) See Staines v. Morris, 1 Ves. & Bea. 15.

A purchaser has a right to require the vendor himself to surrender the estate, if copyhold, and to execute the conveyance, if freehold; and he cannot be compelled to accept either a surrender or conveyance, under a power (*)of attorney, unless an actual necessity appears for it(r); for it tends to multiply his proofs, and he may be put under difficulties by these means; the letter of attorney may be lost, and the party is obliged to prove the execution of it(s). A letter of attorney may be revoked the next moment, that revocation may be notified to the attorney without the purchaser's knowledge, and then the conveyance would be void; and the purchaser's only remedy would be a suit in equity(t). This was said by Lord Hardwicke, but the doctrine of later times is, that a power of attorney given for valuable consideration cannot be revoked(u).

A further objection is, that the vendor may be dead at the time the power is exercised, and in that case the execution would be void, as a power of this nature expires by the death of the principal (w) (241). For this reason, where a purchaser chooses to permit the conveyance to be executed by attorney, the attorney should execute a declaration of trust, that he will stand possessed of the purchase-money in trust for the purchaser, until it either appear by satisfactory evidence, that the vendor was alive at the time of the execution of the deed, or if he shall be dead, until the estate is duly conveyed to the purchaser.

(r) Mitchel v. Neale, 2 Ves. 679; Richards v. Barton, 1 Esp. Ca. 268; and see ibid. 115; Noel v. Weston, 6 Madd. 50.

(s) See Johnson v. Mason, 1 Esp. Ca. 89.

(t) Per Lord Hardwicke, in casu Mitchel v. Neale, ubi sup. (u) Walsh v. Whitcomb, 2 Esp. Ca. 565.

(w) Shipman v. Thompson, Wynne v. Thomas, Willes, 105, 565; Wallace v. Cooke, 5 Esp. Ca. 117.

(241) The grantor of land is presumed to be alive until the contrary is shewn. Battin's Les. v. Bigelow, 1 Peter's Rep. 452.

As a purchaser cannot be required to take a conveyance executed by attorney, so, on the other hand, if a vendor only covenant to surrender or convey lands to a purchaser upon request, he is not compellable to appoint an attorney for that purpose(x).

(*) Where the estate lies in a register county, the conveyance should be registered as soon as it is executed. Mr. Hilliard remarks(y) that, by the statutes for registry, there is no time limited for registering deeds; and that it is therefore obvious from an inspection of the acts, how necessary it is, that deeds should be registered immediately on their being executed: to enforce this the more strongly, he adds, it may not be useless to consider, if a subsequent conveyance or mortgage should be executed for a valuable consideration, and from an almost momentary inattention or delay of the first vendee or mortgagee, in not immediately registering, the second vendee or mortgagee should register first; whether, in such case, the first vendee or mortgagee doth not thereby become in a worse situation than he would have been by law, in case the registering acts had not been made.

It is clear that, in the case put, the subsequent purchaser or mortgagee, unless he had notice, would prevail over the first vendee or mortgagee. And it must be remarked, that, by delaying to register his conveyance, a purchaser gives a prior incumbrancer, who may have neglected to register his incumbrance, an opportunity of retrieving his error, and thereby establishing his demand on the estate; for the acts only say that deeds shall be void, unless such memorial thereof is registered, as by the acts is directed, before the registering the memorial under which the subsequent purchaser claims(z).

It

appears, therefore, that there are two cogent reasons

(x) Symms v. Lady Smith, Cro. Car. 299; Godb. 445.

(y) N. (2) to Shep. Touch. 116.

(2) Vide infra in this chapter, and chapter 16.

why a memorial of the conveyance should be duly registered immediately after the execution of the conveyance; the one, that a prior incumbrancer might, during the delay, register his incumbrance; the other, that the delay (*)might give an unprincipled vendor an opportunity of selling the estate to a bona fide vendee without notice; who, if he registered his deeds before the registry of the first conveyance, would certainly prevail against the first purchaser.

10001

SECTION II.

Of Assignments of Terms.

A PURCHASER may require an assignment of all outstanding terms, of which he could avail himself in ejectment, to attend the inheritance; and if the purchaser leave them outstanding, he may not, perhaps, have the full enjoyment of his estate without, at some future period, being himself at the expense of getting them in: for even a mortgagee would be very unwilling to advance money on the estate, unless the terms were assigned, lest a subseqnent mortgagee or purchaser, without notice, should obtain an assignment of them, and so overreach the prior mortgage.

I. The position that a purchaser may require an assignment of all outstanding terms, of which he can avail himself in ejectment, to attend the inheritance, naturally calls our attention to the cases in which a term may be used upon an ejectment. We have already seen that, in some cases, the possession of the cestui que trust may operate