be made by a certain time, and the counsel was of that opinion, a bill by the purchaser for a specific performance with a compensation, was dismissed with costs; and an application afterwards made by the plaintiff, that his deposit-money might be set off against the defendant's costs, and the surplus (if any) paid to him, was refused, with costs. (a) In an action to recover the deposit, no new objection can be taken to the title, which, if previously taken, might have been removed. (b) (a) Williams v. Edwards, 2 Sim. 78. (b) Todd v. Hoggart, 1 Moo. & Mal. 128. CHAPTER III. OF THE GENERAL NATURE OF THE TITLE WHICH MUST BE PRODUCED. Ir will now be proper to consider the nature of the title which must be produced; and I shall first make some observations applicable to its general nature; shall next inquire into the time at which it should commence; and then give the particular rules applicable to every ordinary species of title. A party who agrees to sell, mortgage, or charge his property, virtually stipulates in law to make a good title; (a) and he generally enters into an express agreement so to do. It is said that on a mortgage it is sufficient to produce a good holding title, but that on a sale it will be necessary to show a marketable title; but the distinction rests on very slight grounds, as the same objections may be made to a title in the one case as in the other, and in practice the former is examined with equal strictness as the latter. A purchaser will not be compelled to take a doubt (a) Sug. V. & P. 305, 8th ed. ful title, (a) nor an equitable title. (b) The title should, in fact, be free from suspicion, (c) and will not be forced on a purchaser, either at law or in equity, if he can only acquire it by litigation and judicial decision; (d) and a case will not be directed to the judges as to the title, unless the purchaser be willing that it should be so directed. (e) A court of equity will not now, as formerly, decide whether a title is good or bad. It will merely pronounce whether it is such a title as the purchaser should accept, or a marketable title. (f) The modern rule, although it has frequently met with disapprobation, is now firmly established. (g) It seems to have been first introduced by Sir Joseph Jekyll, M.R. (h) although Lord Eldon has said it commenced in the case of Shapland v. Smith. () The distinction between an unmarketable title and a bad title does not, however, prevail at law; for there every title which is not proved to be bad is considered marketable. (k) In a case at nisi prius, (1) Lord Kenyon said, that it had been solemnly adjudged, that if a party sells an (a) Stapylton v. Scott, 16 Ves. 272. Jervoise v. Duke of Northumberland, 1 Jac. & W. 559. Sloper v. Fish, 2 Ves. & B. 145. Marlow v. Smith, 2 P. W. 198. Price v. Strange, 6 Mad. 159. (b) Cooper v. Denne, 4 B.C. C. 80. Trent v. Hanning, 10 Ves. 500. Sheffield v. Lord Mulgave, 2 Ves. Jun. 526. (c) 2 Ves. 59. (d) Price v. Strange, 6 Madd. 159. See also Elliott v. Pott, 3 Bli. 145. Hartley v. Pehall, 1 Peake's, N. P. C. (e) Roake v. Kidd, 5 Ves. 647. Sug. V. & P. 314, 8th ed. (f) Vancouver v. Bliss, 11 Ves. 258-465. (g) See Stapylton v. Scott, 16 Ves. 272. Sloper v. Fish, 2 Ves. & B. 149. Briscoe v. Perkins, 1 Ves. & B. 493. Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 569. 576. Price v. Strange, 6 Madd. 159. Smith, 2 P. W. 198. (h) Marlow v. (k) See 6 Taunt. 274. (/) Thomson v. Miles, 1 Esp. 184. estate without having title, but, before he is called upon to make a conveyance, by a private act of parliament gets such an estate as will enable him to make a title, that that is sufficient; and that when a plaintiff was able to make a title, and was never applied to by the defendant for it, that he should not be allowed to set up against the plaintiff a want of title, though the power of making that title was obtained after the action brought. But where a man contracted to grant to another a lease to hold from a certain day, and the intended lessor could show no title on that day, the purchaser was at law allowed to rescind his contract, although no time for granting the lease was expressly fixed in the agreement. (a) A different rule, however, clearly prevails in a court of equity; for although the inclination of a court of equity is in favour of a vendee, and it insists upon the vendor furnishing an unexceptionable title, (b) it is not necessary that he should have a perfect title at the time of entering into the agreement; for if he can perfect it before the Master's report, (c) or even on the hearing of further directions, (d) it will be sufficient, although the doctrine will hardly be carried further. (e) But where the title is not clear on the abstract at the time of filing the bill, costs will not be given, although it has been established before the Master, (f) and the court will not suspend the (a) Roper v. Coombes, 6 B. & C. 534; Bartlett v. Tuchin, 6 Taunt. 259, S. C. 1 Marsh. 583; and see ante, pp. 37, 38. (b) Burroughs v. Oakley, 3 Swanst. 159. (c) Mortlock v. Buller, 10 Ves. 315. Emery v. Growcock, Sug. V. & P. 513. Langford v. Pitt, 2 P. Wms. 629. (f) Reynolds v. Blake, 2 Sim. & contract with a view to future proceedings to perfect the title. (a) But the costs will be thrown upon the purchaser, though the Master reports that a good title was not shown till after the filing of the bill, if that finding proceeded on the ground that certain evidence has not been previously furnished which the vendor had offered to produce, but which had not been actually produced before the institution of the suit, in consequence of the purchaser insisting upon other and unsubstantial objections. (b) An abstract, we have seen, will be complete in equity whenever it appears that, on certain acts done, the legal and the equitable estates will be in the purchaser. (c) This rule, however, is properly confined to cases where the vendor, and persons who are trustees for him, can make a title; for if the concurrence of a stranger is necessary, and he is not bound to join, the abstract cannot be deemed perfect until it shows that he has given perfection to the title. Thus, where it was necessary, in order to perfect a title, that a recovery should be suffered for the purpose of barring an old estate tail, vested in a person who was not a trustee for the vendor, the deed making the tenant to the præcipe and the warrant for suffering the recovery, were executed before the filing of the bill for specific performance, but the recovery was not completed till a few days afterwards; it was held that a good title was not shown before the commencement of the suit. (d) A distinction has been taken between questions of (a) Esdaile v. Stephenson, 6 Madd. & Geld. 366. (b) Long v. Collier, 4 Russ. 269. (c) Ante, p. 1. Braybrooke v. Inskip, 8 Ves. 436; 16 Ves. 381; 1 J. & W. 421. (d) Lewin v. Guest, 1 Russ. 325. And see Esdaile v. Stephenson, 6 Madd. & Geld. 366, stated post, p. 59. |