PURCHASES. newly acquired lands, without republication, as it had over the lands expressly comprised in it; such proviso must therefore be fully set out, or its omission noticed. Duty of Vendor's Solicitor. Time of royal The day when the act (whether for enclosure or other purassent should be pose) received the royal assent should also be mentioned, as that is the time from which its operation commences, unless some other time be mentioned in the act itself. mentioned. Saving clanse should be fully stated. Certificates of births, deaths, &c. to accompany the abstract. Every private act contains a clause, saving or preserving from its operation the rights of all such persons whose interests are not intended to be precluded by it: this clause should of course be fully stated, that the force and exact extent of the act in relation to the estate in question, and the parties interested in it, may be clearly perceived. But the better way in all cases of a title derived through a private act of parliament, is to deliver with the abstract a printed copy of the act itself, which there can seldom be any difficulty in procuring. The abstract, besides containing the substance, &c. of the title deeds, in the mode above suggested, should also contain statements of such births, deaths, survivorships, and other intermediate facts and events, as in any way relate to the deduction of title, or have a tendency to show the exact state of the vendor's interest; together with certificates or other admissible documents, and evidences in verification of them; and where there is a probability of any of these evidences requiring a length of time to procure, they should be sought for at the earliest period, as well to prevent the inconvenience of delay in the completion of the sale, as also, in some cases, with a view to costs, in the event of its being necessary for the vendor to seek for a specific performance of the contract by the purchaser; for the question of costs often depends not simply upon whether, but at what time a good title could be made by the vendor; PURCHASES. and hence it is better that these, if they can be obtained in time, should accompany the abstract submitted to the counsel of the vendor. Duty of Vendor's Solicitor. The evidences admissible in the courts, and hence considered What evidence satisfactory proofs of the events here alluded to, are, Of the facts of marriages, births, or deaths,-a certificate under the hand of the officiating minister, for the time being, of the parish, or extract from the register book, with an affidavit of its authenticity. Of legitimacy of a child,-certificate of the marriage of the parents, and proof of their respectively being of age at the time (or consent of parents or of guardians appointed by the trustees in the court of chancery, or of that court itself, if under age.) Of failure of issue, or there being certain issue only,-an affidavit by some person acquainted with the family. Of executorship, or of administratorship,-probate of the will of the testator, or letters of administration under the seal of the proper ecclesiastical court. Of intestacy,-letters of administration under the seal of the prerogative court (1). Of descents, a pedigree verified by satisfactory evidence,― but as to what evidence is to be deemed satisfactory for this purpose, it can only be observed generally, that it must be such as it is conceived a jury of honourable men would give credit to, and, on a writ of right, consider as amounting to a moral of collateral facts. (1) More particular observations on these species of evidence to support the above and other facts occurring in the deduction of titles, will be made when treating of the duties of the solicitor for the purchaser, see post. Duty of Vendor's Solicitor. PURCHASES. certainty of the facts being as stated; amongst these may be reckoned certificates of marriage, entries in family bibles, or engravings on tomb-stones, and above all long undisturbed possession (a), in a line corresponding with such pedigree, and in failure of them, an affidavit of some person connected or long intimately acquainted with the family; and these evidences should be furnished, notwithstanding the pur chaser himself (b) may be well satisfied of the fact, for although it may be known to him, it may not, and probably will not, to a future purchaser from him. And in order to show that a person is heir to the ancestor, it is further necessary that evidence should be produced of the decease of such ancestor or each successive ancestor, either wholly intestate, or intestate as to the particular lands in question; the latter fact may be proved by a production of the will of such ancestor, or of his trustee, if any; and if it be alleged that each intermediate. owner or trustee died intestate, then letters of administration should be produced; or if it be asserted that there were not any letters of administration, by reason of the party having no property," search should be made for a will in the ecclesiastical courts of the several ordinaries to whom the right of granting the administration of the assets, if any, would have belonged, namely, the prerogative court, the court of the diocesan, and of the archdeacon, or other person having local or peculiar jurisdiction (c)." Of identity of parcels, or proof of possession,-counterparts of (a) And sce 2 Prest. Abstr. 422. (b) Sed 2 Prest. Abstr. 421, contra. (c) See 2 Prest. Abstr. 452. et seq. leases, land tax or poor rate assessments, terriers, plans of sur- PURCHASES. veyors, and the like. And if the above evidences cannot be obtained in time to accompany the abstract to the vendor's counsel, every diligence should be used that they may accompany that which is to be delivered to the purchaser's solicitor, as by this much time and expense will probably be saved. The last thing which it at present occurs to me to mention by way of suggestion to the vendor's solicitor on the subject of the abstract of his client's title is, that he should recollect to subjoin a statement of whether or not the vender be married, and if he be, whether his wife be dowable out of the lands contracted to be sold, and if not, to furnish an abstract to the purchaser's solicitor of the settlement or other instrument by which her title is supposed to have been barred, that he may be enabled to judge of its efficacy for this purpose. The abstract should likewise be accompanied by statements of all such matters relative to the legal characters and situations of the several parties (if any) who are interested in the estate, as do not appear upon the face of the abstract, in order that the counsel of the purchaser may be enabled to advise with precision on every thing connected with the title, and point out the mode of assurance to the purchaser without the necessity of calling for further information; and in doing which let him always bear in mind that it will be much better to err on the side of superabundancy, and insert what may happen to be superfluous, than to omit what may possibly be essential. The abstract being prepared in conformity to the hints I have suggested, it will be the duty of the vendor's solicitor to deliver Duty of Vendor's Statements at foot of abstract. Abstract to be delivered to parchaser's solicitor. Duty of Vendor's Solicitor. PURCHASES. a fair copy of it to the solicitor for the purchaser, which should if possible be done upon or before the day stipulated for that purpose in the agreement, if any, between the parties; for otherwise the purchaser may at law avoid the contract (a); and the vendor can have no relief in equity unless under some circumstances of neglect on the part of the purchaser in calling for the abstract (6), or of insuperable difficulties, on the part of the vendor, after using all due diligence in endeavouring to furnish it by the time appointed (c). And if no time be appointed for delivery of the abstract, it must be done in a reasonable time after the contract has been entered into, i. e. without any delay beyond what unavoidable circumstances imposed; and the delivery of the title deeds themselves, it may be observed, is not equivalent to the delivery of an abstract, as the purchaser or his solicitor is not obliged to take upon himself the responsibility of guarding the vendor's title deeds; nor indeed can the deeds alone, in many cases, show the precise state of the title, as the proof of deaths, marriages, &c. &c. will frequently be necessary to accompany the abstract for that purpose; and if an abstract be refused on being demanded, delivery may be enforced by bill in equity. On delivery of abstract 2dly, Of the duty of the Vendor's solicitor, from the delivery of the abstract to the approval or rejection of the title. The solicitor for the vendor, upon delivering the abstract, must (a) See Berry v. Young, 2 Esp. Ca. 640. 4. (b) Guest v. Homfrey, 5 Ves. 818. (c) See Lloyd v. Collett, 4 Ves. 689. Paine v. Meller, 6 ib. 349. and Radcliffe v. Warrington, 13 Ves. 323. |