Duty of Vendor's Solicitor. PURCHASES. certain that it would be restored by the contract being subsequently abandoned (a), unless for defect of title (b): hence the attention of the vendor should be invited by his solicitor to any disposition he may have made of his property by his will, that his intentions as to the distribution of it may not be frustrated by this notional conversion of his land into money. Vendor after contract for sale The land agreed to be sold being no longer the property of need not insure. the vendor but of the purchaser, for whom the vendor is only a trustee, it also follows that he will after the completion of the contract be exempted from the necessity of insurance or other care for its preservation. Vendor's solicitor to ascer of the estate. The solicitor's attention must thirdly be carried to the subject matter of the contract, as to which the following observations occur. If the contract on the part of the vendor be not at present tain the quality binding upon him as not having been put into writing, and signed by him, the first care of his solicitor, on the agreement being submitted to him for approval (for it will belong to the purchaser's solicitor to prepare it), will be, to ascertain and describe with accuracy the exact interest which the vendor has in the land, the quit rents, or other annual or gross payments or charges (if any) to which it is subject; the quality or legal nature of the estate, and the county or place where it is situated; for if the interest of the vendor differ ever so little (whether as being for a less term or duration of estate than he has contracted to sell (c), except for the fraction of a year or so (d), or as being copyhold or leasehold instead of freehold, a derivative instead of an original interest, or if it be subject to a quit rent (a) Sec observations of Eldon, Ch. in Kuolly v. Alcock, 7 Ves. 558. (b) Rose v. Cunningham, 11 ib. 550. (c) Farrer v. Nightingale, 2 Esp. Rep. 639. (d) Bilworth v. Hassell, 4 ib. 140. Duty of Vendor's Solicitor. however inconsiderable (a), or be situated in a different county PURCHASES. from that mentioned in the agreement (b),) it may probably not answer the object the purchaser had in view in entering into the contract, which may have been made under a power or directions to purchase lands of a particular tenure; or to qualify him to exercise an official duty or the like; in which cases he will at law be at liberty to rescind his contract, and it is only under particular circumstances that a court of equity will interfere, and oblige him to complete his purchase by accepting of an indemnity, or of an abatement of price (c). If, therefore, there prove to be any error in these respects, which are afterwards discovered by the purchaser's solicitor, the discussion they will give rise to may occasion a very inconvenient delay to the vendor, or an ultimate relinquishment of the contract. And where the sale was by public auction, it will be proper that the solicitor of the vendor should be prepared with two parts of an agreement for the completion of the purchase by the respective parties upon the terms mentioned in the conditions of sale; for it appears to be determined by the latest decisions, that sales of real estates by public auction are within the statute of frauds, and not binding upon the purchaser, unless the contract be put into writing, and signed by him or his agent (lawfully authorized) (d); the signature alone of the Where sale by auction vendor should have agreements ready. (a) Barnwell v. Harris, 1 Taunt. 430. (b) Drewe v. Hanson, 6 Ves. 695. Drewe v. Corp, 9 ib. 368. (c) See the cases of Guest v. Homfray, 5 Ves. jun. 818. Mortlock v. Buller, 10 ib. 306. Dyer v. Hargrave, ib. 505. Halsey v. Grant, 13 ib. 75. Horniblow v Shirley, ib. 73. 81. D. Norfolk v. Worthy, 1 Camp. 337. Millijan v. Cooke, 16 Ves. 1. Daniels v. Davison, ib. 249. Mason v. Corder, 2 Marsh. 332. also 1 Ves. and Bea. 225. (d) See Stansfield v. Johnson, 1 Esp. Ca. 101. Walker v. Constable, 2 ib. PURCHASES. parties is for this purpose sufficient without sealing or delivery; indeed either of these would, in most cases, be improper, and give room for construing the instrument to be a deed, and requiring an accordant stamp. Duty of Vendor's Solicitor. If deposit money paid, it should be invested. Notice from purchaser of money being unproductive. Vendor's title should be submitted to counsel. On an agreement for the sale of an estate, it is not unusual for the purchaser to be required to pay down a part of the purchase money by way of deposit, which if the purchase go off for want of title, is to be returned to the purchaser with interest, in the mean time. The risk of this money falls upon the vendor whilst it remains in his custody (a), unless it be invested upon some security expressly approved of by the purchaser. Where, therefore, a deposit has been paid, the vendor's solicitor, if he find any considerable delay is likely to take place in making out the title, should apply to the solicitor of the purchaser to obtain a written consent for its being invested in some particular funds, to be mutually agreed upon between them (b). And should he receive notice from the purchaser that the whole or the remainder of his money is ready and unproductive to him, in this case also he should endeavour to agree with the purchaser's solicitor for its investment. The preliminary contract being settled, the vendor's title should be immediately submitted by his solicitor, to the examination of counsel on his behalf; this should seldom be omitted, for should there be any defects in the title, it may be 659. 1 Bos. and Pul. 306. S. and Buckmaster v. Harrop, 7 Ves. jun. 341. 13 Duty of Vendor's Solicitor. of considerable importance that they should be supplied before PURCHASES. the abstract is laid before the purchaser's counsel, for if they be of a nature to be obviated, and the agreement be not in writing, it may be made subject to such stipulations or conditions as will preclude an unwilling purchaser from insisting upon trivial objections for the purpose of delay; or if it be in writing, the vendor may admit his inability to perform his contract, and abandon it without exposing the defects. title for the solicitor. In order to prevent all unnecessary delay in the completion Instructions for preparing of the sale (which may frequently be of very serious incon- the abstract of venience to the vendor), it may not be improper to offer to the vendor's young solicitor some hints upon the form and essential requisites of the abstract of a title to freehold hereditaments (those being the subject of our present remarks), whether to be submitted to his own counsel, or the purchaser's solicitor; in doing which, however, I shall confine myself chiefly to those things. which, although material for the examination of a title, I have discovered from experience to be but seldom regarded. To have gone further than this, and set forth every minutia to be observed in the formation of an abstract, would have exceeded the objects I have in view in these remarks, which are not to give the first rudiments of instruction to those who possess no information at all upon the subject, but to aid the recollection or the judgment of those who already possess the ordinary share of knowledge belonging to young prac titioners. First, then, if the lands sold be of a different nature, as part freehold and part copyhold, or leasehold, the titles should be deduced by separate abstracts, for as different species of Title to different kinds of property should be deduced in separate abstracts. Duty of Vendor's Solicitor. PURCHASES. tenures are governed by distinct rules of construction, the mind is embarrassed and fatigued by the examination of the titles to different kinds of property at one and the same time, and is of course rendered less active and vigilant in the detection of inaccuracies. They should never, therefore, be comprised in the same abstract if it be possible to avoid it. Vendor's title to be deduced for 60 years past. Should commence with a deed or will not referring to a prior deed. The deduction of the vendor's title should be from a period of at least 60 years past, because rights accruing subsequent to that period may generally be successfully asserted, and hence a title from a less distant time would probably be rejected by the purchaser's counsel; but unless in the cases, and for the reasons afterwards noticed, it should not be made to commence earlier, lest old defects or doubts may be disclosed which might give a handle to dilatory objections. The instrument to be selected for the commencement of the title should be some deed or will in which no reference is made to any prior assurance; for in such case the then proprietor not only appears to have been the purchaser, or other actual owner of the estate, but on a subsequent lapse of 60 years without disturbance he must necessarily be presumed to have been rightfully so; but where reference is made to any preceding instrument, such reference amounts in equity to constructive notice of the contents of the instrument referred to, and it will, therefore, probably be required, by the counsel for the purchaser, to be abstracted, on the reasonable grounds that it may disclose some fact prejudicial to the title, and to which the purchaser would of course, at law, (and having this constructive notice), would also in equity, take subject. If, therefore, the deed which in other respects you conceive would be a fit one to commence with, contain such recitals, |