PURCHASES. against the vendor only, and those claiming under him, and not as against other persons, unless in cases where the originals are lost or withheld. Duty of Vendor's Solicitor. . Should the title be finally rejected by the purchaser for defect of title, the solicitor of the vendor should without delay require the abstract to be returned, together also with the opinion of the purchaser's counsel upon the title (a); for it might be very prejudicial to the vendor to have the evidence of his title and the objections of counsel in the hands of third persons. The vendor must also, through his solicitor, repay to the purchaser's solicitor all reasonable expenses he may have been at in investi- ^ gating the title (b). 3dly, of the duty of the vendor's solicitor on the execution of the assurances. Having in the two preceding sections stated what belongs to the solicitor for the vendor to attend to from the time of the commencement of the contract till the engrossment of the conveyance, I proceed, thirdly, to notice what will more particularly require his attention at and after the time of the execution of such conveyance. The only thing which it belongs to the solicitor for the vendor to do upon this occasion is, to attend to his execution of the assurances and his signature to the receipt for the consideration money in the accustomed form; but this latter will often require his particular attention; for it frequently (a) See 2 Taunt. 270. 277. (b) See Fleureau v. Thornhill, 2 Blac. Ves. 1078. Turner v. Beaurain, cited Sugd. Vend, and Pur. 177. Brett v. Ellis, ib. App. No. 7. Duty of Vendor's Solicitor. happens that it is not convenient for the purchaser to pay PURCHASES. the whole of the purchase money on the day of the execution of the deed, and the vendor is willing, on the faith of some personal security, to give some indulgence for payment of the remainder. In this case the vendor is to be cautioned against signing a receipt for the whole of the money, unless he is most perfectly satisfied with the ampleness of the security offered him for the remainder; for such receipt will be at least primâ facie evidence, and, according to some authorities (a), conclusive evidence of the whole having been paid; and although this evidence should be considered as rebutted by the contrary admission of the purchaser, as furnished by the collateral security given for the residue of the money; yet, without some care, there will be danger of the estate being by such security exonerated from the lien which the vendor would otherwise have upon it for the sum remaining unpaid; where, therefore, a security is taken for any part of the purchase money, the receipt must be so framed as to prevent the possibility of that effect, and may be thus: "Received, the day and year above written, of the within named (purchaser), the sum of £ money, or sum of £ , , part of the purchase within mentioned, to be paid by him to me, and also a promissory note of even date herewith, Receipt where part only of purchase money paid. (a) See Co. Lit. 373. Browntree v. Jacob, 2 Taun. Rep. 141. PURCHASES. Within mentioned hereditaments, for such remaining sum of Duty of Vendor's Solicitor. Delivery as an escrow. Attestation on escrow delivery. £ This receipt and declaration should be signed by the purchaser as well as the vendor; and although it be delivered over into the hands of the purchaser, yet, as he must produce the deed if he would resist the vendor's claim upon the premises, such production would necessarily (unless fraud be practised) preclude his defence. If, however, the sum remaining unpaid be a considerable portion of the purchase money, it would not be prudent to rely upon the receipt alone; but in such case, either a bond reciting the facts should be executed to the vendor (8), or the deed should be delivered to the vendor's solicitor (or other third person), as an escrow, and remain in his hands until the money be paid. The mode for delivering a deed as an escrow may be thus: "I deliver this, as my act and deed, as an escrow, unto A. B. of, &c. to be delivered over by him unto the within named (purchaser) his heirs, or assigns, upon payment by him to me of the sum of £ being the sum remaining unpaid of the within mentioned consideration money of The attestation should be in a correspondent form, as Sealed by the within named (vendor), and by him delivered to A. B. of, &c. to be by him delivered over unto the within named (purchaser) his heirs, or assigns, on payment to me by him of the sum of £ being the sum remaining unpaid of the within mentioned consideration money of £ Having noticed in the preceding remarks all that occurred to me as belonging to the solicitor of the vendor to do, from (8) See the form of such bond, 1 Wilde's SUP. voce, "BOND." Duty of Vendor's Solicitor. the time of the inception of the contract for sale, until the PURCHASES. rejection of the title by the purchaser, or his approval, and the engrossment and execution of the deeds of conveyance; I will now endeavour to point out what, during the same periods, is to be done by the solicitor for the purchaser. PURCHASES. Duty of Purchaser's Solicitor. II. Duty of purchaser's sclicitor. Should ascertain that the purchaser is competent to purchase. II. OF THE DUTY OF THE SOLICITOR FOR THE I. From the inception of the contract to receiving the abstract of title. The first thing, as it appears to me, to be done by the solicitor for the purchaser, on having a communication made to him by his client of a contract entered into by him for the purchase of an estate, is to ascertain, by due inquiries, that the purchaser is competent to enter into and perfect the contract in view, that is to say, not prevented by infancy, coverture, or the like, and moreover, that he is not so circumstanced with respect to any personal connexion he may have with the estate, or influence over the vendor, as to be prohibited by the policy of the law from becoming a purchaser; for as these are facts which can scarcely be expected to appear on the face of the abstract delivered by the vendor, and will not, therefore, regularly come under the cognizance of the counsel for the purchaser, they should be previously ascertained by his solicitor, whose personal communication with the parties themselves, or their agents, will render it easy for him to procure the requisite information. But in imposing this obligation upon the solicitor he may reasonably expect that I should apprize him what the circumstances are, in particular, which are of this prohibitory kind. As to those arising from infancy, coverture, idiotcy, and the like, they must be too generally known to every solicitor to require to be noticed in remarks which are professedly confined to those things which I have perceived either not to be very |