should be required of the receipt, or payment, or existence of the ground-rent, other than that disclosed by a conveyance mentioned, and that no objection should be taken to the title in consequence of the non-payment or non-receipt of the said rent, and the purchaser objected that the rent had not been paid for twenty years, and so was extinguished, and that there was therefore no subject-matter of the contract, and therefore no contract; the court held that the purchaser had by the contract taken on himself the chance of being able to substantiate his claim to the rent.(g) § 1289. The case of Best v. Hamand(r) is a remarkable instance of the upholding of such a stipulation. There, the subject-matter of the contract being land which the vendor had bought from a railway company as superfluous land, the contract contained a stipulation that the purchaser should assume and admit that everything (if anything were necessary) was done and performed by the company to enable them to sell and effectually convey the land as surplus land, and should not call for or require production of any evidence to that effect. The vendor all along knew (as appeared from the abstract and replies to requisitions) that the statutory offer of pre-emption had not been made to the adjoining owners; but the court of appeal neverthless held that the purchaser was bound by the stipulation;—to the extent, at any rate, that his refusal to abide by the stipulation was a breach of the contract which disentitled him to sue for the repayment of his deposit. Unless the decision may be limited in this way, it seems difficult to reconcile it altogether with the principles laid down by the same court in the almost contemporaneous case of Re Banister(s) already referred to. § 1290. Where the vendor was entitled to one undivided third in a leasehold interest in certain collieries, and the purchaser to another undivided third under the same title, and the contract was for an assignment of the vendor's share and not of the land, and the vendor was held not liable to show the lessor's title. (t) § 1291. The vendor may generally by express stipulation, as we have seen, entirely exclude any inquiry into his (q) Hanks v. Palling, 6 El. & Bl., 659; cf. Smith v. Harrison, 26 L. J. Ch., 412, 5 W. R., 408, stated supra. § 374. (r) 12 Ch. D., 1. (s) 12 Ch. D., 131; supra, § 1166. title. But he will not be allowed to fall back upon such a stipulation in support of a misleading condition of a sale ;(u) and where, the contract containing such a stipulation, the purchaser at first under a mistake common to both parties accepted the title, but on discovering the mistake objected to complete, it was held that his objection was not precluded by the stipulation. (v) § 1292. Or the vendor may take a middle course, and, without excluding, may limit the inquiry. He may, for instance, exclude all objections in respect of a particular instrument, (w) or all objections to title earlier than a certain deed, (x) or he may sell merely an equitable and not a legal estate.(y) § 1293. The cases on the question whether and how far the inquiry into title has been limited fall into two categories; first, where the stipulations of the contract preclude the purchaser from making requisitions upon or inquiries from the vendor as to his title,-which relieves the vendor from the necessity of complying with or answering any such requisition or inquiry, but does not prevent the purchaser from showing, by any means in his own power, that the vendor's title is defective; and secondly, cases in which the stipulations preclude the purchaser, not only from making such requisitions upon and inquiries from the vendor, but from making any inquiry or investigation about the title anywhere ;-which may quite validly be stipulated, and will generally, provided that the stipulation be clear, altogether preclude inquiry and investigation for every purpose.(z) $1294. Of the first of these categories an illustration may be found in the case of Darlington v. Hamilton(a) where there was a stipulation that the lessor's title should not be produced, and the purchaser discovered that the lessor's title was objectionable by reason of its being involved with the title to other property, so that the purchaser would run the risk of being ousted by reason of a (u) Re Banister, 12 Ch. D., 131; cf. Harnett v. Baker, L. R. 20 Eq, 50. Distinguish Blenkhorn v. Penrose, 29 W. R., 237. (v) Jones v. Clifford, 3 Ch. D., 779. (w) Corrall v. Cattell, 4 M. & W., 734; S. C., 3 Y. & C. Ex., 413 (x) Taylor v. Martindale, 1 Y. & C. C. C., 658. Cf. per Malins, V. C., in Harnett v. Baker, L. R. 20 Eq., 58. (y) Ashworth v. Mounsey, 9 Ex., 175. Cf. Official Manager of Sheerness Waterworks Co. v. Polson, 29 Beav., 70, 3 De G. F. & J., 36. (2) See Jones v. Clifford, 3 Ch. D., 790 (a) Kay, 550. See, too, Shepherd v. Keatley. 1 Cr. M. & R., 117; Geoghegan v. Connolly, 8 Ir. Ch. R., 598, 604. breach of covenant in respect to other property; and the court accordingly refused specific performance. § 1295. On the other hand, where the condition provided that the lessors' title should neither be produced nor inquired into, (b) and the purchaser offered acts of parliament in evidence that the lessors (a public company), had no power to grant leases, the objection was held to be precluded. (c) § 1296. But conditions restrictive of a purchaser's common law rights are, as we have seen, (d) construed very strictly. Thus in Waddell v. Wolfe, (e) where on a sale of leaseholds held by underlease there was a condition that no requisition or inquiry should be made respecting the title of the lessor, or his superior landlord, or his right to grant the underlease, and the purchaser, in investigating the title, discovered for himself that the lessor had no power to grant the underlease, it was held that the purchaser was not precluded by the condition from insisting on the objection. The court appears to have considered that the language of the condition pointed only to requisitions and inquiries between vendor and purchasor; so that the case really fell within the principle of Darlington v. Hamilton.(ƒ) § 1297. Again, in Smith v. Robinson, (g) the defendant having in 1877 agreed to purchase freehold property, subject to a condition that the abstract should commence with a deed dated in 1867, and that no earlier or other title should be required or inquired into by the purchaser, there happened to be, among the muniments handed to the defendant's solicitor for comparison with the abstract, a deed, of the existence of which the vendor was then ignorant, which threw grave doubt on the title; and it was held that, the objection having arisen not from any requisition or inquiry by the purchaser but from the vendor's own disclosure, the condition did not apply. § 1298. Generally, where an estate is sold subject to conditions of sale as to title, the inquiry is whether a good title is made in accordance with such conditions. (h) (b) See now the Vendor and Purchaser Act, 1874, s. 2 (1); infra, § 1317. (c) Hume v. Bentley, 5 De G. & Sm.. 520. Spratt v. Jeffery (10 B. & C., 249), which is at variance with the distinction above stated must now be considered as overruled. (d) See supra, § 1153 et seq. (e) L. R. 9 Q. B., 515. Cf. Musgrave v. McCullagh, 14 Ir. Ch. R. 496. (f) Kay, 550; supra, § 1294. (A) See §§ 1281, 1337; and consider Meyrick v. Laws, 34 Beav., 58. § 1299. Accordingly, in the case of Re Banister(i) already referred to, although the purchaser was relieved against a misleading condition, still, as the conditions professed on their face to give only a good holding title, the reference was confined to ascertaining whether such a title could be made out. (j) So, again, where at the time of the written contract (an open one), being signed, the purchaser verbally agreed to take a limited title, and negotiations went on for a long time upon that footing, the court at the hearing limited the inquiry as to title accordingly.(k) And where A. contracted with B. for a lease, B. knowing the purposes for which A. wanted the house, and A. knowing that B.'s title was merely leasehold, a reference was directed having regard to the covenants in the lease, and the purposes for which the premises were taken. (7) § 1300. Generally, either vendor or purchaser has a right to have the inquiry in question-the one thing entitled to an opportunity of perfecting, and the other of investigating the title. But there may be, on the part of either of them, a waiver of the right. § 1301. Thus, if the vendor states his title, and conclusively avers that he can make no other or better title, and the title disclosed is objected to by the purchaser, the court may decide without a reference ;(m) but if in such a case the decision were in favor of the vendor, it seems that the purchaser would then be entitled to call for a reference. $1302. But it is with regard to a waiver by the purchaser that this question more often arises: for a purchaser originally entitled to examine the vendor's title may subsequently waive that right, either expressly or by implication ; and this waiver may be either as to the whole title or limited to parts:(n) and in case of an express waiver, it may be either absolute or conditional. § 1303. An admission of title by a defendant in his pleading is an express waiver, which excludes the right to a reference of title: for this purpose it is enough if the de fendant pleads belief that at the time of the contract the plaintiff had a title;(0) or even if, the plaintiff having pleaded the facts constituting his title, they are not denied (specifically or by necessary implication), or stated to be not admitted, in the pleading of the defendant. (p) § 1304. But this waiver, where not express, must be clearly implied from the acts of the purchaser. "The court," said Lord Eldon, "will at least take care that, where it is contended that the defendant has waived his right to a reference, it shall be clear that there was no surprise upon him, and that there has been a full and fair representation as to the title on the part of the plaintiff :'(q) and so where the vendor relies on any dealings in respect of the abstract as a waiver of objections to title, the contents of the abstract must raise the objection in question clearly and explicitly, and not merely by inference or notice. (r) § 1305. It is often the case that there is only a particular objection to the title that is of moment, and it is then frequently a question whether the purchaser has not waived all right to object to it. § 1306. The cases thus fall into three classes: (1) those of acts done by the purchaser after the objection is known to him, the objection being in its nature curable; (2) those of similar acts where the defect is incurable, and (3) those of acts before the objection is known to the purchaser. It is evident that under the last we may treat the question of a general waiver of title. § 1307. (3) Where the defect, though known, is yet one which it is, or may be, in the power of the vendor to remedy, acts which indicate an intention to complete may yet not amount to a waiver, because they may be done in the faith and expectation that the remedy will be applied. And a negotiation about the objection between the parties after the acts is, on this principle, an evidence that it was not waived. (s) § 1308. (2) But where the defect is known to the purchaser, and is in its nature incurable, there no such expectation can arise, and much slighter acts will operate as (0) Phipps v. Child, 3 Drew., 709. (p) Ord. XIX. r. 17. In Jenkins v. Hiles, 6 Ves., 655; Haydon v. Bell, 1 Beav., 337. (r) Blacklow v. Laws, 2 Ha, 40. |