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force a buyer to take an estate from a vendor who is neither owner of it, nor possessed of the power by the ordinary course of legal proceedings to make himself so ;(q) for it is not the purpose of the court to enable one man to sell another man's estate. (r) As to this point, it was in one case decided that a title from possession defeasible by the crown on account of the alienage of the original owner, cured by a grant from the crown whilst the question was in the master's office, was the same title, and the purchaser was compelled to take it. (s) And the fact that the vendor may have had no title to a small part of the estate at the time of sale, and subsequently purchases it, will not make the title a new one within this rule. (t)

1344. But even where the vendor has no title at all at the time of sale, so that the purchaser may withdraw if he choose, yet, if he acquiesce in steps taken by the vendor to get in the estate, he will thereby have waived the want of mutuality, and be bound to accept the title, if made out at the trial or other necessary time.(u)

§ 1345. The inquiry as to title takes place in the chambers of the judge, and the result is embodied in a certificate of his chief clerk, which, when approved by the judge, is signed by him, and filed in the central office of the court. (v)

§ 1346. Evidence by affidavit of matters of fact material to the title is admissible under a reference of title.(w) Accordingly where, under such a reference, after the conveyancing counsel had given his opinion in favor of the title, but before the certificate had been actually signed, a very serious defect of title, not in any way disclosed or raised by the abstract, was discovered by the purchaser's inspecting the property, evidence of the matters so discovered was admitted.(x)

$1347. Whatever can be done in chambers upon a reference as to title under a judgment where the contract is established, can be done upon proceedings under the ninth section of the vendor and purchaser act, 1874, already

(9) Tendring v. London, 2 Eq Cas. Abr., 680, pl. 9; Magennis v. Fallon, 2 Moll., 561. (r) Chamberlain v. Lee, 10 Sim., 444. (s) Eyston v. Simmons, 1 Y. & C. C. C., 608. (t) Chamberlain v. Lee, 10 Sim., 444. (u) Hoggart v. Scott, 1 R. & My., 293; Salis bury v. Hatcher, 2 Y. & C. C. C., 54. supra, 88 447, 448, and Murrell v. Goodyear, 1 De G. F. & S., 432.

see

(v) Dart, Vend. (5th ed.), 1099; Ord. LXA. As to objecting to the certificate before it is signed by the Judge, see Parr v. Lovegrove, 4 Drew., 176.

(w) Re Burroughs, Lynn and Sexton, 5 Ch. D., 603. (x) Phillipson v. Gibbon, L. R. 6 Ch., 428.

referred to.(y) That act enables the parties in such cases to dispense with the formal pleadings of an action, and at once to put themselves in chambers in exactly the same position in which they would have been, and with all the rights which they would have had, under the old form of decree.(z)

§ 1348. The certificate should, it seems, be on the fact of title aye or no: and accordingly it is improper to certify that a defendant with the concurrence of a third party could make a good title, (a) or that he could do so subject to the performance of certain conditions ;(b) but where the certificate is against the title, it should state the precise points in which it is defective. (c)

§ 1349. If any party is dissatisfied with the certificate as filed, he must apply (by summons or motion) to discharge or vary it within eight clear days from the filing; otherwise, at the expiration of that time it becomes binding on all the parties to the proceedings, and will not afterwards be opened except upon special grounds. (d)

1350. If the certificate is in favor of the title, and either no application to discharge or vary it is made, or such application fails, specific performance will generally be ordered at the hearing (original or on further consideration, according to the stage at which the reference was directed), of the action. (e) After such an application has failed, it seems that no other objection to the title can be made.(ƒ)

Under the old practice, where the report was in favor of the title, but the court thought it too doubtful to force on a purchaser, the court might dismiss the bill without allowing the exceptions, (g) and either with() or without(i) costs, as the court might think right.

§ 1351. Where the court varies a certificate in favor of the title, (j) or refuses to vary one against it, (k) and the ven

(y) Supra, § 1106.

(f) Brooke v. Anon., 4 Mad., 212. As to

(z) Re Burroughs, Lynn and Sexton, 5 Ch. the effect of a direction that the vendor shall D., 604. convey, see Minton v. Kirwood, L. R. 3 Ch., 617.

(a) Lewis v. Loxam, 1 Mer., 179.

(b) Magennis v. Fallon, 2 Moll., 561, 575, 583. See too Esdaile v. Stephenson, 6 Mad., 366.

(c) Green v. Monks, 2 Moll., 325.

(d) Howell v. Kightley, 8 De G. M. & G., 325.

(e) See Dart, Vend. (15th ed.), 1109. Consider Jeudwine v. Alcock, 1 Mad., 597.

(g) Bickner v. Milner, 1 Ha., 578 n.
(h) S. C.

(i) Wilson v. Bellairs, T. & R., 491.
(j) Egerton v. Jones, 1 R. & My., 694.
(k) Consider Brewster v. Woodall, (Hall,
V. C., 22nd July, 1878), cited Seton, 1299.

dor desires to have an opportunity of making out a better title, the certificate is generally, upon the hearing of the application to vary, referred back to chambers for review ;(7) and the vendor will be allowed a reasonable time within which to remove the objection. (m) On the other hand, when the matter has gone back to chambers, and a new abstract of title has been delivered, further objections may be brought in.(n)

§ 1352. The Court of Chancery referred back the question of title where the master (now represented by the chief clerk) was satisfied with evidence of a fact with which the court was not satisfied, the vendor offering to produce further evidence ;(0) also where, by expressing an opinion in favor of some part of the title, the master had prevented the vendor from showing that the title was good, even supposing that part not to be so.(p)

When the report (now the certificate), was against the title, and the defect was cured at the hearing on further directions, the Court of Chancery compelled specific performance, (2) without giving time for further proceedings: but if there was a question whether the defect was in part cured, the court would refer it back to the master to review his report with the additional circumstances. (r.)

$ 1353. In a case where the certificate was against the title, but it appeared that, since the contract, the purchaser had by his own act acquired the means of curing the defect, the court refused to dismiss the vendor's bill.(s)

§ 1354. But, generally, if the certificate is against the title, and either no application is made to discharge or vary it, or such application fails, the action will be dismissed. (t)

§ 1355. In one case, where the vendor was plaintiff and a deposit had been paid, the vendor was ordered to repay it with interest at four per cent, and it was declared that the purchaser was entitled to a lien on the estate for the deposit and interest, and also for his costs of the action, with liberty

(7) Curling v. Flight, 2 Ph., 616, 619. Cf. Rhodes v. Ibbetson, 4 De G. M. & G. 787. (m) Portman v. Mill, 1 R. & My., 696. (n) See Brooke v. Anon., 4 Mad, 212. (0) Andrew v. Andrew, 3 Sim., 390. (p) Egerton v Jones, 3 Sim., 392; 8. C. 1 R & My, 694; Portman v. Mill. 1 R. & My., 696; Fildes v. Hooker, 2 Mer., 424. See also Jeudwine v. Alcock, 1 Mad, 597.

(g) Paton v Rogers, 6 Mad., 256

(r) Esdaile v. Stephenson, 6 Mad, 366. (8) Hume v. Pocock, L. R. 1 Eq., 662; cf. Murrell v. Goodyear, 1 De G. F. & J., 432.

(t) See Dart, Vend. (5th ed.). 1111; Pretty v. Solly, 26 Beav., 613. Distinguish Gedye v. Commissioners of Public works, 16 W. R., 1106.

to apply at chambers to give effect to the lien, and thereupon the bill was dismissed, with costs. (u)

§ 1356. As an ordinary rule, costs are given not to, but against, a vendor up to the time at which he has first shown a good title. (v) But there is also another general rule, that if a purchaser has taken certain objections to the title of the vendor, and those objections which have been the cause of the litigation are overruled, the vendor will be entitled to his costs, and the purchaser will not escape paying them by reason of some evidence, the want of which was never the subject-matter of dispute between them, not having been supplied until the title was investigated in chambers. (w)

And where a defendant prevented the plaintiffs (vendors) from obtaining the usual reference as to title on interlocutory motion by setting up defenses which, at the hearing, he failed to establish, he was ordered to pay the plaintiffs' costs up to and inclusive of the hearing.(x)

§ 1357. In the inquiry as to the time when a good title was shown is involved the question, what is showing a good title. (y) In relation to this, two distinctions are to be borne in mind, the one between questions of title and of conveyance, the other between questions of title and of evidence.

§ 1358. As to the first, the rule was thus stated by Lord Eldon in Lord Braybroke v. Inskip :(z) "As to the question whether the abstract was complete, the abstract is complete whenever it appears that, upon certain acts done, the legal and equitable estates will be in the purchaser. That may be long before the title can be completed." So that a good title is shown when it appears from the abstract that the vendor has the whole equity, and in what persons the outstanding portion of the legal estate is vested. (a) The acts to be done, of which Lord Eldon speaks, must be confined

(u) Turner v. Marriott, L. R. 3 Eq., 744. (v) Phillipson v Gibbon, L. R. 6 Ch., 434. (w) SC, 434. Cf. Bridges v. Longman, 24 Beav.. 27.

(z) Hyde v. Dallaway, 4 Beav., 606.

(y) See §§ 1281, 1362.

(z) 8 Ves, 436.

(a) Avarne v Browne, 14 Sim. 33; Camberwell and South London Building Society v. Holloway, 13 Ch. D., 754, 763.

1 Demand as having relation to the question of costs.] Where a party is entitled' to a conveyance on request, he may commence an action for specific performance without previous request. Proof of previous demand in equity is only important in reference to costs. The party liable to perform is put in the wrong, where there is a demand and refusal, and is chargeable with costs.. Bruce v. Tilson, 25 N. Y., 194; see, also, Gray v. Daugherty, 25 Cal., 266; Jones v. City of Petaluma, 36 id., 230; Morris v. Hoyt, 11 Mich., 9.

to acts the performance of which the vendor can enforce in a court of justice, as, for instance, by calling on a trustee to convey the estate vested in him. Therefore, where an estate tail was outstanding in a person who had consented to bar it, but was not in any way a trustee for the vendor, the court held that the title was not made out till the recovery had been fully perfected (b)

§ 1359. In Esdaile v. Stephenson, (c) Leach, V. C., after consultation with Lord Eldon, laid down the rule "that where a necessary party to the title was neither in law or equity under the control of the vendor, but had an independent interest, unless there was produced to the master a legal or equitable obligation on the part of the stranger to join in the sale, the master ought to report against the title; otherwise where a necessary party to the title was under the legal or equitable control of the vendor, as a mortgagee, where the master might well report that upon payment of the mortgage a good title could be made.”

§ 1360. The rule is further illustrated by other cases. In one, it was held to be no objection to title, that a satisfied term was outstanding in a lunatic against whom no commission had issued, so that there was then no person competent to make the assignment:(d) and in another case, the legal estate of a moiety of the property was outstanding in a married woman or those claiming under her, but she being under the order of the court to convey was bound by it, and became absolutely a trustee for the purchaser under the order of the court: the title was therefore held good, but without prejudice as to the question of conveyance. (e)

§ 1361. It appears to have been considered by Shadwell, V. C., to be sufficient, if the abstract showed that the outstanding legal estate had been formerly vested in a trustee for the vendor, and that the abstract was then complete, though a supplemental abstract was necessary to trace the legal estate. (f) But this decision seems at variance with the rule enunciated by him in the same case, of which one condition is that the abstract must disclose in whom the legal estate is vested, not in whom it was formerly vested. And accordingly Lord Gifford, M. R., held that where an

(b) Lewin v. Gust, 1 Russ., 325.

(c) 6 Mad., 366.

(d) Berkeley v. Dauh, 16 Ves., 380.

(e) Jumpson v. Pitcher, 1 Coll., 13.
(f) Avarne v. Brown, 14 Sim., 303.

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