And, at Law, where no time is fixed for completion and the purchaser does not require the title to be produced, and none is produced before an action has been commenced by the vendor, it is sufficient if the latter perfect his title at any time before the trial(s); but if a title be produced, and prove defective or be not properly verified, and a fortiori, if the vendor, on being required to produce a title, altogether neglect to' do so, the production of a perfect title before trial is insufficient (t).

But although time may not originally have been of the essence of the contract, either party may, by proper notice, bind the other to complete within a reasonable specified period (u).

The notice should, at least as a matter of precaution, be in writing, and should allow a reasonable time for completion; what time can be so considered, must greatly depend upon the circumstances of the particular case; three days' notice by a vendor would be too short (v); so, a week's notice by a purchaser, within which time the vendor was required to prove a disputed legitimacy, was held too short (w); two months' notice by a purchaser, within which time the vendor was required to remove an objection to the title depending upon a defective execution of a power, appears to have been considered sufficient in a recent case; which was, however, decided upon another point (x): in another recent case, where a delay of two months had occurred in procuring the execution of the conveyance by certain parties, a ten days' notice by the purchaser was considered sufficient (y).

Less time now allowed.

Title at hearing sufficient in equity, where time not essential.

As to the rule at law.

Time not originally essential may be limited by notice, which must allow a reasonable period.

What is a reasonable period.

(p) Lloyd v. Collett, 4 Bro. C. C. 469.

(q) Vide infra, Ch. XVIII.; 6 Ha. 213.

(r) Ibid.

(s) Thomson v. Miles, 1 Esp. Ca.184

(t) Vide infra, Ch. XVII.

(u) Stewart v. Smith, 6 Ha. 223, n.

(v) Sug. 306; See Reynolds v. Nelson, 6 Mad. 18.

It is not, as a general rule, essential to the binding effect of a vendor's notice, that he should, at the expiration of it, return or tender the deposit (z); nor, on the other hand, where the purchaser's notice has expired, is he bound to bring an action for his deposit (a).

But a purchaser cannot determine the contract without due previous notice (b); although notice even of immediate determination would, it is conceived, be so far material as that it would more strongly impose upon the vendor the necessity of using expedition in proceeding to enforce the contract; and the same principles would, it is conceived, apply to notices by a vendor.

Where a Railway Company had power at any time within seven years to take land for the purposes of the undertaking, and agreed to purchase land and to pay interest upon the purchase-money from the day they should commence their works on the land until the purchase-money should be paid, it was held that the vendor could not enforce specific performance; the Company not having commenced their works, and the seven years limited by the Act remaining unexpired (c).

Vendor giving notice need not return deposit.

Purchaser giving notice need not sue for deposit.

But purchaser cannot determine contract without previous notice.

Time for performing contract held to remain at option of purchasers.

(w) King v. Wilson, 6 Beav. 124. (x) Southcomb v. Bishop of Exeter, 11 Jur. 727; 6 Ha. 213.

(y) Benson v. Lamb, 9 Beav. 502. (z) Sug. 306.

(a) Southcomb v. Bishop of Exeter, 11 Jur. 727; 6 Ha. 213.

(b) Taylor v. Brown, 2 Beav. 181; Wood v. Machu, 5 Ha. 158.

And time, although of the essence of the contract by original agreement, or made imperative in Equity by subsequent notice, may be enlarged or waived, by subsequent agreement, or the acts of the parties.

Thus, if a purchaser proceed in the purchase after the expiration of the time fixed by the contract (d), or limited by his notice, it amounts to waiver (e).

So, where a purchaser made no demand of the possession of the purchased premises until a quarter before twelve at night on the day fixed for completion - part of the property consisting of cottages let to weekly tenants - this was held, at Law, to be a waiver of the condition as to time (f).

But at Law, time, if fixed by an instrument under seal, cannot be enlarged by an instrument not under seal (g); so, if fixed by a written agreement not under seal, it cannot be enlarged by word of mouth (h).

A conditional written waiver by a purchaser of his previous notice of abandonment, will be construed strictly against the vendor (i).

And where the conditions provide for delivery of the abstract at a certain time, the purchaser waives them in Equity by receiving the abstract after that time; or even, it would seem, by perusing it unnecessarily, or retaining it, if delivered under circumstances which prevent its immediate rejection (j).

Time, although essential, may be enlarged or waived; as by proceeding in purchase, after expiration of time; or by neglect to require possession until the last moment.

How not enlarged at Law.

Conditional waiver.

Time for delivery of abstract waived in Equity by receiving it after time; or by not asking for it.

(c) Bodington v. Great Western Railway Company, 13 Jur. 144.

(d) Boyes v. Liddell, 6 Jur. 725.

(e) King x. Wilson, 6 Beav. 124; and see Ex parte Gardner, 4 Y. & C. 503.

(f) Palmer v. Temple, 1 Per. & Dav. 379; see p. 381; 9 Ad. & El.508

(g) Rippengall v. Lloyd, 2 Nev. & M. 410.

(h) Stowell v. Robinson, 3 Bing. N. C. 928.

(i) See Stewart v. Smith, 6 Ha. 222, n.

(j) See Seton v. Slade, 7 Ves. 278.

And a condition for delivery of the abstract on a certain day, is waived in Equity by a purchaser who does not ask for it within a reasonable time before the day fixed for its delivery (k); the same rule would, no doubt, apply to the production of evidence, etc.; and it is conceived that a waiver of time as respects matters, (such as the delivery of the abstract, etc.,) which must necessarily precede completion by a considerable period, would, in general, amount to a waiver of the time (if any) fixed for completion.

So, a stipulation that time shall be of the essence of the contract, is waived by a purchaser who receives, and retains without objection, an abstract upon the face of which it appears that a title cannot be made within the time fixed for completion (l); or who, without an objection on that specific ground, proceeds with the purchase under a knowledge that there is no reasonable probability of the title being perfected in time for completion; as when it depends upon the result of a hostile chancery suit (m).

It seems doubtful whether a mere protest against the delay will save the benefit of the stipulation (n); it is conceived, that until the expiration of the time limited for completion, a purchaser may safely, and is indeed bound to, proceed in the matter so long as a reasonable possibility exists of the title being perfected in time; taking care, nevertheless, to protest in writing against the delay, and to give notice of his intention to insist on his strict rights. So soon as the time has expired, or so soon as it previously becomes certain that the title cannot be perfected in time, he should take no further steps in the matter, but should in writing rescind the contract; and then, if inclined to give the vendor the opportunity of completing within a reasonable period, all subsequent communications should be expressed to be without prejudice to the notice of rescinding, and should take the shape of mere negotiations for a fresh agreement.

Suggested extension of the rule.

Time waived by not objecting to certain or highly probable delay in completion.

Effect of protest in such cases - suggested mode of proceeding.

(k) Jones v. Price, 3 Anst. 924. (l) See Hipwell v. Knight, 1 Y. & C. 401, 419.

(m) Pinke v. Curteis, 4 Bro. C. C. 332.

(n) See Sug. 300.

It may. be observed, that even in a contract for or connected with the sale of land, the term month means prima facie a lunar month; although it may be construed a calendar month, if, from the context, or from the surrounding circumstances at the time of making the contract, such appears to have been the intention of the parties (o).