1. What inquiries should be made of vendor's solicitors; and of supposed incumbrancers, trustees, and tenants.

2. What searches should be made for incumbrances,- law respecting judgments, etc.

3. Time for making searches and inquiries.

(1.) It appears to be a desirable, although it is not, perhaps, a very usual course, to inquire of the vendor's solicitors, (as part of the general requisitions on the title,) whether they are aware of any judgment or other incumbrance affecting the property, or other matter not noticed in the abstract and affecting the vendor's ability to make a marketable title (a): such an inquiry may often save much useless expense, and a favourable reply not only adds to the security which the purchaser will derive from the searches of his own professional advisers, but will also remove any doubt as to his right to be paid for the preparation of the conveyance, if such searches disclose incumbrances which cannot be got in: the inquiry should specify any matter the existence of which is specially apprehended; and when there is reason to suspect the existence of any particular incumbrances, an application should be made to the supposed incumbrancers; the motive for the application should, of course, be stated, and the parties applied to will be bound by their replies (b); it does not, however, appear that an incumbrancer need answer any inquiry respecting the particulars of his security, unless the applicant is entitled and offers to redeem him (c).

Inquiry as to incumbrances, should be made of vendor's solicitors; and of supposed incumbrancers.

(a) It may also be expedient to inquire whether the property is held under the title abstracted, and under no other title: see Mr. Christie's evidence before the Registration Commissioners; 1st Report.

And an incumbrancer, it is said, need not voluntarily communicate the existence of his claim to a person whom he knows to be about purchasing the estate (d); this, however, it is conceived, only holds good in cases where there is no reason to suppose that the vendor is about to commit the fraud of selling the estate as unincumbered; if, with knowledge of such a fraud being in progress, the incumbrancer were to conceal his claim, Equity, it appears, would interfere to prevent his setting up his right against the purchaser; and infancy, or coverture, would be no excuse (e): a fortiori, would he be postponed in Equity, if a party to the fraud, or facilitating or encouraging its commission (f): and, inasmuch as no prudent person buys an equity of redemption without communicating with a known incumbrancer, it may be conjectured, that if a mortgagee, being aware that the purchase was about to be concluded on a certain day, and having received no inquiry from the purchaser on the subject of the charge, were to allow him to complete in ignorance of its existence, the Courts would be disposed, on slight additional grounds, to treat such an incumbrancer as an accomplice of the vendor.

If the interest about to be purchased be merely equitable, inquiry as to incumbrances should, (as a matter of prudence,) be made of the trustees or other parties in whom the legal estate is vested, and notice given to them of completion: it does not, however, appear that a purchaser's rights, (in the case of equitable estates in land,) are affected by his omitting to make such inquiry, or give such notice (g); and the inquiry, if unnecessary, need not, it is conceived, be answered; trustees are often unwilling to answer such questions, on account of a case (h) where a trustee, who (through forgetfulness as he subsequently alleged) denied the existence of a charge of which he had notice, was held liable to the purchaser; it appears, however, that he told the purchaser "positively and distinctly" (i) that the vendor was absolutely entitled, that he had "an undoubted right" to assign the property (k); and, probably a less positive reply, one, for instance, merely denying the present recollection of any notice, would not involve a trustee in similar liability.

Whether incumbrancer need communicate his claim to intended purchaser.

Inquiry should be made of trustees; but does not give priority in case of real estate.

(b) Ibbottson v. Rhodes, 2 Vern. 554; vide supra, p. 42.

(c) See Bugden v. Bignold, 2 Y. & C. C. C. 390.

(d) Osborn v. Lea, 9 Mod. 96; see p. 97.

(e) Savage v. Foster, 9 Mod. 36; Clare v. Earl of Bedford, 13 Vin. Abr. 536.

(f) Berrisford v. Milward, 2 Atk. 49.

And as notice of a tenancy is notice of the tenant's equities (l) it is a proper precaution, where the property is not in hand, to inquire of the occupying tenants as to the extent and nature of their interests (m); it appears, however, that notice of a tenancy is not necessarily notice of the tenant's equities as between vendor and purchaser (n); nor is the doctrine above referred to likely to be extended (o); nor need inquiries be made of a person who has recently held but has relinquished possession (p).