(z) Sug. 506; Dan. Chan. Prac. by H. 1088; it appears that in the first instance the plaintiff selects the Court; Walton v. Holt, 13 Jur. 355.

(a) Sheffield v. Lord Mulgrave, 2 Ves. jun. 526'.

(h) Lyddal v. Weston, 2 Atk. 20.

(c) Hillary v. Waller, 12 Ves. 252.

(d) Sug. 518.

(e) Hutchinson v. Morritt, 3 Y. & C. 554.

(f) Sug. 508.

(g) Blosse v. Lord Clanmorris, 3 Bli. 62, 71.

If there be an appeal, the fact of the title having been held bad in the Courts below will not be a reason for the Judge of the appellate Court considering the title too doubtful to force on a purchaser, if he himself entertain a clear opinion in its favour (h); and Lord Eldon, where a purchaser persisted in an objection, which, although doubtful on the previous authorities, had been decided in favour of the same vendor by a recent judgment of his Lordship, from which there had been no appeal, decreed specific performance with costs (i).

As to doubts respecting facts, we may here refer to the observations already made (k) as to presumptions of facts as between vendor and purchaser.

In a case where it appeared that upon a previous purchase a tenant for life had, after the contract, exercised a power of appointment in favour of one of his sons, and that the father, mother and son had thereupon conveyed to the purchaser, the money being expressed to be paid to the three conveying parties, Lord Eldon held that the mere possibility of the appointment having been founded on a corrupt agreement between the father and son was not a valid objection to the title (l).

Even the mere fact that a suit is pending, in which part of the lands are claimed adversely to the vendor, is not, in itself, an absolute objection to the title; and in such a case, the Master should state the point in question in the adverse suit, and his opinion thereon (m). The Court, however, it is conceived, would not, unless the point were perfectly clear, or, perhaps, in any case, compel the purchaser to complete until the adverse claim had been decided on. In a case before Lord Langdale, where the intended purchaser had received notice of a claim to the estate, founded on the alleged invalidity of an appointment, which claim, however, had not been followed up by any act, and no fact had been stated as a foundation for it, his Lordship decided that the purchaser was bound to complete; but added, "if it were possible to institute any inquiry as to the facts which took place I think it ought to be done, for the satisfaction of the purchaser; but I do not see how that can be" (n): in a late case, where the vendor claimed under a suspicious will, and the heir had failed in an action of ejectment and in a subsequent motion for a new trial, Lord Cottenham, reversing the Vice-Chancellor's decision, held that, as means existed of bringing the objection to a test, the Court would do so, before compelling the purchaser to take the title: and required the vendor to file a bill to establish the will against the heir (o).

Decision of Court below, if reversed on appeal, does not render title doubtful.

As to doubts respecting facts.

Title not considered doubtful on mere suspicion of fraud.

Pendency of adverse suit, no ground for reporting against title.

(g) Peppercorn v. Peacock, 4 Jur. 1122.

(h) See Sug. 512.

(i) Biscoe v. Wilks, 3 Mer. 456.

(k) Supra, 166, et seq. (l) M'Queen v. Farquhar, 11 Ves. 467.

An anonymous case is cited by Sir E. Sugden (p), in which a man having agreed to buy an estate with mines, and objecting that the mines were under a common, over which others had a right of common, Lord Eldon, observing on the improbability of disturbance, and that nominal damages only would probably be given in the event of an action, decreed specific performance; but the case seems to be of very questionable authority: Sir E. Sugden considers (q) that the decision must have turned on the improbability of disturbance: but it may reasonably be doubted, whether the supposed absence of any adequate motive for parties to assert their rights by litigation constitutes that sort of improbability upon which a purchaser is bound to rely; however, in an earlier case, the existence in the Crown of a right to the mines under the estate, but without a reservation of a right of entry, was held by Lord Hardwicke to be no objection to the title; it appearing that no search had been made for mines for upwards of a century, and that probably no mines existed, and that the Crown's right never had been and probably never would be exercised (r); so a right of re-entry by the Crown, which the Court considers incapable of being enforced, is no objection to the title (s).

Adverse right not likely to be enforced, held not to render title bad.

(m) Osbaldeston v. Askew, 1 Russ. 160.

(n) Green v. Pulsford, 2 Beav. see p. 75.

(o) Grove v. Bastard, 2 Phill. 619. (p) Sug. 519. (q) Ibid. 520.

Where a necessary party to the title is, neither in Law nor Equity, subject to the control of the vendor, but has an independent interest, and no evidence is furnished of a legal or equitable obligation on the part of such stranger to concur in the sale, the Master should report against the title (t) on the ground of such non-concurrence; not that a good title can be made upon the stranger concurring (u): but where such necessary party is bound to concur, as in the case of a mortgagee, the Master may report in favour of the title (w): the report, however, should, it is conceived, be, that a good title can be shown subject to the incumbrance, and that the incumbrancer is bound to concur, not that a good title can be made upon payment of the incumbrance (x).

Outstanding interest, when a ground for reporting against title.

(r) Lyddal v. Weston, 2 Atk. 19. The case seems to have been decided under the idea that the Crown, no right of entry being reserved, could neither work nor authorize others to work the mines, unless they were first opened by the owner of the soil; but it seems doubtful whether this is good law; see Case of Mines, Plow.