In the preceding chapter we endeavoured to give a general view of the vendor's obligation to show a good title and its discharge. We will now consider the same subject from the point of view of a conveyancer instructed to advise the purchaser whether the title shown by the vendor can be accepted.

The first duty of a conveyancer so instructed is of course to read the contract for sale, and then to peruse the abstract of title with reference to the contract. And his task is to ascertain whether the vendor has shown a good title according to the contract, that is, such a title as the contract binds the purchaser to accept, taking into account in the case of a contract other than an open contract the limitations or restrictions thereby imposed in the purchaser's rights as defined by law. He has to satisfy himself that on all points, save those on which the right to call for proof is precluded by the contract, the vendor has shown that he has the right to convey what he contracted to sell (a). If a freehold in fee were sold, the conveyancer must see that the purchaser will get both the legal and equitable estate in fee simple, free from all incumbrances, save those, if any, subject to which he contracted to take the land. If copyholds were bought, the purchaser's adviser must ascertain that his client will be duly admitted tenant on the rolls of such an estate as was sold. If the land sold were leasehold, the conveyancer must take care that the lease or term offered by the abstract corresponds at all points with that promised by the contract; the purchaser, as we have seen (b), being entitled to require a lease from the freeholder unless the contract distinctly specified an underlease as the subject of the sale, and not being obliged to accept a lease at covenants more stringent than those usually inserted in the kind of lease purchased, unless the existence of such covenants were brought to his notice by the contract (c).

Duty of conveyancer advising the purchaser on title.

(a) Above, p. 94.

11(2)

Before discussing any of the details of an abstract examined on behalf of a purchaser, let us consider what should be its general scope and result. It should show title for the time prescribed by law or settled by special stipulation as sufficient to prove a good title, according to the nature of the property sold (d); it should commence with a good root of title and continue to deal with the whole legal and equitable estate in the land purchased (e); and it should end in showing that the vendor can convey or cause to be conveyed to the purchaser the whole estate contracted for in the land sold. But it is important to observe that it is not necessary for the vendor to show upon the abstract that the whole estate sold is vested in himself. It is sufficient if it appear that he has, or may obtain by acts of which the performance rests with himself alone (/), the right to convey or cause others to convey to the purchaser the estate sold; and if such a right be established, the abstract is complete, and it is considered a matter to be dealt with on the preparation of the conveyance rather than on the investigation of title for the vendor to obtain the concurrence of all other persons necessary to vest in the purchaser the whole legal and equitable estate which he contracted to buy (g). Thus it is of course sufficient if the abstract show that the vendor has a power of appointment or other power which will enable him to convey the estate sold. So if the land sold be vested in trustees holding on trust for the vendor absolutely, a good title is shown on the abstract; for the vendor is entitled in equity to direct them to convey as he will (h). And if the laud sold be subject to mortgages, the vendor has none the less shown a good title on the abstract, provided that the mortgages be immediately redeemable by him. And this is the case even though the amount secured by the mortgages exceed that of the purchase money, or the mortgages affect other lands than those purchased; as it appears to be considered that, so long as the vendor has the right of redemption, it merely rests with him to exercise it, the mortgagees being bound to take the money secured, if all that is due be tendered, and to re-convey on such payment (i). Here we may notice that the general rule of equity, that a mortgagor must give six months' notice of his intention to pay off the mortgage (k), is no bar to the immediate exercise of the right of redemption; for the mortgagor is entitled to pay to the mortgagee six months' interest in advance in lieu of such notice (l).

What should be the general scope and result of the abstract.

Vendor need not show the whole estate to be vested in himself, if he have the right to procure its conveyance.

(b) Above, p. 101, n. (i).

(c) Reeve v. Berridge, 20 Q. B. D. 523; Re White and Smith's Contract, 1896, 1 Ch. 637.

(d) Above, pp. 100 sq.

(e) Above, pp. 106 sq.

(f) Brewer v. Broadwood, 22 Ch. D. 105, 109.

Any mortgage redeemable in accordance with this general rule may therefore be considered as immediately redeemable for the purposes of a sale of the mortgaged land. But it is of course quite a different thing if the land sold be subject to a mortgage, which is not to be called in or paid off during a certain term. In such case the discharge of the incumbrance is not a matter resting with the mortgagor alone; as the mortgagee cannot be obliged to receive back his money during the term (m).

(g) See 8 Ves. 436: Townsend v. Chompernown, 1 Y. & J. 449; Sug. V. & P. 217, 218, 349, 123-126: Dart, V. & P. 281-286, 5th ed.; 321-326, 1177 sq, 6th ed.; 317-322, 7th ed.

(h) Wms. Real Prop. 181, 21st ed.; Kitchen v. Palmer, 46 L. J. Ch. 611.

(i) Townsend v. Champernovm, 1 Y. & J. 449; Savory v. Under-wood, 23 L. T. O. S. 141; Sug. V. & P. 425; 1 Dart, V. & P. 283, 284, 5th ed.; 323, 324, 6th ed.; 319, 320, 7th ed.

(k) Wms. Real Prop. 561, 21st ed.