Conveyance of equity of redemption.

(l) This follows from the principles laid down in Phillips v. Caldeleugh, L. R. 4 Q. B. 159; Re Cox & Neve's Contract, L891, 2 Ch. 109, 117, 118.

(m) Ante, p. 102; and consider the cases cited above, p. 106, notes (h), (i.

(n) Above, p. 106.

Deed exercising a power.

Disentailing assurance.

It is of course advisable for a vendor to commence his abstract with a conveyance for valuable consideration, as that affords the strongest evidence of ownership, not only because it shows that someone was willing to give money for the property, but also on account of the presumption that on a sale or mortgage the prior title was investigated in the usual way and was approved. It does not appear however that a purchaser can object to an instrument of disposition forty years old as a root of title on the ground that the disposition was not made for valuable consideration or was made on an occasion on which it is not usual to investigate the title. Thus it seems that a voluntary conveyance (q), or a family settlement would be an unobjectionable root of title, if made by deed forty years old, and that a will containing a specific devise would be a sufficient root of title, if the testator died at least forty years before the sale; although in such cases the most prudent course for the vendor would undoubtedly be to specify in the contract or conditions of sale the nature of the instrument with which the title was to commence. But if the vendor make a special stipulation limiting the time for which title shall be shown to a shorter period than is given by law, different considerations apply. Such a stipulation must be fair and explicit, or the vendor, in seeking specific performance, will not be allowed to insist on it. If therefore a stipulation be made that the title shall commence with a particular deed less than forty years old, the purchaser is entitled to assume that the deed was made on an occasion on which the title would be investigated; and should this not be the case, as if the deed were voluntary, the vendor cannot force him, in an action for specific performance, to accept the title as limited by the condition (r). Such conditions, to be effectual as regards the specific performance of the contract, must state clearly the nature of the instrument, with which the title is to commence.

Whether the abstract must commence with a conveyance for valuable consideration.

(o) 1 Jarm. Conv. 3rd ed. by-Sweet, 67; 1 Dart, V. & P. 297, 5th ed.: 339, 6th ed.; 333, 7th ed. By the Conveyancing Act, 1881 (Stat. 44 & 45 Vict. c. 41, s. 3 (3)), a purchaser of any property shall not require the production or any abstract or copy of any document dated or made before the time prescribed by law or stipulated for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser. But as, by sect. 3 (11), this provision is to be treated, for the purpose of the specific performance of the contract, like an express stipulation to the same effect, it follows, according to the principle laid down in Re Marsh and Earl Granville, 24 Ch. D. 11, that, unless a vendor fairly and explicitly stipulates that the abstract shall commence with a deed exercising a power, he cannot take advantage of this enactment in enforcing specific performance against the purchaser.

(p) 1 Prest. Abst. 5-7; Sug. V. & P. 366; 1 Dart, V. & P. 297, 5th ed.; 339, 6th ed.; 333, 7th ed.

Voluntary conveyance: family settlement. Specific devise.

Root of title where the time for showing title is curtailed by special stipulation.

After the document forming the root or commencement of title, there should be abstracted every subsequent document, whether deed or will, which deals with the legal estate in the property sold, except expired leases (s); and all facts whereon the title depends, such as births, marriages, deaths or bankruptcies, should be stated in their proper order. With regard to documents affecting the equitable but not the legal estate in the property sold, if they be documents on which the purchaser's title will necessarily depend, they certainly ought to be placed on the abstract (t). But as a purchaser for value, who takes a conveyance of the legal estate in any property, is not bound by any equitable interests therein, of which he has no notice, it is obvious that there may be many documents creating equitable interests only which are not necessary to the purchaser's title, so long as he obtains the legal estate without notice of them. For instance, the vendor may be possessed of documents showing that some former owner who appeared on the face of a conveyance to be entitled for his own benefit, was in fact a trustee, or that persons who had advanced money on mortgage were trustees of the mortgage money. In such cases it would be unusual to allow notice of the trust to appear on the abstract (u). This, Mr. Dart points out, is no doubt a departure from the general principle that it is for the purchaser's solicitor, and not the vendor's, to judge of the materiality of the muniments of title; but it is sanctioned by convenience and universal practice (x). Again, if a charge should have been created on the property by a document which could only create an equitable interest therein, and the charge should afterwards have been paid off, it is not the practice to let these facts appear on the abstract (y). This is contrary to the rule laid down by Wood, V.-C, in Drummond v. Tracy (z), who stated that he had no doubt that such charges ought to be communicated to the purchaser. It was observed however by Mr. Dart (a), that the strict rule so laid down may be theoretically correct: but its practical inconvenience, as much to purchasers as vendors, is so great, that in practice it had previously been all but universally ignored: nor has the practice, it is believed, been materially, if at all, affected by that decision.