Purchaser's rights under condition providing for compensation.

(l) Above, pp. 611, 652, 653.

(m) The error was exactly parallel to that committed in Re Fawcett and Holmes (above, pp. 728, 730, n. (i)). In one sense it was a mistake in describing the physical contents of the property Bold: but the deficiency was in both cases due to the fact that the vendor had no title to part of land described.

(n) Fry, Sp. Perf. Sec. 1287, 3rd ed.; 2 Dart, V. & P. 741, 6th ed.; 681, 7thed.; see above. p. 724.

(o) Above, p. 725.

(p) Lett v. Randall, 49 L. T. 71; of. above, pp. 203, 353, 354.

(q), See Painter v. Newby, 11 Hare, 26; Fry, Sp. Perf. Sec.1290, 1291, 3rd ed. '

(r) Above, pp. 65, 610: but see p. 730.

(s) Mawson v. Fletcher, L. It. 10 Eq. 212, 6 Ch. 91.

(t) Above, pp. 64, 182 - 187. (u) See Re Terry and White's Contract, 32 Ch. D. 14; Ash-burner v. Smell, 1891, 3 Ch.. 405, 110.

(x) Above, p. 187, and n. (n).

If land sold be subject to some incumbrance or liability, which the vendor cannot remove, neither the vendor nor the purchaser can enforce the specific performance of the contract on the terms that the vendor shall give an indemnity against the defect (y); unless, of course, the contract contain an express stipulation that such an indemnity shall be given and accepted.

Neither party can enforce specific performance wit an an indemnity.

In connexion with the adjustment of accounts, the costs of the sale may be mentioned. As a rule, each party pays his own solicitor's costs (z): but, as we have seen (a), while the vendor must bear the expense of making the abstract, and producing all evidence of title in his own possession, the purchaser is bound, in the absence of stipulation to the contrary, to pay the expense of searching for, procuring and producing all evidence of title which is not in the vendor's possession. The purchaser, as a rule, bears the cost of preparing, making and perfecting the conveyance to himself; but the vendor must pay the expense of his own execution of the conveyance, including the charges of his solicitors and counsel for perusing and settling the conveyance on his behalf. This rule must, however, be read in connexion with the obligation, which is in strict law incumbent on the vendor, of getting in at his own cost prior to completion any part of the estate contracted to be sold, which is not vested in himself or in his own power (b). If it be necessary, in order to vest the whole estate contracted for in the purchaser, either that other persons than the vendor shall concur in the sale or that some act shall be done by the vendor, besides the mere conveyance of such estate as is his own or in his own power, and the outstanding estate be not got in or the act be not done before completion, then the vendor must, in the absence of stipulation to the contrary, pay the expense of the concurrence of such other necessary parties in the conveyance, or of the performance of the necessary act (c). And, as we have seen(d), he may in such circumstances be called upon to bear any additional expense of the preparation of the conveyance which is incurred by reason of part of the estate being outstanding in other persons than himself. For example, the vendor being sui juris and fully entitled, the purchaser must pay the expense of registration of the conveyance on a sale of land situate in a register county; for in such case the vendor's conveyance passes the whole legal estate to the purchaser, who registers for his own protection against third parties (e). So it is thought that the purchaser must pay the expense of registration of the title, where the land sold is situate in a compulsory district; for in such case the vendor's inability to convey the legal estate by deed upon a sale is owing not to any defect in his title, but to a requirement imposed by the legislature; and the rule is that the purchaser pays the cost of conveyance to himself, save only the expense of its execution by the vendor (f). But where the vendor is a tenant in tail selling the fee simple (g), and the estate tail is not barred before completion, he must bear the cost of the enrolment of the conveyance; for he has no power to convey the fee simple without barring the entail (h) And where a married woman is the vendor, or is a necessary party to the conveyance, and she can only convey by deed acknowledged, the expense of acknowledgment falls on the vendor; for her inability to convey otherwise than in this manner is a defect of the vendor's title (i). So, on the sale of copyholds, where the vendor is fully competent to convey the legal estate, the purchaser must bear the expense of the surrender and admittance (except in respect of the vendor's execution of the surrender), including the flue on admittance: but where the vendor or any other person must be admitted before a proper surrender to the purchaser's use can be made, the costs of and fines consequent upon such admittance must be paid by the vendor (k). And as we have seen (l), in the absence of stipulation to the contrary, the vendor must bear the expense of the concurrence in the conveyance of any mortgagees or incumbrancers or other persons, in whom is vested any part of the estate contracted to be sold. It has also been stated above (m) how the expenses of the execution of statutory acknowledgments and undertakings are to be borne.

Costs of the sale.

(y) Balmanno v. Lumley, 1 V. & B. 224, 225; Tildes v. Hooker, 3 Madd. 193; Aylett v. Ashton, 1 My. & Cr. 105, 114; Nouaille v. Flight, 7 Beav. 52l; Ridgway v. Gray, 1 Mao. & G. 109; Re Weston and Thomas' Contract, 1907, 1 Ch. 244.

(z) Under the Solicitors' Re-maneration Act, 1881 (stat. 44 & 45 Vict. c. 44, ss. 2, 8), and s. 6 of the General Order made there under, the remuneration of either party's solicitor will be according to the scale prescribed by that Order, unless the solicitor has, before undertaking any business, elected by writing under his hand communicated to his client that bis remuneration shall be according to the previous system as altered by Schedule II of that Order; or unless the solicitor and his client have before or after or in the course of the transaction of the business agreed in writing signed by the party to be charged for the remuneration of the solicitor in some other way: see Re Frape, 1893, 2 Ch. 284; Re Earn-show Wall, 1894, 3 Ch. 156; Re Negus, 1895, 1 Ch. 73; Re Baylis, 1896, 2 Ch. 107; also Clan v. Joseph, 1907. 2 K. B. 369: and for the Act and Order and cases thereon, see the Annual Practice. In order to be effective, such election must be duly made by the solicitor before he does for the client in the particular matter any work, for which he would be entitled to be paid; Hester v. Hester, 34 Ch. D.607; Re Stewart, 41 Ch, D. 494: Re Evans, 1905, 1 Ch. 290.