The vendor's duty to discharge the outgoings.

Should be set thereon: Sherwm v. Shakspear, 5 De G. M. & G. 517, 538, 539; Seton on Judgments, 2244, 6th ed. If this be omitted the vendor cannot be charged with an occupation rent under the usual order for an account of the rents and profits received by him or for his use (see above, p. 515); but where the land so occupied is in cultivation, he is chargeable with the proceeds of crops sold, less the expenses of realizing the same: Bennett v. Stone, 1902, 1 Ch. 226, 237, 238, affirmed, 1903, 1 Ch. 509.

(t) Above, pp. 506, 513; Barsht v. Tagg, 1900, 1 Ch. 231, 235; Bennett v. Stone, 1902, 1 Ch. 226, 1903, 1 Ch. 509. But the vendor cannot, under the account usually directed in actions for specific performance of rents and profits received by or for him (not upon the footing of wilful default), charge the purchaser with losses incurred in carrying on farming business on a farm which was let at the date of the contract, but afterwards fell vacant and was occupied and farmed by the vendor: Bennett v. Stone, ubi sup.

(u) Above, pp. 513, 514; Bennett v. Stone, 1902, 1 Ch. 226, affirmed, 1903, 1 Ch. 509.

(x) Dakin v. Cope, 2 Russ. 170; Leggott v. Metropolitan Bail. Co., L. R. 5 Ch. 716; also deciding that in such circumstances the purchaser cannot be charged with the vendor's losses, and the vendor is not liable to account for his profits in respect of a business carried on by him on the premises during such occupation thereof.

(y) Above, pp. 50, 67, 74, 506, 513.

(z) Carrodus v. Sharp, 20 Beav. 56; above, p. 513.

(a) Above, pp. 60 and n. (l), 177, 178: Stock v. Meakin, 1900, 1 Oh. 683: Stockdale v. Ascher-berg, 1904, 1 K. B. 447, 449.

(b) Re Bettesworth and Richer, 37 Oh. D. 535 Barsht v. Tagg,

1 Ch. 231, 234, 235.

(c) Midgleyv, Coppock, 4 Ex. D. 309 309.

(d) Re Bettenoorth and Richer, 37 Ch. D. 535; and see Re Alien & Driscoll's Contract, 1904, 'J Oh. 226: Millard v. Batty, etc. Council, 1905, 1 K. B. 60: East Bam Council v. Aylett, 1905, 1 K. B. 22.

(e) Stock v. Meakin, 1900, L Oh. ■ West Ham Corpn. v. Sharp, 1907. 1 K. B. 445 the powers of enforcing the charge given by this Act.

(f) Tubbs v. Wynne, 1897, 1 Q. B. 74.

(g) Re High-it and Bird's Contract, 1902, 2 Ch. 214, 1903, 1 Ch. 287; as to which case, see above, p. 354.

(h) Barsht v. Tagg, 1900, 1 Ch. 231, 234, 235,

(i) As to the times when the charges given by the above-mentioned Acts attach, see the cases cited in the six preceding notes.

(k) Midgleyv. Coppock, 4 Ex. D. 309; Tubbs v. Wynne, 1897, 1Q. B. 74.

(l) Stat. 44 & 45 Vict. c. 41, s. 7.

(m) Stock v.Meakin, 1900, l Ch. 683.

(n) Egg v. Blayney, 21 Q. B.D. 107.

(o) See Re Bettesworth and Richer, 37 Ch. D. 535.

As we have seen (r), contracts for the sale of land usually contain an express stipulation that the outgoings shall, if necessary, be apportioned between the vendor and purchaser up to the time fixed for completion. Where this is the case, all such outgoings as in their nature extend over and are attributable to a definite period of time, such as yearly taxes or half-yearly rates, should, it appears, be apportioned, even though they may not be apportionable by law (s). If the contract contain no such stipulation, such outgoings only can be apportioned between the parties as are apportionable by law (t).

Apportionment of outgoings.

(p) Midgliey v. Coppock,4 Ex. D. 30a; Tubbs v. Wynne, 1897, 1

Q. B. 74

(q) See Egg v.Blayney, 21

Q. B. D. 107, where it seems that the vendor ought to have paid the amount claimed as outgoings; but the only point argued and decided was that the purchaser could not recover under the vendor's covenant against incumbrances. Quaere whether, when land is sold under an open contract, the contract is so entirely merged in the conveyance as to prevent the purchaser from recovering after completion outgoings which the vendor ought to have, but has not paid, under the implied stipulation that the vendor shall discharge all outgoings up to the time for completion. This stipulation is not in any way carried out. nor is the object thereof performed by the conveyance of the property to the purchaser; it would certainly survive if put into express words. Why, then, should it be extinguished merely because it is implied by law? See Palmer v. John-ton, 13 Q. B. D. 351, 356, 357, 359. In Clarke v. Ramuz, 1891, 2 Q. B. 456, an action was successfully maintained by a purchaser against a vendor after completion for a breach before completion of the vendor's implied duty to take proper care of the land sold: above, p. 512. And see below. Chap. XVIII.

Sec. 1.

(r) Above, pp. 67, 74. (s) See Lawes v. Gibson, L. R. 1 Eq. 135, as to rent before the Apportionment Act, 1870 (it is presumed that a stipulation for apportionment was implied from the contract to clear the outgoings); Midgley v. Coppock, 4 1). 309, 313.

(t) Midgley v. Coppock, 1 Ex. D.

If the purchaser take possession of the property sold before completion of the contract, either in pursuance of a stipulation to that effect expressed or implied in the contract or with the vendor's consent given after the contract, he will, unless the contrary he expressly agreed, as from the time of his entry into possession, he entitled to take the ordinary rents and profits for his own use, and be liable to bear the outgoings and to pay interest on the purchase money (u). But as we have seen (x), where there is no express contract to pay interest, the purchaser may, in case of delay attributable to the vendor in completing the purchase, discharge himself from his liability to pay interest by appropriating his money to the purchase and giving the vendor notice of such appropriation. Where the purchaser is so let into possession before completion, the vendor, of course, retains his legal estate in the property sold until he parts with it by conveyance to the purchaser; but his only beneficial interest in the property sold is his equitable lien for the price, and in equity he holds his legal estate as security only for payment of the purchase money (y). In equity, the purchaser is the owner of the property, subject to the vendor's lien and to the condition that a good title shall be shown (z). It appears, therefore, that in such case the purchaser is, as a rule, entitled to exercise all ordinary acts of ownership over the property sold; for the very purpose of putting the purchaser into possession is to enable him to act as owner (a). But he may be restrained by injunction from the commission or continuance of any such act of waste as will depreciate the vendor's security for payment. In this respect the purchaser's position resembles that of a mortgagor in possession (b). If the purchaser take possession before completion without the vendor's leave, he may be ejected and restrained by injunction from re-entry, or from the commission of waste, as a mere trespasser may (c). The question to what extent the purchaser's entry into possession before completion may be a waiver of objection to the title has already been considered (d).