Vendor's duty to furnish statutory acknowledgments and undertakings.

What documents should be included in a statutory acknowledgment.

(t) 1 Davidson, Prec. Conv. 621, 638, 644, 4th ed.; Davidson's Concise Precedents, 125, 18th ed.; 1 Key & Elph. Prec. Conv. 332, 8th ed.; above, p. 82. Note that if it be stipulated that the purchaser of the largest lot shall have the deeds, the purchaser of the lot largest in area will be entitled to them: Griffiths v. Hatchard, 1 K. & J. 17; and under a condition giving the custody of the deeds to the purchaser of the largest lot in value, they will go to the purchaser of the one lot which has fetched the highest price, not to the purchaser of other lots, which have together realised a larger sum: Scott v. Jack man, 21 Beav. 110.

(n) Above, p. 128.

(x) Above, p. 46.

(y) Oxenham v. Esdaile, 2 Y. & J. 493, 3 Y. & J. 262.

(z) Above, pp. 34, 47, 48.

(a) Above, p. 48, and n. (a) .

(b) Cooper v. Emery, 1 Ph. 388.

(c) It is submitted that, on a pale of land by the executor of a will, or by an administrator, he is entitled to retain the probate or letters of administration, which it is necessary that he should have until he has fully administered: cf. above, p. 682.

(d) Above, pp. 161, 162.

(c)Above, p. 161, n. (x): Taylor on Evidence, Sec. 425, 1589, 9th ed.; 2 Wms. Exors. 1889, 7th ed.

(f) Above, pp. 226, 232.

(g) Above, p. 161, n. (x)

Statutory declarations.

(h) Above, pp. 150, 161.

(i) See stat. 20 & 21 Vict. c. 77. ss. 62, 64.

(k) See Cooper v. Emery, 1 Ph. 388; Davidson, Prec. Conv. vol. ii. pt. i. 663, 664, n., 4th ed.; 1 Key & Elph. Prec. Conv. 457, n., 4th ed.; 454, n. (c), 8th ed.

(l.) Cooper v. Emery, 1 Ph. 388. Of documents of which office copies are issued, a purchaser can of course obtain as good evidence himself, and copies of receipts for aymeuts of death duties will be issued by the authorities to perseus applying in good faith and in proper circumstances: Davidson, Prec. Conv. vol. ii. pt. i. 662, n., 4th ed. But where such office copies or receipts remain in the vendor's possession or power, on what principle can he decline to give an acknowledgment for their production? The usual practice certainly appears unjustifiable on principle in the case of receipts for succession duty or certificates of discharge of estate duty; for these are good original evidence of the discharge of a lien on the land and remain in private and not official custody. It is submitted that any official statement in writing, or certificate purporting solely to declare that the land sold together with other land is free or discharged from all claim of duty (see above, p. 681), ought certainly to be included in an acknowledgment.

Secondly, where any documents forming part of the title contracted for are not in the vendor's possession, but he is entitled at law to the benefit of a covenant or statutory acknowledgment for their production, and the legal right to enforce this covenant or acknowledgment will pass to the purchaser on completion, the purchaser is not entitled to demand that a fresh covenant or acknowledgment shall be procured for him from the person in possession of the documents; for that would confer upon him no better right than he will have without it: but he is entitled, if the deed of covenant or the acknowledgment by which this right is conferred may be withheld from him, to have a statutory acknowledgment for the production of that document (n). Sere it may be observed that the benefit of a covenant to produce title deeds will run at law with the covenantee's lands, to which the deeds relate: but it is now considered that the burden thereof does not run at law with the lands retained by the covenantor (o). It is thought, however, that in equity the covenantor's successors in title to the deeds (other than purchasers for value without notice of the covenant) would be affected by the duly of production; for this seems to resemble a restriction on the free use of the deeds rather than an obligation positively affirmative, such as a liability to lay out money (p). And it appears that, where the ownership of any land held under one title is divided, whether by sale, settlement or otherwise, and the title deeds remain in the possession of the owners of a part, the owners of the rest of the land have an equitable right, independently of any covenant, to enforce production of the title deeds in order to defend their title or effect any sale or like disposition of their lands (q). It is thought, however, that this right, like any other equity, may be lost, if the deeds come to the hands of a purchaser for value who has acquired a legal interest in them in good faith without notice of the right. But the fact that the purchaser will on completion have this equitable right to production of the title deeds does not prevent him from claiming an acknowledgment for their production; he is entitled to have secured to him either the legal right to enforce a covenant for production or the benefit of an acknowledgment (r). The vendor is therefore bound to procure such covenant or acknowledgment for the purchaser, if he can; and must, it is thought, use his best endeavours to do so (s). But if these fail, then by the Vendor and Purchaser Act, 1874 (f), the inability of the vendor to furnish such covenant or acknowledgment will not be an objection to the title, if the purchaser will, on the completion of the contract, have an equitable right to the production of the documents. Where the purchaser will have neither the benefit of a good statutory acknowledgment or legal covenant for the production of the title deeds, nor any equitable right to obtain their production, it is thought that he may decline to complete the contract; unless of course the case has been duly provided for by special stipulation.

Where the purchaser will have the legal right to enforce an existing' covenant or acknowledgment for production.