(m) Sag. V. & P. 436; Dart, V. & P. 676, 5th .ed.: 764, 6th ed.: 695, 7th ed.

(n) See Bug. V. & P. 453, n.; Gabriel v. Smith, 16 Q. B. 847, 852 - 854, 861, where note that the vendor had only the benefit of covenants for production of the hulk of the tide deeds, but that the objection made was that there Were two title deeds of which he had not and the purchaser would not have the benefit of a covenant for production.

(o) See Aunterbcrry v. Oldhaw 29 Ch. D. 750, 773, 775-778 781- 784;; Farwell, J., Rogers v. Eosegood, 1900, 2 Ch. 388, 394 - 396; 1 Davidson, Prec Couv. lvi . 6th ed.; 1 Key & Elph. Prec. Conv. 311, n., 4th ed.

(p) See Austerberry v. Oldham, 29 Ch. D. 750; Sug. V. & P. 453 and n.; 2 Dart, V. & P. 775, 5th ed.

(q) See as to a purchaser of part. Fain v. Ayers, 2 S. & S. 533: as to joint tenants, tenants in common, and co-parceners, Sug. V. & P. 443; Lambert v. Rogers, 2 Mer. 489; Elton v. Elton, 6 Jur. N. S. 13C; Shore v. Collett, G. Coop. 234 (after partition); as to remaindermen, Lempster v. row/ret, 1 Dick. 23S; Davis v. Dysart, 20 Beav. 405; and see Sug. V. & P. 442 - 445, 453 and n.

(r) See Barclay v. Maine, 1 S. & S. 449; Sug. V. & P. 452, 453. n.; Gabriel v. Smith, 16 Q. B. 847, 861.

(s) See Bay v. Singleton, 1899, 2 Ch. 320.

(t) Stat. 37 & 38 Vict. c. 78, s. 2, rule 3.

It is considered that in any case in which a vendor would, according to the law in force before the Conveyancing Act, 1881 (u), be bound to give an unqualified covenant for the production and safe custody of title deeds (x), he is now bound to give a statutory acknowledgment and undertaking for the same purposes. And if he propose to do this, he is not bound to enter into a covenant in the old form; for by that Act (y) an acknowledgment shall satisfy any liability to give a covenant for production and delivery of copies of an}-documents, and an undertaking shall satisfy any liability to give a covenant for safe custody of documents (z). If, therefore, a man sell land under an open contract or apparently as beneficial owner, he is bound to furnish the purchaser not only with proper statutory acknowledgments, but also with proper statutory undertakings with regard to any documents of title (except as above mentioned (a) ) which may rightly be withheld from the purchaser. But if a man sell as trustee or as mortgagee, it is thought that he will be bound to give an acknowledgment only (b): although it is advisable (e) for trustees and mortgagees selling as such to stipulate expressly that they shall not be required to give the statutory undertaking. It should be particularly noted that only the person who retains possession of documents is capable of giving a proper acknowledgment for their production and undertaking for their safe custody, which will have the right statutory effect (d). Thus, if a mortgagor sell part of the mortgaged lands, proposing to convey the same with the concurrence of the mortgagee, who will of course retain possession of the title deeds, the mortgagee is the only person who can give a valid statutory acknowledgment and undertaking with respect to them, and the mortgagor cannot do so. The mortgagee does not, as a rule, object to give the acknowledgment; but it is objectionable to him to give the undertaking, which involves a personal liability. The mortgagor's liability to covenant or undertake for safe custody is therefore properly satisfied, not by his purporting to give a statutory undertaking (e), but by his covenanting that he will give a statutory undertaking when the documents shall come into his possession, and that in the meantime, until such undertaking shall be given, the possessor of the documents shall keep them safe, whole, uncancelled and undefaeed, unless prevented from doing so by fire or other inevitable accident (f). And it is thought that the mortgagor is bound to give such a covenant, in the absence of stipulation to the contrary, the regular practice in this case prior to the Conveyancing Act, 1881, having been for the mortgagor to covenant both for production and safe custody of the title deeds (g). It would be very unreasonable in such a case for the mortgagee to refuse to give an acknowledgment, which involves him in no personal liability: but the purchaser could not, of course, compel him to do so, if he were no party to the contract (h). The mortgagor would, as we have seen, be bound to use his best endeavours to procure an acknowledgment from the mortgagee: but if the mortgagee, though willing to concur in the conveyance, should persist in refusing to give an acknowledgment, the purchaser would, it appears, be obliged to accept the title. For he would, it is thought, have an equitable right against the mortgagee, as being a party to the conveyance to him, to production of the title deeds for all proper purposes (i). In such case, however, the purchaser should require the vendor to covenant that he will give a proper statutory acknowledgment, as well as undertaking, with regard to the title deeds, when they shall come into his possession, and also for production and safe custody of the deeds in the meantime (k). Here it may be observed that a person in constructive possession of documents of title appears capable of giving an effectual acknowledgment and undertaking with regard to them; so that where title deeds remain in the possession of solicitors as bailees for safe custody only, their owner can nevertheless enter into a statutory acknowledgment and undertaking for their production and safe custody. It is not equally clear that this is the case where the documents are in the possession of solicitors who have a lien upon them for their charges: but it is submitted that a man retains possession of documents within the meaning of the 9th section of the Conveyancing Act of 1881 (l), where the documents are in the custody of his solicitors as bailees for him, notwithstanding that his solicitors have the usual solicitors' lien thereon for their charges. And having regard to the nature of solicitors' lien on their clients' title deeds (m), it certainly appears that where a vendor's solicitors, who act for him generally in the matter of the sale, have the custody of the title deeds, apparently on his behalf alone, and produce them for the purchaser's inspection and approve on the vendor's behalf of a conveyance or an agreement containing a statutory acknowledgment and undertaking by the vendor with regard to them, without insisting on or giving notice of any lien thereon, they must be taken to have waived their lien as regards the creation of the rights conferred by the acknowledgment and undertaking (n). The regular practice is to take acknowledgments (t), whether they have or have not notice thereof. Where, however, a purchaser is obliged to rely on his equitable right to the production of any documents of title (u), it is very material for him to obtain, if he can, the endorsement of a memorandum of the conveyance to himself on the leading title deed withheld from him; for he might lose this right if the legal right to the documents were to come to a purchaser for value taking in good faith without notice of the equity (x). But it is considered that, in the absence of special stipulation, a purchaser has no right to require such an endorsement to be made (y).