Sale of lands subject to incumbrances.

(x) See Sug. V. & P. 559: 1 Dart, V. & P. 503, 5tb ed.: 573, 6th ed.; 531, 7th ed. It is submitted that the dictum of Jessel, dictum. Besides, it takes no account of the increased trouble, apart from the extra expense, which may be laid on the vendor.

M. R., in Egmont v. Smith, 6

Ch. D. 469, 474, that in no case can a vendor object to convey the Bold property in parcels on receiving the whole purchase money, and on being paid the additional expense, is not correct. The vendor's obligation is to convey the laud which he has contracted to sell. What that land is, is shown by the description thereof contained in the contract for sale. If the vendor has shown a good title, that is, has proved his right to convey what he contracted to sell, including the identity of the land described in the contract with that described in the title deeds, and with that of which possession is offered (above, pp. 43, 94), it appears that the vendor cannot be obliged to convey and to covenant for title by other descriptions than those under which he sold. But lands -old as one entire property Can seldom be couveyed in lots without a number of new descriptions. This consideration alone, it is submitted, exhibits the inaccuracy of the late M. R. S.

(y) Note that such a stipulation was actually made, in the case of Egmont v. Smith, ubi sup.

(z) Above, pp. 94, 164.

Sug. V. & P. 557: Dart. V. & P. 722, 5th ed.; 814, 6th ed.; 723, 7th ed. . see Reves v.

The usual stipulation as to the costs of conveyance.

Gill, 1 Beav. 375, and the comments thereon in Sug. V. & P. 558.

(b) Sug. V. & P. 557; and see Jones v. Lewis, 1 De G. & S. 245.

(c) Sug. V. & P. 558; 2 Dart, V. & P. 722, 5th ed.; 814, 6th ed.; 723, 7th ed.; see Jones v. Lewis, 1 De G. & S. 245.

(d) Sug. V. & P. 558.

(e) Above, pp. 67, 73.

Under the Conveyancing Act of 1881 (l), upon the sale, either by the Court (m) or out of Court (n), of land subject to any incumbrance (including any mortgage, lien or charge of a portion or annuity or other capital or annual sum, whether immediately payable or not), the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court of a sum of money sufficient to provide for the amount charged on the land and future costs, expenses and interest (o); and the Court may, if it thinks fit, and either after or without notice to the incumbrancer, declare the land to be freed from the incumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale. This enables a vendor to procure land, which is subject to mortgages or charges, to be conveyed to the purchaser for an unincumbered estate without the concurrence of the incumbrancers. But it appears that the Court will not oblige the vendor, at the purchaser's instance, to adopt this mode of conveying an unincumbered estate, where such a course would involve hardship, as where the amount required to be paid into Court would greatly exceed the purchase money (p).

Discharge of incumbrances on sale by payment into Court.

(f) Re Willett and Argenti, 60 L. T. 735, explained and distinguished in Re Sander and Walford's Contract, 83 L. T. 316; 1900, W. N. 183. Re Willett and Argenti appears to have given to the usual condition of sale a greater effect than it was previously supposed to have: Bee Davidson. Prec. Conv. vol. i. p. 612, 4th ed.

(g) Re Woods and Lewis's Con-tract, 1898, 1 Ch. 433, 437, affirmed, 1898, 2 Ch. 211.

(h) It should be noted, how-ever. that, according to this form, the purchaser does literally undertake to bear the expense of making the assurance to himself.

(i) Sug. V. & P. 561; 2 Dart, V. v P. 707, 5th ed.; 798, 6th ed.; 714, 7th ed.

(k) Re Adams' Trustees and Frost's Contract, 1907, 1 Ch. 695, 703; above, p. 73, n. (u). (l)Stat. 44 & 45 Vict. c. 41, 8. 5;see s. 2 viii.).

(m) See Patching v. Bull, 30 W. R. 244; Dickin v. Dickin, ib. 887.

(n) See Milford, ,etc. Co. v. Mowatt, 28 Ch. D. 402.

It should be noted, in connexion with the release of incumbrances, that, where the legal estate is outstanding in mortgagees or trustees, the purchaser should never require or allow the vendor to take a reconveyance or conveyance thereof to himself before completing the purchase (q). The reason of this is that, if the vendor should, while he was entitled to the equity of redemption or other equitable estate in the lands, have executed a conveyance by way of mortgage or otherwise and containing a precise recital, if the lands were thereby assured for an estate in fee simple in possession, that he was seised of them in fee, or in other cases that he was entitled to the legal estate therein, then he and all persons claiming under him would be estopped from denying that he was so seised, or entitled. It would follow that upon the reconveyance or conveyance of the legal estate to the vendor, the same would in effect pass at once to the persons entitled under the mesne conveyance. As against those persons, the purchaser, claiming by a subsequent conveyance from the vendor, would be subject to the same estoppel, and would be precluded from alleging that the mesne conveyance passed an equitable estate only, and that he himself held the legal estate as a purchaser for value without notice of the mesne conveyance (r). The purchaser would thus be affected by mesne incumbrances created by the vendor, which he might have avoided if he had not allowed the vendor to obtain the legal estate. The right course, therefore, for the purchaser to take is to require that any legal estate outstanding in mortgagees or trustees shall be conveyed by them to him, or to a trustee for him, direct. He will then be able to rely on the doctrines of purchase of the legal estate for value and without notice and of tacking, if the vendor should have created intermediate equitable incumbrances, of which the purchaser knew nothing (s). It is thought that, as the vendor is in equity a trustee for the purchaser of the land sold from the date of the contract for sale (t), and as the purchaser is entitled to restrain any disposition of the legal estate about to be made to his prejudice by the vendor pending completion (u), and is entitled to take his conveyance in what form he pleases and to keep alive any mortgage for his own benefit, if he desire to do so (x), the purchaser is entitled to insist that any outstanding legal estate shall be conveyed direct to himself, or to a trustee for him, and shall not, pending completion, be got in by and assured to the vendor. But compliance with such a requirement can only be ensured where the mortgage is to be paid off out of the purchase money. If the vendor propose to pay off the mortgage out of his own resources before completion and take a reconveyance to himself, it does not appear that the purchaser can prevent him from doing so; for if the purchaser were to bring an action for specific performance of the contract, he would be obliged to accept the title so offered, if in other respects good according to the contract (y).