The strict right of a purchaser of land in the matter of requiring proof of the execution of the title-deeds has never been exactly defined. Under the old common law practice requiring strict proof of attested documents (m), there were conflicting decisions at Nisi Prius upon the question whether a vendor suing the purchaser at law for damages for breach of contract must prove the execution of the title-deeds as part of his title (n). It was pointed out, however, that such actions are usually brought in consequence of a dispute raised as to the vendor's title - that is, as to the effect of the deeds - after the delivery of an abstract and communications thereon, in the course of which the authenticity of the deeds has been admitted; and that in such circumstances the purchaser would not be permitted to turn round at the trial and require proof of the genuineness of the deeds themselves (o). Under the present practice - first introduced by the Common Law Procedure Act, 1852 - any litigant may call upon his adversary to admit any document, saving all just exceptions, on pain, in case of unreasonable refusal, of being ordered to pay the costs of proof (p). It is thought, considering the long-established practice of conveyancers not to require proof of the execution of title-deeds and the above-mentioned alterations in the law (q) and practice as to the proof of documents in an action, that the Court would certainly not uphold a requisition, that the vendor must prove the execution of any document of title less than thirty years old, if made without showing any reason for suspecting the authenticity of the document (r).

What is the strict right of a purchaser as to proof of execution of title-deeds?

(k) Coventry, Conveyancers' Evidence, 13-16; 1 Sug. V. & P. 418, 438; 1 Dart, V. & P. 312, 5th ed.; 353, 6th ed.; 348, 7th ed. See Jared v. Clements, 1902, 2 Ch. 399, 402; 1903, 1 Ch. 428. 431.

(l) Litt. sect. 377; Co. Litt. 232 b; Clarke v. Imperial Gas Light and Coke Co., 4 B. & Ad. 315; D'Arcy v. Tamar, etc. Ry. Co., L. R. 2 Ex. 158, 162; Clip-pens Oil Co. v. Edinburgh, etc.

Trustees, 1904, A. C. 64, 69; Heath v. Deane, 1905, 2 Ch. 86, 93.

(m) Above, p. 117.

(n) That he need not, Thomson v. Miles, Kenyon, C. J., 1 Esp. 184; that he must, Crosby v. Percy, Mansfield, C. J., 1 Camp. 303. Lord St. Leonards evidently thought the former the right decision; Sug. V. & P. 439.

Here it should be mentioned that, whenever any title-deed has been executed by attorney, the deed (s) creating the power of attorney so acted upon ought to be abstracted and produced; and either it should be handed over to the purchaser on completion, or (if the vendor or any other person be entitled to retain it) a statutory acknowledgment and undertaking should be given for its production and safe custody (t). Besides this, evidence should be furnished, if necessary, that the power was not revoked by the donor's death or otherwise before it was so acted upon (u). Such evidence is not necessary (l) where the power was given before the year 1883 for valuable consideration, and was made exercisable in the names of the principal's representatives after his death (x); or (2) where the power was given by an instrument executed after the year 1882 for valuable consideration (y); or (3) where the power was given by an instrument executed after that year (whether for valuable consideration or not) and expressing that the power should be irrevocable for a fixed time, therein specified, not exceeding one year from the date of the instrument (z), and the power was acted upon within that time. But where the power was given otherwise than for valuable consideration by an instrument, wherein the power was not so expressed to be irrevocable, the purchaser may, and should, require evidence to be furnished that the power was not revoked by the donor's death or otherwise before it was acted upon (a).

Title-deeds executed by attorney.

(o) Tindal, C. J., Laythoarp v. Bryant, 1 Bing. N. C. 421, 427. The decision there was, that in the absence of any such communications as might establish the admission of the authenticity of the deeds, a vendor suing to recover under special stipulation in the contract the amount of the loss on a re-sale of leasehold property rejected by the original purchaser, and alleging himself to have been in possession of the property under the lease, must prove this all tion by showing the execution of the lease in the usual way.

(p) Stat. 15 & 16 Vict. c. 76, s. 117; R. S. C. Ord. XXX. r. 2.

(q) Above, p. 117.

(r) See 1 Dart, V. ft P. 312, 5th ed.: 353, 6th ed.; 348, 7th ed. A power of attorney authorising one to execute a deed on behalf of another is required by law to be given by deed; H white v. McMorine, 6 M. & W.

200, 214, 216; Powell v. London & Provincial Bank, 1893, 2 Ch. 555, 558, 563, 565. At common law an attorney authorised to execute a deed was bound to execute it in the name of his principal, and not in his own name; otherwise the execution would be void; Combes's Case, 9 Rep. 75 a, 76 b; Frontin v. Small, 2 Ld. Raym. 1418; Whitt v. Cuyler, 6 T. R. 176; Wilks v. Back, 2 East, 142; v. Lees, 14 Ch. D. 249, 7 App. Cas. 19. But in deeds executed by attorney after the year 1881 the attorney might and still may (whatever were the date of the instrument creating the power) execute the deed either in his principal's name according to the common law rule or in his own name and with his own signature and seal under the authority of the Conveyancing Act of 1881, Stat. 44 & 46 Vint. c. 41. s. 46; l Davidson, P'rec. Conv. 101, 5th ed.

(t) See Eaton v. Sanxter, 6 Sim. 517, 519; above, pp. 34, 47, 48.

(u) Sug. V. & P. 417; 1 Dart, V. & P. 311, 312, 5th ed.; 352, 353, 6th ed.; 348, 7th ed.

(x) See below, Chap. XII. Sec. 5. Such a power, if not expressed to be exercisable in the names of the principal's representatives after his death, was revoked at common law by the principal's death; but relief would be given in equity against such revocation. In this case therefore it might be necessary to require evidence that the principal was alive at the time when the power was acted upon by the attorney, in order to be satisfied that no person could set up a legal estate acquired for value without notice of the power in opposition to the estate purported to be assured by the exercise of the power.