Expense of proof of facts.

There are, however, certain facts, of which a purchaser is not entitled (except by special stipulation) to require proof, unless he can show ground for discrediting the statements in the abstract. Under the Vendor and Purchaser Act, 1874 (o), it is a term of every contract of sale of land, in the absence of stipulation to the contrary, that recitals, statements and descriptions of facts, matters and parties contained in deeds, instruments, Acts of Parliament or statutory declarations twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions (p). And by the Conveyancing Act of 1881 (q), the purchaser is required to assume, unless the contrary appear, that the recitals contained in the abstracted instruments of any deed, will or other document forming part of the title prior to the time prescribed by law or stipulated for commencement of title, are correct and give all the material contents of the deed, will or other documents so recited, and that every document so recited was duly executed by all necessary parties and perfected, if and as required, by fine, recovery, acknowledgment, enrolment or otherwise.

Recitals and statements in documents twenty years old.

(i) Jones v. Smith, 1 Ph. 244, 253; English and Scottish Mercantile Investment Co. v. Br union, 1892, 2 Q. B. 1, Too.

(k) 2 Dart, V. & P. 876, 5th ed.; 986, 6th ed.; 895, 7th ed. The purchaser cannot require any abstract or copy of such document to be made.

(l) Sug.V. & P. 417, 420, 431.

(m) Stat. 44 & 45 Vict. c. 41, s. 3 (6, 9).

(n) Above, p. 124.

(o) Stat. 37 & 38 Vict. c. 78, s. 2 (rule 2). It had been usual for several years previously for vendors to make special stipulations to the same effect: Juridical Society Papers, ii. 589 sq.; 1 Davidson, Prec; Conv. 556, 609, 4th ed.; 1 Dart, V. & P. 147, 148, 5th ed.;

Recitals of documents forming part of the title prior to the time for com-menciug the abstract.

Williams, Real Prop. 451, 13th ed. The old practice of conveyancers, in the absence of special stipulation, was to dispense with evidence of facts recited in deeds upwards of thirty years old, when there had been uninterrupted possession in accordance with the recitals, and under the deeds containing them, and where there were corroborative circumstances strengthening the presumption that the facts agreed with the recitals: 1 Jarm. Conv. 3rd ed. by Sweet, 121; Coventry, Conv. Ev. 317; see Fort v. Clarke, 1 Russ. 601.

(p) In Bolton v. London School Board, 7 Ch. D. 766, Malins, V.-C, decided that a recital that S. Walker, a former owner of laud contracted to be sold, was seised thereof in fee simple, contained in a deed dated twenty-five years before the contract, was by the above enactment rendered evidence that S. Walker was so seised until the contrary were shown by the purchaser, and that the vendors were therefore discharged from the obligation of showing a forty years' title. It is submitted that this decision is clearly wrong. First, the law, as we have Been, allows a vendor to discharge his obligation of showing a good title by proof of forty years' title, that is, of forty years' seisin in fee by himself and his predecessors in title; above, p. 107. How can tins obligation be possibly discharged by proof that one of such predecessors was seised in fee twenty-five years before the contract!- Secondly, assuming; that the recital must be accepted as evidence of the fact stated, it apparently alleged nothing but a seisin in fee and made no assertion that the land was free from incumbrances (see Nott v. Riccard, 22 Beav. 307) .Mere seisin in fee is perfectly compatible with the existence of a long term of years granted to other persons at a nominal rent to secure either their beneticial occupation or money advanced; and it seems that on this ground the purchaser Was plainly entitled to forty years' title, the very object of allowing the investigation of title tor forty years past being to enable the purchaser to ascertain, on an inspection of all the transactions daring that period, that no incumbrances have been created which hinder the vendor from conveying what he contracted to sell. Besides, no one would contend that a vendor shows a forty year's title if he begin the abstract with a deed of conveyance, twenty-five years old. expressly limiting the laud to one of his predecessors in fee; and it seems utterly absurd, if this be so, that a mere recital, in the same deed, of the grantor's seisin in fee should avail to deprive the purchaser of his right to investigate the earlier title. In Re Wallis and Grout's Contract 1906, 2 Ch. 206, 210, the reasons here given [as stated in the first edition of this book, p. 109 were approved of by Swinfen Eady, J., who expressed bis concurrence in the writer's conclusion. Stat. 44 & 45 Vict. c. 41, s. 3 (3).

As a rule, recitals and other statements in deeds are no evidence at all of the facts recited (r), and are only available as evidence in courts of justice either by way of estoppel at law (s) or as admissions (t) of a party (u) who executed the deed (v). They may therefore be evidence against but not for a party to the deed (a?). But owing to the exceptional rule regarding the admission in evidence of statements made ante litem motam by a deceased member of a family on matters of pedigree, statements on such matters so made by way of recital in a deed executed by such a person may be received in evidence after his death (y). The only instance of a recital affording good evidence for all purposes is a recital in a public (z) Act of Parliament.

Recitals no evidence as a rule.

Recital in a public statute

(r) Bristow v. Cormican, 3 App. Cas. 641, 653, 662.

(s) Baker v. Dewey, 1 B. & C. 704; Harding v. Ambler, 3 M. & W. 279; and see 8 M. & W. 212. This kind of estoppel by deed has become comparatively unimportant since law and equity have been administered in the same Courts under the Judicature Acts of 1873-5, as there was no such estoppel in Courts of Equity; Coppin v. Coppin, 2 P. W. 291; Wilson v. Keating, 28 L. J. Ch. 895.