Evidence of title on sales being for the most part documentary (e), and such as can be weighed only by skilled legal advisers, it became usual to facilitate the task of judging of the effect of the title-deeds by making an abstract of their contents for the perusal of the purchaser's counsel. It appears that formerly the deeds were handed over to the purchaser for examination, and any abstract of them which he might require was made at his expense. But afterwards it became established that the vendor was bound to make at his own expense and deliver to the purchaser an abstract of the title to the property sold (f); and so the law still remains (g).

Vendor bound to make and deliver an abstract of title.

(b) Stat. 37 & 38 Vict. c. 57, ss. 1-5; Tedder v. Hunt, 18 Q. B. D. 505; Re Earl of Decon's Settled Estates, 1896, 2 Ch. 562.

(c) Jacobs v. Revell, l900, 2 Ch. 858; Farwell, J., Be Nisbet and Potts' Contract, 1905, 1 Ch. 391, 401, affirmed, 1906, 1 Ch. 386. It is respectfully submitted that the dictum here cited is unexceptionable: but the decision in this is criticised by the writer in 51 Sol. J. 141, 155.

(d) Bryant v. Busk, 4 Ross. 1; Moulton v. Edmonds, 1 De G. F. & J. 246.

(e) Ante, p. 103.

Speaking generally, the abstract of title ought to contain a statement of the material parts of every deed, will or other instrument, by which any disposition of the property was made during the time for which title has to be shown; it ought also to contain a statement of every birth, death, marriage, bankruptcy or other event material to the devolution during the same period of the estate contracted to be sold (h). If the earliest piece of evidence stated on the abstract be an instrument of disposition, and this be offered in unsupported proof of the commencement of the vendor's title, it must be what is called a good root of title; that is to say, it must be an instrument of disposition dealing with or proving on the face of it (without the aid of extrinsic evidence) the ownership of the whole legal and equitable estate in the property sold, containing a description by which the property can be identified, and showing nothing to cast any doubt on the title of the disposing parties. If the instrument be deficient in any of these particulars, the purchaser may require further evidence to supply the deficiency (i). For example, if the abstract commence with a will containing a general devise of the testator's real estate, under which the property sold is alleged to have passed, the purchaser will be entitled to require evidence of the testator's seisin (k). And if the first abstracted deed be a conveyance of an equity of redemption, that is, of land subject to a mortgage either in fee or for a term of years, it is thought that the purchaser is entitled to require the mortgage deed (however old) to be abstracted and produced (l). But a conveyance in fee on a sale or by way of mortgage is a good root of title. So a transfer of a mortgage in fee appears to be a good root of title, where it is made with the concurrence of all parties interested in the equity of redemption, and a new equity of redemption is reserved. But unless a new equity of redemption be reserved, a transfer of a mortgage appears to be no more a good root of title than a conveyance of the equity of redemption is.

What the abstract ought to contain.

The abstract should commence with a good root of title.

General devise.

Conveyance of an equity of redemption.

(f) Sug. V. & P. 406.

(g) It has not been altered by sect. 3 (6) of the Conveyancing Act of 1881; Re Johnson and Tustin, 30 Ch. D. 42.

(h) Sug. V. & P. 405 sq.; 1 Dart, V. & P. 279 sq., 5th ed.; 319 sq., 6th ed.; 315 sq., 7th ed.;

Re Wallis & Grout's Contract, 1906, 2 Ch. 206.

(i) 1 Dart, V. & P. 295 sq., 5th ed.; 337 sq., 6th ed.; 331 sq., 7th ed.; Re Cox & Neve's Contract, 1891, 2 Ch. 109, 118.

(k) Parr v. Lovegrove, 4 Drew. 170.

Transfer of mortgage.

The necessity for a good root of title is explained by referring to the rule that a good title is shown by proof of forty years' title This means forty years' title to the whole estate sold; so that if the fee be sold, what the vendor has to prove is forty years' seisin in fee. He must therefore begin by proving a seisin in fee by himself or his predecessor of the property sold forty years before the contract, and end by showing a like seisin at the present time in himself or some person whose conveyance of the property he has a right to procure (m). It is accordingly equally incumbent on him to produce good evidence of the possession of the whole estate contracted for at the time of the commencement of title as to show that this estate is now his to convey. This is the reason why further evidence may be required by the purchaser, if the first document on the abstract be insufficient of itself to prove the ownership of the whole estate. Considered with regard to this principle, the conveyance of an equity of redemption (n) and a lease for years, even though it be a demise by way of mortgage for a long term, obviously fall short of the requirements of a good root of title. So a deed appointing an estate under a power of appointment is not of itself a good root of title; as to have a power of appointment over an estate is not the same as to be the owner of it, and what a vendor has to prove is the full ownership, at the time of commencement of title, of the estate he is selling. For evidence of such ownership he must go back to the deed, which created the power (o). On the same principle, a disentailing assurance is not a good root of title; as it only shows the ownership of an estate tail at the time of commencement of title, and this, like a power of appointment, is merely a derivative interest and not full ownership, which is fee simple. In such cases, the deed creating the estate tail should be abstracted (p).

Reason of the rule requiring a good root of title.