Besides delivering an abstract of title, the vendor is further bound, in order to discharge his obligation of showing a good title, to verify the abstract by producing all the evidence which is necessary and proper to prove the statements made therein. The vendor must therefore produce, for the examination of the purchaser or his solicitor, all the abstracted deeds, both those which he has in his own possession and those of which he has a right to procure the production, and proper evidence of other documents, on which the title depends, such as wills, inclosure awards, Acts of Parliament or orders of the Court; and he must adduce proper evidence of all facts material to the title, as births, marriages, deaths or intestacies (x). At common law all such proof had to be made at the vendor's expense (y): but now under the Conveyancing Act of 1881, the purchaser, in the absence of stipulation to the contrary, has to bear the expense of obtaining and producing all evidence of title, which is not in the vendor's possession (z).

Vendor bound to verify the abstract.

(q) Williams' Real Prop. 49, 13th ed.; 99, 21st ed.

(r) Ibid. 233, 13th ed.; 310, 311, 315, 319 - 321, 21st ed.

(s) Blackburn v. Smith, 2 Ex. 783, 792, 18 L. J. N. S. Ex. 187;

Sug. V. & P. 408.

(t) Sug. V. & P. 413.

(u) 1 Dart, V. & P. 303, 304, 5th ed.: 345, 346, 6th ed.: 339, 340, 7th ed.

8(2)

Expense of evidence not in vendor's possession.

The proof, which a vendor may be required to furnish of his title, is of two kinds; (1) proof of the abstracted documents, and (2) proof of the facts stated in the abstract. In both of these respects the evidence accepted on sales is not quite the same as what would be required to be given in a court of justice. Thus where it is sought to prove in Court that any person has altered his legal position by some writing, it must be shown, first, that there is or was such a writing as alleged; this is proved primarily by production of the original; and secondly, that the writing is his writing; that is to say, if the writing be a deed, that it is his deed, that is. executed by him, or, if the writing be unsealed, that it was signed or written by him or by his authority so as to bind him(a). At common law, the second requisite was only dispensed with in the case of documents thirty years old coming from the proper custody; these, whether deeds, wills, letters or similar writings, were and are presumed to have been executed or signed as they purport to be (b). In other cases, the execution of any document produced must as a rule have . been proved, if the document were attested, by the evidence of an attesting witness, and otherwise by the best evidence, such as the testimony, given in Court at the trial, of the party who executed the document, or some other person present at its execution, or an admission by or on behalf of such party of the fact of execution (c). The common law rule as to proving the execution of attested documents was so stringent that such execution could not be proved by the admission of the executing party, unless made for the purposes of the cause (d). This rule was abolished by the Common Law Procedure Act, 1854, with regard to any instrument, to the validity of which attestation is not requisite; and such instruments may be proved by admission or otherwise, as if there had been no attesting witness thereto (e). Under the present practice, the execution of any deed or writing adduced in evidence in an action is generally established by admission made pursuant to a notice in that behalf, which either party may serve on the other (f): but of course where there is any contest as to the fact of execution, it must be proved by the best evidence according to the ordinary rule (g). And on unopposed applications and in non-contentious cases the rule still is that the execution of a deed must be proved by an attesting witness (h). Upon sales of land, however, it is not the practice to require evidence of the execution of any of the documents of title, however recent, if found in the proper custody (i); unless there be reason to suspect that some particular document was not in fact executed as it purports to be. In the absence of any cause for suspicion, it is presumed by conveyancers that every deed, will or other document of title was executed or signed as appears on the face of the document (k). Conveyancers act, in this respect, on the presumption that everything is rightly done, until the contrary be shown (l); a presumption which is of course greatly strengthened by the fact of the title-deeds being in the custody of the possessors of the land, to which the deeds relate.

Evidence required is

(1) of documents,

(2) of facts.

Proof on sales differs from proof in litigation.

Documents thirty years old prove themselves.

(x) Sug. V. & P. 414. 415. 417. 420, 429, 431; 1 Dart, V. & P. 310 sq., 5th ed.; 350 sq., 6th ed.; 345 sq., 7th ed.: Southby v. Hutt, 1 My. & Cr. 207,212, 213.

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

(z) Stat. 44 & 45 Vict. c. 41. b. 3 (6), (9).

(a) Leyfield' s Case, 10 Rep. 88a, 92b. 93a.

(b) Taylor, Evidence, Sec. 74, 75. 593-601, 5th ed.: Stephen, Evidence, Art. 88.

Proof of attested documents.

No evidence of the execution of any document required on sales.

(c) Taylor, Evidence, Sec. 1637 sq., 1660, 5th ed.; Stephen, Evidence, Arts. 15 sq., 63-69.

(d) Call v. Dunning, i East, 53; Doe v. Durnford, 2 M. ft 8. 62.

(c) Stats. 17 & 18 Vict. c. 125, s. 26; 28 & 29 Vict. c. ss. ss. 1, 7.

(f) R.S.C. 1883, Ord. XXXII. rr. 2, 3, and Appendix B. No. 11.

(a) Leigh v. Lloyd, 35 Beav. 455, 457, 458

(A) Re Reay's Estate, 1 Jur. N. S. 222; Re Rice, 32 Ch. D. 35; 1 Seton on Judgments, 156, 6th ed.

(i) That is, the custody in which they may reasonably be expected to be found; Croughton v. Blake, 12 M. ft W. 205,'208; Dot d. Jacobs v. Phillips, 8 Q. B. 158.