*

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From this decree, the defendant appealed. Lord Hardwicke affirmed the decree, saying "I am of opinion that there is no ground in favour of the defendant to vary this decree. I am in the case of a purchaser of an estate whom no court of justice will compel to accept of such purchase upon any doubtful title. It is not a question now what kind of title a man may have in his family, but what kind of title a purchaser is compelled to take; upon this question, whether a good title can be made, the court, in favour of the defendant, has directed an issue that if this may be a good title to a plaintiff by letter of attorney, he may accept of it, to which two objections are taken. But I go further still, and think this rather a direction in favour of the defendant, and that the plaintiff had much more reason to complain of it; for the vendor can without the least inconvenience do that act himself:-and 'then there is no instance of the court compelling a person to take it by attorney. A purchaser may be put under difficulties by this means, for the letter of attorney may be lost, and the *party is obliged to prove it *389] and the execution of it; although I allow that courts of law would make strong presumptions in such case; but why should a purchaser be put to that? A letter of attorney may be revoked the next moment; that revocation may be notified to the attorney without the purchaser's knowing it, and then the conveyance would be void, and the purchaser's only remedy would be by suit in equity. Suppose the conveyance was to be made before a Master, under the direction of this court, and the vendor said he would do it, but would do it by attorney, though living next door to the Master and in his power to do it himself, this court would not allow that, and if the vendor said so to me, I would commit him for not doing it himself; for I would not compel a man to accept of a title under a letter of attorney, of which there is no instance, unless a necessity appears for it. This, therefore, is very unreasonably complained of on the part of the defendant; consequently the decree must stand, and the plaintiff have the deposit."

When notice of any trust is discovered, the purchaser, unless he is exempted by a special clause in the instrument, by which it was created, is bound to see that it is duly performed, and therefore the instrument that created the trust must be produced and form part of the title, and the purchaser must have a deed of covenant to enable him to require the production of it on any future occasion.

Having premised these observations, which might easily have been extended on the purchaser's right to a clear title, it is proposed now, First, to take a survey of the cases involving the question, [ *390 ] whether the title was, or was not marketable; to consider, Secondly, How far it is competent for the vendor, by the contract, to modify the purchaser's right to title: and Lastly, by what acts, on the part of the purchaser a court of equity will hold that he has waived his objections, and agreed to accept the title as it stands.

SECTION I.

A short Outline of the Authorities on Questions of Doubtful Title.

A title may be doubtful, or, in other words, unmarketable, in respect of the uncertainty of some matter of fact occurring in the course of its de

duction;(1) or, because any given link of it depends upon a conclusion of law, which is not quite clear upon the authorities; (2) or, because in any of the intervening transmissions from the ancestor to the vendor, the forms of the authority or power, under which the transmission was made, have not been strictly complied with;(3) or, because it is not shown, that incumbrances or charges, notice of which appears on the abstract, have been, or can now by the vendor, be discharged;(4) or because the vendor is not in a situation to give the purchaser a good discharge for his money;(5) or, lastly, because he is not able to deliver over to him such of the muniments of title as, according to the authorities and the ordinary course of practice, he is entitled to. (6)

*Having traced a sketch of the several heads here ad[ *391 ] verted to, a few observations will be added as to the nature of the public records, and other documents and sources to which resort may be had, for information on questions of ancient boundary, tenure, pedigrees, &c. &c. (7)

(1) Of Defects of Title, arising from uncertainty as to some Matter of Fact.

A very great proportion of the objections to title arise from the imperfect state of the evidence. In order to support the title, it may be necessary to show the marriage, or death of parties at a certain period; or the death of persons entitled for life; or the failure of issue of tenants in tail; or the legitimacy of a party; or the pedigree of a person claiming as heirat-law; where a title depends on a limitation to the first son of A in tail, it may be uncertain whether the party claiming in that character truly answers the description;(w) there may be notice of *old

deeds, and those deeds not producible, and, consequently, it [ *392 ]

may be uncertain whether they do, or do not disclose incumbrances; the identification of the parcels may be imperfect; there may be an intermixture of freehold and copyholds, and it may be impossible to discriminate the lands of these respective tenures; (x) where the lands are held

(w) The danger is that the person claiming to have been first son may have been born before the marriage of his parents, and that fact concealed; "the certificate of baptism aud an affidavit of legitimacy are the proper precautions against a surprise in this particular,” (1 Abst. 46.) The limitation may be confined to the first son and not extend to the second, and the first son may die early; in such a case the probability is that his death may be concealed to enable the second son to assert a title to the estate,-"in such a case no registry of baptism will be found" "This happened," says Mr. Preston, "in a county near the metropolis, and the fact was never discovered until the second born son was about fifty years of age, and then like most other cases of fraud, it led to his ruin, or at least hastened it.” (Ibid) (x) "Another great inconvenience arises from the difficulty of identifying the copy hold land; freehold and copyhold lands are frequently intermixed. They are rarely distinguished by the description of them in deeds and court rolls; the description in the latter being seldom changed, and often bearing in names, and even in quantity, no resemblance to any modern description of the parcels. When long held by the same owner, the boundaries between such of them as form part of the same enclosure are obliterated and forgotten, and it becomes necessary to make a freehold conveyance, and also a copyhold conveyance of the same land. If the owner, mistaking the tenure, open a mine, or cut timber upon the part of his land, which he erroneously believes to be freehold, the land is forfeited to the Lord, who may seize it upon proving it to be copyhold. Upon a sale an insuperable objection may be taken by the purchaser, that the vendor cannot point out with certainty, what part of the estate is freehold and what is copy hold. This inconvenience from confusion of boundary is particularly felt in the counties of Norfolk, Suffolk, and Essex." (Third Report of the Commissioners of the Law of Real Property, App. p. 15.)

in ancient demesne,(y) it may be impossible to ascertain whether fines and recoveries alleged to have been levied and *suffered, or [ *393] which may be necessary to levy and suffer, be not void in consequence of a fine or recovery having at some former period been levied or suffered in a superior court; with respect to lands in Kent, it may be impossible to determine whether they are of gavelkind;(z) whether lands sold tithe free are actually so; as to lands sold under the decree of a court of equity, whether it has been duly complied with; when the lands have been sold under an Act of Parliament, whether the formalities prescribed by it have been strictly complied with. Lands may *have been given by deed or will, subject to a forfeiture on the non-performance of certain conditions, and the vendor may be unable to show that the condition has been ful

[ *394 ]

[ *395 ] filled.

(y) "The tenants in Ancient Demesne, properly so called, were made subject to certain restraints, and entitled to certain immunities, which produce serious inconveniences at the present day. They were forbidden to bring or to defend any real action touching their tenements, except in the Lord's court; and they were exempted from serving on juries elsewhere, and from paying toll in any part of England. From the obligation to sue and the privilege to be sued in the Lord's court, arose the serious mischief pointed out in our first report that all fines and recoveries of land held in ancient demesne levied or suffered in a superior court though not void, are voidable at any distance of time by a writ of disceit, at the suit of the Lord, and that when a fine or recovery of land held in ancient demesne, has been once levied or suffered in a superior court, by which until reversed the land is turned into frank free, a fine or recovery of it levied or suffered in the Lord's court, is absolutely void. When it is considered, that nothing necessarily appears on the face of the abstract, or in the title deeds, to denote that the land is of the tenure of ancient demesne, it will be understood that mistakes of this kind in levying fines and suffering recoveries, frequently involve titles in great embarrassment." (Third Report of the Commissioners on the Law of Real Property, p. 13.) (z) "There appears to be a growing danger of questions arising, as to what lands in Kent are exempt from the custom of gavelkind. A gentleman of great eminence at the bar,* who has become a purchaser of large estates in Kent, being asked whether there be any prevailing uncertainty on the subject, says "I think it very probable that questions may arise upon the subject. You find it generally laid down, that all lands in Kent are gavelkind, and that therefore no great inconvenience arises. It must be very clearly proved that they are not gavelkind, and it is said such proof cannot be given. I bought an estate the other day, where it was perfectly clear, that it was not gavelkind. I have purchased three estates in Kent, where I am perfectly satisfied none of them are of gavelkind tenure, and now the records are thrown open by the parliamentary commissioners, I have no doubt many more such will be found." He afterwards goes on to state, that he has no doubt, that some lands in Kent were held in capite, and never were gavelkind; and that there are many monastery lands in the county, which were held in Frankalmoign, and which may not be gavelkind.

"A recent case was proved to us, in which a regular gavelkind title was shown to lands in Kent; but the name of a person, mentioned in one of the disgavelling acts, appearing in the abstract, inquiries were made to ascertain whether the lands might not have been disgavelled; and by means of a county history and an inquisitio post mortem, it was ascertained that they had descended on the death of the person named to his common law heir. They had afterwards been treated as gavelkind, and the legal estate being outstanding, the gavelkind heirs, who were infants, were declared to be infant trustees, within the statute of Anne, and conveyed accordingly,-each conveying only his share. The discovery induced counsel to treat the land as disgavelled, and to require a conveyance of the entirety from the common law heir. This occasioned a new application to the Court of Chancery, the heir having died leaving an infant son, who conveyed under the order of the court.

"No lapse of time or adverse possession can alter the tenure; and where, from the inspection of ancient records, which have recently become more accessible, it shall appear that lands, long treated as gavelkind, had once been held in capite, or disgavelled, the gavelkind title can only be supported by resorting to the fiction of gavelling, or regavelling acts now lost having been passed by the Legislature." (3d Rep. of R. P. Commissioners, p. 11.)

• See App. to First Rep. of the Real Property Commissioners,-Mr. Bell's examination.

These are merely given as instances of ordinary and frequent occurrence; and it is obvious, that on all these, and an infinite variety of other matters, which present themselves under the diversified forms of our tenures, and our complicated modifications of landed interest, questions of fact must of necessity constantly occur, as to which it will be impossible for the vendor to produce conclusive evidence. If, on all the evidence that can be produced, a rational doubt still remains, the title is not marketable.

In considering the effect of this evidence, it is frequently necessary to resort to the doctrines of presumption, and to consider how far the circumstances raise a case in which a court of law would consider the presumption in favour of the fact to be so strong that a jury would be directed to find it; for if so, equity will compel a purchaser to accept it. In such cases, it is manifest that a great deal must be left to the discretion of the parties, and in many instances it cannot be doubted that titles are accepted, where the reliance is placed rather on the bona fides and responsibility of the vendor, than on the strength of the evidence which he has been able to produce.

"Mere suspicion, ending in suspicion, is not the legitimate ground of legal decision."(a) In order to show that a [ *396 ] title is defective in point of fact, some reasonable ground of evidence must be shown in support of the objection raised: a mere possibility, that parties may have dealt with an estate in such a manner as to prejudice the title, is not enough, without some evidence to give a colour to the suspicion, that they have done so. Hence, mere suggestions of outstanding reversions, or of legal estates, unbarred entails, &c. do not afford such objections to a title, as equity will entertain.

Thus, in Sperling v. Trevor, (b) the title was derived from John Paine, who, in 1693, limited the estate to the use of himself for life, remainder to his daughters in tail, remainder in fee to himself: he had an only daughter E. He made a will, giving all his estate to his second wife, but signed only by two witnesses. After his death, his daughter levied a fine, under which the estate ultimately became vested in Sperling. It was objected to the title, that the ultimate remainder in fee reserved to the settlor, might have been disposed of by him, or by some other person to whom it had descended. Lord Eldon, however, held the objection to be untenable, and decreed specific performance.(c)

*An objection, the same as this in specie, and very similar in circumstances, was taken in the late case of Lapham [ *397 ] v. Pike.(d) The Master reported in favour of the title, to which the (a) Per Dallas, C. J. so cited, in Nouaille v. Greenwood, Turn. 28. (b) 7 Ves. 497.

(c) It is very justly observed by Sir E. Sugden, "that, notwithstanding the defendant's suggestion, it was highly improbable, that the reversion was disposed of by John Paine in his life-time, such an interest not being marketable, and as he devised all his estate by his will, there was no ground to presume that he made another will." (Vend. & Purch. 330, 8th ed.) "This decision," says Mr. Preston, adverting to the same case, "must be under. stood to contain the qualification, that the purchaser cannot show that there is an outstanding title under the remainder, or reversion in fee. With this qualification, it is reasonable and consistent with all those moral principles which govern the court in deciding on titles. It was founded on the ground, that a mere possibility, which in fact may exist, and not be known to either of the parties, and which in the nature of things cannot be ascertained by either of them, shall not be allowed to operate as an objection to the title." (1 Abst. 256.) (d) Rolls, Dec. 1831, MS.

defendant took an exception. In 1745, the premises in question were settled to the use of George Perry for life, remainder to his wife for life, remainder to their sons in tail male, remainder to their daughters as tenants in common in tail, remainder to George Perry in fee. The next document in the title was an indenture, dated March, 1756, between Elizabeth, the widow of the said George Perry, then deceased, of the first part; Samuel Whiting and Mary, his wife, the only surviv ing daughter of the said George Perry by the said Elizabeth his wife of the second part, and trustees of the third part, whereby the parties of the first and second part covenanted to levy a fine (which was accordingly levied) *to enure to the said Elizabeth Perry for life; [ *398 ] remainder to Whiting for a term, if he should so long live; remainder to the said Mary, his wife, for her life; remainder to the issue of Whiting and wife, in strict settlement, with divers remainders over; remainder to the said Elizabeth Perry in fee. Beyond the presumption afforded by these deeds, there was nothing to show, whether George Perry had any other children than Mary Whiting, nor did it appear whether he died intestate. The plaintiff derived his title through the deed and fine levied in 1756; the objection to the title was, that it was not shown that George Perry had not devised away the reversion, nor that he had no other children than Mary Whiting. The plaintiff had searched from 1745 to 1756 inclusive, for the register of the burial of George Perry at the several places at which it appeared, by the deeds, George Perry had, from time to time, been domiciled, but without success. He also searched unsuccessfully for a will, or letters of administration, in the several ecclesiastical jurisdictions, provincial and preroga tive, which comprised these localities, and he also made inquiries, equally unsuccessful, of the only one of Perry's descendants, who was known, to elicit a clue for further information, and to ascertain whether or not Perry had been married prior to his marriage with the said Elizabeth, and if so, whether he had any issue by such former marriage. These searches and inquiries were adduced before the Master by the plaintiff, the vendor, as reasonably *sufficient to satisfy the [ *399 ] scruples of the defendant; and he reported in favour of the title. To this report the purchaser excepted, and the exception was strongly argued before the Master of the Rolls, who overruled it on grounds not noticed by counsel, and therefore it seems unnecessary to advert further to them. "I think," said his Honour, "the objection is not a valid one. I am bound to presume to the same extent as I should were I sitting as a judge at nisi prius be bound to direct a jury. If the daughter did not represent her father as owner of the reversion, she had power to destroy that reversion; yet in making the settlement in 1756, the parties dealt with the property as if she had that reversion. impossible to presume that she did not know her title: yet she levied a fine when she ought to have destroyed the reversion, if she was not entitled to it. I am bound to presume that as she did not destroy it she herself was the heir-at-law, and entitled to it. She must have known if she was not; and she would have destroyed it, if in any other person, decide this case upon that point alone, but for that I should have felt great doubt."

It is

I

It is usual for conveyancers where a title commences with a recovery, to call for the deed creating the entail, for the purpose of ascertaining