ART. III.-AS TO A VENDOR'S LIABILITY TO PRODUCE TITLE BEYOND SIXTY YEARS.

If a person contract to purchase a fee simple, the agreement gives him a right to evidence that the vendor can convey the fee simple. It is said, indeed, in a book of great authority, that "the right to a good title is a right not growing out of the agreement between the parties, but which is given by law. A purchaser, therefore, may waive his right by concluding an agreement after he has full notice. that he is not to expect a title beyond a limited period." But we cannot assent to the assertion that this right does not grow out of the agreement, nor do we profess to understand the distinction between "growing out of the agreement" and "given by law." Perhaps the inference of the learned writer is the chief thing to be regarded, and in that we concur; for undoubtedly a purchaser may wave or abandon his right, not merely by a formal instrument or writing, but by his acts, as by entering into an agreement when he knows that the vendor cannot procure complete evidence of title: the Court of Chancery not considering the right in question as a real thing within the provisions of the Statute of Frauds, and requiring a writing to bind it.

The mere receipt of the rents and profits is of course very slender evidence of the right to sell the fee simple, when the law allows the ownership of land to be so divided and qualified. But having regard to the duration of human life, and the ordinary arrangements made respecting land, it is probable that a view of the transactions relating to the property in question for a given period, say 60 years, will show in whom the absolute ownership resides. The vendor must, therefore, afford evidence of all the transactions within the given period, or, more precisely, he must show every devolution of the fee, or of any part of the estate in fee. If the result of such evidence be that the vendor can transfer the absolute fee simple to the purchaser, he (the purchaser) can require no more. The law fixes 1 Sugd. V. & P. 331.

a period, throughout which the purchaser can require the investigation to be carried on; this used undoubtedly to be 60 years, and it is still thought, notwithstanding the recent statute for quieting possessions and annihilating dormant rights, that the safety of purchasers will not allow this period to be diminished. And certainly, in fixing the period, the protection of the purchaser should be chiefly regarded, for though in nine cases out of ten a less period would be amply sufficient, and in practice is deemed, and in point of fact has been found, enough, yet as at the time of the contract the purchaser in general knows nothing of the title, he should have a right to call for evidence which will exclude all reasonable doubt. Nor is liberality to the purchaser in this case any hardship to the vendor; for if he has not the requisite evidence, and yet knows that what he has is sufficient, he can show that before the contract, and stipulate accordingly. We advocate so extended a period, as 60 years, not because it is necessary in many cases, but because the vendor can prevent any hardship by proper stipulations, which are not found in practice to restrain purchasers or prejudice a sale. In the discussions which have taken place as to the propriety of retaining the period of 60 years as a general rule, these considerations appear to have been overlooked, and the question has rather been, what period is sufficient for the majority of cases, than what is a sufficient protection against all but very extreme contingencies. It has been justly observed by an acute and learned writer, "that the frequency of special conditions would seem to show that conveyancers have exceeded the limits of a just and salutary caution, and have fixed the moral probability of a good title at a higher point in the scale of evidence than appears to be warranted by the general estimate of purchasers." This inference is certainly just, and would, we are convinced, be confirmed by the testimony of every solicitor of experience, especially in the country.

When a purchaser can and does require a strictly marketable title, it is frequently necessary to pursue the investigation beyond the given period; for if it appears that

1 Hayes's Convey. 250.

the parties to the first transaction had not power over the fee, it is necessary to go back till we ascertain where the fee then was. The rule that a 60 years' title only can be required, is not an absolute one; it is subject to the paramount right of a purchaser, unless restrained by conditions, to have a good title. The difficulty of course is with respect to the first step; for if there be a reasonable doubt that the first conveying party had not the fee, we must inquire further. It may, therefore, be advisable to consider what gives rise to a reasonable doubt. If the first transaction be a sale or a mortgage, this, primâ facie, is satisfactory; but assuming that there is no clear recital of an outstanding estate, the instrument may contain references pregnant with doubts. These references generally occur in the description of the parties, the description of the premises, and by way of exception in the covenant against incumbrances: and the trouble and expense which these references occasion should make conveyancers cautious in using them; they should always remember, in drawing a deed, that it may be wanted. as the foundation of a title.

It is not unusual for an abstract to begin with a conveyance by a person who is described as heir at law, and Sir Edward Sugden says "the purchaser may require proof of the ancestor's intestacy." No authority is cited for this position, which is denied by Mr. Hayes, and we think rightly. For a decision according to Sir Edward's view would be tantamount to saying that a 60 years' title is not sufficient. The real question, it is submitted, is, does the act done by the first conveying party raise the presumption that he was seised. in fee? If the answer is in the affirmative, the purchaser cannot require the title of that party to be shown. To say that the ancestor may have left a will is a mere suggestion of a defect, which is sufficiently answered by the fact that the purchaser or mortgagee from the heir, whose title and security depended entirely upon the fact of the intestacy, was satisfied he did not; and further, that the claims of the assumed devisee have not been heard of for 60 years. If such a doubt would avail an unwilling 2 Convey, 242,

1 V. & P. 330.

purchaser, few vendors would venture to endeavour to compel the specific performance of an agreement for purchase. Lord Hardwicke well observed,1 "it is the business of this court to carry such agreements into execution, and it must govern itself by a moral certainty, for it is impossible in the nature of things, there should be a mathematical certainty of a good title. There are often suggestions of old entails, and often doubts what issue persons have left, whether more or fewer, and yet these were never allowed to be objections of that force as to overturn a title to an estate."

The principle of Sir Edward Sugden's position seems to be denied in the case of Coussmaker v. Sewell. There, the foundation of a title was a recovery suffered by a father and son, the son alone being vouched as tenant in tail in remainder expectant on the decease of his father, who was tenant for life. The counsel for the purchaser objected to the title, on the ground that the settlement was not produced, and that it might contain limitations which were not barred by the recovery, and might have created charges to which the estate still continued subject; but the Master reported in favour of the title without the settlement, and though the report was excepted to, and the exceptions argued by Sir John Scott with great earnestness, the Chancellor overruled them, and the report was confirmed. In a late case, where an unproved original will not 60 years old was called for, to show that the estate was not devised away from the heir through whom the title was derived, the Vice-Chancellor held, that the purchaser was entitled to inspect the will, but could not insist upon a covenant for its production, for it was merely negative evidence. We have now before us an abstract of title perused and approved by Sir Edward Sugden in 1830 on behalf of a noble client, which begins with a recovery deed and recovery in 1748, the deed not reciting any settlement, but merely containing the usual expression "for barring all estates tail," &c. and Sir Edward did not make any. requisition as to the previous title.

1 2 Atk, 20.

' Appendix to Sugd, V. and P. 336.

3

Cooper v. Emery, Hayes's Convey. 248.

Where a title is derived under an ancient crown grant, it has been usual to call for a copy of the grant: this requisition having been made and resisted, the point was submitted to Sir Edward Sugden, who considered that it was not incumbent upon the vendor to do more than inform the purchaser's solicitor where he might see the grant. In a case in which the first deed abstracted contained recitals of prior deeds which had been lost, or which at least were not in the possession or power of the vendor, the purchaser objected to the title for want of the deeds recited, but Leach V. C. overruled the objection, observing, "there must of necessity be some practical limit to the operation of this objection, and the true inquiry seems to be in every case, whether the absence of the deed recited throws any reasonable doubt upon the title of the vendor. Primâ facie, it is to be presumed, that the purchaser in the ancient conveyance had actual inspection of every deed recited, and was satisfied with their contents: and further it is to be observed, that it is not probable that a vendor would recite deeds which afforded evidence against his title. Where there is no circumstance to repel the effect of these general presumptions, and when the title under the conveyance which contains the recital is fortified by 60 years' undisputed possession, I think it a good practical rule to hold that the loss of a deed recited throws no reasonable doubt upon the title of the vendor, and that the purchaser must complete his purchase."

In the case just cited, we see that Sir John Leach considered that some respect should be had to the prudence of the party taking under the first abstracted deed, and we find Lord Eldon using a similar argument in a case3 in which one of the earlier deeds was a transfer of a mortgage to Sydney Stafford Smyth, Esq. afterwards one of the Barons of the Court of Exchequer. "At the time of the transfer of the mortgage to Sir S. S. Smyth," Lord Eldon observed, "there is no evidence that he had all the antecedent instruments before him, but it is a strong thing to say, that the title

Cooper v. Emery, Hayes's Convey. 248.

? Prosser v. Watts, 6 Madd. 60.

3 Nouailler v. Greenwood, Turn. & Russ. 26.