Sec. 1. Of the general nature of the proof required.

Sec. 2. Of the abstract.

Sec. 3. Of the verification of the abstract.

Sec. 1. - Of The Vendor's Obligation To Show A Good Title And Its Discharge

We have seen (a) that every vendor of land is bound to show a good title to the property sold by him. This rule would appear to be of equitable origin. The Courts of Equity, in granting to a vendor the extraordinary relief of enforcing specific performance of the contract, considered that it was only fair to impose the condition, that he on his side should prove that he could actually convey what he professed to sell (b). And the obligation so established in equity was afterwards held to be equally incident to the contract at law (c). What the vendor has to prove, in order to fulfil this obligation, is that he can convey that which he contracted to sell: that is to say, if he engaged to sell a freehold or copyhold in fee (d), the fee simple free from incumbrances, or if the property sold were leasehold, then the term for which he described it as held. But the nature and extent of the proof required was defined by a general rule of equity and law, adopted from the practice of conveyancers, whereby proof of title for not less than sixty years before the contract was held to be proof of a good title, if nothing appeared to the contrary (e). It is important to bear in mind, however, that this was merely a subordinate rule limiting the amount of evidence which the purchaser could require. It simply bound the purchaser to accept, as proof of a good title, evidence of sixty years' ownership ending in the vendor or in some person or persons whom the vendor would have the right to direct to convey; provided, however, that nothing appeared to show that the ownership so proved was not full or complete (f). But it was of no avail to show sixty years' title, if the result of the evidence produced were not to discharge the vendor's main obligation, that is, to prove that he could actually convey what he sold (g). Thus on the sale of a freehold in fee, if it were proved that the vendor and his predecessors had had possession and exercised acts of ownership for sixty years back, that would no doubt be prima facie evidence of a seisin in fee, and the purchaser would be bound to accept the title (h). But supposing it appeared from the vendor's evidence, or the purchaser could prove from other sources that such possession and ownership were enjoyed under a demise for a long term of years, it is obvious that the evidence of sixty years' title would not prove that the vendor could convey the fee simple which he sold. The purchaser therefore could require further evidence of the vendor's title to the fee simple, and if this were not forthcoming, would have the right to rescind the contract. It seems worth while to insist on this apparently simple distinction between the main rule imposing the duty of showing a good title, that is, a title to convey what was sold (i), and the subordinate rule defining the manner of proof. As a matter of fact, omission to remember this distinction has been a fruitful source of error, especially in cases where the time for which title can be required to be shown has been limited by special stipulation. In some such cases, the vendors, or their advisers, would appear to have forgotten that such a stipulation merely limits the evidence of title that can be asked of them in the first instance, and does not exempt them from the general duty of proving that they have the right to convey what they have sold (k).

Origin of the rule, that the vendor must show a good title.

(a) Ante, p. 32.

(b) Jenkins v. Miles, 6 Ves. 616, 653; White v. Foljambe, 11 Ves. 337; Beverell v. Boltou, 18 Ves. 508; Fildes v. Hooker, 2 Mer. 424; Purvis v. Eayer, 9 Price, 488, 518, 519.

(c) Flureau v. Thornhill, 2 W. Bl. 1078; Souter v. Drake, 5 B. &

Ad. 992; Doe d. Gray v. Stanton, 1 M. & W. 695, 701. This rule had no place in the mediaeval common law, when feoffees looked mainly to their feoffors' warranty for their security; see Wms. Real Prop. 444-6, 13th ed.; 588-590, 21st ed.

Proof of sixty years' title prima farie proof of a good title.

(d) As we have seen, a contract to sell a piece of land, without specifying what estate there in is to be conveyed, is construed as a contract to sell the whole estate therein, that is, in the absence of any limiting expressions, the un-incumbered freehold in fee: above, p. 41.

(e) Barnwell v. Harris, l Taunt. 480,432; Cooper v. Emery, 1 Ph. v; Hodgkinson v. Cooper, 9 Beav. 304; Monlton v. Edmonds, 1 De G.

F.& J.246; Sug.V.&P.365, 107.

(f) See note to Parr V Love gove, 4 Drew. 183.

(g) See Sug. V. & P. 366 . i v. Buckley, L. R. 5 Q. B. 213.

(h) See Prosser v. Watts, 6 Madd. 59: Cottrell v. Watkins, 1 Beav. 361, 365, 366; Parr v. Lovegrove, 4 Drew. 170. 177. 178; Moulton v. Edmonds, 1 De G. F.

& J. 246.

Sixty years' title had to be shown, as a rule, in all cases.

A good title then is shown by proving such ownership as is promised by the contract; and the evidence required is evidence of the exercise of acts of ownership for a period of time which, in the absence of special stipulation, was fixed at not less than sixty years. The rule requiring evidence of sixty years' ownership in proof of title applied equally to a sale of freeholds, whether of inheritance or for lives, copyholds and leaseholds for years (l). In the case of leaseholds, if the lease were less than sixty years old, the vendor might be required to show the title to the freehold for such a period as, with the time expired since the grant of the lease, would make up sixty years (w). There were, however, certain cases in which the purchaser could call for earlier title than that of the last sixty years. These were the following: (i) Lawrie v. Lees, 7 App. Cas. 19.

(k) See Phillips v. Caldclcugh, L. R. 4 Q. B. 159; Waddell v. Wolfe, L. R. 9 Q. B. 515; Nottingham Patent Brick and Tile Co. v. Butler, 15 Q. B. D. 261, 271: .16 Q. B. D. 778; Re Cox and Neve's Contract, 1891. 2 Ch. 109.