(k) Gosling v. Woolf, 1893, 1 Q. B. 39.

(l) Above, p. 97, n. (m).

(m) Stat. 37 & 38 Vict. c. 78, c.78, s. 2, r. 1;; Jones v. Watts, 13 Oh. D. 574.

(n) Stat. 14 & 45 Vict. 0. 11. 8. 13.

(o) 1 Dart, V. & P. 293, 5th ed.; 334. 6th ed.; 329, 7th ed.:

Wms. Real Prop. 451, 13th ed.;

592, 21st ed.

(p) 1 Dart, V. & P. 295, 6th ed.; 336, 6th ed.: 331, 7th ed.

(q) 1 Jarm. Conv. 3rd ed. by Sweet, 61, 62; 1 Dart, V. ,V P. 294, 5th ed.; 335, 6th ed.; 329, 330, 7th ed.

Property held by underlease must be so described.

At the present time then, the vendor, in order to show a good title to the property sold, has, as a rule, to give evidence of the last forty years' ownership thereof, and to make out that such ownership ends either in himself or in some person or persons whom he is entitled, either unconditionally or upon certain conditions of which the performance rests with himself alone (such as the payment off of mortgages), to direct to convey. Now, as some of the best evidence of ownership is proof of the power of disposition incident to ownership, especially for valuable consideration (r), and as proof that the vendor has the right to convey what he sold must necessarily be made out by showing the devolution of the ownership of the land, it usually happens that the main evidence offered in support of the vendor's title is the deeds, by which the land sold has been conveyed on former sales or mortgages thereof, and any will, by which the land may have been devised. Thus the chief evidence of title given on sales is almost entirely documentary. This results of course from the fact that ever since the end of the mediaeval period of law, the usual method of making a conveyance of land has been by the execution of deeds or a deed (s). If then, on the sale of a freehold in fee, the vendor produce the title-deeds for the last forty years, and these show that the fee simple in the land sold has been conveyed to him, free from incumbrances, and if there be satisfactory evidence that the deeds produced relate to the land sold, and the vendor be in possession of the land and of the deeds, he has shown a good title to the land. But although title deeds are the most common, and, owing to the long prevailing custom of conveyance by deed, the best evidence of title, it must not be supposed that they are the only evidence which the purchaser is bound to accept. This will appear clearly if we bear in mind our main rule, that what the vendor has to show is that he has the right to convey what he sold, and our subordinate rule, that, if nothing appear to the contrary, this shall be taken to be shown on proof of forty years' ownership, that is, in the case of freeholds, forty years' seisin in fee, ending in the vendor. Now forty years' seisin in fee may be proved without deed; as by evidence of the seisin of some ancestor of the vendor forty years ago, and of devolution of the title to the vendor by descent. And if the facts of possession and kinship on which such a title must depend, were fully proved, the purchaser would be bound to accept it (t). But to illustrate the above rules further.

The best and the usual evidence of title is production of the title-deeds.

(r) See Burt. Comp. pl. 418-427.

Other evidence of title.

(s) See Wms. Real Prop. l45, 200 sq., 21st ed. (t) Gottrellv. Watkins, 1 Beav.

361,365, 366; Dorling v. Clayton, 1 II. ft M. 402: Bug. V & P.

4l0, 421; 2 Prest. Abst. 23, 2nd it may be observed that the vendor of a freehold in fee would scarcely discharge his obligation to show a good title by simply proving that he himself had been in possession of the land sold for forty years. For although the rule applicable in actions for the recovery of land is that possession is prima facie evidence of a seisin in fee (u), it is considered that, on sales, the purchaser is entitled to better proof, that the vendor has the right to convey what he sold, than is afforded by facts equally consistent with his being entitled for life or years only as with his having the entire fee simple (x). In such a case therefore it is thought that the purchaser could require the vendor to show the origin of his possession, and to establish that he entered as tenant in fee, for instance, under a conveyance on sale to him, or as heir, or upon a wrongful entry (y).

Here it may be noticed that the Court will compel a purchaser to take a title depending on the Statute of Limitations, that is to say, depending on the extinguishment under that Statute (z) of the right and title of some person or persons who are shown to have been rightfully entitled (a). But it must not be supposed that this doctrine enables a vendor, who has been in possession for twelve or even thirty years to escape the common obligation of showing forty years' title as proof of a good title. Possession for these periods does not give a good title under the Statute as against all the world; it does not bar the rights of remaindermen or reversioners not entitled to possession until the determination of some particular estate (b). It does not appear therefore that a vendor's obligation of showing a good title can be discharged by proof of thirty or even forty years' possession by himself alone, without showing, if the Statute of Limitations be relied on, who were rightfully entitled and that the vendor's possession has effectually barred their claims (c).

Title depending on Statute of Limitations.

Ed.; 1 Dart, V. & P. 298, 336, 5th ed.; 340, 380, 381, 6th ed.; 334, 376, 377, 7th ed.

(u) Doe d. Hall v. Tenfold, 8 C. & P. 536 , Cole on Ejectment, 211.

(x) See Hiern v. Mill, 13 Ves. 114, 122; Eyton v. Dicken, 4 Pri. 303; Cottrell v. Watkins, 1 Beav. 361, 365, 366; Sug. V. & P. 461;

1 Dart, V. & P. 334, 5th ed.; 379, 6th ed.; 372, 373, 7th ed.

(y) See Co. Litt. 189 b, and n. (7); Leach v. Jay, 9 Ch. D. 44.

(z) Stat. 3 & 4 Will. IV. c. 27, s. 34.

(a) Scott v. Nixon, 3 Dru. & War. 388; Games v. Bonnor, 54 L.J. Ch. 517; 33 W. R. 64.

A good title then may be shown without deed. But the deeds are the best evidence of title; and if the land sold has been conveyed by deed within the period for which title has to be shown, it is not open to the vendor to prove forty years' seisin in fee by other means. He must produce the deeds, or if they be lost or destroyed, give proper secondary evidence of their contents (d).

Vendor must produce the title-deeds, if he can.