(g) Sug. 14th ed. 411.

By s. 10 (1) of the L. P. Act, 1925, it is provided that where title is shown to a legal estate in land, it shall be deemed not necessary or proper to include in the abstract of title an instrument relating only to interests or powers which will be overreached by the conveyance of the estate to which title is being shown; but this does not affect the liability of any person to disclose an equitable interest or power which will not be so overreached, or to furnish an abstract of any instrument creating or affecting the same. And by sub-s. (2) a solicitor delivering an abstract framed in accordance with this Part of this Act will not incur liability on account of an omission to include therein an instrument which, under this section, is to be deemed not necessary or proper to be included, nor shall any liability be implied by reason of the inclusion of any such instrument.

By s. 183 of the L. P. Act, 1925 (h), a vendor or mortgagor, or his solicitor or agent, who conceals any instrument material to the title, or any incumbrance, from the purchaser or mortgagee, or who falsifies any pedigree, on which the title does or may depend, in order to induce such purchaser or mortgagee to accept the title, with intent to defraud, is made guilty of misdemeanour, and also liable to an action for damages. As regards incumbrances, this section, it is conceived, can only apply to the fraudulent concealment of an existing incumbrance; what instruments are, and what are not, material in each particular case may safely be left to the discretion of the solicitor, who, with the penal consequences of this statute in view, is not likely to make an omission which will prejudice a purchaser. In order to render a vendor's solicitor liable for negligence, there must be something more than a mere error of judgment (i).

As to liability of vendor's solicitor for suppressing incumbrance, etc.

(h) Replacing s. 24 of Lord St. Leonards' Act, 1859, as amended by the L. P. Amendment Act. 1860. s. 8.

The mere loss or destruction of a deed of a date subsequent to the commencement of the abstract is not an objection to the title, if the vendor can prove the loss or destruction, and produce secondary evidence of the contents and execution: such evidence, however, both of the loss and of the contents must be clear, and the best which is available (k). Such evidence will not be required when the presumption is that if the deed were produced it would not throw doubt on the title (l), or when the deed is of such a nature that its execution and contents can be presumed.

Loss of modern deeds.

The abstract should notice all drainage and land improvement rent-charges and other subsisting charges upon the property; and should state the amount and particulars of the tithe commutation rent-charge.

All charges should be noticed.

It is convenient that copies of wills abstracted (if of an informal character), and private Acts- of Parliament upon which the title depends, should accompany the abstract.

Copies of informal wills and private acts should accompany abstract.

It was suggested in Blackburn v. Smith (m) that it is sufficient for the purpose of identification that the abstract should refer to, without containing tracings of, maps or plans indorsed upon the deeds; but this can scarcely be so where a deed contains no substantive description of the property. The present practice of conveyancers is generally to use a plan, if not to define, at any rate to elucidate the description of the parcels: and a tracing of it, when not sent with the abstract, is usually furnished upon the purchaser's request; and may, it is conceived, be insisted on (n); for a plan is as much a part of the title as the original document to which it is annexed (o). Maps or plans, however, not forming part of a conveyance are not admissible as evidence of title (p), except in the case of their being admissible as public documents (q). But if a plan is referred to in a conveyance, though not forming part of it, and the parcels- are stated by reference to it, in such case it is submitted the plan would form a part of the title, and the purchaser would be entitled to have a copy furnished.

Plans may be referred to: but tracings should generally be furnished.

(i) See Mahoney v. Davoren, (1892) 36 Sol. J. 309.

(k) Re Halifax and Wood, (1898) 79 L. T. 536.

(l) Minchin v. Nance, (1831) 2 S. Atk. Conv. 386 b. As to documents prior to commencement of title, see Prosser v. Watts, (1821) 6 Mad. 59; and see in ejectment, Doe v. Brooks, (1835) 3 A. & E. 513.

(m) (1848) 2 Ex. 783, 792; 18 L. J. Ex. 187.

A statement of the evidence which the vendor is able to produce in support of the documentary title may conveniently accompany the abstract. When matters of importance are to be proved by statutory declaration, it is desirable that the information necessary to enable the purchaser to prepare the proposed declarations should accompany the abstract.

And by statement of evidence and statutory declarations.

In cases of complicated titles, the solicitor who prepares the abstract will be justified in laying the title before counsel on behalf of his own client; considerable expense to the vendor, may often be saved by the delivery in the first instance of a perfect and well-verified abstract.

Consulting counsel as to abstract on behalf of vendor.

It is a convenient practice to preface a heavy abstract by a concise analytical table of its contents referring to the pages- of the abstract.

Table of contents.

(n) As to the importance of a plan in ascertaining the parcels, see Lyle v. Richards, (1866) L. R. 1 H. L. 222; 35 L. J. Q. B. 214; Re Sparrow and James' Contract, 1910, 2 Ch. 60.

(o) Brown v. Wales, (1872) 15 Eq. at p. 147; Lyle v. Richards, sup.; Re Sparrow and James' Contract, sup.

(p) Smith v. Lister, (1895) 64 L. J. Q. B. 154; 72 L. T. 20; Wilber-force v. Hearfield, (1877) 5 Oh. D. 70©; 46 L. J. Ch. 584 (cases as to the commutation map); Caton v. Hamilton, (1880) 53 J. P. 504; A.-g. v. Antrobus, 1905, 2 Oh. 188, 203; A.-g. v. Horner, 1913, 2 Oh. p. 155 (as to ordnance map); Smith v. Lister, sup. (as to manor map). See Blandy-jenkins v. Earl of Dunraven, 1899, 2 Oh. 121; 68 L. J. Ch. 589; Frost v. Richardson, (1910) 103 L. T. 22; Stoney v. Eastbourne R. D. C., 1927, 1 Ch. 367; Taylor, 11th ed. 1201.

(g) Evans v. Merthyr Tydfil Urb. Dist. Co., 1899, 1 Ch. 241; 68 L. J. Ch. 175.

An abstract may be written so illegibly, or upon paper of such an inconvenient size or substance, as to justify the purchaser's solicitor or counsel in declining to receive it (r).

How to be copied.

The non-delivery of a perfect or sufficient abstract on the day named, if any, discharges the purchaser (in the absence of express stipulation to 'the contrary) from any conditions binding him to make objections, etc, within a specified time after delivery (s); and its non-delivery within a reasonable time after the day named will enable the purchaser to rescind (t): unless, upon its being subsequently tendered, he receive it without objection (u). The wilful (x) neglect on the part of a vendor to prepare the abstract within proper time, when pressed by the purchaser to do so, will entitle the purchaser to avoid the contract so soon as the time fixed for completion has elapsed (y). Where no time is fixed by the contract for delivery of the abstract, the purchaser should ask for one to be furnished within a reasonable time, and non-delivery within that time will entitle him to avoid the contract (z). Where the purchaser's solicitor intends to rely upon the non-delivery of the abstract as a ground for refusing to complete the purchase, he should decline to receive it; or, if forwarded to him under circumstances which gave no opportunity for its rejection, he should at once return it, without reading it (a).

Effect of nondelivery of abstract, on purchaser's liability under the contract.

Non-delivery, how to be taken advantage of.

(r) See Sug. 14th ed. 406. Abstracts are passed on taxation if containing on an average eight folios per sheet: Be Walsh, (1850) 12 Beav. 490; and see Rules, 1882, Sch. II. to Sol. Rem. Act, 1881. As to the fee for perusal, see Be Parker, (1885) 29 Ch. D. 199; 54 L. J. Ch. 959; Be Bobertson, (1887) 19 Q. B. D. 1; 35 W. R. 833.

(s) Southby v. Hutt, (1837) 2 M. & C. at p. 211; 1 Jur. 100; and see Roberts v. Berry, (1853) 3 D. M. & G. at p. 291; 22 L. J. Ch. 398; Sherwin v. Shakspeare, (1854) 5 D. M. & G. 517; 23 L. J. Ch. 177; Upperton v. Nickolson, (1871) 6 Ch. 436; 40 L. J. Ch. 404; Venn v. Cattell, (1873) 27 L. T. 469; Hobson v. Bell, (1839) 2 Beav. 17; 8 L. J. N. S. Ch. 241.

(t) Venn v. Cattell, sup.

(u) Sug. 14th ed. 261; Smith v. Burnam, (1795) 2 Anst. 527.

(x) See Roberts v. Berry, (1853) 3 D. M. & G. 284; 22 L. J. Ch. 392; Tilley v. Thomas, (1867) 3 Ch. 61; 16 W. R. 166.

(y) Sag. 261; Seton v. Slade, (1802) 7 Ves. 265; 2 Wh. & T. L. C. 9th ed. p. 436 et seq.

(z) Compton v. Bagley, 1892, 1 Ch. 313; 61 L. J. Oh. 113; Guest v. Homfray, (1801) 5 Ves. 818, 823; Jones v. Price, (1797) 3 Anst. 924; Be Priestley and Davidson, (1892) 31 L. R. Ir. 122.

Where it is important to the purchaser to complete (if at all) at or about the time fixed for completion, and the abstract, having been called for, is delivered so late as to render it doubtful whether this can be accomplished, the best course appears to be to return it unread; offering, however, to receive it again without prejudice to the purchaser's right to annul the contract if on investigating the title it should be found impossible to complete at (or within some short specified period after) the time originally fixed for completion.

Suggested course of proceeding by purchaser.

On a sale of registered land, the Land Registration Act, 1925, provides (b) that the vendor shall, notwithstanding any stipulation to the contrary, at his own expense, furnish the purchaser with an authority to inspect the register, and, if required, with a copy of the subsisting entries in the register and of any filed plans and copies or abstracts of any documents' noted on the register so far as they affect the land to be dealt with (except charges or incumbrances registered or protected on the register which are to be •discharged or overriden at or prior to completion). But unless the purchase-money exceeds 1,000l. the costs of such •copies and abstracts are thrown on the purchaser. The vendor, at his own expense, is to furnish the purchaser with such copies, abstracts and evidence (if any) in respect of any subsisting rights and interests appurtenant to the registered land as to which the register is not conclusive, and of any matters excepted from the effect of registration, as the purchaser would have been entitled to if the land had not been registered. It is further provided (c) that where the vendor is not himself registered as proprietor of the land or the charge giving a power of sale over the land, he shall at the request of the purchaser and at his own expense, and notwithstanding any stipulation to the contrary, either procure the registration of himself as proprietor of the land or of the charge, as the case may be, or procure a disposition from the proprietor to the purchaser.

What evidence or abstract of title is required under L. R. Act. 1925.

(a) See Seton v. Slade, (1802) 7 Ves. at p. 278; and 2 Wh. & T. L. C. 9th ed. 425.

(b) S. 110. (c) Sub-s. (5).