Evidence of matters of fact.

What facts the purchaser can require to be proved.

But a purchaser cannot compel the vendor to procure evidence for the purpose of negativing mere possibilities (u);

Negative evidence cannot be required if not in venthough he may require him to answer to the best of his knowledge any question on the subject relevant to the title as abstracted, and to furnish all evidence in his possession or power; e.g., where a power has been created, and there is no trace of its subsequent execution, the purchaser, though he can require the vendor and his solicitors to state whether to their knowledge or belief the power was ever exercised, and may, perhaps, require the vendor to make a statutory declaration upon the point, cannot, it is conceived, call for such a declaration by any other person; nor, where the title commences with a conveyance by a person who conveys as heir-at-law, can the purchaser require any other evidence of the ancestor's intestacy than such (if any) as is in the vendor's [possession (x). So, where a vendor is or has been married, the purchaser should inquire whether any settlement was executed on his marriage, and, if this were the case, may require to see the settlement if in the vendors possession or power; but if the vendor cannot produce it or a copy, the purchaser, it is conceived, must rest content with his assurance or statutory declaration that it did not affect the property in question; though, as a matter of prudence, he should make inquiries of the wife's family on the subject (y).

(r) Re Airey, 1897, 1 Ch. 164; 66 L. J. Ch. 152.

(s) Emery v. Grocock, (1821) 6 Mad. 54; Games v. Bonnor, (1885) 33 W. E. 64; 54 L. J. Ch. 517; Hillary v. Waller, (1806) 12 Ves. 239, 270; see Baldwin v. Peach, (1835) 1 Y. & C. 453, which, however, was not a case between vendor and purchaser; and see inf. pp. 329 et seq.

(t) See Hobson v. Bell, (1839) 3 Jur. 190; 8 L. J. N. S. Ch. 241.

(u) Be Ford and Hill, (1879) 10 Ch. D. 365; 48 L. J. Ch. 327; Re C/tafer and Randall's Contract, 1916, 2 Ch. 8.

For's possession or power but vendor must, if be can, answer all relevant questions.

The general rule appears to be, that, where a prima facie title is shown, the purchaser cannot require evidence, not in the vendor's possession or power, tending to negative any matter, the existence of which may not be presumed, from the contents or nature of the abstracted documents, or according to the ordinary rules regarding presumptions. Nor can he require a general explanation of circumstances which he may consider to be of a doubtful character, but must confine himself to questions directed to the particular defect or defects which he apprehends. Thus, where a, tenant for life exercised a power of appointment in favour of his eldest child, and the father and child then concurred in mortgaging the property (a transaction prima facie valid under the authority of M'queen v. Farquhar (z)), upon a suit for specific performance and an examination of the vendor upon interrogatories, an interrogatory as to the existence of an underhand agreement that the child should join in the mortgage was not excepted to by his counsel, and appears to have been considered unobjectionable by the Court; but a general interrogatory as to "what was his motive or object in making the appointment" was held inadmissible (a).

But vendor showing a primd facie title need not answer mere general fishing questions;

(x) Sug. 14th ed. 439.

(y) Sec Re Marsh and Granville, (1883) 24 Ch. D. 11, 19; 53 L. J. Ch. 8.

Where an appointment had been made under similar circumstances in favour of an eldest child who joined with the parents in mortgaging the estate, and upon the mortgagee attempting a sale one of the younger children gave notice to the purchaser not to complete, stating that the appointment was a fraud upon the power, but not alleging any fact in support of this assertion, and did not follow up the notice by any proceeding, it was held that a good title was shown, and that the notice did not oblige the vendor to render any further explanations (b).

And need not, give explanations in respect of an adverse notice which has not been acted on;

Where, however, at a sale by auction by mortgagees under their power, a person entitled to redeem made a tender of principal and interest, which was refused, and the sale proceeded, it was held that the purchaser, who saw the tender (made and refused, was bound to make further inquiry (c).

And where a will had been executed in favour of (inter alios) the medical man and solicitor of the testator, and the heir-at-law disputed the will and brought an ejectment, but a verdict was given for the defendants, it was, nevertheless, but has under special circumstances been required to prove in Equity a will held by Lord Cottenham, that a purchaser could require the devisees to file a bill to establish the will against the heir (d).

(z) (1805) 11 Ves. 467; and see Cockroft v. Sutclife, (1856) 2 Jur. N. S. 323; 25 L. J. Ch. 313; and compare Hannah v. Hodgson, (1861) 30 Beav. 19; 30 L. J. Ch. 738.

(a) Pearse v. P., (1846) 1 De G. & S. 12, 16. and 17; 16 L. J. Ch. 153.

(b) Green v. Pulsford, (1839) 2 Beav. 70.

(c) Jenkins v. Jones, (1860) 2 Gif. 99; 29 L. J. Ch. 493; and see Selwyn v. Garfit, 38 C. D. 273.

Already estab lished by a verdict at Law.

It appears that the purchaser cannot require the vendor to disclose confidential communications made by him to his solicitors or counsel, or cases laid before counsel respecting the property, at least on points which may in any way whatever become the subject of litigation, though in no way apprehended, even where the same were made and prepared merely on behalf of the vendor, and not during a suit or during a dispute or after the threat of a suit (e).

Vendor need not disclose confidential communications.