S.3(4), (5),(6). deed is the time prescribed by law for commencement of the title (see Parr v. Lovegrove, 4 Drew. 170). SALES AND OTHER TRANS ACTIONS. Contracts for Lease at a nominal rent. (4.) Where land sold is held by lease (not including under-lease), the purchaser shall assume, unless the contrary appears, that the lease was duly granted; and, on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase. (5.) Where land sold is held by under-lease the purchaser shall assume, unless the contrary appears, that the under-lease and every superior lease were duly granted; and on production of the receipt for the last payment due for rent under the under-lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the under-lease have been duly performed and observed up to the date of actual completion of the purchase, and further that all rent due under every superior lease, and all the covenants and provisions of every superior lease, have been paid and duly performed and observed up to that date. This subs. covers breaches after the contract and up to completion, see Lawrie v. Lees, 14 Ch. D. 249. These two subs. do not provide for the exceptional case of a lease at a nominal rent containing covenants. In such a case it should be expressly provided that the mere fact of possession at the time of completion of the purchase is to be sufficient evidence of performance. (6.) On a sale of any property, the expenses (c) of the production and inspection of all Acts of Parliament, inclosure awards, records, proceedings of courts, court rolls, deeds, wills, probates, letters of administration, and other documents, not in the vendor's possession, and the expenses of all journeys incidental to such production or inspection, and the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the vendor's possession, and all attested, stamped, office, or other copies or abstracts of, or extracts from, any Acts of Parliament or other documents aforesaid, not in the vendor's possession, if any such production, inspection, journey, search, procuring, making, or verifying is required by a purchaser, either for verification of the abstract, or for any other purpose, shall be borne by the purchaser who requires the same; and where the vendor retains possession of any document, the expenses of making any copy thereof, attested or unattested, which a purchaser requires to be delivered to him, shall be borne by that purchaser. documents. (c) As to the expense of producing documents and of attested copies Expenses of which, but for this clause, would be borne by the vendor, see Dart, producing 143, 407, 5th ed. This subs. alters the rule as to the expense of journeys established by Hughes v. Wynne, 8 Sim. 85. Subs. 6 only relates to the expenses in reference to documents which the vendor has not in his possession, but of which he can procure the production. If, however, there are any of which he cannot procure the production he must protect himself against production by a special condition. (7.) On a sale of any property in lots, a purchaser of two or more lots, held wholly or partly under the same title, shall not have a right to more than one abstract of the common title, except at his own expense. (8.) This section applies only to titles and purchasers on sales properly so called, notwithstanding any interpretation in this Act. (9.) This section applies only if and as far as a contrary intention is not expressed in the contract of sale, and shall have effect subject to the terms of the contract and to the provisions therein contained. (10.) This section applies only to sales made after the commencement of this Act. A sale is made when there is a complete contract for sale. The purchase-money then becomes personal estate of the vendor, and the land then becomes real estate of the purchaser. (11.) Nothing in this section shall be construed as binding a purchaser to complete his purchase in any case C Meaning of SALES AND S. 3 (11); S. 4. where, on a contract made independently of this section, and containing stipulations similar to the provisions of OTHER TRANS- this section, or any of them, specific performance of the contract would not be enforced against him by the Court. ACTIONS. Contracts for Sale. Effect of an open contract since the Act. Trustees protected. Completion of death. Under this section, taken in connection with the V. & P. A., and in particular ss. 1 and 2 of that Act, ante, a vendor having a title such as is usually accepted by a willing purchaser, may safely enter into an open contract for sale, without fear of being put to undue expense in answering requisitions or furnishing evidence. At the same time the purchaser will not incur more risk than in buying under suitable conditions of sale, since subs. 11 reserves to him every defence in an action for specific performance: see note (a) to subs. 3 of this s. Trustees may buy or sell under contracts within this section, see s. 66, post, and as to contracts under the V. & P. A., s. 2, see s. 3 of that Act. See precedents of conditions of sale made applicable to this and the V. & P. A., post. 4.-(1.) Where at the death of any person there is contract after subsisting a contract enforceable against his heir or devisee, for the sale of the fee simple or other freehold interest, descendible to his heirs general, in any land, his personal representatives shall, by virtue of this Act, have power to convey the land for all the estate and interest vested in him at his death, in any manner proper for giving effect to the contract. (2.) A conveyance made under this section shall not affect the beneficial rights of any person claiming under any testamentary disposition or as heir or next of kin of a testator or intestate. (3.) This section applies only in cases of death after the commencement of this Act. This section should be read in connection with s. 30, and seems not to be rendered unnecessary by that section, as a vendor who has contracted to sell is not a trustee unless the contract is valid and binding on both parties at his death (Lysaght v. Edwards, L. R. 2 Ch. D. 506). If the title be not accepted in the vendor's lifetime, and be not such as he could have enforced, he is not, it seems, a trustee, though after his death the purchaser should accept the title, nor would the vendor be a trustee where the contract is not signed by, and so is not enforceable against, the purchaser. (1). SALES AND OTHER TRANS ACTIONS. The section applies to all cases where there is a contract "enforce- S. 4 (3); S. 5 able against the heir or devisee," that is at least to all cases where there is a clear written contract signed by the deceased vendor. The purchaser may then waive all objections and insist on performance, and an action will not now be required merely to obtain the legal estate where the vendor has died, having devised the land in settlement or otherwise in such manner that no conveyance can be obtained. But if there is any doubt whether a contract binding on the vendor subsisted at his death, an action will still be necessary. This might happen in case of a parol contract and alleged part performance. Matters are in fact placed in the same position as if there was a devise of the fee to trustees. Contracts for Case where still be neces sary. This s. not required where legal estate is outstanding. Where the legal estate is outstanding at the time of the vendor's death, the aid of this section is not required. The person in whom it is outstanding can convey, and the personal representative can give a discharge for the purchase-money. This makes a complete title. The section does not apply to a contract by a tenant in tail which Does not apply by his death becomes incapable of being enforced. Nor does it apply to copyholds. to tenant in tail. autre vie. It applies, however, to an estate pur autre vie where it would devolve Estates pur on the heirs general as special occupants, which is a quasi descent: Burton, p. 295, D. d. Hunter v. Robinson, 8 Barn. & Cr. 296. But if the executors or administrators take as special occupants the aid of this section is not required. Leaseholds for lives devised in settlement are usually vested in trustees, in which case also a conveyance can be made independently of this section. The section does not apply to the peculiar case of the vendor having a power of appointment which he does not exercise, the property being settled in default of appointment, a case rather difficult to provide for generally see Morgan v. Milman, 3 D. M. & G. 24; Fry on Specific Perf., 2nd ed. p. 68. Discharge of Incumbrances on Sale. 5.—(1.) Where land subject to any incumbrance (b), whether immediately payable or not, is sold by the Court. or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court, in case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, of such amount as, when invested in Government securities, the Court considers will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge, and in any Discharge of Incumbrances on Sale. Provision by Court for inand sale freed cumbrances, therefrom. S. 5 (1), (2), (3), (4). SALES AND OTHER TRANS ACTIONS. other case of capital money charged on the land, of the amount sufficient to meet the incumbrance and any interest due thereon; but in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of Discharge of Incumbrances further costs, expenses, and interest, and any other contingency, except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in, unless the Court for special reason think fit to require a larger additional amount. on Sale. How applica tion to Court made. Facilities given for sale of encumbered estates. This section is confined to cases of sales only. (2.) Thereupon, the Court may, if it thinks fit, and either after or without any notice to the incumbrancer, as the Court thinks fit, declare the land to be freed from the incumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court. (3.) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof. (4.) This section applies to sales not completed at the commencement of this Act, and to sales thereafter made. (b) See definition of incumbrance, s. 2 (vii). Under s. 69, subs. (3) the application to the Court will be by summons; subss. (4), (5), and (6) provide for the notices to be given; subs. (7) provides for costs. This section greatly facilitates sales of encumbered estates, especially when taken in connection with ss. 15, 16, and 25. It applies to ordinary sales, as well as sales by the Court. Suppose the estate for sale to be certain to produce, say, £100,000, but to be subject to (1) a jointure of £300 per annum, (2) £20,000 for portions for younger children under age, and therefore not yet raisable, (3) a first mortgage for £50,000 (all of which will certainly be paid out of the proceeds of sale), and (4) a second mortgage for £20,000, which may or may not be paid according to the price obtained. Before this Act the owner could not himself safely institute any proceeding for a sale; he might bring an action for redemption against the last mortgagee, but was liable to be |