ART. VI.-LAW OF VENDORS AND PURCHASERS.

A Practical Treatise of the Law of Vendors and Purchasers of Estates. By Sir Edward Sugden. 2 vols. 9th edition. 1834.

THOUGH there be not much occasion for criticism or observation, we deem it right to notice a new edition of this most useful work, the steady demand for which shows that it is a favourite with the profession. The four last editions have each served four years: their dates are, June 20, 1822, May 17, 1826, Feb. 1, 1830, and May 17, 1834. The author's own "Advertisement" gives a fair account of what his purchasers may expect, we may therefore willingly give it all the publicity in our power.

"The recent decisions have been introduced into their proper places; and references have been made to all the Reports of the modern Cases, as few have on their shelves all the contemporaneous reporters. The language of the law has been altered by the Real Property Acts, and the text of this work has accordingly throughout required alteration. No apology is necessary for introducing a view of those acts in the chapter upon TITLE, as it is of deep importance that their contents should be readily accessible. To prevent the too frequent recurrence of new editions, the writer has been induced to add upon this occasion considerably to the usual number of copies; and as that will deprive him of an early opportunity of again correcting the work, he has revised it, with a view to this edition, with all the care and attention which his opportunities have permitted."

Sir Edward thus commences his chapter "Of the title which a purchaser may require." "A purchaser, before the late act of 3 & 4 W. 4, c. 27, had a right to require a title commencing at least sixty years previously to the time of his purchase, because the old Statute of Limitations could not in a shorter period confer a title." And then after some

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observations on the old law, he observes' that the law is altogether altered by the new act, "which limits the general time to recover to twenty years, with a saving of ten years for persons under disability, but not to exceed in any case forty years, although the ten years are not expired. The act allows no further time for successive disabilities, and makes the bar of the tenant, in fact, extend to all whom he might have barred. This will ultimately tend to shorten abstracts considerably, and in the result, forty years will probably be considered the proper period instead of sixty for an abstract to extend over; but still cases must frequently arise where it will be necessary to call for an earlier title. As fines are abolished, a short bar, as formerly, cannot now be made." In an opinion given by Mr. Brodie, and published with his consent in Mr. Hayes's Introduction to Conveyancing, he says, "it is a common notion that the present length of abstracts is with reference to the limitation of sixty years. This is quite a mistake. It is with reference to the duration of human life; and so long as the law will not allow a remainder expectant on an estate for life to be barred by a possession adverse to the tenant for life, a purchaser will be entitled to require a title to be shown for the same period as heretofore under the old law." Why the term of sixty years was adopted as the limit beyond which a purchaser in ordinary cases could not require the title to be carried back, we cannot say, but we may safely affirm that Mr. Brodie's unqualified assertion, that the rule had no reference to the old Statute of Limitations, and had regard only to the duration of human life, cannot be sustained. We should say, indeed, that Sir Edward's opinion is nearest the mark: the rule probably originated in reasoning something like this;—" In ninety-nine cases out of a hundred a person whose title has been separated from the property for sixty years is barred by the Statute of Limitations; we must not, therefore, to prevent extreme cases of hardship arising, put every owner of property to an unnecessary expense." Now the question is whether we shall, when the term of limitation prescribed by the new act comes into full operation, in order to provide

against extraordinary cases, continue to require titles to be deduced for at least sixty years. Suppose an abstract to commence with a conveyance in 1790 from Temple to Fairfax, made apparently for an adequate money consideration, and taking the facts to be most unfavourable to the title, we will say that Temple was then a young man, twentythree or twenty-four years of age, and that it cannot now be ascertained whether he be living or dead. Now this would be a sufficient foundation for a good title, unless Temple was only tenant for life. But what does this assume? It assumes that Fairfax purchased and paid a full consideration without having any title! If the vendor were a young man, he probably claimed under some settlement or will, and yet we must suppose that his title was never looked into, and that his bare word that he was seised in fee was taken. But in the great majority of cases, especially in the country, it might be immediately ascertained whether a person who sold property forty years ago, were living, and if not, when he died; and then the circumstances and characters of the vendor and purchaser, which might be frequently known, would assist an inquirer in coming to a conclusion whether there were any reasonable ground of suspicion. Whatever, indeed, may be the opinion of London conveyancers, who ought to exercise the most abundant caution, for the titles submitted to them are for the most part doubtful and suspicious, and as it were exceptions out of the general mass; whatever may ultimately be the decision of the courts, we know that in the practice of solicitors the new act has already had a beneficial effect in shortening abstracts. It will be necessary, however, for the courts, which cannot investigate every particular case, to lay down some general rule; and we should say that a title for forty-five or fifty years will be quite sufficient to protect a purchaser acting with ordinary circumspection; whatever be the limit assigned, it will of course be sometimes necessary, as under the old law, to call for the previous title. We cannot justly withhold from our readers Mr. Hayes's intelligent observations on this point.' "If the limitation to a writ of right originally suggested the period of sixty years, yet it did

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Introd. to Conveyancing, p. 163,

not furnish, or did not alone furnish, the ground and reason of the practice which requires the title to real property to be deduced for that period at least. There can be no mathematical certainty of a good title, but there may be a strong moral probability, and it was thought that a scrutiny prosecuted through the res gesta of the last sixty years afforded that probability. The more extended the period of research, the greater the assurance of safety; but convenience required, and practice established, a conventional limit. The requisition of a sixty years' title was not confined to cases in which the remedy by writ of right was available. By the new act the writ of right is taken away; twenty years' possession adverse to a tenant in tail operates against those in remainder and reversion, whose estates are in effect constituted for this purpose an integral part of the inheritance of the tenant in tail; and the only action left to the remainder-man or reversioner is an ejectment (for writs of formedon are abolished), and the period limited for bringing an ejectment is twenty years, which cannot be extended by disabilities or otherwise beyond forty years. It is clear, therefore, that forty years' possession under a conveyance by lease and release from A., seised in tail with remainder over, reversion to B., will constitute a perfect title as against the remainder-man and reversioner. But it is obvious that the same rule could not be applied to a remainder or reversion expectant on a tenancy for life; and therefore forty years' possession under a conveyance from A., tenant for life with remainder over, will add nothing to the permanence of the title conferred by the conveyance itself. Suppose this not improbable case,-A., seised in fee of Blackacre, devises Blackacre to B., without words adequate to pass the fee; B., who is erroneously treated as the owner of the fee, assumes' to sell and conveys it to C., through whom the next vendor derives his title, which commences with this conveyance dated forty years ago. If B. is living, or has not been dead twenty years, or has been dead for that period, but the right of the ulterior claimant has been kept alive by disability, the purchaser accepting such a title

1 That B. should assume or attempt to sell is not improbable, but that C. and perhaps three or four purchasers and mortgagees under him should accept such a title instead of a fee is not probable.

will be exposed to eviction. It may be urged that the same reasoning would equally prove the insufficiency of a title for sixty years, (which is less than the duration of human life,) especially when it is considered that a life estate may be limited to a person unborn; but this would be an argument for extending rather than abridging the investigation. Every year subtracted from the period fixed by practice, and sanctioned by the courts, diminishes the security. As the law stood, a title regularly deduced for centuries might have proved bad; there was not only the danger of eviction by a remainder-man or reversioner after a tenancy for life, but the more remote danger of eviction by a remainder-man or reversioner after an estate-tail. By the new law the latter danger is removed or greatly diminished, but the former is not removed or materially diminished. The removal or diminution of one only of those hazards, and that the least imminent, cannot, it is conceived, justify the deduction of twenty years from the ordinary term. Other arguments might be adduced and other cases be put, but enough has been said to caution the practitioner against assuming that the act operates, as of course, to render a forty years' title strictly marketable. He should also bear in mind that a vendor, unless protected by express stipulation, is compellable to produce, on oath, all the documentary evidence of title in his possession or power, however remote the period to which that evidence may refer.' But though the act should not operate to establish a new rule in regard to the deduction of titles generally, (a result which the framers of the measure could never have contemplated, and which, indeed, it was vain to expect from the legislature,) yet it will certainly cure the infirmities of many titles, and may, by inspiring confidence in the security of possessions, induce the professional adviser to abate something of his jealousy and rigour." Upon this argument we shall merely remark that it pays too much attention to extreme cases; and if it were shown that the first vendor in an abstract had been dead above twenty years, this would gene

This rule, with great deference be it said, has nothing to do with the question as to what should be the period of limitation respecting titles; whether it be forty, fifty, or sixty years, the vendor must produce all his muniments of title, and the validity of the title must depend upon the result of an investigation of them all.