The contract also contained the following special stipu- Statement. lations :

"The vendor shall not be required to furnish any abstract of title, evidences of title, or any copies of same, other than those in his possession or power.

"The purchasers to be allowed 20 days to accept the title at their own expense, and all requisitions on title to be served in writing on the vendor's agent within 15 days, and time to be of the essence of this agreement. An abatement of the purchase money will be allowed in the event of the frontage not being as represented, the land being sold at $425 per foot frontage.

"If the purchasers insist upon any objection to title which the vendor is unwilling or unable to remove, he reserves the right to rescind this agreement and refund the deposit."

The vendor furnished to the purchasers' solicitors the abstracts, documents, and evidences of title in his possession or power without delay, and on the 12th of July the latter served a number of requisitions which were answered by the vendor's solicitors on the 15th, who gave all the information they had on all the points of enquiry, but without prejudice.

Nothing further passed between the solicitors until the 18th of July.

On that day there was some correspondence between the solicitors as to closing the matter, and on the following day the purchasers' solicitors wrote to the vendor's solicitor objecting to the answers to the requisitions and asking for certain proofs.

The purchasers also at once prepared a petition under the Vendors and Purchasers Act which, after setting out the contract, and what had taken place between the solicitors, enumerated eight points of objection to the title, among others that an undivided interest in a small portion of the land was outstanding in Mrs. Meredith, and that the purchasers had not been furnished with evidence, as they should have been, of possession by the vendor and his pre

Statement.

decessors in title of part of the lands fronting on Piper Street.

The prayer of the petition was:-"That an order be made directing the vendor to remove the objections to the title to the lands in question unanswered by the answers to the requisitions, and that, if necessary for the purpose of shewing a good title to the said lands, the matter be referred to the Master in Ordinary under the direction of this Honourable Court."

After this, a good deal of correspondence took place between the solicitors, the solicitor of the vendor assisting in clearing up the questions raised by the purchasers' solicitors, but contending that he was under no obligation to do so, and he also obtained a quit claim from Mrs. Meredith.

The petition was heard on the 4th of September, when, by consent, an order was made referring it to the Registrar of the Chancery Division, to inquire and state whether the vendor could make a good title, and if so, when such title was first shewn, and further directions and costs were reserved.

On the 23rd of September the Registrar made his report. He found that nine objections were taken before him, but that the title was good; that title was shewn to all but an undivided interest in nine feet of the land before the filing of the petition, and to those nine feet between the filing and presenting of the petition to the Court; that the objection to the title to the nine feet was taken on the 12th of July, and that the vendor's answer was not sufficient; and, finally, that the vendor had, before the filing of the petition, furnished the purchasers with all the evidences of title and copies then in his possession or power, and that the objection as to the undivided interest in the nine feet, was not removed by any document which was in the vendor's possession or power before the day for completion, but by the execution of a new conveyance.

The purchasers were not satisfied with this report, and gave notice of appeal, objecting that the referee should have found that the title to the nine feet was first shewn in the

course of the reference, and that title was also first shewn Statement. during the reference to a strip of the land lying adjacent

to Piper street, by length of possession.

By consent, the hearing on further directions, and the appeal from the report, came on together before BOYD, C., on the 26th of September, when the first order which was the subject of this appeal was made.

By this order the learned Chancellor dismissed the appeal from the report, declared that the title was good, and that the purchasers were liable to pay interest on the purchase money from the 14th of August, 1889, the day on which the quit claim of the nine feet was first exhibited to them.

He further ordered the vendor to pay the costs of the purchasers of the proceedings on the petition so far as the same were occasioned by the requisition in respect of the nine feet.

He gave no costs to either party of the proceedings relating to Piper Street, and as to the other costs of the petition, he awarded them to the vendor.

When this order came to be drawn up, it was discovered that there was a clerical error in the report of the Registrar, and by consent, words were introduced into the order to correct it.

After the order was drawn up, the vendor moved in Chambers for leave to appeal from the report, so far as it found that title to the nine feet was not shewn until after the filing of the petition, contending that the title was good without the conveyance which was afterwards obtained.

This application was refused, the learned Chancellor holding that the report could not be opened up after the order on further directions had been made, but he gave leave to appeal from the order refusing leave.

The vendor appealed from both orders, and the appeal came on to be heard before this Court (HAGARTY, C. J. O., BURTON, OSLER, and MACLENNAN, JJ. A.), on the 12th of March, 1890.

Argument.

Moss, Q.C., T.A. Rowan, and James Ross, for the appellant. The Chancellor was wrong in making interest run only from the day upon which the quit claim was obtained, instead of from the date fixed in the contract, and he was also wrong in making the vendor pay the costs of the proceedings. The quit claim was procured merely to facilitate the closing of the matter, and was not necessary for the actual purposes of the title which was good apart from this quit claim. The purchasers were moreover relying upon other objections with which the quit claim had nothing to do. All these objections were found against them, and they should have been ordered to pay the costs. The question of the time from which interest should run was not raised in the petition, and should not have been dealt with. That was a matter that was settled by the contract, and the parties had no right to go into that question on a summary application such as this was. Assuming, however, that there was juridiction to consider the question, then that question has been wrongly decided. Where the contract itself fixes the time from which interest is payable, that time must govern in the absence of improper conduct or improper delay on the part of the vendor. It is not right simply to determine the question by ascertaining when title was first shewn. All the proceedings should have been looked at, and the vendor should not have been deprived of interest in the absence of actual misconduct on his part: Monro v. Taylor, 8 Ha. 51; S. C. 3 Mac. & G. 713; Fry on Specific Performance, 2nd ed., secs. 1381, 1385. If nothing is said in the contract as to interest, it runs from the time fixed for completion unless there is some deliberate default on the part of the vendor. Mere delay caused by difficulties in connection with the title and not the fault of the vendor personally, will not relieve the purchasers from paying interest: Fry on Specific Performance, 2nd ed., secs. 1381, 1385; In re Thompson, Biggar v. Dickson, 2 Ch. Ch. 196; Esdaile v. Stephenson, 1 S. & S. 122; Monk v. Huskisson, 4 Russ. 121; Greenwood v. Churchill, 8 Beav. 413; Sherwin v. Shakspear, 5 D. M. & G. 517; Vickers v. Hand,

26 Beav. 630; Lord Palmerston v. Turner, 33 Beav. 524; Argument. Upperton v. Nicholson, L. R. 6 Ch. 441. If the proceedings and material before the referee are looked at, then it is shewn clearly that the conduct of the purchasers has really been the cause of the delay and of the expense, so that the purchasers ought to be ordered to pay the costs: Parr v. Lovegrove, 4 Drew. 170; S. C. 4 Jur. N. S. 600; Long v. Collier, 4 Russ. 267; Graham v. Stephens, 27 Gr. 434; Haggart v. Quackenbush, 14 Gr. 701; Platt v. Blizzard, 29 Gr. 46. The Court has the right upon the question of costs to go behind the report, and look at all the proceedings: Downey v. Roaf, 6 P. R. 89. If the report, as it stands, justifies the decision as to interest then the appellant should be allowed to appeal from it, as it is clearly wrong. The fact that the order on further directions has been made is no bar to the appellant being allowed to appeal from the report. That order was pronounced by consent at the same time when the purchasers' appeal from the report was disposed of, and it is not in any way a bar to the right of the vendor to appeal from the report also. At any rate, if the order on further directions, while it stands, is a bar to this appeal, then it should be set aside. as having been made by mistake and inadvertence: Flower v. Lloyd, 6 Ch. D. 297; In re Swire, Mellor v. Swire, 30 Ch. D. 239; Mullins v. Howell, 11 Ch. D. 763; Hewitt v. Hull Building Society, 4 Times L. R. 35.

S. H. Blake, Q. C., and Kilmer, for the respondents. The objection that there was no jurisdiction to consider the question of interest and costs was not raised in the Court below, but on the contrary, these questions were argued and disposed of. It is true that the question of interest is not specifically mentioned in the petition, but it could have been raised by petition, and the vendor having argued the question, that is equivalent to a consent to its being raised, and it is too late now to take that objection. The vendor was clearly at fault in this matter. There is no doubt that registration is necessary before a good title is made out: Kitchen v. Murray, 16 C. P. 69; Laird v.

52-VOL. XVII. A.R.