[*49

that J. had been admitted tenant in *tail, but not that this was according to the custom of the manor; for, this was not a single fact, but a deduction from a series of facts. [CROWDER, J.-There, the condition provided that the recitals should be evidence of the facts recited here, they are to be conclusive evidence of everything recited.] The word is undoubtedly larger here. But parties are never bound by mis-recitals as to matters of law. The rule for the construction of these conditions is well laid down by Sir L. Shadwell, V. C., in Symons v. James, 1 Y. & C., C. C. 487, 490,†-"If a vendor means to exclude a purchaser from that which is matter of common right, he is bound to express himself in terms the most clear and unambiguous. And, if there be any chance of reasonable doubt or reasonable apprehension of his meaning, I think that the construction must be that which is rather favourable to the purchaser than to the vendor." But, assuming that the plaintiff (the purchaser) is by the terms of the 7th condition shut out from requiring a sixty years' title,-assuming that he has agreed not to object to the title on the ground that it does not go back so far,-still he clearly is entitled to a sixty years' abstract, in order that he may see what the title is. [COCKBURN, C. J.-What is the use of an abstract, if you are precluded from objecting to the title?] The purchaser's agreeing to take such a title as the vendor has, does not dispense with the latter's showing what that title is. [CROWDER, J.-Does not the 14th condition show that the abstract is to be confined to the title which the purchaser is bound to accept?] Clearly not. Sugden says-Vendor & Purch., 13th edit. 355,-that "a man may be entitled to an abstract of the title, and yet be compelled to accept the title itself as it stands;" for which he cites Morris v. Kearsley, 2 Y. & C. Exch. 139.† [WILLES, J.-The learned author notices that case as an exception.] In Southby v. Hutt, 2 Mylne & Cr. 207, by *conditions of sale it was stipu lated that the vendor of an estate which was sold in lots should [*50 deliver an abstract of the title to the purchasers, and deduce a good title; but that, as to a part of the estate, acquired under an enclosure, he should not be bound to show any title thereto prior to the award; and it was further stipulated that the vendor should deliver up to the largest purchaser in value all the title-deeds and other documents in his custody, but should not be required to produce any original deed or other documents than those in his possession and set forth in the abstract: and it was held, on the construction of these conditions, that they did not relieve the vendor from his liability to verify the title shown upon the abstract by producing the title-deeds themselves, or, if any of them were not in his possession, by other satisfactory evidence. In Dart's Vendor & Purchaser, p. 48 (3d edit. 68), it is said: "Particulars and conditions of sale, if intended to exclude the purchaser from what he would otherwise be entitled to, must be expressed in terms the most clear and unambiguous; if there be any chance of reasonable doubt or misapprehension as to their meaning, the construction will be in his favour." For this the learned author cites, amongst other cases, Seaton v. Mapp, 2 Coll. C. C. 562, where Sir L. Shadwell, V. C., says, “I do not greatly admire the case on either side: but I think, and have always thought, that, when a vendor sells property under stipulations which are against common right, and place the purchaser in a position less advantageous than that in which he otherwise would be, it is incum

Then,

bent on the vendor to express himself with reasonable clearness if he uses expressions reasonably capable of misconstruction, if he uses ambiguous words, the purchaser may generally construe them in the manner most advantageous to himself." The correspondence will probably be *51] not. relied on as *supplying all defects. This, however, it clearly does As to the lease by William Snell, the recitals therein do not amount to an admission of title in him; for, the deed itself shows that he had no title. A link is wanting to show that he took as heirat-law of John Snell, the lunatic. Then, as to the will of 1816, it is not shown that it was duly attested, or that it ever was proved. there is no abstract in chief of Thomas Snell's will, but only a recital of it in the indenture of October, 1844. The property is sold as "landtax redeemed." The statutory provision for the redemption of land-tax, is contained in the 42 G. 3, c. 116, s. 38. Now, the only evidence of such redemption, is, the statement in the conveyance of the 18th of October, 1844, from Mears to Humphreys, that the consideration-money paid by Humphreys was "in full for the absolute purchase of the premises, and the fee-simple and inheritance thereof in possession, free from land-tax, and all other encumbrances." There is no statement of the fact of the land-tax having been redeemed at all. In Sugden's Concise View, p. 274, it is said, that, "to land-tax, if sold separately, or where the estate is sold as discharged from it, a title must be shown under the land-tax redemption act," 42 G. 3, c. 116. The 7th condition, therefore, cannot help this defect. Mears's declaration, made in 1844,that, "to the best of his knowledge, information, and belief, no land-tax had ever been paid for or in respect of the before-mentioned close of land and premises subsequently to the purchase or redemption thereof in or about the year 1799,"-carries the case no further. It is not a positive allegation that the land-tax was redeemed; and the declarant speaks only upon information and belief.

Hugh Hill, Q. C. (with whom was Dowdeswell), for the defendant, *52] the vendor. The main question is, whether the defendant has shown such a title to the freehold portion of Lot 1 as he contracted to show. The rule in equity, upon this subject, is different from that at law. A court of law will not consider whether the title is such as a court of equity would compel an unwilling purchaser to take, but simply whether the vendor has or has not a legal title to convey: Boyman v. Gutch, 7 Bingh. 379 (E. C. L. R. vol. 20), 5 M. & P. 222. The case of Blackburn v. Smith, 2 Exch. 783,† is an authority to show that an abstract for sixty years need not be produced. By the 7th condition, it is provided that every deed and entry on or copy of court-roll dated more than ten years ago, shall be conclusive evidence of everything recited or stated therein. Corrall v. Cattell, 4 M. & W. 734,† affords a strong illustration of the extent to which a court of law will go in giving effect to the plain meaning of the conditions. The recital, therefore, in the deed of the 18th of October, 1844, that Thomas Snell, the testator, was seised in fee, must be taken to be conclusive evidence of that fact. Further, there is in the extract from the conveyance by Humphreys, of the 24th of May, 1845, a statement of the legal effect of the former deed, which fairly comes within the meaning of the 7th condition. There is no case in which a court of law has ever held a sixty years' title necessary since the 3 & 4 W. 4, c. 27. There is ample

evidence in the recital in the deed of 1844, and in the declaration of Mears, that the land-tax has been redeemed.

Byles, Serjt., in reply, referred to Shepherd v. Keatley, 1 C. M. & R. 117,† Sellick v. Trevor, 11 M. & W. 722, 728,† and Jeakes v. White, 6 Exch. 873.† Cur. adv. vult.

WILLES, J., now delivered the judgment of the court:These are cross-actions between the vendor and *purchaser of an estate in Essex. The vendor claims against the purchaser, as for[*53 feited, the deposit of 500l. (which, with the exception of 31. 88. deducted under an interpleader order, is now in court), the costs incurred with respect to the sale, the expenses incident to the investigation of the title, the deficiency in the price realized upon a resale of the property in consequence of the refusal of the purchaser to complete, and the expenses of such resale. The purchaser, on the other hand, claims the deposit and interest, and the costs of investigating the title. These are the claims stated in the special case, and upon which we are to decide.

No question of specific performance can arise, the property having been resold, and the vendor having chosen to bring an action. The substantial question is, whether the vendor has shown a sufficient title.

Upon the argument before my Lord Chief Justice, my Brothers Williams and Crowder, and myself, much discussion took place upon the construction of the conditions of sale, and the sufficiency of the title shown, with reference to those conditions. Amongst other objections on the part of the purchaser, it was urged that, by the contract, the land was described as land-tax redeemed, and that no sufficient proof was given by the vendor, that, in respect of the freehold part of the property, the land-tax had been redeemed. This, in the absence of a special condition of sale, would be a well-founded objection. The vendor was bound to give reasonable evidence that the land-tax had been redeemed, or that, if purchased, it was in his power to transfer or release it; and, ordinarily, the proper evidence of this would be the certificate of the commissioners or a copy of the register. A statement in the deed of 1844, to which the purchaser was no party, would not be sufficient, of itself; and the statutory declaration of Mears twelve years before the purchase, that, to the best of *his knowledge and belief, [*51 no land-tax had ever been paid for or in respect of the land "subsequently to the purchase or redemption thereof in or about the year 1799," leaves it doubtful whether the land-tax ever was redeemed so far as to free the land from liability either to the Crown or to a purchaser under the statute 38 G. 3, c. 60, or his representatives.

The vendor, however, relies upon the seventh condition of sale, by which it is provided that "every deed and entry on or copy of court-roll dated more than ten years ago, shall be conclusive evidence of everything recited or stated therein :" and he insists that, by force of that condition, the statement in the conveyance of the 18th of October, 1844, from John Mears to Jeremiah Humphreys, from whom the property came by various mesne assignments to the defendant, is sufficient, and indeed conclusive evidence that the land-tax was redeemed. That statement occurs in the witnessing part of the deed, and is as follows:-"It is witnessed, &c., and in consideration of the sum of 2907., &c., to the said John Mears, &c., paid by the said Jeremiah Humphreys, &c., the receipt of which the said John Mears acknowledged, and that the same

was in full for the absolute purchase" of the premises, "and the feesimple and inheritance thereof in possession, free from land-tax and all other encumbrances."

The purchaser insists that this is not a statement of the fact that the land-tax had been redeemed, but only an acknowledgment by the then vendor that the then purchaser had paid 2907. for the land as being free of land-tax and other encumbrances; and that it is consistent with such statement that the land-tax had not been redeemed, or at least that it had been purchased and assigned to the then purchaser, or a trustee for him, in whom or in whose representatives it may now be vested.

*We are of opinion that the purchaser is right in this contention. *55] The statement, to bind him conclusively under the seventh condition, ought to be something alleged by way of direct recital or similar statement in the deed, and not merely matter to be inferred as the probable, not certain, result of what is stated. Nor can this be considered. as other than a substantial objection; for, upon the special case as it stands, there are no materials for forming a judgment whether or not the estate is free from the tax.

For these reasons, we are opinion that the vendor has failed to make out such a title to the freehold as by the conditions of sale he undertook to show, or as a purchaser was bound to accept. No question of whether the objection is not mere matter of compensation,-which probably it is, arises in the present proceeding; there being, as we have stated, and for the reasons we have stated, no claim made or sustainable for specific performance and, although we are, by consent, to consider the rights of the parties both at law and in equity, that must mean existing rights with reference to the remedies applicable to them.

With regard to the amount to be recovered by the purchaser, it is not affected by the 14th condition of sale; for, the vendor insisted throughout upon his being in the right, and did not give notice under that con

dition to annul the sale.

We therefore give judgment in Buchanan v. Poppleton for the defendant and in Poppleton v. Buchanan, we give judgment for the plaintiff for the sum of 31. 88., deducted on paying the deposit into court, the interest upon the deposit to this time, and the costs of investigating the title, to be ascertained by the master: and we direct that the sum deposited in court be paid out to the plaintiff in that action.

The rules which govern the rights and liabilities of the parties to an executory contract of sale of real estate, are substantially the same in the United States as in England, though in practice there may be differences in their application. Thus it seems to be now universally held, that a vendee is entitled to require a good title, clear of all encumbrances, or, if the latter exist, to have them discharged out of the purchasemoney, even though the contract of

Judgment accordingly.

sale contain no agreement for covenants of warranty: Bates v. Delavan, 5 Paige 300; Winne v. Reynolds, 6 Id. 407; Westervelt v. Matheson, Hoffm. Ch. 37; Fletcher v. Butler, 4 Comst. 396; Burwell v. Jackson, 5 Seldon 536; Ludwick v. Huntziger, 5 Watts & Ser. 59; Creigh v. Shatto, 9 Id. 83; Dalzell v. Crawford, 1 Pars. Eq. 37; Garnett v. Macon, 2 Brock. 186; Morgan v. Morgan, 2 Wheat. 290; Smith v. Pettus, 1 Stew. & Port. 107;