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Judgments.

SECTION 1. 4. Judgments too should, in general, be searched for; because when docketed, i. e. put into " an alphabetical dogget" or list, (according to 4 & 5 Will. & M. c. 20), they become liens on the estates of those against whom they have been entered up. The practical rule is, " to search during the last ten years, but if any judgment be found, to extend the search ten years anterior to the date of that judgment; and so on, back to the time when the debtor attained his majority (a)." The search, however, is seldom extended over more than a period of twenty years (b). If any judgment be found against the name of an owner, the person bound to produce a good title must procure it to be satisfied, or else shew that it is applicable, not to the person supposed, but to another of the same name. And for this latter purpose, it is usual to require a certificate from the solicitor who obtained the judgment, stating the residence and description of the person against whom it was entered up (c). If, however, the name be one of common occurrence, so many certificates would then be called for, that in practice it would be impossible to obtain them; and accordingly, in such cases," a willing purchaser," says Mr. Tyrrell, "is usually satisfied with an affidavit or certificate from the solicitor of the owner, that he is confident that none of the judgments relate to him; but it has not," he adds, "been decided whether the objection does not render a title unmarketable."

(a) Prest. Abs. i. 191; iii.

337.

(b) Real Prop. Rep. ii. 30.

(c) Tyrrell, Real Prop. Rep. App. i. 517.

In some instances, however, the search for judgments may safely be dispensed with. Thus, if the purchaser be, at the time of his contract, seised of

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for.

the legal estate as mortgagee, he need not search Mortgagee. for any judgments entered up subsequently to the execution of the mortgage (a). So, if he has the Appointee. estate conveyed to him by force of a power of appointment, it is unnecessary to search for judgments suffered since the creation of the power it being an established rule, that when a power is executed, the appointee takes under the creator of the power, and not under him who executes it (b). Neither is it necessary to search for judgments when the purchaser obtains a clear title to a subsisting legal estate, whether freehold or term of years, anterior to the usual period of search; though this will not protect him from judgments of which he has notice (c).

Neither is Outstanding

5. Again, if the property in question be in Middlesex, Yorkshire, or the Bedford Level, the local registers ought to be examined, not only with the view of ascertaining whether any incumbrances are

541.

(a) Sugd. Vend. & Pur. i. ther a legal estate outstanding in a trustee would protect a bonâ fide purchaser, without notice, against a crown debt? To which are added the opinions of Sir Lloyd Kenyon, Mr. Dunning, Mr. Ambler, Mr. Mansfield, and Mr. Holliday. The question was ultimately decided in the negative, though contrary, it is said, to the general opinion of the profession. Rex v. Lamb, 13 Pri. 649, M'Clel. 402.

(b) Doe v. Jones, 10 Barn. & Cr. 463; Tunstall v. Trappes, 3 Sim. 301; Eaton v. Sanxter, 6 Sim. 517.

(c) Prest. Abs. iii. 339; Sugd. Vend. & Pur. i. 546. In the Hargrave MSS. (British Museum, No. 493, fol. 568), there is a copy of the celebrated case of Luxborough-house, where

the point in question was, whe

legal estate.

Registers.

SECTION 1.

Acts of bankruptcy.

disclosed, but also whether the deeds and wills have been duly registered (a).

6. And here it may be useful to remark, that, if the vendor be subject to the bankrupt laws, any sale and conveyance by him may be impeached, in case a commission issues within two months afterwards (b). If indeed an act of bankruptcy has been already committed, that is a decisive objection to specific performance; because, until the period fixed by act of parliament (viz. twelve calendar months) has expired, it cannot be known with certainty to whom the estate belongs, whether to the vendor or his assignees (c).

Supersedeas. 7. So, if the estate contracted for, has been recently purchased under a commission, or under any order in bankruptcy, it ought to be ascertained that no supersedeas was issued, or proceedings for a supersedeas taken, within twelve calendar months from the date of the commission; for, until that period has elapsed, the transaction is liable to be impeached (d).

Acceptance of unmarketable

title.

VI. To these observations on the duty of the solicitor I shall only add, that whenever an unmarketable title is accepted, care should be taken that such acceptance is the personal act of the purchaser himself, and not of his solicitor. Indeed, it has

(a) Tyrrell, ut sup.; Vend. & Pur. i. 549; Abs. iii. 99.

Sugd.
Prest.

549; Cann v. Cann, 1 Sim. &
Stu. 284; and see Franklin v.
Lord Brownlow, 14 Ves. 550.
(d) 6 Geo. 4, c. 16, s. 87.

(b) 6 Geo. 4, c. 16, s. 81.
(c) Lowes v. Lush, 14 Ves.

often and justly been remarked, that any gratuitous SECTION 1. assumption of responsibility on the part of the latter is neither consistent with nor called for by his professional duty.

SECTION 2.

Of the Duty of Counsel.

conveyancing

VII. Having thus treated of the duty of the soli- Province of citor, I shall now proceed to offer some observations counsel. on that of the conveyancing counsel. It is his peculiar province to determine, whether the Title set forth in the Abstract is such as a purchaser can be compelled to take. And this will be found to involve a twofold inquiry:-1st. Whether a good title is deduced; and if so, 2ndly, whether it is supported by adequate evidence; for, it is obvious that one may be the rightful owner, and yet not have the means of proving it. Instead, however, of treating of the "Title to be Deduced," and of the "Evidences of Title" as subordinate to the subject of this section, I shall consider these important topics independently, and at large, in the two following chapters; offering only in this place some practical suggestions relative to the investigation of titles.

hension essen

tial to a right

understanding

of abstract.

VIII. It is a notion very common amongst those Legal apprewho have had but little experience in business, that, when reading an abstract of title, the points of difficulty will suggest themselves to the mind; and that then the student may inform himself of the law, and

SECTION 2. conclude accordingly. So far, however, from this being the case, it will invariably be found that to one whose knowledge is limited and superficial, none but the most trite and obvious questions will occur; the more occult, and often most important, being sure to escape attention: just as a person when using a single lens sees nothing of those asperities which a compound one would have disclosed. The reason of this is obvious: he who is ignorant of the laws of property cannot be capable of judging whether or not any given state of facts is conformable to those laws, and what are the consequences which result from conformity, or from the want of it. And it is equally plain that fitness for such a task is in proportion only to one's knowledge and practical skill. "It demands," as Sir William Blackstone observes, "a sort of legal apprehension, which is no otherwise to be acquired than by use and a familiar acquaintance with legal writers (a)."

Contract and conditions of sale to be first considered.

IX. In entering upon the investigation of any title, we should consider in the first place what is the effect of the contract and conditions of sale; for, although, as will appear hereafter, a good title is a matter not of contract, but of right; yet this right may be restrained, and even waived altogether, by the express agreement of the parties. The nature, too, of the estate and the degree of interest contracted for must be ascertained. Besides, it often becomes necessary, owing to the death of one or both of the parties before the contract has been car(a) Bla. Com. i. 13.

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