SECTION 2. possession, although in respect of the same transaction as before, yet he can retain them only for the fees payable by reason of such additional labour (a). The lien of a solicitor or attorney, as before observed, is a general one (b); but this does not seem to extend to the will of a deceased testator (c): at least the ecclesiastical court can order it to be brought in, though in the custody of an attorney claiming a lien, and the court of King's Bench will not interfere by prohibition (d). (a) Sweet v. Pym, 1 East, 5. (b) See Stevenson v. Blakelock, 1 M. & S. 535; 5 Barn. & Adol. 813. (c) Georges v. Georges, 18 Ves. 294; Balch v. Symes, (d) Ex parte Law, 2 Ad. & Ell. 45; 4 Nev. & M. 7. 83 CHAPTER II. OF THE TITLE TO BE DEDUCED. SECTION 1. Of the Right to and Nature of a Good Title. SECTION 1. Title. I. WHOEVER proposes an estate for sale without Right to a good qualification, asserts, in fact, that it is his to sell; and, consequently, that he has a good title (a). Hence a chattel; and that rule, that pos- (a) 4 Madd. 365; 5 Ves. 734; 18 Ves. 512. For a definition of the term "title," see Intro. § 1, art. 3, note. "There is a marked distinction," said Lord Erskine, "between a real estate and a personal chattel. The latter is held by possession; a real estate by title. Possession of an estate is not even prima facie title. It may be by lease, or only from year to year." "I repeat," added his lordship," that land is held, not by possession, but by title:-not so as to personal chattels, for the common traffic of the world could not go on. Therefore, a sale in market overt changes the property of for the deeds, the vendor acknow SECTION 1. Nature of a good Title. a purchaser may insist on the production of a good title as a matter of right-not growing out of any express stipulation of the parties, but implied in the act of agreement itself (a). He may, indeed, waive this right either expressly or by implication, or the vendor may stipulate that such a title only as he happens to have shall be accepted (b). But otherwise a good title must be produced, or the vendor cannot enforce performance of the contract. II. Thus far the law is clear. But the question is, (and it is one continually arising), what is a good title? At law every title is considered to be either good or bad (c); and such was once the doctrine in equity. According to the old practice, and until about Lord Somers's time, the Court of Chancery would not entertain a bill for specific performance, unless the party seeking it had first sustained his title by a verdict at law (d). Afterwards the equity judges took upon themselves to decide the ledges he has not got them, the in Boydell v. M'Michael, Mr. regard to real property, the pos- (a) Ogilvie v. Foljambe, 3 Meriv. 64; 1 Mees. & Wels. 701. (b) Freme v. Wright, 4 Madd. 364; Wilmot v. Wilkinson, 6 Barn. & Cr. 506. (c) Romilly v. James, 6 Taunt. 274; Boyman v. Gutch, 7 Bing. 379, 5 M. & P. 222, overruling Curling v. Shuttleworth, 6 Bing. 134; 3 M. & P. 368. (d) 1 You. & Coll. 228; Ambl. 406; Fonbl. Treat. of Eq. i. 139; Vin. Abr. tit. Contract (M), pl. 2, 11, 15, 24. question of title, whether it was good or bad; but, in SECTION 1. assuming this function, which properly belonged to the courts of law, they had plainly undertaken an office for which they were but imperfectly qualified; having no adequate means of sifting the title, and no jurisdiction to bind other than those who are parties to the suit; so that any question of title could not be conclusively settled by decree (a). Cases soon arose clouded with so much doubt, either as to matters of fact or matters of law, that the Court hesitated, under such circumstances, to decree specific performance. Hence the origin of what are called doubt- Origin of ful titles. And certainly it would have been repugnant to every just principle to compel a purchaser to pay for what he might never get; to enforce a contract when all mutuality was destroyed. Accordingly, it is laid down by Lord Eldon as an established rule of equity, that," although in the judgment of the Court, the better opinion is, that a title can be made, yet if there is a considerable, a rational doubt, the Court does not attach so much credit to its own opinion as to compel a purchaser to take the title, but leaves the parties to law (b)". In other words, (a) Bla. Com. iii. 442; 4 Bro. C. C. 86; 1 Ves. jun. 566. (b) 16 Ves. 274; and see 11 Ves. 464; 1 Jac. & W. 569. "The law of this court," said Lord Eldon, "has altered within my time. When I first began to practice, the rule was this: when the Court had once determined that a party was tenant in tail, or tenant for life, with an absolute Doubtful Titles. SECTION 1. a Court of equity will not compel the acceptance of a title where there is a reasonable doubt either in law or in fact (a). III. "It is not easy," says an able and learned writer, (Mr. T. Batty Addison), "to find fault with the rule, that a purchaser shall not be compelled to pay money certainly his own for property to which the vendor's title is doubtful; yet the doubt should be a reasonable one, and the rule should be confined to cases where there is some doubt upon a question of fact. When questions of law," he adds, " are brought before a Court, they should be decided, and cease to be doubtful." If the doubt arise from some uncertainty in the law itself, as in the case of Blosse v. Clanmorris, which will be presently noticed, then certainly it is desirable that the question should be him either to do as the Court re- occasion, it would not hesitate to trust its money on the title, it will not compel a purchaser to take it." 1 Jac. & W. 569; and see 11 Ves. 465; 16 Ves. 274. It is justly observed, however, by Sir William Grant, in Sloper v. Fish, 2 Ves. & B. 149, that the rule of not compelling a purchaser to take a doubtful title, was not first introduced by Lord Thurlow, but is at least as old as Sir Joseph Jekyll's time, and was repeatedly acted upon by Lord Hardwicke. (a) Per Sir John Leach, 6 Madd. 57. |