There are various reasons why the owner of a property may not have possession of certain prior deeds. e.g. the seller may have retained part of the property to which the deeds relate ; or they may be in the hands of a mortgagee ; or the property may have been purchased from one of several joint tenants, or tenants in common, or from a remainderman ; or the property may, originally, have been part of a larger estate. and no prior deeds have been handed over on a sale. Where there is a defective title or document, the contract or special con ditions of sale often state the defect and preclude a purchaser from raising any objec tion to it, and this may, in some cases, be the explanation why a defective title has been taken.
If the purchaser, through his solicitor, is satisfied with the title, after investigation or inspection of any of the abstracted docu ments, he usually receives an acknowledg ment, either in the conveyance or by a separate document, of his right to production of the documents. Where a person retains possession of documents, and gives to an other an acknowledgment in writing of the right of that other to production of those documents and to delivery of copies thereof, that acknowledgment (by Section 9 of the Conveyancing Act, 1881) shall bind the documents to which it relates in the posses sion or under the control of the person who retains them, and in the possession or under the control of every other person having possession or control thereof from time to time, but shall bind each individual possessor or person as long only as he has possession or control thereof ; and every person so having possession or control from time to time shall be bound specifically to perform the obligations imposed under this Section by an acknowledgment, unless prevented from so doing by fire or other inevitable accident. The obligations imposed under this Section by an acknowledgment are : (1) To produce the documents at all reasonable times for the purpose of inspec tion, etc. (2) To produce them at any trial, hearing or examination in any Court, etc., for proving or supporting the title of the person entitled to request production. (3) To deliver to the person entitled true copies or extracts of the documents or any of them.
The expenses of the performance of those obligations are payable by the person request ing performance. The acknowledgment does not confer any right to damages for loss or destruction of the documents.
If the person retaining possession of the documents gives an undertaking in writing for the safe custody thereof, unless prevented from so doing by fire or other inevitable accident, and the documents are lost or destroyed, the Court may, if it thinks fit, direct an inquiry respecting the amount of damages and order payment thereof by the person liable.
When a banker receives part only of the deeds which are recited in the abstract of title, he look to see if an acknowledg ment is given for the production of the deeds necessary to complete the title. If the only deed held by the banker is a conveyance from Brown to Jones, there should be an abstract of Brown's title and an acknow ledgment from him to produce the convey ance or other documents under which he obtained his title to the land. The con veyance to Jones should be duly signed and sealed by Brown (unless there are covenants it is not always signed by the purchaser) and the stamp should be examined to see that it is correct. If the land is in Yorkshire or Middlesex see that the deed bears the regis trar's certificate of registration, or if in the city or county of London note if it should be registered under the Land Transfer Act.
Compare the description and quantity of the land in the conveyance to Jones with the description and quantity in the prior deeds, or as shown in the abstract or plan if there is one. It may, of course, be that Jones has pur chased the land with only one house thereon: whereas an examination of the abstract may show that originally there was much more land and were many more houses. o'ir again the conveyance to Jones may show that he purchased land with, say, six houses, but since he bought it he may have sold several of the houses. The banker should therefore be at trouble to ascertain how many houses still remain unsold. There may be indorsements on the conveyance setting forth the facts of each sale, but it should not be forgotten that the houses may have been sold and yet no indorsement of sale appear upon the conveyance. It would appear that there is no obligation upon a solicitor to indorse a sale by Jones, upon the conveyance to Jones, though it is very desirable that it should be indorsed. A conveyance to Jones may, therefore, be for land on which has been built whole streets of houses, and, looking at the consideration, which may be for thousands of pounds, the banker may easily think at first sight that it is a most valuable security, but, after investigation and an actual inspection of the property, he may find that all that remains, to take an extreme case, is one poor house of practically no value at all.