Lord Hardwicke, at an early day, laid it down, "that even if an attorney of a vendor of an estate, knowing of incumbrances thereon, treat for his client in the sale thereof, without disclosing them to the purchaser or contractor, knowing him a stranger thereto, but represents it so as to induce a buyer to trust his money upon it, a remedy lies against him in equity; to which principle it is necessary for the court to adhere, to preserve integrity and fair dealing between man and man; most transactions being by the intervention of an attorney or solicitor." Lord St. Leonards, adopting the above, adds, that it seems clear that relief may now be obtained at law. And he says that the same observation applies, and indeed with much greater force, to the attorney or agent of the purchaser. It can seldom happen that the attorney or agent of the purchaser is conusant of any incumbrance on the estate intended to be purchased, unless he be employed by both parties; which the same person frequently is to avoid expense. (1 Sugd. Ven. 8, Perk. ed.) This practice prevails to a great extent in this state; and in small transactions in the country is almost unavoidable. It is a practice discountenanced by the courts in England; and is often productive of the most serious consequences. (Id. 6 Ves. 631, note.) It would doubtless be discountenanced here. It often happens, that there are incumbrances on an estate which can be sustained in equity only, and which will not bind a purchaser who obtains the legal estate, unless he had notice of them previously to completing his purchase. Now, notice to an agent, although one concerned for both parties, is treated in equity as notice to the purchaser himself; and therefore, if the attorney knows of any equitable incumbrance, the purchaser will be bound by it, although he himself was not aware of its existence. (1 Sugd. Ven. 8, § 23, Perk. ed. Champlin v. Layton, 6 Paige, 203. Griffith v. Griffith, 9 Paige, 315. Will. Eq. Jur. 249, et seq, and cases there cited.)

As the principal is civilly responsible for the acts of his agents, (Doe v. Martin, 4 D. & G. 39, 40,) if the vendor of an estate is guilty of fraud in the sale of the estate to which his attorney is privy, the purchaser, if he has employed the same attorney in negotiating the purchase, though innocent of the fraud, will be affected by it. (See 1 Sugd. Ven. Perk. ed. 9, a variety of cases on the subject.)

It is for the interest of both parties that they be represented by different counsel, in all transactions of the nature we are consider

ing. In England, whenever in a proceeding before a master the same solicitor is employed for two or more parties, such master may, in his discretion, require that any of the said parties shall be represented before him, by a distinct solicitor, and may refuse to proceed until such party is so represented. (Gen. orders, 23 Nov. 1831, 77) This rule was dictated by a knowledge of the inconvenience and hazard of the contrary practice.

SECTION VII.

Of the Party by whom the Deed or Mortgage is to be prepared, and at whose expense.

When the property of an individual is taken under the exercise of the right of eminent domain, for public use, by virtue of the sovereign authority as permitted by the constitution-that private property shall not be taken for public use without just compensationthe expense of the proceeding is borne exclusively by the party for whose benefit the property is taken. The party whose title is forcibly wrested from him is required to be recompensed in money for its value, without any deduction for supposed benefits, and without any liability for costs. This is the principle on which our laws with respect to public and private ways are founded. (2 R. S. 394 et seq. 5th ed.) The like principle applies when land is taken for a turnpike, (Id. 480 et seq.) or for a plank road, (Id. 495 et seq.)

The general act to authorize the formation of rail road corporations (L. of 1850, ch. 140, § 16, 17, 18, &c.) is founded on the same principle; and we have seen, in a former part of this work, that compensation must precede the vesting of the title in the company or the individual for whose benefit it is obtained. The same rule has invariably been pursued by the state in awarding damages for property taken for our canals. The state defrays the expenses of the tribunal by whom the damages are awarded.

In the foregoing provisions it is assumed that the parties taking the land of others for public use have been unable to make an amicable purchase; and the property is therefore taken against the will of its owner. But it often happens that the owner is willing to part with his title for a fair equivalent. In such a case it is usual for the purchaser to bear the whole expense of the conveyances. The rule in England, in this class of cases, seems to be the same. (Matter of London and Greenwich Railway Co. 3 Hare, 22.)

In transactions between buyer and seller, when no statute intervenes, the parties may make such stipulations as they please with respect to the expense of investigating the title, and preparing the instruments of conveyance. The expense may be equally divided, or be borne by either party, as they shall have agreed. When there is no previous agreement between the parties on this point, the matter of expense attending the conveyances is to be settled by the general usage of the country.

With respect to a mortgage given as the security for a loan, it was said by the master of the rolls, in Kennedy v. Greene, (3 Mylne & Keene, 699,) that the solicitor of the mortgagee is the person who is to prepare the security. The money advanced is that of the mortgagee, and it is his interest that is to be protected. The expense of preparing the security and of making the requisite searches and abstracts when necessary, must be borne by the mortgagor. This it is believed is the usage in this state, where sums of money are loaned out by corporations or individuals on mortgage security. The lender is entitled to his money loaned and the legal interest, which he would not get if he had to bear the expenses of the searches, examination of titles and preparation of the securities.

When a mortgage is given for the consideration money, on the same land which is sold, no abstract of title or search for incumbrances against the mortgagor are necessary. No incumbrance against the vendee will attach upon an instantaneous seisin which is immediately conveyed back to the vendor by way of mortgage. (See ante, p. 124.) In this class of cases it is usual for the parties to share the expense; the vendor paying for the preparation of the deed and for the search for incumbrances on the estate, and the vendee for the bond and mortgage given for the whole, or some part of the purchase money. In transactions of this kind in the country, the same person usually acts as counsel for both parties. The purchaser should, for his own safety, require a search for incumbrances against his vendor, and those under whom he holds, and not rely solely on the covenants for title in his deed.

In other cases between vendor and vendee, the duty of preparing the title papers, and of paying the expenses incidental to their preparation depends on the express contract of the parties; and if that is silent, on the general usage on the subject. It is competent for the parties, in the preliminary contract for the sale and purchase of an estate, to stipulate by which of the parties the expenses shall

be borne. If the articles of agreement be judiciously framed, and the parties have thereby provided as to subsequent expenses, no controversy in that respect will probably arise.

But in many cases a sale takes place without any preliminary articles of agreement, or if one be made, it may fail to contain any certain disposition of this question. In such cases resort must be had to the usage on the subject, or the construction of the defective provisions contained in the contract.

The former practice in England was to require the vendor to prepare and tender a conveyance of the premises to be sold, when there had been no express stipulations to the contrary. The modern rule is admitted at this time, says Lord St. Leonards, to be that the expense of the conveyance must be borne by the purchaser, unless there has been some different express stipulation on the subject. (1 Sugd. Vend. 309, Perk. ed.) Therefore, when there is no such stipulation, the purchaser is bound to tender the conveyance. (Id.)

The usage in this state is believed to be more nearly like the former rule in England, than that which is said now to prevail there. In Connelly v. Pierce, (7 Wend. 131,) Savage, Ch. J. after admitting that in England the purchaser is bound to have the deed drawn and presented to the vendor for execution, says we have not gone so far. "The party who is to give the deed, should have it drawn at his own expense." On this point it is believed the supreme court in the fifth district, agreed with the former chief justice. (Carpenter v. Brown, 6 Barb. 149.)

In most of the cases in this state, the question as to who is bound to prepare the deed, has arisen in a collateral action. In Connelly v. Pierce, (supra,) it arose in an action of covenant upon a contract for the sale of land, alleging as a breach that the defendant refused to convey, although requested, &c. There were several pleas to this breach. In the course of the case it was held that the vendor who has covenanted to convey by a certain day, is not in de„fault until the party who is to receive the conveyance, being entitled thereto, has demanded it, and having waited a reasonable time to have it drawn and executed, has made a second demand. The purchaser, it was conceded, might avoid the necessity of a second demand by tendering, on the first demand, a deed prepared for execution. It was said that the vendor was to be at the expense of having it drawn, but was not, in such a contract as that was, to

have it prepared until demanded. The supreme court, in Carpenter v. Brown, (supra,) question the necessity of a second demand. They thought that if the party was entitled to the deed when the demand was made, no second demand was necessary.

In Fuller v. Hubbard, (6 Cowen, 13,) the question arose in an action of assumpsit by the purchaser to recover back the money paid, the conveyance not having been given. The plaintiff having recovered, a motion was made for a new trial, first, on the ground that the plaintiff could not sue on the common counts, but should have brought his action on the contract; and second, that he could not sustain an action, without having first tendered a deed for execution; or at least having demanded it. On this point the court, after alluding to the English rule as laid down in Sugden, both the old rule and the modern one, said, that to put the vendor in default, and to entitle the vendee to recover back the purchase money, which he had paid in advance, he must tender the residue, and demand a conveyance. In such a case, when a part of the purchase money was due and tendered, a reasonable time should be allowed to the vendor to prepare the conveyance. It was admitted that the purchaser might prepare the conveyance himself, and tender it for execution at the time he made the payment or tender, but he was not bound to do so.

The case of Hackett v. Huson, (3 Wend. 249,) was covenant by the vendee against the vendor, on a covenant of the latter to deliver to the former by a certain day a good and sufficient warranty deed, &c. The case is imperfectly made as reported, but the supreme court assumed that the circuit judge had decided that when the vendee brings covenant on such an instrument, he must prepare and tender a deed for the vendor to execute. This they admitted was the English rule, but was not adopted in this state. They said that if the deed tendered by the vendor was objectionable in point of form, the vendee should have prepared one that did conform to the agreement, and present it for execution; and if the vendor refused he would then be in default.

In Hudson v. Jewett, (20 John. 24,) the action was to recover back part of the purchase money, on the ground that the contract was rescinded. The court held that to enable the purchaser to maintain the action, he must show that he has tendered the residue of the purchase money and demanded a deed. The chief justice said he would not decide that the purchaser must prepare the deed, WILL.-36