vendor claimed that the record was wrong, and that the deed purporting to be from Hopkins was in fact from Hepburn, but refused to submit his proof for examination by the purchaser or permit the deed to be recorded correctly, a good title is not shown, and the purchaser is justified in refusing to buy the land, and may claim a return of the deposit, even though it may afterwards be proven that the title was good. Benson v. Shotwell, 87 Cal. 49 (25 Pac. Rep. 249). Where a contract for the purchase of land provided that the title was to be examined by the purchaser's attorney and accepted or rejected by him, if the attorney rejects the title, the purchaser is not bound to consummate the sale, and the question whether or not the title is in fact good and marketable is not involved. Allen v. Pockwitz, 103 Cal. 85 (36 Pac. Rep. 1039); Boulton v. Bethune, 21 Grant's Ch. (U. Can.) 110. It was held in Fitch v. Willard, 73 Ill. 92, that a contract of sale requiring the vendor to furnish a satisfactory abstract of title, and give a quitclaim or special warranty deed, implies no undertaking as to the character of the title to be conveyed, but, on the contrary, shows that the vendor assumes responsibility as to the title any further than it may have been affected by his own acts.

Sec. 18.

no

Ownership of abstract. The absolute right of property in the abstract remains in the vendor until the sale is completed. Pending the sale the vendee is entitled to the custody of the abstract and has a special property therein, which he can enforce against the vendor or other persons. But immediately upon the rescission of the contract all his rights in and to the abstract cease, for, all titles being of record, he can show the defects of title as well without the abstract as with it. Jackson v. Conlin, 50 Ill. App. 538; Espy v. Anderson, 14 Pa. St. 308. Upon the completion of the sale and delivery of the deed the abstract becomes the property of the vendee as one of his muniments of title. Warvelle on Abstracts, p. 11. When, for any reason, the contract is rescinded by either party, the purchaser can not hold the abstract as a se. curity for the return of the purchase or earnest money. Jackson v. Conlin, 50 Ill. App. 538. Where the owner of lands furnishes to a party making a loan on his land and taking a

mortgage thereon, an abstract of the title, the abstract becomes a part of the security for the loan, and the mortgagor is not entitled to it until the mortgage is paid. Holms v. Wust, 11 Abb. Pr. (N. S.), 113; Warvelle on Abstracts, p. 11.

Sec. 19. Use of abstracts as evidence-Supplying lost or destroyed records. Except where made so by statute, an abstract of title, though proved to be correct, is not evidence at all, strictly speaking, of the title or of any of the conveyances mentioned in it. Weeks v. Downing, 30 Mich. 5; Reed v. Banks, 10 U. C. C. P. 202; People v. Wemple, 67 Hun. (N. Y.), 495; Sauers v. Giddings, 90 Mich. 50 (51 N. W. Rep. 265); Chicago & A. R. R. Co. v. Keegan, 152 Ill. 413 (39 N. E. Rep. 33); Irwin v. Scheuerer, 10 Ohio C. C. 568; Gate City Abstract Co., 55 Neb. 742 (76 N. W. Rep. 471). An abstract is not admissible in any case, nor is any part of it, to prove such facts as can be shown by a higher grade of evidence. Heinsen v. Lamb, 117 Ill. 549 (7 N. E. Rep. 75); Kane v. Rippey, 22 Ore. 296, 299 (23 Pac. Rep. 180; 29 Pac. Rep. 1005). Where deeds have been lost, abstracts made. therefrom have been admitted as secondary evidence to prove their execution and contents, Moulton v. Edmonds, 1 De. G., F. & J., 246; and if an abstract is admitted to state the true condition of the title to lands then it may be introduced in evidence. Garret v. Hanshue, 53 O. St. 482 (42 N. E. Rep. 256; 35 L. R. A. 321). In an action on a contract for the sale of land, whereby the defendant agreed to convey a fee simple title and to furnish an abstract showing such title, the abstract tendered by the defendant may be admitted in evidence, not as proof of title to the land, but as tending to show a breach of performance of the condition of the contract requiring an abstract. Kane v. Rippey, 22 Ore. 296 and 299 (23 Pac. Rep. 180; 29 Pac. Rep. 1005). In Idaho, Nebraska, New Mexico and Utah it is provided by statute that an abstract prepared and certified by one duly authorized by the statute to engage in the business of preparing abstracts, when duly authenticated, may be admitted in evidence. Ida. Laws 1899, p. 315; Neb. Comp. Stat. (1895), § 4157; New Mex. Comp. Laws (1897), § 3934; Utah Laws 1899, p. 54. The same is provided in Wisconsin as to abstracts of records of

other counties procured by the county board of any county. Rev. Stat. (1898), § 670. Under the Nebraska statute it is held that an abstract of title may now be used in every case where the validity of a title or the existence or non-existence of liens or incumbrances are involved. The right to use an abstract as evidence is not even limited to the person to whom it was issued. If it is properly signed and certified any one possessing it may use it. Gate City Abstract Co. v. Post, 55

Neb. 742 (76 N. W. Rep. 471).

Colorado, Illinois, Mississippi and Ohio have statutes providing that where public records affecting title to real esstate have been destroyed, abstracts made therefrom before such destruction which, by proceedings provided for by the statute, have been found to have been fairly made and to show a connected chain of title, or copies thereof may be purchased by the county and placed in the office of the appropriate officer, and properly certified copies thereof are made evidence as to all conveyances contained in the destroyed records, the originals of which can not be produced. Mills' Ann. Colo. Stat. (1891), §§ 3755-3756; Ill. Rev. Stat., ch. 116, §§ 13, 14; Miss. Ann. Code (1892), 2792; Bates' Ann. Ohio Stat. (1899), §§ 5339e, 5339g. The statutes of Illinois, Texas and Wisconsin provide proceedings by which the owner of a set of abstracts of destroyed records may have them adjudicated as reliable, after which they may be taken as prima facie evidence of all such matters as they contain. Ill. Rev. Stat., ch. 116, § 13; Sayles' Tex. Civ. Stat. (1897), art. 2313; Wis. Rev. Stat. (1898), § 661g. In Illinois and Wisconsin it is provided that where in any action involving any interest in real estate it is made to appear upon the oath of a party thereto, that any original conveyance affecting such title can not be produced by such party and the record thereof has been destroyed, an unaltered abstract of title to such property shown to have been fairly and honestly made in the ordinary course of business, shall be admissible in evidence. And the Illinois statute makes a letter press copy of such an abstract admissible. Ill. Rev. Stat. (1897), ch. 116, § 29; Wis. Rev. Stat. (1898), § 661n. The statute of Illinois to which we have referred in this section is known as the Burnt Records Act, and contains fuller provisions on this subject than any other statute in the

Union. For extensive construction of this statute see Richley v. Farrell, 69 Ills. 264; Russell v. Mandel, 73 Ill. 136; King v. Worthington, 73 Ill. 161; Smith v. Stevens, 82 Ill. 554; Compton v. Randolph, 104 Ill. 555; Heinsen v. Lamb, 117 Ill. 519 (7 N. E. Rep. 75); Converse v. Wead, 142 Ill. 132 (31 N. E. Rep. 314); Walton v. Follanshe, 165 Ill. 480 (40 (4€ N. E. Rep. 459); Cooney v. A. Booth Packing Co., 169 Ill. 370 (48 N. E. Rep. 406).

Sec. 20. Requiring abstract of parties to real actions-Statutory provisions. In Alabama, either party to an action for the recovery of land may require the other to furnish an abstract of the title or titles on which he will rely before the trial of the action. Code (1896), § 1531. The statute of Arizona and Texas provide that "after answer filed [in action to try the title to real property], either party may by motion in writing duly served on the opposite party or his attorney of record not less than ten days before the trial of the cause, demand an abstract in writing of the claim or title to the premises in question upon which he relies." Ariz. Rev. Stat. (1887), § 3146; Sayles' Tex. Civ. Stat. (1897), Art. 5260. The statutes specify what the abstract shall contain, provide that it shall be filed with the papers and may be amended in the same manner as a pleading, "but in all cases the documentary evidence of title shall, at the trial, be confined to the matters contained in the abstract of title." Ariz. Rev. Stat. (1887), §§ 3147, 3148; Sayles' Tex. Civ. Stat. (1897), Arts. 5261-5263. California, North Dakota, South Dakota and Utah have statutory provisions exactly alike, to the effect that whenever it appears to the court that an abstract of title was necessary in an action of partition, the cost of such abstract, "with interest thereon from the time the same is subject to the inspection of the respective parties to the action, must be allowed and taxed." The plaintiff may provide the abstract before the commencement of the action, but if he fails to do so a defendant may furnish it; it may be prepared by any competent searcher of the records, but "must be verified by the affidavit of the person making it, to the effect that he believes it to be correct." The court may direct who is to have the custody of the abstract and direct the cor

rection of any errors in it. Cal. Code Civ. Proc. (1899), §§ 799, 800; N. Dak. Rev. Code (1895), §§ 5841, 5842; S. Da k Ann. Stat. (1899), §§ 6639, 6640; Utah Rev. Stat. (1888), §§ 3569, 3570. The provision of these statutes as set forth in the first sentence above exists in Idaho. Idaho Rev. Stat (1887), § 4606.

In an application to enjoin the cutting of timber, "the petitioner" shall attach an abstract of his title, stating name of grantor and grantee, date, consideration, and description of property, names of witnesses, when and where recorded, to his petition." Ga. Code (1895), § 4927. "To the declaration for the recovery of land and mesne profits, the plaintiff shall annex an abstract of the title relied on for such recovery." Id., §§ 5002, 4963. The abstract is a necessary part of the declaration, but a complaint defective in this particular is amendable by adding thereto an abstract of the plaintiff's title. The object of the abstract is not to show title in the plaintiff on the face of the pleadings, but only to apprise the defendant of the nature of the title claimed, and of the specific documents which will be introduced on the trial. It is not required that the abstract shall be so clear and complete as to show a title beyond question, and the complaint is not demurrable because of defects in the abstract. Yonn v. Pittman, 82 Ga. 637 (9 S. E. Rep. 667). The plaintiff is confined to the abstract of title appended to his declaration. Carter v. Greer, 72 Ga. 897.

The court may, in all proper cases, upon motion, order abstracts of title to be furnished. Burns' Ind. Rev. Stat (1894), § 366. In an action upon a fire insurance policy, the plaintiff can not in pursuance of the above statute be required to furnish an abstract of title to the property which was burned. Phænix Ins. Co. v, Rowe, 117 Ind. 202 (20 N. E Rep. 122). Where the action was for the possession of the land described in the complaint and to quiet title thereto, and the plaintiff had filed an abstract of title showing upon what deeds of conveyance she relied to prove such title, it was held that she was not required to furnish a more complete abstract, and a motion to require her to furnish a more specific abstract was properly overruled. Roberts v. Vornholt, 126 Ind. 511 (26 N. E. Rep. 207). When an abstract is fur