the expense of the conveyance falls on the purchaser (k); who, as we have already seen, must in that case prepare and tender the conveyance (1). The expense attending the execu tion of the conveyance is, however, always borne by the vendor.

If the estate be copyhold, the purchaser must bear the expense both of the surrender to him and of his admission (m); and a vendor is not obliged to pay the fine due on the admission of the vendee, although he covenant to surrender and assure the copyholds at his own costs and charges (n); because, it is said, the title is perfected by the admittance, and the fine is not due till after (0).

If a draft be altered by either party, although the alteration be such as would be supported by the courts, yet the draft as altered should not be ingrossed without a communication being first made to the other party (p).

A purchaser has a right to require the vendor himself to surrender the estate, if copyhold, and to execute the conveyance, if freehold; and he cannot be compelled to accept either a surrender, or conveyance, under a power of attorney, unless an actual necessity appears for it (q); for it tends

(k) See 2 Ves. Jun. 155; and note, this is the universal practice of the profession.

(1) Supra, ch. 4.

(m) Drury v. Man, 1 Atk. 95, Saunders's edition.

(n) Graham v. Sime, 1 East, 632.

(o) Dalton v. Hammond, 4 Co. 28, a.; Rex v. Lord of the Manor of Hendon, 2 Term Rep. 484; and see Fishe v. Rogers. 1 Ro. Abr. 506: (A) pl. 1; 3 Burr, 1543; Lex Cust. p. 163; Wood's Inst. p. 137; Gilb. Ten. 205; 1 Watk. Copyh, 286; sed qu. and

see Dalton v. Hammond, Cro.

Eliz. 779, Mo. 622, pl. 851; and supp. to Co. Copy. s. 10; and Parkins v. Titus, MS. In the first edition, the author cited Willowes's case, 13 Rep. 1, as subversive of the authority of Dal-. ton v. Hammond, as reported in Coke; but upon further consideration, he is satisfied that he was wrong.

(p) See Staines v. Morris, 1 Ves, and Bea. 15.

(q) Mitchel v. Neale, 2 Ves. 679; Richards v. Barton, 1 Esp. Ca. 268; and see ibid. 115.

to

to multiply his proofs, and he may be put under difficulties by these means; the letter of attorney may be lost, and the party is obliged to prove the execution of it (). A letter of attorney may be revoked the next moment, that revocation may be notified to the attorney without the purchaser's knowledge, and then the conveyance would be void; and the purchaser's only remedy would be a suit in equity (s).

. Besides, the vendor may be dead at the time the power is exercised, and in that case the execution would be void, as a power of this nature expires by the death of the prin cipal (t). For this reason, where a purchaser chooses to permit the conveyance to be executed by attorney, the attorney should execute a declaration of trust, that he will stand possessed of the purchase-money in trust for the purchaser, until it either appear by satisfactory evidence, that the vendor was alive at the time of the execution of the deed, or if he shall be dead, until the estate is duly conveyed to the purchaser.

As a purchaser cannot be required to take a conveyance executed by attorney, so, on the other hand, if a vendor only covenant to surrender or convey lands to a purchaser upon request, he is not compellable to appoint an attorney for that purpose (u).

Where the estate lies in a register county, the conveyance should be registered as soon as it is executed. Mr. Hilliard remarks (x) that, by the statutes for registry there is no time limited for registering deeds; and that it is therefore obvious from an inspection of the acts, how necessary it

(r) See Johnson v. Mason, 1 Esp. Ca. 89.

(s) Per Lord Hardwicke, in casu Mitchell v. Neale, ubi sup. As to the revocation of a power of attorney, see Walsh v. Whitcomb, 2 Esp. Ca. 565.

(t) Shipman v. Thompson, Wynne v. Thomas, Willes, 105, 565; Wallace v. Cook, 5 Esp. Ca 117.

(u) Symms v. Lady Smith, Cro Car. 299, Godb. 445.

(2) N. (2) to Shep. Touch, 116.

2 A

is,

is, that deeds should be registered immediately on their being executed: to enforce this the more strongly, he adds it may not be useless to consider, if a subsequent conveyance or mortgage should be executed for a valuable consideration, and from an almost momentary inattention or delay of the first vendee, or mortgagee, in not immediately registering, the second vendee or mortgagee should register first; whether, in such case, the first vendee, or mortgagee, doth not thereby become in a worse situation than he would have been by law, in case the registering acts had not been made.

It is very clear, that in the case put, the subsequent purchaser or mortgagee, unless he had notice, would prevail over the first vendee, or mortgagee. And it must be remarked, that by delaying to register his conveyance, a purchaser gives a prior incumbrancer, who may have neglected to register his incumbrance, an opportunity of retrieving his error, and thereby establishing his demand on the estate; for the acts only say that deeds shall be void, unless such memorial thereof is registered, as by the acts is directed, before the registering the memorial under which the subsequent purchaser claims (y).

It appears, therefore, that there are two cogent reasons why a memorial of the conveyance should be duly registered immediately after the execution of the conveyance; the one, that a prior incumbrancer might, during the delay, register his incumbrance; the other, that the delay might give an unprincipled vendor an opportunity of selling the estate to a bona fide vendee without notice; who, if he registered his deeds before the registry of the first conveyance, would certainly prevail against the first purchaser.

(y) Vide infra in this chapter, and chapter 16.

SECT.

SECTION II.

Of Assignments of Terms.

A PURCHASER may require an assignment of all outstand

ing terms, of which he could avail himself in ejectment, to attend the inheritance; and if the purchaser leave them outstanding, he may not, perhaps, have the full enjoyment of his estate, without, at some future period, being himself at the expense of getting them in: for even a mortgagee would be very unwilling to advance money on the estate, unless the terms were assigned, lest a subsequent mortgagee or purchaser, without notice, should obtain an assignment of them, and so over-reach the prior mortgage.

I. The position that a purchaser may require an assignment of all outstanding terms of which he can avail himself in ejectment, to attend the inheritance, naturally calls our attention to the cases in which a term may be used upon an ejectment. We have already seen that, in some cases, the possession of the cestui que trust may operate as a bar to his trustee (z). So where a purchaser is not, at the time of his contract, aware of the term, and its existence would endanger or affect his title, a fine levied, with five years nonclaim, will operate as a bar to the trustee of the term (a); although, where the term is assigned in trust for the purchaser, a fine levied will not affect it, because such a construction would be manifestly contrary to the intention of the parties (b). But as the law on these points is not well settled, it may be

(z Sura, p. 320.

(u) seham v. Morrice, Cro. Car. 109, 5th resol. 2 Ventr. 329. (b) Freeman v. Barnes, 1 Ventr.

2 A 2

80, 1 Lev. 270; see Smith v. Pierce Carth. 100; Basket r. Peirce, 1 Vern. 226.

laid

laid down as a general rule, that nearly all terms for years, however ancient, and notwithstanding any adverse possession or fines, may be required by a purchaser to be assigned to attend the inheritance; and where a term has once been assigned to attend the inheritance, although at a period very remote, and it has been since treated as a subsisting term by declarations in the subsequent deeds, that the person in whom it is vested shall stand possessed of it in trust to attend the inheritance, a purchaser can never be advised to permit the term to continue outstanding, because it is clear, that it may be used against him upon an ejectment. Nor is it any answer to a purchaser's claim, that the term has already been recently assigned to attend the inheritance.

Where terms for years are raised by settlements, it is usual to introduce a proviso, that they shall cease when the trusts are at an end. In well drawn deeds this proviso always expresses three events: 1st, the trusts never arising; 2dly, their becoming unnecessary or incapable of taking effect; or, 3dly, the performance of them. But it frequently happens, in ill-penned instruments, that these events are not accurately expressed, or not all provided for; and in those cases it must be seen whether, in the events which have happened, the term has ceased, for if it has not, the purchaser must require an assignment of the term. To illustrate this doctrine, let us suppose a term for years to be created for raising a sum of money for the first son of A, who shall attain 21, and that it is declared by the deed, that when the trusts are performed the term shall cease. Now, in this case, if A should not have a son who attains 21, the trusts would not have arisen, and consequently could not be performed; and it seems that the term will not cease; the event which happened not being provided for in the declaration for cesser of the term.

In a late case (c), which has already been referred to, it

(c) Hays v. Bailey, Rolls, 10th August, 1813, vide supra, p. 291.

appeared,