ment, (q) or the assignment of a term already held in trust Chap. XI. for the debtor or accountant ;(r) and the lands of an accountant are liable for moneys which become due from him even subsequently to alienation.(s) It is, as a general rule, proper to search the register at Lis pendens. Westminster for lis pendens; this search need not go further back than five years. and local re When the property is copyhold, the court rolls(t) should Court rolls be searched for incumbrances, &c., not appearing on the gisters. abstract; so, where the property lies in a district subject to the register acts, viz. Middlesex, Yorkshire, Kingstonupon-Hull, and the Bedford Level, searches should be made in the local registers: these searches should be extended over the whole period covered by the abstract: copyholds, however, are excepted out of the register acts of Yorkshire, Middlesex, and Kingston-upon-Hull ;(u) but it is doubtful whether the exception extends to leases of copyhold estates.(w) and insolven [*243] In many cases, it may be proper to search the courts of Bankruptcy bankruptcy and insolvency; purchasers without notice cy courts. *were protected by the 2 and 3 Vict. c. 11, s. 12, and 2 and 3 Vict. c. 29, against acts of bankruptcy upon which no fiat had actually issued, the provisions of these statutes are repealed, but in effect re-enacted by the recent consolidation act; (x) and notice of an act of bankruptcy is immaterial, if twelve months have elapsed without a fiat issuing or a petition for adjudication in bankruptcy being filed thereupon.(y) Sir E. Sugden says, that it is "the duty of the purchas- Annuities. (9) Prid. on J. 154; Reg. v. Ellis, 19 L. J., N. S. 77, Exch. (r) Sug. 673. (s) Sug. 674: as to who are liable as accountants, see 13 Eliz. c. 4; and Prid. on J. 159, et seq. (t) But the purchaser before admittance appears to have no right of inspection: Scriv. on Cop. 493, 4th ed.: the tenant, or any person claiming an interest under the court rolls, can compel inspection by mandamus, ibid. 532, and cases cited: see Ex parte Cooke, 5 Dow. & L. 413. (u) Scriv. on Cop. 1113. (w) Sug. 980. (x) Sect. 133. (y) 5 and 6 Vict. c. 122, s. 7; 12 and 13 Vict. c. 106, ss. 88, 134. Chap. XI. er's solicitor to search for annuities";(z) Mr. Jarman, on Recovery deeds and acknow. ledgments women. the contrary, states that "in ordinary cases the search can scarcely be recommenced"; (a) the general practice is believed to accord with the latter opinion. We may here remark that the principle of general charges upon property is strongly disapproved of by the present registration commissioners; (b) and that the law upon the subject will not improbably be submitted to the further consideration of the legislature. Where the estate has been entailed, or has belonged to married women, it may be proper, in special cases, to by married search for inrolled deeds and acknowledgments under the 3 and 4 Will. IV. c. 74; but such a search, it is conceived, is not usual in practice, unless there is reason to suspect the existence of suppressed documents. Searches, &c, when to be made. (3.) Time for making searches and inquiries. Whatever searches and inquiries are deemed necessary, should, of course, be brought down to a point as close as possible to the time fixed for completion: some practitioners make the search immediately after obtaining an opinion upon the abstract, and a supplemental search [*244] *immediately before completion; but the more ordinary course it is conceived, is to make but one search, and that immediately before completion.[1] Unneces . We may here remark, that a solicitor will not be allowed (~) Sug. 677. (a) 1 Jarm. Conv. by S. 118. (b) See the 1st Report. [1] The search for judgments should be postponed to the last moment, lest any should be entered up, between the search and the completion of the conveyance. But the vendor, or his attorney, should be asked, at once, in writing, whether there are any incumbrances which do not appear upon the abstract. If he answer in the negative, and upon search at the latest period, any such should exist, and the purchase cannot, on that account, be completed, the purchaser might recover all of his expenses from the vendor, including even the expense of the conveyance. If an early search be made, and there is any reason to suspect the seller, the register should again be inspected, immediately before the execution of the conveyance. See 2 Sug. on Vend. p. 270. upon taxation, even as between solicitor and client, the costs of searches directed by counsel, but which have, to the knowledge of the solicitor, been rendered necessary by subsequent events. (c) Chap. XI. sary costs of not allowed. *CHAPTER XII. AS TO THE PREPARATION OF THE CONVEYANCE. [*245] 1. General matters relating to, and to the form of. 2. As to the parties. 3. The recitals. 4. The consideration-words of conveyance-and par cels. 5. Covenants. 6. The draft and engrossment. prepares (1.) UPON a sale in consideration of a gross sum, the Purchaser purchaser, having accepted the title, is bound to prepare conveyance. the conveyance, and tender it for execution to the vendor; (a) and reason seems to favor the same rule even where the consideration is a rent-charge, although the practice in such cases appears to be unsettled.(b)[1] (c) Langford v. Mahony, 3 J. & L. 97. (a) Sug. 263. (b) 9 Jarm. Conv. by S. 518. [1] When the seller of a tract of land covenants that upon payment of the purchase money he will convey a good title to the purchaser, it would seem that the seller, having agreed to convey, should prepare the deed of conveyance; for this is the substance of the agreement. It is most convenient, also, and more agreeable to the the natural order of things that this should be done by the seller; because the title deeds are in his possession, and without them a conveyance cannot be drawn. Formerly, in England, the conveyance was prepared by the seller. The change which has taken place in the practice in that country is mainly to be attributed to the changes which surround titles of land, since the introduction of the mode of conveying, founded on the statutes of uses; but even now, it is incumbent on the seller to furnish an abstract of all the title papers Chap. XII. Manorial custom, that steward prepare all surrenders, is valid. A custom in a manor, that the steward shall prepare all surrenders for a reasonable fee, appears to be valid.(c) Even if a contract for purchase of an equitable interest can in itself amount to a conveyance (d) the purchaser is Conveyance entitled to a formal assurance, if such appears by the contract to be necessary in order to carry the intention of the parties into effect. (e) of equitable interest. Preparation of convey. ance no ac ceptance of title. [*246] Whether purchaser can require oustanding incumbrances to be got in by separate deed. As we have already seen,(ƒ) the preparation of the "conveyance is not, necessarily, a waiver of objections to or requisitions upon the title. It has been held, that a purchaser cannot compel the vendor to get in an outstanding equitable interest by a interests and deed distinct from the general conveyance ;(g) it is, however, conceived that this doctrine must be applied with hesitation; (h) and that, subject to the question of expense,(i) a purchaser may generally object to have his conveyance incumbered with matter arising from the complicated state of the title:(k) indeed, it may often, especially when the property is likely to be much sub-divided, (c) Rex v. Rigge, 2 B. & Al. 550; Reg. v. Bishopstoke (Lord of Manor of.) 8 Dowl. P. C. 608. (d) But see, as to this, supra, p. 115. (e) Fenner v. Hepburn, 2 Y. & C. C. C. 159. (f) Supra, p. 218. (g) Reeves v. Gill, 1 Beav. 375. (h) Sug. 690. (i) As to which, vide infra, Ch. XIII. (k) See Jones v. Lewis, 11 Jur. 511; and 1 De G. & S. 245; stated in fre to be submitted to the purchaser's counsel. It is evident, however, that what may be a very convenient practice in England may be very inconvenient here. In the present situation of this country, there is no difficulty in preparing a deed of conveyance, and therefore no pretence for dispensing with what appears to be the plain meaning of the parties; that is to say, that when the seller covenants that he will convey the title to the parchaser, he shall himself prepare and tender the deed of conveyance. See Sweitzer v. Hummel, 3 Serg. & Rawle, 228; Hudson v. Swift, 20 Johns. Rep. 27; Fuller v. Hubbard et al., 6 Cowen, 1; Johnson v. Wygant, 11 Wend. Rep. 48; Green v. Reynolds, 2 Johns. Rep. 207; Jones v. Gardner, 10 John. 266; Parker v. Parmele, 20 John. 130; Northrup v. Northrup, 6 Cowen Rep. 296; Slocum v. Despard, 8 Wend. 615; Brown v. Bellows, 4 Pick. 179; Hunt v. Livermore, 5 Pick. Rep. 395; Dana v. King, 2 Pick. Rep. convey be most desirable to avoid any reference upon the Chap. XII. confirmation title by sepa rate deed, semble. So, it is conceived, that (subject to the question of ex- May require pense) a purchaser may insist on keeping off the face of of doubtful his conveyance any matter which, although agreed to be waived as an objection, yet tends to throw a doubt upon the title; or any collateral matter which may hereafter embarrass the proof of the title: if, for instance, trustees were to sell under circumstances not necessarily appearing upon the face of the conveyance, but amounting to a breach of trust, and the cestuis que trust agreed to confirm the sale, the purchaser might, it is conceived, insist upon taking this confirmation by a separate deed; for to include it in the conveyance would oblige him upon a resale to prove who were the parties beneficially interested, and might give rise to questions which would have been wholly immaterial to a sub-purchaser without notice of the breach of trust. sary matters to be kept off convey ance. [*247] It may, in fact, be laid down as a general rule in pre- All unneces paring conveyances, that not only should all objectionable and parties *or doubtful matter be kept off the title, but that nothing should be brought on to it the introduction of which is not evidently necessary or expedient; in proportion as additional matter is introduced into a deed, and additional persons are made parties to it, the chances of some error or ambiguity existing in it are increased. deed to be from con. So, a purchaser from a tenant in tail, may, it is submit- Disentailing mitted, insist upon the property being disentailed by a se- kept distinct parate deed; and may reasonably object to any unneces- veyance. sary exposure of his title in a public office. forms of Conveyan ble. The Lands Clauses Consolidation Act, 1845, and the Statutory earlier Railway and other similar Acts, contain statutory Railway forms of conveyance to the several companies; but the ces ineligi use of these forms, in preference to the ordinary instruments of assurance, is not obligatory, or usual; nor does it appear to be expedient.(7) short parlia The same remarks apply, and with greater force, to So are the (1) Frend. & Ware's Rail. Conv. 133. |