Page images


Vendor and


(C) Variation where a Covenant for the Production of Title

Deeds is contained in the Purchase Deed (1).

AND WHEREAS the several deeds, muniments, writings, Production of and evidences of title, mentioned in the schedule hereunder

title deeds. written, relate not only to the hereditaments hereinbefore expressed to be conveyed to the said (purchaser) but also to other property of the said (vendor) of greater value, it has been agreed that the same shall remain in the custody of the said (vendor) upon his entering into such covenant for producing and delivering attested copies thereof as hereinafter is expressed. Now THEREFORE the said (vendor) for himself, his heirs, executors, and administrators, doth hereby covenant and declare, with and to the said (purchaser), his heirs, and assigns, that he the said (vendor), his heirs, and assigns, shall and will from time to time, and at all times hereafter, (unless prevented by fire or other inevitable accident) upon every reasonable request in writing, and at the expense of the said (purchaser), his heirs and assigns, produce and show forth, or cause to be produced and shown forth, in any part of the united kingdom of Great Britain and Ireland, to the said (purchaser) his heirs and assigns, or to his or their counsel, solicitor, or agent, or at or upon any trial, hearing, commission, or examination, in or directed by any competent court of judicature, (or before any justices of nisi prius, sheriff or sheriffs, escheater or escheaters, or other commissioners, or officers or officer, acting by virtue of any commission or writ issuing under the great seal of Great Britain, or out of any court of law or equity, or before any other magistrates, or at quarter sessions of the peace), or to any arbitrators or umpire lawfully appointed,

(1) See other forms of covenants for production of title deeds adapted to different circumstances, Vol. I. p. 196, et seq.

PURCHASES. to be inspected, perused, pleaded, or given in evidence,

as may be requisite, and upon, or for every or any other Vendor and

proper and reasonable occasion or purpose, all and every Wije.

or any of the deeds, muniments, writings, and evidences, [mentioned in the schedule hereunder written, and also all and every other deeds, muniments, writings, and evidences, if any), not being of record, which relate unto, or in any manner affect the hereditaments and premises mentioned, or intended to be by these presents granted and released, or otherwise assured or intended so to be, and which now are or hereafter shall or may be in the custody or lawful power of him the said (vendor), his heirs, or assigns, or which he or they can or may procure without suit at law or in equity for the manifestation, support, defence, or justification of the possession, estate, right, title, or interest of the said (purchaser), his heirs, or assigns, or his or their trustees or trustee, of, in, to, or respecting the said hereditaments and premises, or any of them, or any part thereof. AND also shall and will at and upon the like request, expense, and costs, and for the like or any other reasonable purpose or purposes, make and deliver, with all due and reasonable diligence and despatch, unto the said (purchaser), his heirs, or assigns, or his or their trustee or trustees, or counsel or solicitor, true and attested copies of all and singular or any of the said deeds, muniments, writings, and evidences, or of any part or parts thereof respectively. And also shall and will in the mean time, use and take, and cause to be used and taken, all due and proper care to preserve and keep the same deeds, muniments, writings, and evidences, from being lost, destroyed, cancelled, or otherwise defaced or injured. And further, that the said (vendor), his heirs, executors, administrators, or assigns, shall not nor will at any time hereafter part with or dispose of all or any of the said deeds, muniments, writings, and evidences out of his or their custody or power, without giving unto the person or persons to whom he shall or may part with or dispose of the same notice in writing under his or their hand or hands, of the covenant hereinbefore contained for producing the same as hereinbefore is mentioned.


Vendor and

“ PROVIDED ALWAYS, and it is hereby agreed and de- PURCHASES. clared, between and by the said parties to these presents, that — if the said (vendor), his heirs or assigns, shall at any time

Wife. hereafter sell or otherwise absolutely dispose of other his . said lands or hereditaments of greater value than those now Title deeds not

delivered over. conveyed to the said (purchaser), and do and shall procure the purchaser or purchasers 'thereof, to enter into a like covenant to that which is hereinbefore contained, with the said (purchaser), his heirs and assigns, for the production of the said deeds, evidences, and writings, to him and them; then and in that case, but not otherwise, the covenants and agreements hereinbefore contained for that purpose, shall from thenceforth cease and be void, and at the request in writing and expense of the said (vendor), his heirs, executors, or administrators, shall be released, annulled, and extinguished in such manner as he or they shall reasonably require, any thing herein contained to the contrary thereof in anywise notwithstanding."

[blocks in formation]

(D) Variation where the Estate is the Wife's as a Feme

Sole (1).

This INDENTURE made the day of in the

year, &c. BETWEEN the (wife) or (husband and

Wife's convey ance as a fene sule.

(1) When a feme covert by an agreement before marriage enjoys any part of her personal property independently of her husband, she may dispose of it either in her lifetime or by will, in like manner as if she were a feme sole; but if it be real property she cannot reserve this power by mere agreement, Peacock v. Monk, 2 Ves. 191. Fettiplace v. Georges, 3 Bro. Ch. Rep. 10; it must for this purpose be vested in some third person by actual conveyance, in which case if trusts are declared of it for such persons as she shall by deed or will appoint, she may dispose of such property, Burdon v. Dean, 2 Ves. jun. 608. Parkers v'. White, 11 ib. 232; and may convey it by any ordinary conveyance, (operating as an appointment of the use in her trustees) without a fine or by will without the consent or confirmation of her husband, in like manner as if sole, she being as to her separate property considered as if she were not under coverture--see Peacock v. Monk, 2 Ves. 190. Wright o. Englefield, Amb. 468. Stamford v. Marshall, 2 Atk. 69. Wright v. Cadogan, 6 Bro. P. C. 156; but in the case of a will, although regularly it is an appointment of the use, to take effect after her death, it receives the same construction as a will, Southey v. Stonehouse, 2 Ves. 61 ; and must be treated and proved as a will in the spiritual court, George den. Thornbury v. , Amb. 627. Henby v. Philips, 2 Atk. 48. Ross o. Ewer, 3 Atk. 160. It is, however, common to make the husband a party to conveyances by married women, with a view of showing his consent or his covenanting for the title. But as her own act alone is competent to give effect to the instrument, and the husband being a party might raise suspicion of her acting under his influence, it should seem to be better that he should not be a party, unless the power is reserved to her expressly with, or at her election, without the consent of her husband, but where a feme covert is entitled to the estate itself, or to any interest in it whether vested or contingent, and

wife) of the one part, and (the purchaser) of the other part. PURCHASES. WHEREAs by indenture bearing date, &c. and made be

Vendor and


without any power of disposition over it during her coverture,
being reserved or given to her, there is no means by which she
can dispose of it except by fine (for the form of which, see post,
p. 46), or by private examination in court; and see also Lee
v. Muggeridge, 1 Ves. and B. 123. Richards o. Chambers,
10 Ves. 580. And the rule that a feme covert is to be con-
sidered in equity as a feme sole with respect to her separate
property, is moreover to be understood with the exception
of her trustee, with whom, on account of his supposed in-
fluence on her, she is not permitted to deal concerning it,
Dalbiac v. Dalbiac, 16 Ves. 123; and also of her husband, any
conveyance or contract in favour of whom, according to the
more modern cases, would be set aside on the suspicion of its
having been procured by an exercise of his marital authority-
see Richards v. Chambers, 10 Ves. 580. Dalbiac v. Dalbiac,
16 Ves. 123. Lee v. Muggeridge, 1 Ves. and B. 118; which
cases are, however, it is to be observed, contrary to many prior
cases, where gifts made immediately to or in favour of the hus-
band, of the wife's separate property, have been established-see
Pawlett 0. Delaval, 1 Ves. 518. 2 ib. 670. Ellis v. Atkinson,
3 Bro. Ch. Rep. 565; and indeed it seems hard that her husband
should be the only person whom she is not permitted to benefit.

And in the conveyance of the separate estate of a feme covert it is not necessary that her trustee should join, unless it be expressly required by the instrument by which it was settled upon her, Pybus v. Smith, 1 Ves. jun. 193. Essex v. Atkins, 14 Ves. 547.

Upon this principle of a feme covert being able to dispose of her separate property as if she were sole, it has been held that she will be bound by her covenants, Legard v. Hodges, 2 Ves. jun, 138. 3 Bro. Ch. Rep. 531. (and vid. Power v. Bailey, 1 Ball and Beattie, 52); or her promissory note, Bullpin o. Clarke, 17 Ves. 365; relative to such property; as she will also by her bond, Norton v. Turville, 2 P. Wms. 144. and see 2 Ves. 193. and Sockett and Wray, 2 Atk. 58, a. or by the grant of an annuity payable out of her separate property, Essex v. Atkins, 14 Ves. 542; and her separate estate will be answerable to the extent of such

« PreviousContinue »