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or what parts of the latter, should be recited, it being from practice alone that this can be properly learnt; but a slight consideration of the end for which an instrument is recited will best point out what part is material to recite. Thus, the appointment of executors is the only part of the will necessary to be noticed, where the statement of their title is the only object, as in an assignment by an executor of a term of which his testator was possessed. When a tenant for life is stating his title, the ulterior limitations are unimportant, and, unless very short, should not be noticed. In the two cases just mentioned, there are several other things which should be noticed, as necessary to perfect the title of the parties ; as, in the first instance, the death of the testator without having revoked his will, or the appointment of his executors, and the subsequent probate; and, in the latter, the determination of any preceding estates, or the happening of any other event upon which the estate in question became vested.
It need scarcely be observed, that a party is said to be “seised” of freehold interests, but to be “possessed” of chattel interests.
The subject matters of conveyances are either corporeal or incorporeal : land, and every thing thereon, as houses, mills, &c., which are said to lie in livery, the possession of them being capable of actual delivery, are of the former class ; whilst incorporeal are said to lie in grant, being incapable of such delivery, as advowsons, rents, rights of way, and other easements.
Where a deed comprises several properties held under different titles, the recitals as to each should be kept distinct from the other, and those relating to the larger property should stand first. '
In assignments of terms of years, the parcels should be set out fully in the recital of the deed creating the term, and only referred to in the operative part; but in other conveyances, especially if by lease and release, which should correspond as far as possible, the
parcels should be set out fully in the operative part, and not in the recitals, unless it is intended to add a modern description, when, for the sake of keeping up the identity, the old description may be either inserted in the recitals or in the operative part; if in the latter, it would be, perhaps, most correct to convey them first by the old description, introducing the new one afterwards by such words as the following:-“ All which messuages, lands, hereditaments, and premises, are now better known by the names, quantities, and descriptions following. That is to say,” &c. ; but the mode in which it is done is of no great importance, so that the identity is sufficiently shown.
On every purchase it is the duty of the purchaser's solicitor to procure a release of all the unsatisfied judgments, mortgages, and other charges on the property, and the merger of all equitable terms, and such legal terms as are not thought necessary to be assigned to attend the inheritance.
No property, of which a party is not seised or possessed, can be conveyed at law; for the assignment of a mere right would be but the transfer of litigation, which the law does not permit; therefore, though a bona fide purchaser for a valuable consideration of property assignable at law is safe, if he has a good legal title, whatever prior equitable rights there may be opposed to his, if he purchased without notice of such prior rights; yet as to the assignees of all choses in action, except bills of exchange, (which, for commercial reasons, are exempted from this rule of law,) the case is different; for, though assignable in equity,h they cannot be transferred at law,i and, consequently, the assignee takes them subject to all the equities to which they were liable in the hands
of the assignor,j and his situation is not improved by his having given a valuable consideration for the transfer. Hence it is unadvisable to purchase a chose in action, however low and tempting the terms, unless, from the character of the parties, the legality and fairness of the original contract is placed beyond a doubt.
PER USING DEEDS.
Of almost equal importance with that of preparing deeds is the duty of perusing them previous to their execution, and as this duty, in many instances, devolves upon the solicitor, the editor has thought it not altogether out of place, in a work of this character, to insert a few observations respecting that duty, and to point out, as far as the decided cases have determined the points, what covenants and provisions vendors and purchasers have a right to de. mand the one from the other.
A purchaser of an estate in fee is entitled from his vendor, if beneficially interested, to the five common covenants, namely, that he is seised in fee has good right to convey for quiet enjoyment that the estate is free from incumbrances, and for further assurance; but these covenants are qualified according to the title under which the vendor claims ; thus : If the vendor was a purchaser for a valuable consideration, he can only be called upon to covenant as to his own acts; but if he claims under a voluntary conveyance, or by devise or descent, his covenant must extend, in the first case, to the acts of the person last seised, and, in the two latter, to the acts of the devisor or immediate ancestor.
i Priddy v. Rose, 3 Meriv. 107; Turton v. Benson, 1 P. Wms. 497.
k Henderson v. Hay, 3 Bro. C.C. 632.
i Lloyd v. Griffiths, 3 Atk. 264; Church v. Brown, 15 Ves. 263; Browning v. Wright, 2 Bos. and Pul. 22; Pickett v. Loggon, 14 Ves. 239.
When an estate is sold for the payment of the debts or legacies of the deceased owner, the question, as to whether the heirs or devisees are to covenant against the acts of their ancestor or devisor, as well as against their own, depends upon the circumstance of there being any considerable balance payable to them after satisfaction of the purposes for which the sale took place, A nominal balance, of course, would not render them liable to the more extended covenant, but what proportion would subject them to that liability does not appear to have been yet decided, and each case must therefore depend upon its own circumstances.
Purchasers of property subject to any charges must indemnify the vendor from all future liability in respect thereof, and enter into a covenant for that purpose. Thus, the purchaser of an equity of redemption must indemnify the vendor, whether the original mortgagor or his assignee, from the mortgage debt;" and the assignee of a lease must also indemnify his assignor against the rents and covenants reserved in the lease," except in the single case of an assignment by assignees of a bankrupt, to whom such indemnity would be useless. The vendors of other interests, as estates for life, a term, or for copyhold interests, must covenant that they are seised or possessed of the interest they convey-(a covenant that the lease is valid and subsisting, and that the rents, covenants, &c. have been paid and observed up to the date of assignment, being substituted for this covenant in the assignment of leaseholds)—and enter into other covenants, analogous to those required in conveyances of estates in fee.
In practice, however, the first mentioned covenant is, in small purchases, very often dispensed with,
* Woods v. Huntingford, 3 Ves. 131 ; Earl of Oxford v. Lady Rodney, 14 Ves. 417.
Staines v. Morris, 1 Ves, and Bea, 8; Wilkins v. Fry, I Meriv. 265. o Wilkins v. Fry.
the lawful seisen or possession being necessarily involved in the covenant, that the vendor has good right to convey, which, of course, he could not have without being entitled to the estate conveyed. It need scarcely be observed, that the right to these covenants may be affected by the agreement of the parties, and by the circumstances under which the sale took place; as, for instance, if a purchase was made at an under price in consequence of any defect in the title, the vendor would not be compel. lable to covenant against such defect.P
It should be noticed, that these observations, and the cases upon which they are supported, do not relate to the vendors who sustain the character of executors' or trustees, they being only compellable to covenant that they themselves have done no act to incumber.
A lessor is not entitled, in the absence of an agreement to that effect, to a covenant from the lessee, not to assign with or without licence."
It has been before mentioned, that, in reconvey. ances by trustees or mortgagees, they cannot, in strictness, be compelled to pledge themselves to the correctness of any facts recited in the original conveyance to them, by stating them as substantive recitals; and, therefore, if it is wished that they should appear in the reconveyance, they must be set out as recitals within recitals; but where the parties are satisfied of the correctness of the facts, it would be rather a needless particularity to object to their insertion.
P Pickett v. Loggon, 14 Ves. 239.
" Henderson v. Hay, 3 Brown, C.C. 632; Church v. Brown, 15 Ves. 258.