receipt or acknowledgment for the same sum here- PURCHASES. upon indorsed (8), and for divers other good and

And although other security, as a bond, &c. be taken for payment, yet it makes no difference, Exparte Loaring, 2 Rose, 79, unless it was the intent of the parties that such security should alone be relied upon, the proof of which, if not apparent, it will belong to the purchaser to produce. Mackreth v. Simmonds, 15 Ves. 354. Hughes v. Kearney, 1 Sch. and Lef. 132. On the other hand also if the money be paid by the purchaser before the conveyance be executed by the vendor, it will, until such conveyance be executed, be a charge upon the premises in the hands of the vendor. This lien, however, it is to be observed, subsists only as between the vendor and purchaser or persons claiming under them, and not third persons, Pollexfen v. Moore, 3 Atk. 272, and it may be prevented either by a contrary agreement expressed, or by implication arising from the nature of the transaction between the parties, ibid. 347. Austin v. Halsey, 6 Ves. 483. as where other property is pledged or a collateral security taken for the payment, Naim v. Prowse, 6 Ves. 752. But as this will not always of itself exonerate the estate, but requires some further evidence showing such to have been the intention of the parties, see Mackreth v. Simmonds, 15 Ves. 347. Fawell v. Heelis, Amb. 724. 1 Dick. 485. Bond v. Kent, 2 Vern. 250. Hughes v. Kearney, 1 Sch. and Lef. 136, no collateral security should be depended upon for that purpose without its being accompanied by an express declaration that it was given with an intent to exempt the land from the lien which the law would otherwise impose upon it. But the lien which the vendor has for the purchase money, it may further be noticed, does not exclude him from coming in with other creditors on the personalty of the purchaser, should he become a bankrupt, Trimmer v. Baine, 9 Ves. 209. Mackreth v. Simmonds, 15 ibid. 338, although it does not oblige him to do so.

Rease.

of the deed not sufficient evi.

dence of payment, unless after great length of time.

(8) It is always proper that a receipt for the purchase money Receipt in body should be indorsed on the deed, and signed by the vendor, as the acknowledgment of payment contained in the body of the deed is not conclusive evidence of the payment, unless great length of time has elapsed-see Thurle v. Madison, Sty. 462. Goddard v. Complin, 1 Ca. Chan. 119. Fleetwood v. Templeman, Barn. Cha. Rep. 186. Bidlake v. Arundel, 1 Rep. Ch. 95.

PURCHASES. Valuable considerations him thereunto moving (9), He the said (vendor). HATH (10) granted, bar

Release.

The vendor grants and releases.

Other considerations."

"Hath granted."

Coppen v. Coppen, 2 P. Wms. 290. (295). Indeed from the last of these cases it should seem that even a separate receipt signed by the vendor for the purchase money, will not be conclusive evidence of the payment, sed vid. Co. Litt. 373, a. where it is said, that an express and separate receipt is conclusive. evidence of payment, which cannot be rebutted by any aliunde evidence; and see accord Browntree v. Jacob, 2 Taunt. 141, where a receipt indorsed was held to be a bar, although there was great reason to suspect the money had not been actually paid; but quære this, unless such receipt or acquittance be by deed, and see Stratton v. Rastall, 2 Durnf. and E. 66. It however behoves a vendor to be very cautious in signing a receipt before the money be actually paid to him or his agent. If therefore the whole of the money be not in fact paid at the time of executing the conveyance, but a security be accepted for the payment, an express declaration should be made by the parties and indorsed on the deed that such security was taken in lieu and full satisfaction of the purchase money, and in exoneration of the premises. And see ante, INTRODUCTION.

(9) These words are generally inserted in the printed books, in order, as it is said, that should the real consideration mentioned in the deed fail, others may be averred, vide Lacy v. Whetston, Cro. Eliz. 343. Walker v. Burrows, 1 Atk. 93, but quære the force of this reason at the present day, and vide Beddell's Ca. 7 Co. 133, also Murray v. Palmer, 2 Sch. and Lef. 483, where Lord Redesdale is said to have considered these words as evidence of fraud.

(10) When conveyances were made by oral declaration only, vid. Mad. Form. preface, and the written instrument afterwards signed by the parties was intended merely for the purpose of furnishing more certain and permanent evidence of the transaction, these granting words in the past time were appropriate, but since the statute of frauds and perjuries (29 Car. II. c. 3.) has required every grant of land and other hereditaments to be in writing, words expressive of a transfer anterior to the written instrument by which it is effected, seem to be at best but nugatory in any case, and more particularly so in a grant, as that

gained, sold, aliened, and released, and by these PURCHASES. presents DOTH for himself and his heirs, grant, bargain, sell, alien, release (11), and confirm unto

Release.

could not, even before the statute, be made otherwise than by deed, see Shep. Touch. 227, by some modern conveyancers they are therefore omitted; (see in particular the drafts of the late Mr. Watkins); but where words or phrases come to us sanctioned by the acquiescence of a succession of conveyancers of acknowledged eminence in their profession, and are fraught with no other objection than that of being harmless, I am inclined to think it better to prepare the way for their gradual disuse by noticing their inefficiency, than by at once rejecting them, arouse the fears, or disturb the prejudices, of the many who have accustomed themselves to consider long and settled usage as the best, if not the only, criterion of propriety. And see Shep. Prec. 75, and Pref. Lit. p. xii.

word.

(11) The word "release" is the word peculiarly operative in The word "rethis species of conveyance, and from which it takes its deno- lease" is the mination; but most of the others generally made to accompany proper operative it seem to be proper. The word "grant" applies peculiarly to the estate of the vendor, and the reversion of the land expectant upon the determination of the bargain and sale for a year, or other existing particular estate where there is no such privity between the grantor and grantee as is requisite to give effect to the deed as a release; also to the title deeds; rights of common, and other incorporeal hereditaments appurtenant to the land. The words "bargain and sell," are used for the purpose of enThe words abling the purchaser to give effect to the conveyance as a bar- "bargain and sell" will enable gain and sale by inrollment, (but without which they have no the purchaser operation, Moor, 34. Godb. 7. Cro. Jac. 210), should it be to enrol the deemed expedient to do so by reason of the lease for a year having been omitted to be executed, or the like; although it should seem, that if the deed be indented and be made for a valuable consideration, it might by inrollment be made to have the effect of a bargain and sale under the statute, although these words were not used, and see Fox. Ca. 8. Co. 94. Anon. 3 Leon. 16. And the word "confirm" may perhaps in some cases give effect to the conveyance, where it would fail to take effect as a release for want of privity between the releasee and

deed.

1

Release.

PURCHASES. the said (purchaser) and his heirs (12), ALL that, &c. (13), or howsoever otherwise (14), the said messuages, lands, tenements, and hereditaments, or any of them now are or is, or heretofore were

The parcels.

"Heirs" essential to pass a fee.

Parcels should be so described as to identify them with those

in the title deeds.

Where premises

the releasor, see Lit. sec. 516; but where it is intended to operate by way of enlargement of a preceding estate, the same privity is necessary to give effect to a confirmation as in a release. The word "alien,” alienum facere, seems to have no other import than generally to transfer the property to another.

(12) The word "heirs" is essential to pass the fee in a deed, see Lit. sec. 1. Co. Litt. 6 a, except when the purchaser is a co-joint-terant with the vendor, Co. Litt. 9 b. 193 a. and in some other cases, see Co. Litt. 9 b. 10 a. it might however be omitted here and first used in the habendum.

(13) In the description of the premises care should be taken to preserve as nearly as possible the description contained in the last and prior assurances, where no variation has taken place in them; but if there has been, then so to describe them with reference to their former names, boundaries, &c. as to connect the present with the former or ancient description, in such a manner as that their certainty and identity may appear without the necessity of having recourse to any other deed or evidence; which it may be difficult or impracticable to procure, see 1 Prest. Conv. 184. A small variation however in the last from any other preceding description will not vitiate it, see Calverley v. Williams, 1 Ves, jun. 210. and see Finch's Ca. 6. Co. 63.

And if the description of the premises be so varied by alterahave undergone tions made since the last conveyance as to obscure their identity, alterations purthe purchaser has a right, according to Mr. Fearne, to expect a covenant from the vendor that they are the same as those conveyed to him by his vendor, which will oblige the present vendor or his representatives to prove their identity if requisite, or to make compensation for want of it, see Fearn. Posth. Wks. 119.

chaser may require a guarantee of their identity.

A change in description

should be provided for.

(14) As the description of the parcels is frequently taken from ancient title deeds, without attending to the changes which they have since undergone, this qualification is in general proper to prevent any error in the description, arising from such changes, being construed to vitiate the grant.

Release.

or was situated, tenanted, called, known, de- PURCHASES. scribed, or distinguished; and also all other (15) the messuages, lands, tenements, and hereditaments (if any) which are or are expressed or intended to be described or comprised in a certain indenture of bargain and sale hereinafter referred to as bearing date the day next before the day of the date hereof; which said messuages, lands, tenements, and hereditaments, were lately or formerly the estate and property of A. B. late of

deceased, from whom they descended to, and are now vested in the said (vendor) as his heir at law. TOGETHER with all houses (16), outhouses, build- General words. ings, barns, stables, coach-houses, dove-houses (17),

(15) As nothing will pass by the release, although expressly described, unless it be also comprised in the bargain and sale for a year, (where a bargain and sale is requisite) these words of reference are proper wherever the land, &c. consists of a variety of parcels, in order to guard against any such inadvertent omission; and see Shep. Prec. Prec. 75, also 10 Ves. jun. 255, and Phillips v. Jones, 3 Bos. and Pul. 362, and see also post, p. 131, n. (20).

(16) These general words must be made to correspond with the nature of the subject of the conveyance, and see post,

No. XVI.

Nothing passes

by the release

which was not included in the lease for a year.

General words respond.

should cor

(17) A dove or pigeon-house may now be legally enjoyed and Dove-houses. pass with other freehold hereditaments, by whomever it was erected; it may also be erected by any freeholder upon his own grounds at pleasure. See Dewell v. Sanders, Cro. Jac. 490; but it is otherwise when the lands are part of a manor, in which case it can only be erected by the lord, Brownlow's Ca. 5 Co. 105. Boulston v. Hardy, Cro. Eliz. 547; or by some person licensed by him, Arnold v. Jefferson, 3 Salk. 247; it may however be enjoyed by prescription, which supposes such license to have been formerly given, Co. Litt. 8 a.

VOL. I.

K