PURCHASES.

Release, Short Form.

No. XVI.

A short Form (1) of a Conveyance by Lease and
Release, from a Vendor to a Purchaser.

Variations where the sale was by public auction.

Where the estate was sold by the direction of a Court of
Equity.

Where it is sold by the Deputy Remembrancer of the Court
of Exchequer under a writ of extent.

Where it is sold by the original purchaser before he has taken a conveyance.

Where the consideration for the purchase is a transfer of money in the funds.

Where the consideration is paid in bills of exchange or secured by the bond of the purchaser.

Where the consideration is a debt owing by the vendor. Where the consideration is an annuity to be paid during the life of the vendor.

Where the consideration is retained by the purchaser on account of a defect of title.

Where the title deeds are retained by the vendor.

Where the release is accompanied by a bargain and sale to be enrolled.

Where the lease for a year is included in the release.

Conciseness not generally to be recommended.

(1) Every practical degree of conciseness in preparing conveyances is now very generally requested by solicitors, on behalf

BETWEEN (the vendor) of, &c. part (2) and (the purchaser) of, &c.

of the one PURCHASES.

of the other

of their clients, on account of the pressure of the stamp-duties; and so far as this object is attainable by the suppression of all synonymous words, and circumlocutory phrases, it has been attended to in the ensuing volumes; beyond which it would in most cases be dangerous to hazard any material innovation (and see observations of Lord Alvanley in Hesse v. Stevens, 3 Bos. and Pul. 565, also 2 Prest. Conv. 118), for independently of the stability which the present forms of assurances have acquired by long usage, it is to be observed, that the various provisions in deeds, which by many are illiberally conceived to be designed for no other purpose than to enrich the practitioner, will be found, on investigation, to be calculated to answer the more beneficial ends of furnishing the party with a remedy where he would have had either none, or a less efficacious one without them. It becomes the solicitor, therefore, to check this perpetual anxiety in his client after frugality, in matters where the common adage of penny-wisdom and pound-foolishness is perhaps peculiarly applicable, for the whole purchase money may be placed in jeopardy by the desire to prevent a trifling augmentation in the expense of the conveyance.

(2) It sometimes happens, under conditions of sale by auction, that the purchaser of a smaller lot is entitled to a covenant from the purchaser of the largest lot, for the production of title deeds delivered to him; in which case, if the covenant be not entered into by a separate instrument, make such largest purchaser a party of the third part.

Release, Short Form.

Deeds delivered to largest pur

chaser at a sale

by auction.

If the contract were entered into in writing by a friend or Sub-purchase. agent of the real purchaser, or the purchaser buys of a person who had previously bought but not taken a conveyance, make such agent or prior purchaser a party of the second part, and the purchaser of the third part.

If the lands are sold under a writ of extent, by virtue of the Writ of extent. 25th Geo. III. c. 35. make the Remembrancer, or Deputy Remembrancer, of the Court of Exchequer, a party of the first part, the debtor or owner of the estate of the second part, and the purchaser of the third part, and see the variation post, p. 191, marked with the letter B.

VOL. I.

M

PURCHASES. part. WHEREAS (3) the said (vendor) is seized in his demesne as of fee by descent from his ancestors, of the several messuages, lands, tenements, and hereditaments hereinafter described. AND

Release, Short Form.

Recitals.

Of reciting

vendor's title.

Where title deeds delivered

over.

General rule as to recitals.

(3) If the vendor derive his title to the land by purchase from a vendor, or by devise, it will be proper to recite the purchase deed or will under which he claims, that the purchaser may be the better able to deduce his title in case of the destruction of his title deeds; see Ford v. Grey, 6 Mod. 44. 1 Salk. 286. 2 Dougl. 485, n.

If the title deeds be delivered up to the purchaser, the recitals may be very short, as thus:

"WHEREAS by indentures of lease and release, bearing date respectively, the and days of

the release being of

which was

in the year
parts, and made
or expressed to be made between, &c. the messuages, lands,
and hereditaments hereinafter described, and intended to be
hereby granted and released, were, for valuable considerations
therein mentioned, conveyed and assured unto and to the use
of the said (purchaser) and his heirs in fee-simple."

But if the purchaser be not entitled to the deeds, it will be proper to recite the title more fully, as in the event of any of the deeds being lost, these recitals may tend to satisfy a willing purchaser of the goodness of the title; recitals of title are, however, in general, merely satisfactory, without being at all necessary to the validity or efficacy of the conveyance, see Shep. Prec. Prec. 2; also ib. 87, except so far as they are evidence of the deeds or facts recited, against the grantor and those claiming under him, see Roe v. Runnington, Vaug. 74. 82. 10 Co. 92, Deen v. Barnard, Cowp. 596.

In recitals" the general rule to be observed is to express every thing that may elucidate the title and assist in the future investigation of it, carefully avoiding all reference to any fact which may show a defect in the title, or raise a difficulty concerning it on any future occasion." 2 Prest. Conv. 77.

See the form of recitals of different species of conveyances, titles, &c. INDEX voce RECITALS; also Jacob's Grand Precedent, p. 7.

163

WHEREAS (4) the said (purchaser) hath contracted PURCHASES.

Release, Short Form.

auction.

(4) This recital corresponds with the supposition, that the Sale by public estate was sold by private contract; but if it were sold by public auction, say,

"AND WHEREAS the said messuages, lands, tenements, and hereditaments, were put up to sale by public auction, on the day of last past, at which sale the said (purchaser) became, and was declared to be, the highest bidder for, and the purchaser of the same (being lot

in the printed particulars of sale thereof), at the sum of £ and thereupon paid into the hands of the auctioneer the sum of £ , by way of deposit, and in part of the said purchase money, conformably to certain printed conditions of sale there exhibited. AND WHEREAS the said (purchaser) is now desirous of completing his said purchase, and of having the said lands and hereditaments conveyed to him and his heirs in fee-simple, in the manner hereinafter expressed. Now THIS INDENTURE WITNESSETH, that in pursuance and completion of the said purchase, and in consideration of the sum of £ chaser), into the hands of the said auctioneer, at the time of so paid by the said (purthe said sale, by way of deposit and in part of the said purchase money as aforesaid, and of the further sum of £ of lawful money of the united kingdom of Great Britain and Ireland, of English value and currency, being the residue and in full of the said purchase money, to the said (vendor) in hand well and truly paid by the said (purchaser), at or immediately before the sealing and delivery of these presents, the payment of which said sum of £ by way of deposit,

and the receipt of which said sum of £

being the re

sidue of the said purchase money, making together the sum of £

&c. as above.

and being in full for the absolute purchase,"

If the sale was before a Master in Chancery, or the Deputy Sale by order of Remembrancer of the Court of Exchequer, see the variation court. subjoined, p. 188, marked with the letter A.

PURCHASES. with (5) the said (vendor) for the absolute purchase

Release, Short Form.

Recital of agreement for purchase.

Sub purchase.

Recital of such purchase.

(5) If the conveyance be in pursuance of a preliminary written agreement, it will be proper to recite such agreement, if not subsequently varied, to show that the terms or conditions of such contract have been pursued; but as every executory agreement becomes extinguished in that by which it is executed (the parties continuing sui juris), and till then may be varied at the pleasure of the parties, such recital can seldom be essential. Where, however, it is deemed to be proper, it may be in the following form:

"WHEREAS, by articles of agreement entered into the day of between the said (vendor) of the one part, and the said (purchaser) of the other part, the said (vendor) contracted with the said (purchaser) for the sale to him of the inheritance in fee-simple and in possession, of the messuages, lands, tenements, and hereditaments therein and hereinafter particularly mentioned, free from incumbrances, at or for the price or sum of £ and agreed to execute proper conveyances and assurances of the said premises unto the said (purchaser), his heirs, and assigns, on a day therein mentioned, being the day of the date of these presents."

If the original purchaser has parted with his interest in the premises to a third person before a conveyance has been executed to him, after reciting the agreement for the original purchase, say,

"AND WHEREAS by articles of agreement bearing date the day of and made between the said (original purchaser) of the one part, and the said (present purchaser) of the other part, the said (present purchaser) contracted with the said (original purchaser) for the absolute purchase of all his estate and interest in the said messuages, lands, tenements, and hereditaments, under or by virtue of the hereinbefore in part recited articles of agreement, at or for the price or sum of £ and the said (original purchaser) hath requested the said (vendor) to convey and assure the said messuages, lands, tenements, and hereditaments unto the said (present purchaser), and his heirs, in the manner hereinafter expressed."