to the time of the operation of the act of 55 Geo. III. c. 192, PURCHASES. this will not be required, as the statute renders a previous surrender of copyholds to the use of a person's will dying after that act, unnecessary. II. THE SOLICITOR FOR THE PURCHASER. The observations made in the INTRODUCTION just referred to, relative to the duty of the purchaser's solicitor on the part of his client on the purchase of a Freehold, may here be applied to the purchase of a Copyhold estate, except that those made relative to the necessity of the purchaser republishing his will previously made, in order to pass them under a residuary devise, do not apply to copyholds, as these will pass without being expressly mentioned, Heylyn v. Heylyn, Cowp. 130. Hillier v. Woodford, 13 Ves. 209, so that prior to 55 Geo. III. they were surrendered to the use of his will; and since this act, even that circumstance is unnecessary. AGREEMENTS. Copyholds. The duty of the Purchaser's Solicitor. Republication of purchaser's will. necessary. Nor is a search for judgments on the purchase of copyholds Search for necessary, as it is in the case of freeholds, they not being liable judgments not be taken in execution, lest the lord should have a new tenant brought into the manor without his consent. Cannon v. Pack, 6 Vin. Abr. Co. Cop. S. 21. 3 Co. 9 a. 2 Inst. 337. Parties. Agreement for purchase. Agreement must be in writing. Purchase, &c. by an agent. Executors not named. in the year ARTICLES THE said (vendor) doth hereby agree to sell, (1) An agreement for the assignment of a lease will not be binding on the parties unless it be in writing; the statute of frauds, 29 Car. 2. c. 3. s. 4, extending as well to subsisting interests as to interests created de novo out of an estate. See Anon. 1 Vent. 361, and see also Griffith v. Young, 12 East, 514. (2) If the contract be entered into by an agent for either party, see ante, No. II. p. 19, n. (1). (3) An agreement for the sale of a leasehold or chattel interest bound although will be binding on the executors or personal representatives of the parties, although not expressly named, see Smith v. Watson, Bunb. 55. the words within brackets may therefore be omitted. (4) If the consideration be a transfer of money in the funds, see ante, No. II. p. 21. n. (5). Consideration a transfer of stock. An annuity. If it be an annuity to be paid to the vendor during his life, see ibid. AGREEMENTS. ALL (5v) that leasehold messuage, &c. situated, PURCHASES. &c. with the piece or parcel of meadow ground abutting and adjoining, &c. containing by estimation acres (6) be the same more or less, for the residue (7) now to come of a term of years, commencing from the day of granted to the said (vendor) by an indenture of lease, bearing date the year day of in the and expressed to be made between, &c. but under and subject to the rents, covenants, and agreements therein reserved and contained on the part of the tenant, lessee, or assignee thereof, to be respectively paid and performed. Leaseholds. taken at a AND it is hereby agreed that all fixtures (8) Fixtures to be now upon the said premises, shall be taken by the valuation. said (purchaser) at a valuation to be made thereof by two appraisers, one to be chosen by the said (vendor), and the other by the said (purchaser), and in case of difference between them, then by a third appraiser, to be by such two appraisers named, and the amount of such valuation paid by the said (purchaser) at the time of the execution of the assignment of the said premises. (5) If the vendor have an undivided moiety or other portion Moiety, &c. only of the premises, see ante, No. II. p. 21, n. (3). (6) See ante, No. I. p. 3, n. (5). liable to take a new lease. (7) Under an agreement for the residue of an old term, a pur- Purchaser not chaser will not be compellable to take a new lease, the former being more advantageous. See Mason v. Corden, 7 Taunt. 9. (8) If the furniture be also to be taken at a valuation, add, "And all and every the articles of household and other fur- valuation. niture, utensils, and things now in or upon the said messuage or dwelling-house, and premises." Furniture to be taken at a AND the said (vendor) doth promise and agree, to deliver unto the said (purchaser), within one calendar month from the date hereof, a full and satisfactory abstract of the title (9 v) of him the said (vendor) to the said premises, from the commencement of the said term, but not of the title of the ground or other superior landlord of the reversion or inheritance of the said premises (10), nor of any surrendered lease or leases (11). Purchaser to take subject to defects. Purchaser may require the production of lessor's title. Purchaser of bishop's lease (9) If the purchaser is to take subject to all casual defects of title, see ante, No. III. p. 24. n. (7). (10) It was for a long time a matter of contention whether the purchaser of leasehold premises had a right to require the vendor to show the title of his lessor, see Gwillim v. Stone, 3 Taunt. 433, Keech v. Hall, 1 Dougl. 21, Waring v. Mackreth, Forrest. 129, White v. Foljambe, 11 Ves. 337, Gompertz v. 12 ib. 17; but subsequently a distinction was adopted by the Courts (and which appcars now to have become a settled rule), that where the benefit of the contract is insisted upon by the vendor as against the purchaser, the purchaser shall not be compelled to perform it, unless the vendor can substantiate the validity of the lease by showing a good title in the lessor to the freehold out of which it is derived; but that if the purchaser insist upon an execution of the contract by the vendor, he must be contented with such evidences of title as are within the vendor's reach; a distinction which seems founded upon sound principles of equity, as whilst on the one hand it protects the purchaser from having a doubtful title imposed upon him, it on the other protects the vendor against being called upon to furnish what it may not be in his power to produce. See Fildes v. Hooker, 2 Merr. 424, Deverell v. Lord Bolton, 18 Ves. 505. In the case of an estate holden under a bishop's lease, it has been decided that the purchaser is not intitled to call for the see lessor's title. production of the lessor's title, Fane v. Spencer, cited 2 Merr. not entitled to Leases under corporations. 430, n. (11) This provision is particularly necessary in the sale of AND ALSO on or before the now next ensuing, upon receiving (purchaser) the said sum of £ day of PURCHASES. AGREEMENTS. Leaseholds. And on pay ment of pur chase money, execute assign cute a valid assignment or other proper and renewable leases holden under corporations or other public bodies, where the present subsisting lease is in general the only evidence of title a vendor can produce, although such lease by referring to prior surrendered leases, and therefore furnishing the purchaser with notice of them, may render him liable to a defect of title in a former lessee. Coppin v. Fernyhough, 2 Brow. Ch. Ca. 291. the transfer of stock. (12) If the consideration of the purchase be a transfer of Consideration money in the funds, see ante, No. II, p. 24, n. (8). If part of the purchase money is to remain on the security of the premises, see ibid. n. (9). Part to remain on the premises. If part of the consideration be the grant of an annuity Consideration, during the life of the vendor, see ibid. an annuity. (13) If the vendor have a moiety or other portion only of the Moiety, &c. premises, see No. II. p. 25, n. (10). (14) If the premises are subject to a mortgage, annuity, or Premises subject other incumbrance, see ante, No. II. p. 25, n. (M). to iucum- liable after assignment. (15) Where the vendor is himself an assignee only of the Assignee not premises, and has not therefore entered into covenants to pay the rent, or perform the covenants in the lease, the words within the parenthesis may be omitted, as the liability of such assignee ceases on his assigning over to another. See Taylor v. Shum, 1 Bos. and Pul. 21. Nor are they absolutely necessary to be inserted where the vendor is lessee of the premises, as it has been held that a purchaser is bound to indemnify the lessee against the rent and covenants in the lease, although the VOL. I. E Purchaser bound to indemnify vendor against covepants, &c. in lease. |