Duty of Vendor's deed is of course a prominent and leading feature in it. This PURCHASES. should therefore be so noticed throughout the abstract, as to be always kept in a clear and insulated view; and for this purpose it is particularly and in many cases absolutely requisite to state at the head or title of the abstract the particular lands, &c. to which the attention is to be especially directed, as "An abstract of the title of A. B. to a messuage situated at, &c. and called, &c." and afterwards to mention those particular lands only, or at least by some emphatical description or notification (a). For want of a designation like this, it often happens where the vendor is possessed of other estates than those under consideration holden under the same title, that the conveyancer is left in total ignorance as to the property to which his attention is intended to be applied, and is consequently sometimes rendered incapable of advising otherwise than at random on the particular object which is in the view of the parties; for it very frequently happens, out of the variety of lands, &c. included in the different assurances professing to form the chain of title, that either by reason of some variation in their description, their being or not being included in a fine or declaration of uses, the uncertainty of their being comprised in a residuary devise, allotments under an enclosure act, or the like, doubts attach upon some of the premises which do not upon others, the consequence of which is that a delay and expense are incurred by inquiries, which by a little previous care might have been avoided (b). The description of lands, &c. is often materially altered by the erections of houses upon them, or by several fields being Alterations in parcels to be noticed. (a) And see 1 Prest. Abstr. 81. (b) See also post, p. xxxi. Duty of Vendor's Solicitor. PURCHASES. thrown into one, or one divided into two or more, and the like; this, when within the knowledge of the vendor's solicitor, should be particularly noticed in the abstract of title, as there will otherwise appear to be a want of identity in the parcels of prior and subsequent deeds, and some satisfactory evidence (as poor rates or land tax assessments, leases, or other cotemporary documents, or, if necessary, an affidavit), should be furnished to verify the fact stated. Where new lands have been acquired, or some of the old lands have been parted with under an enclosure act, they often in this view require the special care of the vendor's solicitor, in order to enable the purchaser's counsel to judge how far the changes which have taken place may have affected the evidence or the validity of the title to the lands in question. Words of limitation to be set out. Next to the parcels, the limitations are the most material parts of a deed or will. In stating these, therefore, the exact and particular words of the limitation should be set out, and not the substance only or what is conceived to be the effect of them, for nothing is often more difficult, particularly in wills, to decide what estate passed by the words of limitation. It is essential, therefore, that every phrase used for creating or conveying an interest should be stated verbatim and without comment. It is very common to find it stated in an abstract that the conveyance or devise was to such a one in " fee simple," in "fee tail," or "for life;" but this precludes all inquiry, and at once decides upon the subject of investigation (1). 66 (1) Mr. Preston, in his Essay on Abstracts, observes (vol. i. p. 116), that "in abstracting words of limitation, marking the duration of the estate, it is very common in practice to give their effect, instead of stating the terms of the deed : Duty of Vendor's Solicitor. And so also let it always be stated whether the habendum in PURCHASES. a deed was simply " to the grantee and his heirs," or "to and to the use of him and his heirs ;" a requisite which is very frequently neglected, although the title often depends upon the distinction, particularly where there are posterior uses to prevent dower or for other purposes. ritance, &c. The words of inheritance or of procreation in limitations, Words of inhewhether by way of remainder, or primarily to first and other sons (and especially in the remainder to daughters where there are any), should be set out verbatim, that the purchaser's counsel may decide upon what estate they respectively took under the events which happened. The reason of my impressing this precaution more emphatically in the case of daughters is, that in the limitation to them, I have very frequently thus," to A for life, remainder to B in tail, remainder to the daughters of A in tail, with cross remainders between them in tail, with remainder to A in fee." "Nor is there any decisive objection (he adds) against this practice, when the construction and consequent effects of a deed are so clear and indisputable that no doubt can exist on the effect. But when a deed or will is abstracted in this mode, it is particularly incumbent on the solicitor for the purchaser to take care that the effect of the limitation is correctly given in the abstract. And it is always more satisfactory to the conveyancer to have the words of the limitation that he may judge of their operation, and draw the conclusion himself." Had that gentleman said that there was a " decisive objection," " and that it was essential," &c. instead of "more satisfactory," to the conveyancer, I should more cordially have acceded to the propriety of his observations, for I cannot allow that it should, in any case, be left to the solicitor to decide upon the effect of the limitation being correctly stated in the abstract, but conceive it to be essentially important that this should, in every case, be left exclusively to the purchaser's counsel, without any discretionary judgment to be exercised by the vendor's solicitor, for although there are unquestionably many solicitors of very considerable legal knowledge, who might seldom err in their conclusions, yet there are many others, as has been elsewhere remarked, who cannot have possessed opportunities of acquiring a competent knowledge for this purpose. Sund hat waris at limitation lave. 19 some strange nat reach misconception, been amitted n the surance. whence, although ionntes ntended a make a s. dey have in faer taken ao more than a life estate. All the remainders, reversions, and imitations over. Í any, aber a prior estate, should also be set out, and not those miy which are supposed to have taken effect, with the atticon us a waily done, « divers remainders over:" for although the more acientific way a as Mr. Preston has observed to give « anch imitations only as are material to the title without setting out the others," anieas where the title may be aided under some of the more remote limitations, or it depends on them by reason of the failure of the prior estates or limitations (1);” yet who is to decide but the purchaser's counsel in what cases limitations are material to the title; or when the title may be aided by such limitations and when not, or whether the prior estates have or have not in point of law failed, and are incapable of taking effect? And the very words by which the remainders are created should be given, that it may be seen whether they are vested or contingent, or springing, or shifting uses. The ultimate remainder, or reversion, is moreover frequently of great importance to be known, in order to (1) See 1 Ess, on Abstract, 122. The work here referred to is replete with practical suggestions of the most valuable kind to the conveyancer, and where any of those here offered appear to be discordant from them, as in the instance adduced above, they will generally be found to arise more from the different impressions necessarily generated by the particular occurrences which have taken place within the observations of different practitioners, as to the expediency of more or less caution to be used by the solicitor in the performance of particular parts of his professional duties, than from any general or essential variance of opinion. Duty of Vendor's So of the re ascertain whether it has been barred, or whether let in by the PURchases. fine or other means used to destroy it. So the limitations inserted in settlements or wills to trustees to support contingent remainders should be set out in the words of the limitation, at least so far as to show what estate they took, and not noticed version. as is usually done in the way of" with remainder to trustees to support contingent remainders;" for the purchaser's counsel has a right and will expect to see whether the estate limited to the trustees was such as would support the subsequent estates or not, and also whether or not they took a greater estate than was necessary for that purpose. Where a deed contains a power to appoint or direct an use, an authority or trust to sell or convey with the consent of certain persons, or on the happening of certain events, or with certain prescribed ceremonies, or the like; such powers, &c. if they have been or are about to be exercised, should be set out verbatim, as the validity of the title derived under them rests essentially upon the mode and under the circumstances of their execution. And where the power or trust is to sell, the clause exonerating the purchaser from seeing to the application of the purchase money by declaring the receipt of the trustee to be a discharge, should, where there is such a clause, be given fully; and where there is not, the manner in which it is directed to be applied should be set out in like manner. And although a deed or will depends on a power by which preceding uses have been defeated, yet it appears to me to be preferable, that they should be stated, and not so many of them only as may, in the opinion of the solicitor, show the right to exercise the power; or in cases only where the sale or appointment under the power has been questioned, or its validity Powers and trusts for sale to be stated verbatim. |