PURCHASES. is doubtful (a); for the judgment of the solicitor without: Duty of Vendor's Solicitor. Other trusts, &c. to be stated. Creation and cesser of terms to be stated. may, at all impeaching his professional skill in the proper department of his profession, be fairly questioned on legal points to which his reflections cannot have been directed otherwise than in a very limited and general manner. And it is the same of all other powers, trusts, or directions as those for sale, exchange, change of trustees, &c. &c. which have been or are going to be performed, as the validity of the act frequently depends upon its being done agreeably to the mode prescribed; but where they neither have, nor are now in contemplation to be performed, they are of course immaterial to the title, and it will be sufficient merely to state that there are such. Similar observations, as to the expediency of setting out powers, &c. may be applied to conditions and provisoes in a deed inserted for the purpose of defeating or qualifying an estate, "that it may appear in what degree and to what extent they may operate, and upon what terms and by what mode they may be discharged or avoided; and if they have been performed, the material circumstances should also be stated, that an opinion may be formed whether the condition has been discharged (b).” And so in abstracting a deed, by which a term is or is supposed to have been created, the time or event at or upon which it was to commence, and the clause of cesser, or other direction as to its ultimate destination after performance of the trusts or purposes for which it was raised, should always be fully set out, for want of which it cannot be ascertained whether the 1 (a) See 1 Essay on Abstracts, 119. (b) Sed 1 Prest. Abstr. 148. aliter. Duty of Vendor's Solicitor. term is still subsisting or not, or indeed whether it ever PURCHASES. arose; the common way is to say no more than that the term was created " upon or for certain trusts and purposes which have been long since fully performed or otherwise satisfied;" but this is begging the question to be decided. The trusts and purposes of the term, together with the events upon which it was to commence, or not to arise, or determine, should therefore be explicitly stated, and the happening of the events, if past, averred, with accompanying proofs in support of the allegation, notwithstanding that they may be supposed never to have arisen; for whether they are now in being or capable of arising or not, it is for the purchaser's counsel to be satisfied of, which he cannot be without being informed as well of their nature and purpose as all circumstances attending them. The heads or purport of all the covenants, for title, &c. contained in each deed, should likewise be given in the abstract; it being stated (in the usual way) to contain the usual covenants is by no means satisfactory, unless, indeed, in a common purchase deed, as it is well known that questions as to what are or are not usual covenants (particularly in leases, as will be further noticed by and by) have produced much discussion, and even a contrariety of determinations. And where the form of such covenants as are acknowledged to be usual at all differs from the language in which they are commonly framed (as by the covenant of seizin not commencing with the usual phrase of "for and notwithstanding," the covenant for quiet enjoyment being extended to the acts of "all persons whatsoever," instead of being confined to those of the vendor and his ancestors, or the like); such difference should be noticed, that the conveyancer may judge of its legal consequences, the circumstances of a covenant's being qualified or unqualified, All covenants, &c. should be enumerated. Duty of Vendor's Solicitor. PURCHASES. referring or not referring to existing incumbrances, &c. being often material to the title; and if any of the covenants are such as by subjecting the purchaser to the performance of them, restrain his exercise of a full and complete dominion over the estate, they must be especially noticed, that the importance of them may be considered by the purchaser's counsel. Exceptions in covenants to be noticed. With whom entered into. Notice covenant Mode of exe cution and at be stated. All exceptions, if any, made at the end of the covenant for quiet enjoyment, should also be mentioned, of however trivial a nature they may seem to be, as a right of way, of fishing, of sporting, or the like; for although they may be looked upon as matters of no moment by one person, great importance may be attached to them by another. And where the exception is of any actual incumbrances, or outstanding interests, it is of course material that it should be particularly noticed. And it should likewise be mentioned (although seldom done), with whom the covenants are entered into, that it may be seen whether the covenanter had such a seizin as would carry them with the land and give the intended purchaser the benefit of them. If there be a covenant for production of title deeds, it should be expressly so stated, that the purchaser's counsel may know what deeds are to accompany the title. And for this purpose the schedule, if any, should be copied verbatim. It is very common in the abstract of a deed, to state sumtestation should marily, that it was duly executed and attested;" but is not this determining upon the question to be decided? It should be stated by whom in particular it was executed, and how in particular such execution was attested, that the purchaser's counsel may be enabled to judge whether it was executed by all the necessary parties or in the proper form or not. The form of the execution and attestation of deeds, in exercise Duty of Vendor's Solicitor. of powers for instance, are amongst others of the very essence PURCHASES. of the assurance; and any omission or other inaccuracy in them, often gives rise to questions of considerable doubt, as well as of importance. The particular mode of the execution and the exact words of the attestation should therefore, in these cases, be set out, as the want of this, or any remission of care on the part of the purchaser's solicitor, in examining the abstract with the deeds, may be attended with fatal consequences to his client. And the declaration in the body of the deed itself, that it was executed and attested in the manner prescribed by the power, avails nothing, as it is apparent that, at the time when this declaration was made, no execution of any kind had taken place. If the deed were for a valuable consideration paid, and be of Receipt for a recent date, as twenty or thirty years, it should be stated whether or not a receipt be indorsed, and by whom subscribed, as it may be material to consider whether or not it be such as satisfactorily to exonerate the lands in the hands of a purchaser from the equitable lien which it would be upon them if not paid, and the want of such receipt would induce a presumption of its not having been paid. The amount of the sum mentioned in the receipt should also be stated, that it may appear whether it is the same as that mentioned in the body of the deed, and no presumption of fraud be induced by a nominal, or no consideration being actually paid, whilst the conveyance be expressed to be made for a valuable and sufficient one. This remark applies, however, it is to be observed, only where it was intended that the purchase money should be a full and sufficient consideration, for where it is nominal only, as 5s. (even though necessary to support the assurance, as in a bargain and sale to be enrolled), the acknowledgment of the re consideration should be noticed. PURCHASES. ceipt of it in the body of the deed is held to be sufficient evidence of the payment (a). Duty of Vendor's Solicitor. Ulterior acts to perfect the assurance to be noticed. Lastly, all ulterior acts, i. e. acts performed after the execution of the deeds, as delivery of seisin, registry, or enrolment, if any, must be stated to have been performed, and also the time and place, as the deed will have its full or only a partial or perhaps no operation, according to one or other of these cir cumstances. Directions for abstracting struments. The preceding observations, it will be perceived, are relevant of particular in- only or principally to the abstracting of deeds; but a title will often be found to be composed in great part of various other assurances and documents, as fines, recoveries, chancery proceedings, commissions of bankruptcy, &c. and as these have, in some respects, a peculiar operation, depending either upon their own natures or the force given them by particular acts of parliament, and as it is material to abstract those parts of every assurance in which its efficacy subsists, it will be proper to subjoin some additional remarks relative to the abstracting of those kind of assurances. Fines. In abstracting a fine, it should be stated, in addition to the term of which it was levied, who were the plaintiffs or cognisees, and who the cognisors or defendants; and likewise the species of fine, as whether sur conusance de droit come ceo, sur conusance de droit tantum, or the like, in order that it may be seen to have been such kind of fine, and levied by such parties as the case required. So also, the quantity of land, &c. and the parish and county where situated should be set out, to show that the fine was (a) 10 Co. 67. b. |