Duty of Vendor's actually of the very lands in question, and situated in a place over PURCHASES. which the court had jurisdiction. And if the object of the fine was to bar an estate tail, or to confer a title by non-claim, it should be stated whether proclamations are indorsed on the indentures, and also the times at which they were made, in order to show whether it were in conformity to the statute of Hen. VII. Indeed this should be done for whatever purpose the fine was levied, as it is frequently necessary to consider the fine with reference to that statute, although it was not in the contemplation of the parties. A common way of noticing a fine (after mentioning that a covenant was entered into for levying it by certain parties) is to state that of such a term "a fine was levied accordingly;" but this is evidently too indefinite a mode to enable a conveyancer to form any correct notion as to its due formality. In abstracting the exemplification of a common recovery, be- Recoveries. sides the term of which it was levied, it should be stated whether there was a demandant and a tenant to the precipe, and who in particular were the vouchees, the order and form of the vouchers, and whether there was a voucher over of the common vouchee. This latter circumstance is seldom attended to; but as the supposed recovery in value by the tenant in tail, in lieu of the estate recovered from him, is the gist of the bar, and this recovery cannot be presumed to be had but from the person whom he vouches over to warranty, it is, in point of form, an essential part of the assurance. The parcels, with their situations, as to parish and county, are of course material to be stated, and the return and execution of the writ of precipe should also be mentioned, that it may appear at what time the recovery was perfected, and whether the freehold was then in the tenant. With respect to wills, I can scarcely allow of their being ab- Wills. stracted at all, and recommend that in every case where it is PURCHASES. not a will in strict settlement, or otherwise framed in the same artificial manner as a deed, a copy instead of an abstract be given of it, for the only safe way of construing a will, or even what may be considered a detached part or insulated devise or bequest, when framed by the testator himself, or any other person not thoroughly conversant with the import of technical phrases, is, to consider it in the whole, as the intention of the testator is often discovered by other parts of the will rather than by the particular devising clause itself (1). (1) The rule I here recommend of giving a copy instead of an abstract of wills, I think so material to be adopted in practice, that, in order to enforce it, I transcribe a passage which I have discovered in the treatise I have already referred to by Mr. Preston, by which, although the same plan is not advised in terms, it will be seen that the requisite information to be contained in the abstract of a will cannot be furnished by any other mode. “The points to be attended to,” he observes," are to show, to whom the lands are devised; the words used in description of lands; the words of limitation by which the estate is devised; the power, if any, in pursuance of which the devise is made; the words of modification, or of severance of the tenancy, if there be any; the words of qualification which may abridge or defeat the estate; the uses and trusts, if any are created; the conditions, or conditional limitations by way of executory devise, or otherwise, annexed to the devise or appointment; the charges imposed on the devisee; the indemnity, if any, against seeing to the application of the purchase-money, or mortgage-money; such powers, if any, as are material to the title; and when leasehold lands are the subject of the title, the appointment of executors. And in abstracting each of these clauses, there should be a close adherence to the language of the will, so that a correct opinion may be formed of its construction; and the context should always appear, as far as it may, in any manner, influence the construction, by explaining, enlarging, abridging, or in any other manner affecting the genuine import of the words on which the title more immediately depends. And it is more proper to be diffuse in giving the language of a will, especially one not prepared in technical language, than to attempt to reduce the abstract into a narrower compass, and thus withholding information which may be material. Indeed, in abstracting wills, it is, from the inaccuracy with which they are frequently prepared, and the want of the regular form which is observed in deeds, of the first importance to add all limitations over, and all clauses which can affect the context, or vary the construction. How often does it happen, that, in wills, words which import an estate in fee simple are, by subsequent expressions, and especially by words of limitation over, qualified into Duty of Vendor's Solicitor. The parcels, so far as concerns their identity with those in PURCHASES. the preceding evidences of title, are often lost sight of by being comprised in a general devise of all the testator's lands in such a county; in a residuary devise, after a devise of particular parts of his estates by name, or the like: when this is the case, abstracts should be given of counterparts of leases granted by the testator, copies of poors' rates or land tax assessments, or some other testimony of the lands in question having been in the possession of the testator at the date of his will, and if it can be done, at the time also of his decease; for which purpose the time of the testator's decease should likewise be stated; and when the subject of the title is leaseholds (as will be more particularly noticed hereafter), an extract should be given of the testatum annexed to the probate copy of the will; and if the will be of freehold estates, the mode of execution and attestation must also be particularly mentioned, in order to ascertain whether the statutes of wills have been conformed to. The time and place where the will was registered, if the lands be situated in a register county, whether they be of a freehold or chattel nature, are likewise, with reference to subsequent assurances of the same lands, in general circumstances material to be stated. Where the title is derived from or through a bankrupt, after abstracting the proceedings under a commission in the usual way of abstracting other instruments of assurance, a statement an estate tail, or into a fee determinable by executory devise. And again, words which under the rule in Shelley's case import to create an estate tail, are, from other expressions in the will, expounded to give the property to the heir or heirs of the body as purchasers. Variations of this sort are almost infinite. Hence the importance that every clause which can influence the construction should be abstracted. In numerous instances, the opinions which counsel give on an abstract are very different from the opinions they would have given on a perusal of a full copy or extract of the will." See 1 Prest. Abstr. 180. Bankrupt proceedings. Duty of Vendor's Solicitor. PURCHASES. should be subjoined (if the title relate to freehold or copyhold lands) of the day on which the bargain and sale was enrolled, as the operation of the bargain and sale is not from, or by reference to the time of the execution of the deed (as in common cases), but from the time of enrolment; the statutes transferring no estate to the commissioners, but only a power of disposition under prescribed forms, till which are complied with nothing passes. The day upon which the act of bankruptcy was committed should also be stated, for the statutes vest the estate of the bankrupt in the commissioners, or rather the power of the commissioners over his estate (in cases not within the 46 George III. c. 135.), relates to the time of the bankruptcy committed, and not from the date of the commission or time of what is called striking the docket; and it is the same as to the title of the assignees, which also relates to the time of the commission of the act of bankruptcy; the title of a purchaser will therefore depend upon whether the conveyance to him was before or subsequently to the time of the bankruptcy; so the title of a bankrupt's wife to dower will depend upon whether the act of bankruptcy was committed previously or subsequently to the time of his marriage; for if the bankruptcy were prior to the marriage, this, by removing the seisin from her husband, would prevent her title to dower attaching. The time when the bargain and sale to the assignees was enrolled is also often material to be stated, as if this was not done until after the death of the assignees, the bargain and sale would, according to the better opinion, have no operation; for although no time is limited by the statutes for enrolment of bargains and sales by the commissioners, except where it is for barring an estate tail; yet as the enrolment is essential to the validity of Duty of Vendor's Solicitor. the deed, it should seem that it must be done in the lifetime of PURCHASES. the parties to take under it, as they cannot take under a deed which has no operation until after their decease. In cases, however, within the provisions of 46 Geo. III. c. 135, s. 1. (explained by 49 Geo. III. c. 121), i. e. in cases where the contract for sale, or other transaction with a bankrupt, made more than two calendar months before the date of the commission, by any person not having notice of any prior act of bankruptcy or the insolvency of the bankrupt, a sale by such bankrupt will be good, notwithstanding such previous bankruptcy or state of insolvency. ment. In speaking of acts of parliament, I must be understood to Acts of parlia mean private acts operating as conveyances; and considered in that point of view, they are to be abstracted (except in a few particulars) in the same manner as deeds. These acts are generally for the purpose of making inclosures, exchanges, leases, jointures, or barring such entails as by reason of some want of sufficient powers in marriage settlements, or disabilities arising from infancy, &c. cannot be effected without the aid of parliament. In abstracting inclosure acts (unless it be the general act of Inclosure acts. 41 Geo. III. c. 109. which being contained in the statutes at large, need only be referred to), the chief thing to be particularly attended to is the provision, if any, and if not, the want of the provision, usually inserted, to give to the lands allotted to the vendor, or taken in exchange by him, his ancestors, or predecessor, the same qualities as to title, and make it subject to the same charges, &c. which the land, in lieu of which they were allotted to him (either primarily or in exchange), possessed or were subject to at the time of the award of the commissioners; and also giving a will previously made, the same force over the d VOL. I. |