Duty of Vendor's Solicitor. be prepared to produce the deeds themselves to the purchaser's PURCHASES. solicitor, if in his custody or power, in order to enable him to ascertain whether they are abstracted with fidelity; and if they are not in his custody, but liable to his inspection under a covenant for their production, he must at the expense of the vendor (including that of journeys, if requisite, to the place where they are deposited (a) ), cause them to be produced for that purpose; and if he neither have the deeds nor is entitled to call for the production of them, he must furnish attested copies of them (even though instruments on record) for the purpose of their being examined with the abstract. should be On an agreement for the purchase of an estate, it is not un- Deposit money usual for the purchaser to be required to pay down a part of invested. the purchase money by way of deposit, which if the purchase go off for want of title, is to be returned to the purchaser with interest, in the mean time. The risk of which in such case belongs to the vendor whilst it remains in his custody (b), unless it be invested upon some security expressly approved of by the purchaser. Where, therefore, a deposit has been paid, the vendor's solicitor, if he find any considerable delay is likely to take place in making out the title, should apply to the solicitor of the purchaser to obtain a written consent for its being invested in some particular funds, to be mutually agreed upon between them (c). And should the vendor's solicitor not have been able to produce a perfect title by the time appointed for the completion of the purchase, and he should receive notice from the pur As to notice /of purchase money being unproductive. (a) Sharp v. Page, cited Sugd., Vend. and Pur. 351. (b) Roberts v. Massey, 13 Ves. 561. Ackland v. Gaiusford, 2 Mad. (c) See Sug. on Vend. and Purch. 39. PURCHASES. chaser that his money is ready and unproductive, in this case also he should endeavour to agree with the purchaser's solicitor for its investment. Duty of Vendor's Solicitor. If title approved, What assurances to the vendor. If the title be approved by the purchaser, the next step towards completing the transaction is, preparing the drafts of the different conveyances and assurances to the purchaser, some of which, by established practice, are to be prepared by the vendor's solicitor, and scme by the solicitor for the purchaser. The assurances to be prepared by the vendor's solicitor are, be prepared by deeds of covenant for the production of title deeds retained by him (which, unless the purchaser should require separate covenants relative to particular assurances, must be borne by himself), deeds necessary to exonerate or protect the estate from subsisting incumbrances, and assignments of outstanding terms not already attendant upon the inheritance by express assignment, all which it will belong to the vendor's solicitor to engross and tender for execution, unless it be otherwise agreed between the parties. And as to the covenant for the production of deeds not delivered to the purchaser, if it be prepared by the purchaser's solicitor, the solicitor for the vendor must see that it contain a proviso vacating the covenant on the vendor's procuring a similar covenant from any future purchaser to whom they may be delivered; for without such a proviso he will still be personally liable for their production, although they may be wholly out of his power. On a vendor's selling the larger part of his estates (if he deliver the title deeds over), his solicitor should also obtain from the purchaser a covenant for their production, in order to enable himself to procure them to be produced to a purchaser of that part of the estate which may remain in his hands. Duty of Vendor's Solicitor. But the conveyance of the purchase deed itself is to be PURCHASES. prepared, as we shall see hereafter, by the purchaser's solicitor, except the purchaser neglect to complete his purchase upon a good title being deduced, and there is no agreement subsisting as to who shall prepare the conveyance; in which case the vendor's solicitor must, it appears, tender to the purchaser a conveyance prepared, executed, and attested in the usual form (a), as he cannot till then maintain an action for the deposit money, if any were paid, or for damages, nor sustain a suit for specific performance of the contract. But where the purchaser's solicitor is, by express agreement, to prepare the conveyance, it will not be necessary for these purposes that it should be prepared or tendered by the solicitor of the vendor (b). coveries. Fines also and recoveries, if necessary to vest a clear Fines and reestate in the vendor, must also be levied and suffered at his expense, as all that can be required of a purchaser is to take, at his own expense, a conveyance of a clear and marketable estate from the vendor or his trustee, to himself or trustee (c). Where, therefore, the expenses of the conveyance are increased by mortgage or other outstanding interests being assigned or released to the purchaser, or a trustee for him, by the purchase deed itself, which is sometimes done, or where the covenant by the vendor for the production of deeds not delivered over to the purchaser is inserted in the conveyance, the expense is to be apportioned between the parties accordingly. Attested copies of all deeds, unless they be of record, and Attested copies. office copies of all devises relating to the hereditaments sold, (4) And see Sug. Vend, and Pur. 181. n. c. (b) Hawkins v. Kemp, 3 East, 410. (c) See 2 Ves. jun. 155. PURCHASES. must be made and delivered to the purchaser at the vendor's expense, and that duly stamped as required by act of parlia ment, in order that they may be admissible as evidence in case of the original being lost (a). Duty of What deeds are of record. What courts are of record. But the purchaser being entitled to attested copies of such deeds only as are not of record, it may be proper that I should apprise the vendor's solicitor what deeds are considered to be of record, and what not. Deeds are said to be of record when a transcript has been made of them by the officers of a court of record, "for the purpose of being a perpetual memorial and testimony (b)." There is a difference, however, when such deeds are enrolled in pursuance of an act of parliament, and when by the voluntary act of the party; for where they are enrolled by the party for safe custody only, they will be evidence against the party acknowledging them only, and those claiming under him, and not (as in the other case) against others likewise (c). Courts of record are the High Court of Parliament, the Courts of King's Bench and Common Pleas at Westminster, the law sides of the Court of Chancery and Exchequer, the Court Leet, the Court of Hustings in the city of London, and the Court of Great Sessions in Wales. Attested copies of deeds enrolled in any of which Courts cannot, therefore, in any case, be required, where the enrolment was made under a statutable requisition, nor in other cases where the deeds in question are necessary only for the purpose of supporting the purchaser's title against the party by whom they were acknowledged, or (a) And see 6 Ves. 460. Boughton v. Jewell, 15 ib. 176. (b) 3 Blac. Com. 24. Finch, L. 231. (c) See Holcroft v. Smith, Freem. 259. Gilb. Ev. 86. some person claiming under him; except only for the purpose PURCHASES. of comparing them with the abstract, where the deeds themselves are not in the vendor's possession. Duty of Vendor's Solicitor. What courts are But neither the Prerogative Court of the Archbishop of Canterbury, nor any other ecclesiastical court, are courts of re- not of record. cord (a); nor are courts baron incident to manors (whether freehold or customary), nor the court of hundred, the sheriff's county court, nor the courts appertaining to the counties palatine of Chester, Lancaster, and Durham, or franchise of Ely (b). Hence of wills, or other instruments registered in these courts, attested copies, i. e. copies extracted from the books of registry, and attested by the proper officer as true, may be required at the vendor's expense; unless it were otherwise agreed at the time of the contract. The vendor's solicitor must also, as has been before intimated, procure from the vendor, at the vendor's expense, a covenant for the production of the originals of all deeds relating to the premises, and not delivered over at the execution of the conveyance, whether such production be necessary to substantiate the purchaser's possession, or to examine by them attested copies which may afterwards be required, the purchaser from time to time defraying the expense of the production (c): the principle upon which he may be required to give this covenant at his own expense is, that if he do not deliver to the purchaser the best evidence of title, i. e. the assurances themselves (which the purchaser has primâ facie a right to), he must furnish the next best evidence, which attested copies alone are not, they being evidence to support the purchaser's title as Vendor to co venant for production of deeds not delivered. (a) 3 Bla. Com. 67. (b) See 4 Inst. 213. 218. Finch, R. 452. (c) See Berry v. Young, 2 Esp. c. 640. |