PURCHASES. Duty of Purchaser's Solicitor. Purchaser should demand abstract, on the day ap pointed for delivery. Or give notice of his relinquishment of the con tract. Purchaser's solicitor should not receive abstract after the time appointed for delivery. II. Duty of purchaser's solicitor on receipt of abstract, &c. Compare it with deeds. Although (as has been before observed) (a), it belongs to the vendor's solicitor to prepare and deliver an abstract of the vendor's title by the time appointed in the agreement for sale, yet, in order to enable the purchaser to take advantage of any default of the vendor's solicitor in this respect, and relinquish his contract, or if he would enforce a specific performance of it, the purchaser's solicitor should demand the abstract either before (b), or at least at or soon after the time stipulated (c). And if he wish to relinquish the purchase, he should immediately after the expiration of the time give notice to the vendor that he considers the contract to be at an end, and de mand repayment of the deposit money, if any were paid (d); for if he lie by and show an indifference about the vendor's performing his part of the contract at the time agreed upon, he will be construed to have waived his right to require it (e). Hence the solicitor should be cautious how he accept the abstract after the day upon which it ought to have been delivered, unless expressly without prejudice to his client's right to take advantage of the neglect, for otherwise he may be precluded from afterwards doing so (ƒ). 2dly. Of the duty of the purchaser's solicitor from receiving the abstract to the approval or rejection of the title. Upon receiving the abstract of the vendor's title the solicitor for the purchaser must carefully examine it with the documents (a) Ante, p. xxxvii. (c) See ante, p. xxxviii. (b) Guest v. Homfrey, 5 Ves. 818. (d) See notice of this kind, WILDE'S SUPPLEMENT, Voc." Notice." (f) See Smith v. Buruan, 2 Anstr. 327. and Seton v. Slade, 7 Ves. 265. Duty of Purchaser's Solicitor. Identity of parcels. abstracted, to see that their contents are fully and faithfully PURCHASES. disclosed. Those parts of a deed which it is most essential should be set out in the abstract, I have noticed in the suggestions I have made on the preparing of an abstract (a): all these the solicitor for the purchaser should require to be inserted, or must himself insert if omitted. And in examining the parcels he should particularly attend to their identity with those agreed to be purchased, for which purpose the parcels of every deed must be read over, for to depend upon the accuracy of the statement in the abstract, of every successive deed being a conveyance of " the premises aforesaid," which is the usual language, would be extremely dangerous, as the persons usually employed in making abstracts are too often in this respect unwarrantably remiss. And in examining the parcels with the abstract of the release (supposing the conveyance to be by lease and release) he should at the same time compare them with those in the lease, or bargain and sale for a year, which, although seldom done, should never be omitted; for no lands or other hereditaments described in the release will pass, unless they be also comprised in the lease for a year, except there be some prior legal possession or privity in the relessce, or the release operate by way of grant by reason of some outstanding term or otherwise, which, although frequently the case, it would be hazardous to depend upon (6). The purchaser's solicitor should also see and state in the abstract (if it be not already done) the considerations upon Parcels in lease for a year should be compared with those in the release. The considera tion for the deed should be no ticed. (a) See ante, p. xv. (b) And see Shep. Prec. 75. also 10 Ves. jun. 255. and Philips v. Jones, 3 Bos, and Pul. 362, and sec post, No. XIII. p. 113, n. (7). No. XV. p. 129, n. (15). PURCHASES. which the deeds were respectively founded, which is often material to give effect to the conveyance (unless of remote date), and as often omitted to be noticed (a). Duty of Purchaser's Solicitor. Execution and attestation of deeds to be inspected. Attestation of appointments. He must also see that the abstract state by whom, and by whose direction or consent (if any) the deeds were executed, and how they were attested: these circumstances are often either wholly omitted, or too vaguely noticed to give any distinct information respecting them, although they may in many cases materially affect the operation of the assurance, and, consequently, the validity of the title. One circumstance in particular it may be material to notice respecting the attestation, that when the deed is made in execution of a power, and is required by the power to be signed and sealed in the presence of a certain number of witnesses, the attestation must go to the signing as well as the sealing, unless the deed bear date prior to the 30th July, 1814. The usual mode of wording attestations to deeds, viz. “ SEALED and DELIVERED," &c. has led into many errors of this kind (b), which gave rise to the statute referred to below (c), which precludes objections being taken to such attestation to deeds made prior to that act; but as it is retrospective only, and leaves the law as it stood before in respect of deeds to be subsequently executed, the same care as was before requisite is still necessary to be observed as to appointments made since the operation of the act. (a) And see ante, p. xvii, and post, No. II. p. 22, notes. No. VII. p. 73, n. (4). No. XV. p. 123, n. (5). (b) See Wright t. Wakeford, 17 Ves. 454. 4 Taunt 213. Doe dem. Mansfield v, Peach, 2 Maule and Selwyn, 576. Doe dem. Hotchkiss v. Pearse, 2 Marsh. 102, (c) See 54 Geo. 3. c. 168, post, end of INTRODUCTION. This would be obviated by introducing every attestation to PURCHASES. deeds by the word, “ SIGNED," instead of "SEALED." Duty of Purchaser's Solicitor. See that livery ment, And where livery of seisin is necessary, as in the case of a feoffment, it must be seen that this was made, and if by attorney it must be ascertained that the parties by or on whose made on feoftbehalf it was made or taken was living (a); unless a considerable length of time (as 20 years) has elapsed (b), which, on the principle that omnia presumuntur, rite et solemniter acta, renders any. investigation on the subject unnecessary. He should likewise observe and state, whether a receipt for and whether receipt indorsed the consideration money be indorsed, and by whom signed, and signed. the receipt in the body of the deed (unless twenty years have elapsed, or the consideration be nominal only) (c), not being conclusive evidence of the payment (d); and this is more particularly necessary where the sale was made under a power or trust to sell for the "best price which can be obtained." recitals and He must also recollect, whilst examining the abstract, to read Should read the recitals; and inspect the covenant for quiet enjoyment covenant for quiet enjoyagainst incumbrances, as it frequently happens that incum- ment. brances are recited or noticed by way of exception in the covenant for quiet enjoyment, which do not appear in any other part of the deed. Finally, the solicitor for the purchaser must see whether Should see that registry, &c. be and when the several assurances were enrolled, registered (al- indorsed. though the deed be an appointment) (e), memorialized, or proclaimed (according to the nature of the assurance), and whether (a) See Co. Lit. 122. 309 (a). (b) Recs dem. Chamberlayn v. Lloyd, 1 Wightw. 69. 123. (c) See ante, p. xxvii. (d) See Mos. 37. Coppen v. Coppen, 2 P. Wms. 290. (e) Honeycomb v. Waldron, 2 Stra. 1064. PURCHASES. duly stamped. And with respect to the inrolment and registry, he should not be satisfied with the evidence of the indorsement alone, but should have recourse to the inrolment or register office itself; for instances have occurred of the indorsement of Duty of Purchaser's Solicitor. and examine the fication. Time of in rolment. offices in veri- registry, &c. being a disgraceful trick to delude the other party. He must also be attentive as to the time of inrolment, and see, if it be a bargain and sale under 27 Hen. 8. c. 10. to transfer an use, or the bankrupt act of 21 Jac. 1. c. 19. s. 12. to bar entails, that it be within six lunar months from the date (to be computed exclusively of the day of the date, and inclusive of the day of inrolment). But as to bargains and sales by commissioners of bankrupts made to vest the bankrupt's estate in the purchaser, the time of inrolment is not material, so that it be in the lifetime of some one of the assignees (a). Inspect leases. The purchaser's solicitor should also call for and inspect the counterparts of all leases and agreements for leases referred to in the abstract (b); for a purchaser, having notice of a lease, is bound by the covenants, &c. on the part of the lessor (c); and not only express notice of their being leases generally, it is to be observed, is notice of their contents (d); but notice of a tenancy only, is held to be notice of the interest the tenant has in the lands (e). Hence the single circumstance of the premises being mentioned in the description of parcels or particulars of sale to be in the occupation of such an one, im (a) See Hawkins v. Kemp, 3 East, 410. (b) And see Anou. Freem. 253. Pilkington v. Shatter, 2 Vern. 374. Sparkes v. Smith, ib. 275, and see post, No. XV. p. 147, n. (52). (c) Richardson v. Sydenham, 2 Vern. 447. (d) Taylor v. Hibbert, 2 Ves. jun. 437. Eyre v. Dolphin, 2 Ball, and Beat. 300. (e) Daniels v. Davidson, 17 Ves. 433. Allen v. Anthony, 1 Mer. 282. |