it will be proper to go back to some prior deed free from this PURCHASES. objection. As a And the going further back with the title for the purpose of abstracting a deed referred to, is particularly requisite where such deed is the foundation of the deed referring to it. deed in execution of a power or trust, a settlement made in pursuance of preliminary articles, and the like, because the validity of the latter deed may, and generally will depend upon the former. And in abstracting deeds of this kind every circumstance should of course be stated, which is necessary or has a tendency to show that the derivative deed is correctly framed. An abstract should also be furnished, when it can be done without prejudice to the title, of deeds or wills by which any estate tails were created, although made upwards of 60 years ago, if they be extant, and if not, it should be so stated, for although the title cannot in general be objected to for want of their production, yet it is so constant a practice to call for them, that the withholding them without a reason assigned would probably be the means of prolonging the time of completing the purchase. And where a title commences with a recovery or fine, by which a prior estate tail is stated to have been barred, it is usual to require an abstract of the deed creating the entail, as without knowing the circumstances of the entail, and what the remainders over were, it cannot be ascertained whether they are bound by the recovery or fine; but although this information is very desirable, it cannot be insisted upon unless some reasonable grounds of suspicion be disclosed by the abstract of some outstanding entail, because a 60 years title must be presumed to be good until evidence be produced tending to impeach it; as, for instance, where the estate tail seems to have been that of the wife ex provisione viri, in which case, as such PURCHASES. entail could not be barred by the wife (a), the title is primâ facie Duty of Vendor's Solicitor. So of marriage articles. Wills to be abstracted, although upwards of 60 years. Grants from the crown. defective. So where the first deed of 60 years duration is an appointment under a power, it will be proper, whether such power be recited or not, that the title should go back to the deed in which the power is contained; but for the reason just given a requisition of the kind may, unless under particular circumstances, be resisted. So where the deed is a settlement made in pursuance of previous articles, it is essential that the articles should be abstracted, because if it be not made in conformity to such articles, it will pro tanto be void; and the lapse of 60 years from the date of the settlement will not avail, as the interests of children which could not be asserted in the lifetime of the parents, will generally keep the title open down to a much more recent period. Other instances of the necessity of a title going further back than 60 years are, where a person is stated to claim as devisee; in which case the will should be abstracted, although more than 60 years may have passed since the death of the testator, because by the true construction of the will he might possibly have taken an estate for life, or other particular estate only, instead of a fee-simple or an estate tail, and the remainders over may be still capable of taking effect. Also in titles derived originally from the crown, as rectorial tithes, the grant of the crown, however ancient, may be required, and should therefore be abstracted, that it may be seen whether any reservation of rent, or any remainder or reversion be retained or reserved, which not being barrable by fine or recovery, must, if there be any, be presumed to be still out (a) See Stat. 32 Hen. 8. c. 28. Duty of Vendor's Solicitor. standing (a); but as this is the only reason upon which it can PURchases. be called for, the intermediate conveyances prior to 60 years past need not be abstracted, as any estate or interest created by them would, as against a subject, be barred by the general statute of limitations; as would also all other titles, even in the crown, be by that of 9 Geo. 3. c. 16. except only as in the act is mentioned. or of pews. And so of deeds creating long terms for years. And so of advowsons if in gross, i. e. not appendant to a So grants of advowsons, manor, for to these the statutes of limitations do not extend, and a 60 years title to them might be no more than during the lifetime of a single incumbent, whereas a series of presentations by the predecessor or predecessors in title are necessary to show an undisputed enjoyment: so also of pews in churches (b). So where a term of years is noticed in a deed with which it was proposed to commence the title, the abstract must go back to the deed creating the term, in order to show (unless this appears by the recitals of some subsequent deeds) the purposes for which it was created, as it might have been to raise money at periods which have not yet arrived, or there may be a reversion expectant upon it not set out in the subsequent deeds; and all the intermediate assignments should also be abstracted if in the vendor's possession, for although these will, generally speaking, be presumed (c), and therefore cannot, it should seem, be in strictness required, unless circumstances generate suspicion of their being suppressed (because the known casualties incident to length of time are alone sufficient, ceteris paribus, to account for the loss of title deeds, and other recitals in the subsequent deeds of the origin of the term it is clear would be conclusive against all persons parties to such deeds, (a) And see 1 Prest. Abstr. 280. (b) Stock v. Booth, 1 Durnf. and E. 428. (c) 2 Blac. Rep. 1228. PURCHASES. and those claiming under them, which will generally be found to be a bar to future claimants (a),) yet the practice is to expect it, and therefore delay would probably be occasioned by the Duty of Vendor's Solicitor. Steward's appointment should be abstracted. But in general the abstract should not commence earlier than from 60 years' date. Unless vendor have anterior deeds. omission. Lastly, if the subject of the title be a manor to which a steward is attached, which is usually the case, it is properly noticed by Mr. Sugden (b), that the instrument by which he was appointed should be abstracted, as it may be for a period or on conditions which may deteriorate the value of the manerial rights. But except in cases like those I have noticed, the going back beyond a period of 60 years is not only unnecessary, but, as I have before observed, should, if possible, be avoided, as it frequently discloses some dormant interest of which no account can now be given, and which, although not perhaps of a nature to authorize the purchaser to reject the title, yet often occasion much tedious discussions and delay, to the great inconvenience of the vendor, and which by a greater degree of circumspection on the part of his solicitor, or by a previous submission of the title to counsel on his behalf, might have been prevented. It is to be observed, however, that if the vendor be in fact possessed of evidence, of his title prior to 60 years, he cannot withhold them from the purchaser, should they be required; for a purchaser for a valuable consideration has a right to all the information concerning the title which the vendor can furnish him with, and a recent case has shown the possibility of a title being defective and impeachable, notwithstanding an undisturbed possession of 60 years, by reason of remote claimants expectant upon the determination of a particular estate, which had continued for a much longer period (c). (a) See Earl dem. Goodwin . Baxter, 2 Blac. Rep. 1228. (b) See Vendor and Pur. 223. (c) See Goodright v. Torrester, 1 Taunt. 585. Duty of Vendor's Solicitor. If no deeds of 60 years' date, terriers, &c. to be produced. But in some cases it happens that the vendor is not able to PURCHASES. show his title by any will or conveyance so early as 60 years back, by reason of the title deeds having been lost, or his title being deduced solely through a series of descents; in which cases his solicitor should search for and furnish copies of ancient abstracts, counterparts of leases (or the registry of leases if in a registrar court), assessments to the land-tax, family terriers, plans of surveyors, charts, authenticated pedigrees, and all such other documents as are calculated to furnish evidence of an undisturbed possession and exercise of ownership by him, his ancestors or predecessors; which alone in the absence of contrary evidence leads to a strong presumption of indefeazibleness of his title. And in this case all recitals and statements contained in the deeds in the vendor's possession, which have a tendency to show that each assurance was duly made, and competent to give effect to the intention of the parties, should be fully set out; as recitals of this kind, after a considerable lapse of time, are generally deemed sufficient evidence of the facts stated, and would, under the direction of the judge, be so presumed by a jury. And as the statement of a fact in a deed is conclusive upon all parties by whom it is made, and all persons claiming under them, the deduction of an anterior title by the recital of a descent or devise to the person from whom the deeds deduce it, is generally deemed sufficient evidence of such prior title, where the authentic documents carry it back to a period bordering upon the period of 60 years; and where evidence of length of possession without disturbance is produced, the title cannot be refused, even though no title deeds at all are shown; as deeds, although generally the most satisfactory, are not the only evidence of a title; and if a vendor can show his title to be And in such case recitals, &c. should be ab stracted. |