Duty of Purchaser's Solicitor. title of incumbrances and outstanding interests being, as has PURCHASES. already been noticed (a), to be borne by the vendor). But outstanding terms which have been already assigned to attend the inheritance, discharged of the trusts for which they were created, are to be assigned or surrendered at his own expense; it being for his own private satisfaction only, and not necessary for his protection, that the term be vested in a trustee of his own nomination; as must all other assurances which he may require as precautionary only against latent defects or incumbrances, of which there is no direct evidence, nor any such plausible grounds of suspicion as would uphold him in refusing to accept the title (b). agent. A purchase is sometimes made in the name and with the Purchase by money of a third person; where this is the case, it is the duty of the solicitor for the real purchaser to procure without loss of time a declaration of trust to be indorsed on the conveyance and signed by the nominal purchaser, explanatory of the transaction (c). The purchaser's solicitor must also be careful to see that the Receipt. vendor sign an indorsed receipt for the purchase money, the acknowledgment in the body of the deed not being evidence of payment (d). Where no time is mentioned in the deed, from which the purchaser is to have the rents and profits, or where the execution has been delayed beyond the time mentioned for that (a) See ante, xxxiii. (b) And see post, No. I. p. 6. n. (11).—12. n. (25).—14. n. (29).—No. III. p. 40. n. (15).—No. V. p. 60. n. (12). (c) For the form of a declaration of trust of this kind, see WILDE'S SUP. voc. DECLARATION. (d) And see post, No. XV. p. 124, n. (7), 125, n. (8), No. XVI. p. 186, notes. Duty of Purchaser's Solicitor. PURCHASES. purpose, disputes have sometimes arisen on this point, which makes it perhaps not wholly unnecessary for me to mention that the purchaser is of course (unless it be otherwise agreed) entitled to the rents and profits from the last quarter day pre· ceding the execution of the deed, except in the case of a colliery or other thing of which the profits accrue daily, when the course is, for the purchaser to have the profits from the last week or other period at which the accounts are usually made up; and where the sale is under a decree, the same rule also prevails, provided the purchaser pay his money before the then next ensuing quarter (a). Registry. To prevent, however, any difference occurring in this respect, the purchaser's solicitor, where the execution of the deed has been delayed beyond the time agreed upon, or mentioned in the deed for the purchaser to take the rents, should take care to insert in the deed, at the time of the execution, the true period from which the rents are to belong to the purchaser; but he should never effect this purpose by altering the date of the deed, a thing which should not be done (although it often is), in any case whatever, as upon proof of the actual time of execution, it would avail nothing, the time of the delivery of the deed being that from which it takes effect; and an alteration of the date might in some cases vitiate the deed, and subject the solicitor to serious animadversion, and even penalties. The conveyance being perfected by execution, it is to be considered, by the purchaser's solicitor, whether any rule of law or statute require any further act to be done to give it (a) See Wren v. Kirton, 8 Ves. jun. 502, 11 ib. 377; and ante, No. I. p. 8, 11. (16), (17). xci Duty of Purchaser's Solicitor. full operation, as registry, enrolment, or the like. No time is PURCHases. required by the registering acts, within which the registry is to be made; but as a subsequent purchaser from the same vendor, or from his heir after a purchase from his devisee, without notice of an anterior sale, would gain a priority, were he to get his conveyance registered before the registry of the first conveyance, there should be no time lost in procuring this to be done. As to enrolment, this must be done within the time (if any) prescribed by the particular act requiring it, which is usually six lunar months, to be computed exclusively of the day of the date of the deed (a). Enrolment. So where a fine or recovery is to be levied or suffered, the Fine. purchaser's solicitor should lose no time in completing those assurances, particularly if, in the case of a fine, it has not been previously acknowledged (b). And if the estate of the vendor be a special tail, that is to say, an estate limited to him and the heirs of his body by his then wife, and not the heirs of his body in general, this is more particularly necessary, for in the event of his wife's decease he would have an estate tail after possibility of issue extinct, which is not barrable, and a contract for sale (unless it be an equitable estate) will not bind his issue. A recovery or fine, however, (as the case may require) suffered or levied before failure of issue, will acquire the fee simple, although there should be no issue afterwards, and enable him to make a good title to the purchaser (c). (a) When enrolment is necessary, it will be mentioned at the foot of such of the ensuing presents as may require it. (b) And see post, Vol. II. No. XXXI. p. 11, n. (2). (c) See 2 Vern. 633-702. PURCHASES. Duty of Purchaser's Solicitor. Alterations after execution. It has not unfrequently been within my observation that an alteration has been made in a deed after its engrossment and execution by some of the material parties, and the re-sealing and re-delivery by those parties has been considered as sufficient to renovate the deed; but this is erroneous, for after a deed has taken effect by execution, the interest of the party executing it is gone from him, and a re-execution will be nugatory (a); and even though it be to set right a mere clerical mistake, it will be the same, for a deed cannot be altered after it has been once perfected (b). If, therefore, an alteration, by way of correction, be necessary, it must be made by indorsement on the deed, which if it do not alter the purport or scope of the deed, but only be for correcting an error originating from mistake or inadvertency, will not, it is said, require any additional stamp, unless by occasioning an increase of the number of folios (c). Detached remarks as to dif ferent species of property. In perusing the above remarks, it is all along to be borne in mind (as was before mentioned) that they are made solely with a reference to a contract for the sale or purchase of a freehold estate of inheritance in possession. But an agreement may be made for the sale or purchase of a copyhold or leasehold estate, an estate in remainder or reversion, of equitable interests, of tithes, or other incorporeal hereditaments, &c. all of which require, either in addition to or in contradistinction from the preceding observations, some directions or suggestions appli (a) See Perroll v. Perroll, 14 East. 423. (b) And see ex parte Thompson, 9 Ves jun. 207. Burrows' case, ibid. Clayton v. Gresham, ibid. (c) Sce the cases last recited. Duty of Purchaser's Solicitor. cable peculiarly to themselves. These may be expected to be PURCHASES. found subjoined to the respective precedents given of such contracts; but as one or other of these kinds of property are frequently comprised in a contract for, or conveyance of freeholds, in possession, 1 shall here add such detached observations relative to these as do not occur to me to have been already or subsequently noticed. franchised. Where the lands were formerly copyhold, and a title is de- Copyholds, en rived under an enfranchisement, it is necessary that the title of the lord of the manor as well as of the vendor should be investigated, as if his title were not good he could not release the services or otherwise confer upon the tenant a right to the freehold, and any incumbrance upon the freehold would upon the extinguishment of the copyhold tenure fall upon the enfranchised lands (a); and yet as the copyholder before enfranchisement has a customary inheritance, the lord could, it is presumed, do no more than incumber the services or incidental profits (b). And similar observations seem applicable to lands holden in Ancient de ancient demesne on their being enfranchised or discharged from the services incident to them (c). mesne. It appears to be now settled, although long doubted and con- Leaseholds. tested, that on the purchase of leaseholds an abstract may be required of the title of the lessor, i. e. of him who granted the first or original lease, through which the vendor claims (d) : for unless the title of the lessor was such as to enable him to grant the lease in question, the lessee and all claiming under him are of course liable to be evicted by the person entitled in reversion, and the purchaser of a beneficial lease, whether by payment of a sum down or by the expenditure of money in build (a) 3 Prest. Abstr. 232. (c) Ibid. 304. (b) Vid. 1 Prest. Abstr. 302. |