(m) See ante, p. 186.
(n) The writer met lately with an instance in which lands were, from pure inadvertence, sold as free from incumbrance, when in fact they were subject to a rent-charge, which had been granted by the vendor on his marriage to secure the payment of the premiums of a policy of insurance on his life. The marriage settlement was, as usual, prepared by the solicitor for the wife; and the vendor's solicitor, who conducted the sale, but had never seen the settlement, was not aware that any charge had been made on the lands. The vendor, a person of the highest respectability, was, as often happens, ignorant of the Legal effect of the settlement he had signed. The charge was fortunately discovered by accident shortly before the completion of the sale.
Difficulty in sale of a reversion, for want of evidence that no previous sale has been made.
Sale of reversions.
(0) Sugd. Vend. & Pur. 468, 11th ed.
Where the title-deeds relate to other property, and cannot consequently be delivered over to the purchaser, he is entitled, at the expense of the vendor, to a covenant for their production (r), and also to attested copies of such of them as are not enrolled in any court of record (s); but as the expense thus incurred is usually great, it is in general thrown on the purchaser, by express stipulation in the contract. The covenant for the production of the deeds will run, as it is said, with the land; that is, the benefit of such a covenant will belong to every legal owner of the land sold for the time being; and the better opinion is, that the obligation to perform the covenant will also be binding on every legal owner of the land, in respect of which the deeds have been retained (t). Accordingly, when a purchase is made without delivery of the title-deeds, the only deeds that can accompany the lands sold are the actual conveyance of the land to the purchaser, and the deed of covenant to produce the former title-deeds. On a future sale, therefore, these deeds will be delivered to the new purchaser, and the covenant, running with the land, will enable him at any time to obtain production of the former deeds to which the covenant relates.
Covenant to produce deeds.
Covenant to produce deeds runs with the land.
(p) Lord Aldborough v. Tryc, 7 CI. & Fin. 436; Dark's v. Cooper, 5 My. & Cr. 270; Sugd. Vend. & pur. 235, 13th ed.; Edwards v. Burt, 2 De Gex, M. & G. 55.
(q) Stat. 31 Vict. c. 4.
(r) Sugd. Vend. & Pur. 376, 13th ed.; Cooper v. Emery, I0 Sim. 609. By the Stamp Act, l870, Stat 33 & 34 Vict. c. 97, the stamp duty on a separate deed of covenant for the production of title deeds on a sale or mortgage is 10s., and if the ad valorem duty on the sale or mortgage is less than that sum, then a duty of equal amount only is payable. See ante, pp. 184, 404.
(s) Sugd. Vend. & Pur. 373, 13th ed.
(t) Ibid. 377.
When the lands sold are situated in either of the counties of Middlesex or York, search is made in the registries established for those counties(u): this search is usually confined to the period which has elapsed from the last purchase-deed, - the search presumed to have been made on behalf of the former purchaser being generally relied on as a sufficient guarantee against latent incumbrances prior to that time; and a memorial of the purchase-deed is of course duly registered as soon as possible after its execution. As to lands in all other counties, also, there are certain matters affecting the title, of which every purchaser can readily obtain information. Thus, if any estate tail has existed in the lands, the purchaser can always learn whether or not it has been barred; for the records of all fines and recoveries, by which the bar was formerly effected (v), are preserved in the offices of the Court of Common Pleas; and, now, the deeds which have been substituted for those assurances are enrolled in the Court of Chancery (w). Conveyances by married women can also be discovered by a search in the index, which is kept in the Court of Common Pleas, of the certificates of the acknowledgment of all deeds executed and acknowledged by married women (x). So, we have seen, that debts due from the vendor, or any former owner, to the crown, prior to the 1st of November, 1865 (y), or secured by judgment prior to the 23rd of July, 1860 (z), together with suits which may be pending concerning the land (a), all which are incumbrances on the land, are always sought for in the indexes provided for the purpose in the office of the Court of Common Pleas. Life annuities, also, which may have been charged on the land for money or money's worth prior to August, 1854, may generally be discovered by a search in the office of the Court of Chancery, amongst the memorials of such annuities (b). And those which have been granted since the 26th of April, 1855, otherwise than by marriage-settlement or will, may be found in the registry now established in the Court of Common Pleas (c). And, lastly, the bankruptcy or insolvency of any vendor or mortgagor may be discovered by a search in the records of the Bankrupt or Insolvent Courts; and it is the duty of the purchaser's or mortgagee's solicitor to make such search, if he has any reason to believe that the vendor or mortgagor is or has been in embarrassed circumstances (d). The acts for relief of insolvent debtors are now repealed and the court abolished (e).
Search in Middlesex and York registries.
Search for fines, recoveries, and disentailing deeds.
Deeds acknowledged by married women.
Crown and judgment debts.
(u) Ante, p. 1SG.
(v) Ante, pp. 44, 47.
(w) Ante, pp. 47, 49. As to fines and recoveries in Wales and Cheshire, see stat. 5 & 6 Vict, c. 32.
(a?) Stat. 3 & 4 Will. IV. c. 74, ss. 87, 88; ante, p. 222. Sec Jolly v. HandcocJi, Ex. 16 Jur. 550; S. C. 7 Exch. Rep. 820.
(y) Ante, p. 89.