1. General matters relating to, and to the form of.

2. As to the parties.

3. The recitals.

4. The consideration - words of conveyance - and parcels.

5. The covenants.

6. The draft and engrossment.

(1.) Upon a sale in consideration of a gross sum, the purchaser, having accepted the title, is bound to prepare the conveyance, and tender it for execution to the vendor (a); and reason seems to favour the same rule even where the consideration is a rent-charge, although the practice in such cases appears to be unsettled (b).

A custom in a manor, that the steward shall prepare all surrenders for a reasonable fee, appears to be valid (c).

Even if a contract for purchase of an equitable interest can in itself amount to a conveyance (d) the purchaser is entitled to a formal assurance, if such appears by the contract to be necessary in order to carry the intention of the parties into effect (e).

As we have already seen (f), the preparation of the conveyance is not, necessarily, a waiver of objections to or requisitions upon the title.

Purchaser prepares conveyance.

Manorial custom, that steward prepare all surrenders, is valid.

Conveyance of equitable interest.

Preparation of conveyance no acceptance of title.

(a) Sug. 263.

(b) 9 Jarm. Conv. by S. 518.

(c) Rex v. Rigge, 2 B. & Al. 550; Reg. v. Bishopstoke (Lord of Manor of), 8 Dowl. P. C. 608.

(d) But see, as to this, supra, p. 115.

(e) Fenner v. Hepburn, 2 Y. & C. C. C. 159.

(f) Supra, p. 218.

It has been held, that a purchaser cannot compel the vendor to get in an outstanding equitable interest by a deed distinct from the general conveyance (g); it is, however, conceived, that this doctrine must be applied with hesitation (h); and that, subject to the question of expense (i), a purchaser may generally object to have his conveyance incumbered with matter arising from the complicated state of the title (k): indeed it may often, especially when the property is likely to be much sub-divided, be most desirable to avoid any reference upon the conveyance to a voluminous although apparently satisfactory earlier title.

So, it is conceived, that (subject to the question of expense) a purchaser may insist on keeping off the face of his conveyance any matter which, although agreed to be waived as an objection, yet tends to throw a doubt upon the title; or any collateral matter which may hereafter embarrass the proof of the title: if, for instance, trustees were to sell under circumstances not necessarily appearing upon the face of the conveyance, but amounting to a breach of trust, and the cestuis que trust agreed to confirm the sale, the purchaser might, it is conceived, insist upon taking this confirmation by a separate deed; for to include it in the conveyance would oblige him upon a resale to prove who were the parties beneficially interested, and might give rise to questions which would have been wholly immaterial to a sub-purchaser without notice of the breach of trust.

It may, in fact, be laid down as a general rule in preparing conveyances, that not only should all objectionable or doubtful matter be kept off the title, but that nothing should be brought on to it the introduction of which is not evidently necessary or expedient; in proportion as additional matter is introduced into a deed, and additional persons are made parties to it, the chances of some error or ambiguity existing in it are increased.

Whether purchaser can require outstanding interests and incumbrances to be got in by separate deed.

May require confirmation of doubtful title by separate deed, semble.

All unnecessary matters and parties to be kept off conveyance.

(g) Reeves v. Gill, 1 Beav. 375. (h) Sug. 690.

(i) As to which', vide infra, Ch. XIII.

(k) See Jones v. Lewis, 11 Jur. 511; and 1 De G. & S. 245; stated infra.

So, a purchaser from a tenant in tail, may, it is submitted, insist upon the property being disentailed by a separate deed; and may reasonably object to any unnecessary exposure of his title in a public office.

The Lands Clauses Consolidation Act, 1845, and the earlier Railway and other similar Acts, contain statutory forms of conveyance to the several Companies; but the use of these forms, in preference to the ordinary instruments of assurance, is not obligatory, or usual; nor does it appear to be expedient (l).

The same remarks apply, and with greater force, to certain short forms authorized by Acts passed in the Session of 1845 (m); such enactments are either unnecessary or mischievous; - unnecessary, if the parliamentary form would, if unauthorized by Parliament, merely express in fewer words the meaning of the forms in ordinary use; and mischievous, if an unnatural and secondary meaning is given by Statute to words which are prima facie clear and intelligible; for the effect is, to increase the difficulty of legal documents to the unprofessional reader: for instance, a lessee who has, in the usual way, covenanted not "to carry on any trade or business" upon the demised premises, may feel a reasonable and saving doubt whether he is safe in using them for a school (n); but, unless more addicted than is customary to the perusal of Acts of Parliament, he probably will scarcely suspect that such an occupation is forbidden by an engagement, not to "use premises as a shop;" which is, nevertheless, the statutory equivalent to the ordinary covenant (o).

Disentailing deed to be kept distinct from conveyance.

Statutory forms of Railway Conveyances ineligible.

So are the short parliamentary forms of 1845.

(l) Frend &Ware's Rail. Conv. 133. (m) See 8 & 9 Vict. c. 119; and, as to Leases, c. 124.

(n) See Doe d. Bish v. Keeling, 1 M. & Sel. 95. would materially restrict the operation of the 1st section, and go far to reduce the 2nd section of the Act to a dead letter, are not understood to have met with general approbation, or to have materially affected the practice of conveyancers.

Upon a sale in lots of an estate subject to an incumbrance which is to be paid off out of the purchase-money, much expense may be saved by taking a release to the vendor, instead of making the incumbrancer concur in the several conveyances; and this, when the parties are on good terms, is usually acceded to; although it might, probably, be resisted, either by a purchaser, or by the incumbrancer.

Where, as is often desirable, a subsisting incumbrance is to be kept on foot for the purchaser, a mere declaration of intention should not be relied on, but the sum itself, and also the term for years, if there be one for securing it, should be assigned to a trustee for the purchaser: or a declaration of trust should be executed by the incumbrancer (p), and the legal owner of the term.

And it may be remarked, that it is generally inexpedient, and, eventually, false economy, to comprise several distinct estates or matters in a single deed.

As a general rule, the assignment of satisfied terms is rendered unnecessary or impracticable by the Act of 8 & 9 Vict. c. 112: the Act, however, does not appear to extend to copyholds, or customary freeholds (q); and it seems doubtful whether either the 1st or 2nd section extends to any hereditaments other than "land" technically so called (r).

Where, before the passing of the Act, A., who although not in fact, yet believed himself to be, the owner of a freehold estate, mortgaged it to B., and an old term for years was at the same time assigned to a trustee, in trust for B. and to attend the inheritance, it was held, that this term could not, after the 31st December, 1845, be used in ejectment on behalf of a person claiming the estate by a title paramount to that of A., although it might, if requisite, have been used as a defence by B. (s).

Incumbrances, upon a sale in lots to be got in by separate deed.

Incumbrances kept on foot for purchaser's benefit should be assigned to trustee, or declaration of trust should be taken.

Distinct estates or matters should be dealt with by separate deeds.

As to Act for mortgage of satisfied terms; -to what it applies.

Dot v.

Price.

(o) See 2nd schedule to 8 & 9 Vict. c. 124.

(p) Medley v. Horton, 14 Sim. 226, 229; Watts v. Symes, 16 Sim. 640; see, on the same subject, Coote on Mortgages, 3rd ed. 394; 9 Jarm. Conv. by S. 213, 214.

(q) See Dav. Concise Conv. Prec. 3rd ed. 79.

(r) Ibid. 75, 79.

In a later case, where, before the passing of the Act, a term was declared to be held in trust for securing a mortgage debt, (part of which was money for securing which the term had been originally created, and the entirety of which was secured by, as was supposed, a mortgage of the reversion in fee,) and subject thereto in trust for A. and B., who were supposed to be entitled to the equity of redemption in fee, but the reversion in fee, expectant on the term, was in fact vested in X. under a prior concealed conveyance, and in 1847 A. paid off the mortgage, and subsequently brought an ejectment against X. on the demise of the trustee of the term, the Court of Queen's Bench intimated a doubt whether the payment of the sum due on the original security, by a person supposed to be but who was not in fact the owner of the equity of redemption, rendered the term a satisfied term within the 2nd section of the Act: and held that, at any rate, the term had not become attendant on the inheritance, either by express declaration - there having been no such declaration - or by construction of Law, - for the trust was expressly declared to be for A. and B., who had not the inheritance, although they were supposed to be entitled thereto when the declaration of trust was executed, - and that the term was therefore still in existence (t). This decision, and the accompanying dictum, which, if correct.

Doe v. Jones.

(s) Doe v. Price, 16 M. & W. 603; and see Doe v. Moulsdale, ibid. 689.

(t) Doe d. Clay v. Jones, 13 Jur.824