This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
As a general rule, no recital should be inserted which is not necessary to render the subsequent part of the draft clear and intelligible, or which has not a logical connection with some operative part of the draft (6).
(x) See Fausset v. Carpenter, (1831) 2 Dow. & C. 232; Sug. H. L. 76; Carter v. C, (1867) 3 K. & J. at p. 634; 27 L. J. Oh. 74.
(y) L. P. Act, 1925, s. 123.
(z) As to execution on behalf of a corporation, see ib., s. 74.
(zz) See Re Booth and Southend, etc. Co., 1927, 1 Ch. 579.
(a) As to the power of the majority to act, see s. 12 of the Char. Trusts Act, 1869.
Nevertheless, in particular cases, recitals not strictly necessary to the logical unity of the assurance may frequently with advantage be introduced, with a view to their becoming evidence under the provisions of s. 45 (6) of the L. P. Act, 1925 (which takes the place of s. 2 of the V. & P. Act, 1874), and thereby simplifying the title on a future sale.
Sometimes desirable, as creating evidence in support of title.
In disentailing deeds, the statutory effect of which is independent not only of the motives but even of the expressed intention of the parties, recitals seem to be in general useless. A simple conveyance by A. of a specified estate, or of all the lands held by him as tenant in tail under a specified settlement or in a specified locality, and the consent of B. as protector, either generally or under the limitations of any specified instrument, is as effective, and usually as intelligible, as if preceded by an elaborate statement of the previous title, or of the motives which induced the parties to effect the assurance (c).
Whether desirable in disentailing assurances.
Should show vendor's right to convey.
As a release of claims, however generally expressed, is confined by a rule of Equity to matters of which the releasor is cognizant, it is very important, in a deed of release, that the origin of the several claims, and all the circumstances connected with them, should be clearly stated in the recitals (d). Where the conveyance or release of an estate is part of a general arrangement, the recitals should show that those acts or assurances which are to form the consideration for such conveyance or release, have been already done or perfected; and should not, as often happens, merely state an intention to do or perfect them. Such a recital suggests an inquiry whether such intention was carried out, and a demand for evidence of such being the fact.
Recitals in a release of claims.
(b) As to the use of recitals, see 1 Dav. 44 et seq. (c) See Crompton v. Jarratt, (1885) 30 Ch. D. 298; cf. Re Hodgson, 1898, 2 Ch. 545.
(d) This applies also to deeds of indemnity.
The chronological arrangement is generally the best: but when separate estates or interests are to be dealt with, it may often be advantageous to group together such recitals as relate exclusively to any particular estate or interest.
It is a convenient and seems to be a growing practice in complicated cases, to schedule statements of facts and documents with a view to simplifying the recitals and operative parts of the instrument.
Arrangement of recital*.
In reciting a power, no more need be set out than is sufficient to show that it authorizes what is proposed to be accomplished: and so much of the instrument creating the power must be set out as may, with the aid of subsequent recitals, be sufficient to show that the power has become exer-ciseable and that all necessary consents (if any) have been given: and parties whose consent is requisite, should, if possible, express such consent on the face of the assurance. It will be borne in mind that since 1925 powers of appointment over land operate, in general (e), only in Equity. (f).
When a legal estate is being dealt with, the practice since 1925 is to exclude references to equitable interests from the recitals. But where trustees are buying from their beneficiaries, the recitals would necessarily show the equitable interests (g).
Mode of reciting powers.
Recitals, though often expedient, are not essential to the operation of an assurance; every case resolves itself into a question of present or future convenience. Even in the case of a release of a doubtful right, though it is in the highest degree expedient to show upon the face of the assurance that the party executing it did so with a full knowledge of facts, and of the questions arising upon them, it would be sufficient, in order to sustain the instrument, to show aliunde that such knowledge was actually possessed by the releasing party.
Recitals are matters of convenience, not of neces-sity.
(e) This does not apply to powers vested in a mortgagee in right of his estate.
(f) L. P. Act, 1925, s. 1 (7).
(g) See Wolst. & Cherry, 11th ed. vol. i. p. Ixxv.; and consider the proviso to s. 110 (2) of the S. L. Act, 1925.
By making a deed supplemental to a former deed or deeds a considerable saving may frequently be made in the length of the recitals. Under s. 58 of the L. P. Act, 1925 (which takes the place of s. 53 of the Conv. Act, 1881), where an instrument is expressed to be supplemental to a previous instrument, it is, so far as may be, to be read and have effect as if the supplemental instrument contained a full recital of the previous instrument. But this enactment does not give a right to an abstract or production of any such previous instrument. As a general rule a document dealing with the legal estate should not be made supplemental to documents which only affect equitable interests.
Effect of making: deed supplemental.
Recitals, though they may explain doubtful expressions, will not cut down the plain effect of (h), nor ordinarily supply a total omission in (i), the operative part of a deed. And, as a general rule, where there is a discrepancy between the recitals and the operative part, the former being clear as to what is intended to be conveyed, and the latter containing wide sweeping words of conveyance, the operation of the latter will be restricted (k). Thus, where a settlement recited that by virtue of divers assurances certain specified properties, "and all other the freehold hereditaments in the . county of York thereinafter expressed to be appointed and released," were limited as the settlor should appoint and then to him in fee, and the settlor appointed and released the specified properties and all other his freehold hereditaments in the county of York, it was held that an estate in that county of which the vendor was seised in fee, but not under the specified instruments, did not pass (l).