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.
Care must be taken in preparing the deed to state truly the consideration paid by the purchaser, and all other facts and circumstances which affect the amount of duty which will have to be paid; the omission to do so, though it will not affect the sufficiency of the stamp or the validity of the deed, will expose the parties who prepare the deed to a penalty, and the vendor to an action by the purchaser for the return of the unexpressed consideration (x). Where fixtures, standing timber, or any other parts of the inheritance are taken at a valuation, its amount must be included in the consideration; but moveable chattels which pass by delivery may be handed over, and receipts may be given for them and for their price; if, however, they be for any reason assigned by deed, the ad valorem duty attaches, and their price must be stated; and it would appear that the recital in a deed of such sale and delivery (which has been very frequent in practice) renders the duty payable, unless the articles are of such a kind as would come under the description of goods, wares or merchandise (y).
Consideration - to be truly stated.
Duty payable on fixtures, timber, etc.
Chattels passing by delivery.
Recital of sale, its effect.
Where the consideration consists wholly or in part of a debt due to the purchaser, or where the property is conveyed subject to the payment or transfer of any money or stock, whether charged on the property or not, such debt, money, or stock is subject to duty, and its existence must therefore appear upon the face of the deed (z).
On sale of property subject to a mortgage.
(u) Lord Braybroke v. Inskip, (1803) 8 Ves. 431; Norton, p. 193. Cf. Addis v. Campbell, (1841) 4 Beav. 401; 10 L. J. N. S. Ch. 284.
(x) See formerly 48 Geo. 3, c. 149, ss. 22 - 26; 55 Geo. 3, c. 184, s. 8; Stamp Act, 1870, s. 10; Gingel v. Purkins, (1850) 4 Ex. 720; 19 L. J. Ex. 129; and see now the Stamp Act, 1891, s. 5; and see A.-g. v. Brown, (1849) 3 Ex. 662.
(y) Horsfall v. Hey, (1848) 2 Ex. 778; see Garnett v. Commrs. of Inland Revenue, (1899) 81 L. T. 633.
(Where estates are purchased by two or more at an entire sum, and the purchasers take separate conveyances, or where estates of different tenures or held under different titles are purchased at an entire sum, but are conveyed to the purchaser separately by separate instruments, the purchase-money may, for the purpose of diminishing the duty, be apportioned on the face of the conveyances in such manner as the parties think fit (a), without regard to the actual value of the estates, or (in the case of there being several purchasers) to the pecuniary arrangements between the parties. Where there are several instruments of conveyance for completing the purchaser's title, the principal instrument only is chargeable with ad valorem duty and the others with .such duty only as they are respectively liable to, not exceeding the duty payable on the principal instrument (b).
Apportionment of consideration, on separate conveyance of property comprised in one purchase.
Where, after the contract but before conveyance, the property is sold and conveyed direct to a sub-purchaser, ad valorem duty is payable on the amount of his purchase-money (c); and this, it would seem, whether it be less or more than the original purchase-money; where there is more than one sub-purchaser ad valorem duty is payable in respect of the consideration moving from each sub-purchaser on his conveyance without regard to the original consideration (d). If a purchaser sells, before conveyance, part of the property, and ad valorem duty is paid on such sub-sale, the conveyance to the purchaser of the remaining part of the property will bear a stamp duty in respect of so much of the original purchase-money as, having regard to the relative values of the properties sub-sold and not sub-sold, is apportionable to the part of the property conveyed to such purchaser (e).
What duty payable on conveyance direct to subpurchaser.
(z) Stamp Act, 1891, s. 57.
(a) Stamp Act, 1891, s. 58 (1), (2); but see Finance (1909 - 10) Act, 1910, s. 73. (b) lb. sub-s. (3).
(c) lb. sub-s. (4). (d) lb. sub-s. (5).
(e) Maples v. I. R. Commrs., 1914, 3 K. B. 303.
Where the sub-purchaser takes a conveyance of the interest of the person immediately selling to him he does not pay ad valorem on a further conveyance by the original vendor (f).
A conveyance on sale which is chargeable with duty under the Stamp Act, 1891 (g), is defined by s. 54 of the Act (h) to include every instrument and every decree or order of any Court or of any commissioners whereby any property, or any estate or interest in any property, upon the sale thereof is transferred to or vested in a purchaser, or any other person on his behalf or by his direction.
"Conveyance on sale."
Where the consideration for a conveyance on sale consists wholly or in part of any stock or marketable security, the conveyance is to be charged with ad valorem duty in respect of the value of such stock or security; where it consists wholly or in part of a security which is not marketable, the duty is chargeable on the amount then due for principal and interest on the security (i). And the Act provides how the duty is to be charged where the consideration consists of periodical payments either for a definite period, exceeding or not exceeding twenty years, or in perpetuity, or for an indefinite period not terminable with life, or for a life or lives (k).
Sale in consideration of transfer of stock.
In describing the parcels, it is usual and generally convenient to supplement the description by reference to a schedule or map, or to both (I). In some cases the question has arisen whether a purchaser is entitled (in the absence of express stipulation) to insist upon the conveyance containing a description of the property by reference to a plan. A purchaser is entitled to have a plan to his conveyance where this is necessary in order that the property may be identified with sufficient distinctness (m). Moreover, even where this necessity does not arise, it nevertheless appears that in ordinary cases a purchaser is entitled for his own convenience to have a plan to his conveyance for the purpose of identifying (or further identifying) the property conveyed (n).