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.
The draft having been settled, a fair copy of it should be submitted to the vendor's advisers for perusal; and, if practicable, within a reasonable time prior to the date fixed for completion. The date of delivery is sometimes fixed by the conditions (u).
The duties of counsel (and the observations apply equally to solicitors) in perusing a draft drawn or settled by another practitioner acting for the other side are, merely and exclusively to protect the interests of the client on whose behalf he is consulted. He is not justified, therefore, in altering the structure or language of a draft merely because it is not such as he would himself have adopted, or approved of, if he had been advising on the other side. Sometimes, of course, in the case of a very obvious slip, it may be allowable and proper to direct attention to it; but even then it is better, as a general rule, to do so by a marginal note; and not to alter the draft upon points immaterial to the client's interest. And, on the other hand, it is usually better to allow such alterations, if made, to pass - with or without marginal comment - if they are not prejudicial, rather than to insist upon the draft being restored to its original shape.
As to the perusal of drafts.
(r) Rules 115 and 117 of the L. R. Rules, 1925. (s) Rule 109 of the L. R. Rules, 1925; and see L. P. Act, 1925, s. 77, and Parts VII. - X. of the 2nd Sch. (t) Rule 110 of L. R. Rules of 1925. (u) See General Conditions of 1925, No. 24.
When the draft has been approved, any alterations made in it should be communicated to the other party before engrossment (x). Where the alterations merely consist in omissions of passages introduced by such other party, or can otherwise be easily pointed out, it is submitted, that the opposite solicitor (who must be presumed to have retained a copy of the draft) would not be entitled to a general re-perusal: this is a question which sometimes arises in those exceptional cases where the purchaser has to pay the vendor's expenses. The draft belongs to the purchaser, not to his solicitor (y).
Alteration in draft should be communicated.
Draft belongs to purchaser.
The engrossment is made by and at the expense of the purchaser and is his property: when executed the vendor has a lien upon it for unpaid purchase-money (z), but his solicitor has no lien on it for costs (a).
Engrossment, belongs to purchaser.
Where the engrossment was executed by the vendors, but the purchase went off in consequence of other material parties refusing to execute, and the vendors made no claim to it as a deed, the purchaser was held entitled at Law to recover it from their solicitor, they being allowed to cancel it (b): this decision, however, as observed by Lord St. Leonards, "depended upon the instrument having been imperfectly executed, and upon the sellers not interposing to claim any interest in it" (c): and where the deed has been executed so as to vest the legal estate in the purchaser, there would seem to be a difficulty in holding that he could claim to retain it upon the contract going off, even though he were willing to execute a reconveyance.
Executed, and then contract rescinded.
(x) Staines v. Morris, (1812) 1 V. & B. at p. 15. (y) Ex p. Horsfall, (1827) 7 B. & C. 528; 6 L. J. (O. S.) K. B. 48; Doe v. Seaton, (1834) 2 A. & E. 171, 178. (z) Sug. 14th ed. 564.
(a) Oxenham v. Esdaile, (1828) 2 Y. & J. 493; (1829) 3 ib. 262.
(b) Esdaile v. Oxenham, (1824) 3 B. & C. 225.
(c) Sug. 14th ed. 564.
Prior to 1926 the sealing of an instrument followed by delivery was sufficient without signature. In the case of deeds executed after 1925, however, it is provided by s. 73 (1) of the L. P. Act, 1925, that when a person executes a deed he shall either sign or place his mark upon the same and that sealing alone shall not be sufficient.
Signing required as well as sealing.
No particular form of words or acts is necessary to render an instrument the deed of the party sealing it (d). The mere affixing of the seal does not make it a deed; but so soon after sealing as there are acts or words sufficient to snow that it is intended by the party to be executed as his deed, presently binding upon him, that is sufficient; there is no technical necessity for the grantee or his agent to take corporeal possession of the instrument (e).
What is good delivery of a deed.
(d) Co. Litt. 36a, 49b; Shep. T. 54, 58.
(e) Doe v. Knight, (1826) 5 B. & C. at p. 692; Xenos v. Wickham, (1867) L. R. 2 H. L. 296; per Pigott, B., and Blackburn, J. As to an escrow, see Bowker v. Burdekin, (1843) 11 M. & W. 128; 12 L. J. Ex. 329; Watkins v. Nash, (1875) 20 Eq. 262; 44 L. J. Ch. 505; London Freehold, etc. Co. v. Baron Suffield, (1897) 66 L. J. Ch. 790; 77 L. T. 445.
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