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.
Upon a sale in consideration of a gross sum, the purchaser, having accepted the title, is bound, subject to any special stipulation in the contract, 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, though the practice in such cases appears to be unsettled (b). It was usual in some provincial districts to stipulate that the conveyance shall be prepared by the vendor's solicitor at the expense of the purchaser. It has now been provided by the L. P. Act, 1925, s. 48 (1), that any stipulation made on the sale of any interest in land after the commencement of the Act restricting a purchaser in the selection of a solicitor to act on his behalf in relation to the purchase is to be void. But this provision is not to affect any right reserved to a vendor to furnish a form of conveyance to a purchaser from which the draft can be prepared, or to charge a reasonable fee therefor, or, where a perpetual rent-charge is to be reserved, the right of the vendor to stipulate that the draft conveyance is to be prepared by his solicitor at the expense of the purchaser.
Purchaser prepares conveyance.
Even if a contract for purchase of an equitable interest can in itself amount to a conveyance, the purchaser is entitled to a formal assurance, if such appear by the contract to be necessary, in order to carry the intention of the parties into effect (c). The L. P. Act, 1925, provides (d) that if the subject-matter of any contract for the sale or exchange of land is an equitable interest capable of subsisting as a legal estate, and the vendor has power to vest such legal estate in himself or in the purchaser, the contract is to be deemed to extend to such legal estate.
Conveyance of equitable interest.
(a) Sug. 14th ed. 240, 241.
(b) See inf. p. 593; 5 Jarm. Conv. 4th ed. 555 (n.); Copinger, p. 73.
(c) Tenner v. Hepburn, (1843) 2 Y. & C. C. C. 159.
(d) S. 42 (4) (ii).
As above stated (e), the preparation of the conveyance is not necessarily a waiver of objections to or requisitions upon the title, though, as a general rule, it ought not to be prepared until it is reasonably certain that the title will be accepted; and the draft, if submitted for approval, should be sent expressly without prejudice to any pending requisitions on the title.
Preparation of conveyance no acceptance of title.
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 (f). But, speaking generally, a purchaser can (subject to the question of expense) insist on taking his conveyance in the form: most convenient to himself, provided the vendor is not thereby prejudiced (g); and on keeping off the face of his conveyance any matter which, though 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 (h). 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 cestui que trust agreed to confirm the sale, the purchaser might, it is conceived, insist upon taking this confirmation by a separate deed.
Whether purchaser can require outstanding interests and incumbrances to be got in by separate deed.
The L. P. Act, 1925, provides (i) that a stipulation that a purchaser of a legal estate in land shall accept a title made with the concurrence of any person entitled to an equitable interest is to be void, if a title can be made discharged from the equitable interest without such concurrence under a trust for sale, or under the L. P. Act, 1925, or the S. L. Act, 1925, or under any other statute.
(e) Sup. p. 441 et seq.
(f) Reeves v. Gill, (1838) 1 Beav. 375.
(g) Cooper v. Cartwright, (1860) John. at p. 685.
(h) Clark v. May, (1852) 16 Beav. 273; 22 L. J. Ch. 302.
(i) S. 42 (1). See the L. P. Amend. Act, 1926, 8. 1.
As a general rule in preparing conveyances, not only should all objectionable or doubtful matter be kept off the title, but 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.
All unnecessary matters and parties to be kept off conveyance.
When the nature of the title to the 'property renders it desirable so to do (it), the purchaser may insist upon taking separate conveyances, and upon apportioning the purchase-money as he thinks fit: but this doctrine must, of course, be confined within reasonable limits (I). The proper rule would seem to be that the purchaser's right to separate conveyances depends not upon the question of convenience, considered merely with reference to his own private views in respect to future dealings with the estate, but upon his being able to show that such a mode of carrying out the contract is that which, in the absence of any special instructions, would probably be recommended by experienced conveyancers'.
Purchaser's right to separate conveyances.
Previously to the Conv. Act, 1881, the purchaser of a, property in mortgage was obliged, if he wished to redeem, to pay off not only the mortgage upon the particular property, but all other subsisting mortgages of other properties made by the same mortgagor, which before his own purchase became united in the same mortgagee; and this though he bought in ignorance of their existence. But the mortgagee's right of consolidation only arises where the different mortgages were originally made by the same mortgagor. It is not enough that different equities of redemption have by assignment got into the same hands (m). Now by s. 93 of the L. P. Act, 1925, which takes the place of s. 17 of the Conv. Act, 1881, a mortgagor seeking to redeem any one mortgage is entitled to do so, without paying any money due under any separate mortgage made by him, or by any person through whom he claims on property other than that comprised in the mortgage which he seeks to redeem. The enactment applies only where the mortgages or one of them are or is made after the commencement of the Conv. Act, 1881, and only if and so far as a contrary intention is not expressed in the mortgage deeds, or one of them. And where the right to consolidate is retained, the old rules of Equity apply (n).