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.
Form of notice.
(y) And see sub-ss. (2), (3) and (4) of the same section.
(z) See Keates v. Lyon, (1869) 4 Ch. 218, 226; 38 L. J. Ch. 857
(a) See Wolst. & Cherry, 11th ed. vol. i. pp. 363 - 364; inf. p. 592.
By s. 36 (5) of the A. E. Act, 1925, any person in whose favour an assent or conveyance of a legal estate is made by a personal representative may require that notice of the assent or conveyance be indorsed on or annexed to the probate or letters of administration, at the cost of the deceased's estate (b).
Upon the completion of the purchase of an ' equitable interest in real estate, it was stated in the last edition of this work to be "prudent to give notice of the transaction to the owners of the legal estate: but, as a general rule, a purchaser's priority is not affected by his giving, or omitting to give ,8uch notice." The law ion this point has been altered by the L. P. Act, 1925, s. 137 (1) of which provides that the law applicable to dealings with equitiable, things in action which regulates the priority of competing interests therein shall, as respects interests in land and capital money, effected after the commencement of the Act, apply to and regulate the priority of competing interests therein. By sub-s. (3), a notice otherwise than in writing received by a trustee after the commencement of the Act, as respects any dealing with an equitable interest in real or personal property, is not to affect the priority of competing claims. By sub-s. (4), where for any reason a notice under the section cannot be served, or cannot be served without unreasonable cost or delay, a purchaser may, at his own cost, require that a memorandum of the dealing be indorsed on the instrument creating the trust. It follows, therefore, that, in future, it will be prudent, in the case of dealings with equitable interests in land, capital money, and securities representing capital money, to give notice in writing to the appropriate trustees or estate owner. Upon the purchase of an equity of redemption, notice of the transaction should always be given to the mortgagee, and an inquiry made of him as to the amount due to him, and whether he is entitled to any other charges created by the same mortgagor; for, in spite of the L. P. Act, 1925, a qualified right of tacking still holds good (c).
Propriety of giving notice to trustees on purchase of equitable interest.
Importance of notice to mortgagee on purchase of equity of redemption.
(b) Wolst. & Cherry, 11th ed. vol. ii. p. 535.
The purchaser (in the absence of express agreement) prepares, and pays for the preparation of, his conveyance (d): but the costs of perusal and execution by all necessary parties fall on the vendor (e); including, it is conceived, the costs of all matters essential to the validity of the deed as a perfect conveyance; nor will a condition throwing the expense of the conveyance on the purchaser, extend to the expense of procuring the concurrence of necessary parties; or of proceedings under the Trustee Act (g): but a purchaser always pays for the registration of his conveyance (h); and in the absence of stipulation to the contrary in the contract, he pays the costs of any covenant for, or acknowledgment of the right to, the production of deeds, other than the costs of perusal and execution on behalf of, and by the vendor and other necessary parties (i).
Costs of conveyance are borne by purchaser: of execution by vendor.
A purchaser must bear the expenses of the production and inspection of documents not in the possession of the vendor or his mortgagee, and of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences and information, and of copies of any such documents not in the possession of the vendor or his mortgagee or trustee (k); and he is only entitled to one abstract of the common title of two or more lots purchased by him (I). When the only consideration is the reservation of a perpetual rent-charge (but in no other case) a vendor may stipulate that the draft conveyance is to be prepared by his solicitor at the purchaser's expense (m). A purchaser of the legal estate cannot, by any stipulation, be saddled with the costs of getting in an outstanding legal estate (n), or of obtaining a vesting order or the appointment of new trustees, either of a settlement or of a conveyance on trust for sale (o), or of the preparation, stamping or execution of a conveyance on trust for sale or vesting instrument (p), or of cancelling a registration under the L. C. Act, 1925 (p), or of obtaining the concurrence of a person entitled to an equitable interest which will not be over-reached by the conveyance (p).
Provisions as to costs in L. P. Act, 1925.
(c) See s. 94, as amended by the L. P. (Amend.) Act, 1926, Sch.
(d) Sug. 14th ed. 561. (e) lb
(f) Paramore v. Greenslade, (1854) 1 S. & G. 541; 23 L. J. Ch. 34.
(g) Bradley v. Munton, (1852) 16 Beav. 294; Re South Wales R. Co., (1851) 14 Beav. 418. But see now Re Liverpool Improvement Act, (1868) 5 Eq. 282; 37 L. J. Ch. 376.
(h) Mittelholzer v. Fullarton, (1842) 6 Q. B. 989, 1019. As to registration of vendor of registered land who is not himself registered as proprietor, see the L. R. Act, 1925, s. 110 (5).
(i) L. P. Act, 1925, s. 45 (8).
(k) lb. s. 45 (4). (l) lb. s. 45 (5).
In the case of copyholds which have been enfranchised by the L. P. Act, 1922, but the manorial incidents of which have not yet been extinguished (q), the purchaser pays the fine and the steward's fees (r); but, of course, the vendor pays the private expenses of both himself and the other necessary parties.
Purchaser of copyholds pays for surrender and admittance;
And the vendor must himself, of course, pay any arrears of fines due before conveyance (s).