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 "general words" formerly used occasionally, under the reference to reputation, help out an omission in the parcels; but, with this exception, they seem to have been of little practical use (y); for all rights and easements which are, either by implication of law or by express grant, annexed to the land, or connected with its user or enjoyment, would pass with it to the assignee, though not enumerated or referred to; and, on the other hand, rights and easements not connected with the user or enjoyment of the land, being merely personal to the original grantee, could not be annexed to it, and therefore would not pass to the assignee even under express words of assurance (2).
In Gregg v. Richards (a), the conveyance of a house contained an express grant of a right of way to the back of the premises, the way being coloured green on a plan to the deed. The land coloured green was only 4 ft. in width and formed part of a wide roadway, the whole of which at the date of the conveyance was in fact enjoyed with the house as a means of access to the same. The habendum was "to hold the same with the benefit of all such easements and privileges in the nature of easements as are now subsisting in respect of the property." It was held by the Court of Appeal that the right to use the whole width of the roadway passed with the house. Although the habendum will not enlarge the description of the parcels, it may (as in this case) afford evidence that there is no intention of excluding the general words implied by the statute (6).
(x) Burrows v. Lang, 1901, 2 Ch. 502; 70 L. J. Ch. 607; and see Long v. Gowlett, sup. Cf. Whitmores (Edenbridge), Ltd. v. Stanford, 1909, 1 Ch. 427.
(y) But see Wardle v. Brochlehurst, (1859) 1 E. & E. 1058.
(z) See Ackroyd v. Smith, (1850) 10 C. B. 164, 188.
(a) 1926, Ch. 102, 521.
(b) 1926, Ch. p. 533; L. P. Act, 1925, s. 62, re-enacting s. 6 of the Conv. Act. 1881. As to the effect of the use of general words in a deed in which the owner of a rent-charge, who is also interested in the land charged therewith, joins in a conveyance of part of the land, see Price v. John, 1905, 1 Ch. 744; and see inf. p. 809.
Where a lease contained a plan and a description by metes and bounds of the parcels to be demised, the word "stables," in the general words, was held insufficient to pass a stable which was not shown on the plan (c).
Under the statutory provision (d), fixtures of every kind, including personal chattels incident to the freehold (as, e.g., the locks and keys of a house, or the moveable parts of fixed machinery), pass, without being specified, by a conveyance of the land to which they are affixed, or incident; unless it can be inferred that there is an intention to exclude them.
It is often difficult to determine what articles are fixtures, properly so called, and what are mere moveable chattels (e). Greenhouses constructed of wooden frames, and affixed by mortar to a foundation of brickwork, have been held to be fixtures (f); but tapestry stretched on wooden frames affixed to the wall, and capable of being readily removed, as between tenant for life and remainderman, would not, it seems, as a rule, be fixtures (g). In such cases the purpose of the annexation must be taken into account, whether an intention is shown to make a permanent improvement to the inheritance, or merely an intention to attach it solely for the enjoyment of the owner during his occupancy (h). And as every annexation to the freehold is not a fixture, so, on the other hand, an article to be deemed a fixture need not necessarily be fastened to the freehold. Thus, statues, ornamental vases, and stone garden-seats, retaining their positions merely by their own weight, but forming part of the architectural design of the mansion and grounds, have been held to be fixtures (i).
What are fixtures.
(c) Maitland v. Machinnon, (1862) 1 H. & C. 607; 32 L. J. Ex. 49.
(d) S. 62 of L. P. Act, 1925, taking the place of 3. 6 of the Conv. Act, 1881.
(e) See Ex p. Barclay, (1855) 5 D. M. & G. 403; Mather v. Fraser, (1856) 2 K. & J. 536; 25 L. J. Ch. 361; Reynolds v. Ashby & Son, 1904, A. C. 466; Vaudeville Electric Cinema, Ltd. v. Muriset, 1923, 2 Ch. 74; Amos & Ferard, pp.2,18; Adkin & Bowen, pp. 2 - 3; Woodfall, 22nd ed. p. 793 et seq.; Williams on Exors., 11th ed. pp. 563 - 567.
(f) Jenkins v. Gething, (1862) 2 J. & H. 520; Amos & Ferard, pp. 7, n.-(y), 110.
(g) Norton v. Dashwood, 1896, 2 Ch. 497; 65 L. J. Ch. 737; Re De Falbe, 1901, 1 Ch. 523; 70 L. J. Ch. 286; see Harvey v. H., (1740) 2 Str. 1141; Adkin & Bowen, pp. 2 - 3.
(h) Leigh v. Taylor, 1902, A. C. 157; 71 L. J. Ch. 272; Amos & Ferard, pp. 7, 19.
When land and premises are conveyed by reference to a ground plan, a part of the premises overhanging adjoining land of the vendor, not shown on the plan, will not pass to the purchaser; and, on the other hand, on a conveyance of the adjoining land the overhanging premises will pass therewith (k).
The assignment of all the beneficial interest and goodwill in a trade or business includes the right to use the name of the vendor for the purpose of showing the business to be the same as formerly carried on by him, but not so as to expose him to any liability (l).
Sale of good-will entitles purchaser to use trade name.
Upon the conveyance of part of an estate, even:if the vendor is a mortgagee selling under his statutory powers (m), a grant of all such easements and rights over the residue of the estate retained by the vendor as are essential to the due enjoyment of the part conveyed, will, if there is nothing in the conveyance to negative it, be presumed. For instance, the grant of an absolutely necessary right of way (n), or of drainage (o), or of the right to the continued enjoyment of modern lights on the sale of a house (p), access of air through a definite aperture (q), or of any other easement, whether continuous (r) or discontinuous (s), necessary to the enjoyment of the property, or of the right to that extraordinary support by the adjoining soil which is requisite in order to support the buildings on the part conveyed (t). Conversely, a reservation will be presumed of all such rights and easements over the part conveyed as are essential, in the sense of being easements of necessity, to the due enjoyment of the part retained by the vendor (u), but not of such quasi-easements and rights as have been in fact (enjoyed, with, but are not essential, although convenient, to the user and enjoyment of the part retained (x).