What documents should be abstracted after the root of title.

(q) Cotton, L. J., Re Marsh and Earl Granville, 24 Ch. D. 11, 24.

The contrary is stated by the editors of Dart, 1 V. & P. 339, 6th ed.; 333, 7th ed., relying on the decision in the above case: but it is submitted that this decision goes no further than is stated below, and has no application, where the purchaser's tights are not curtailed by special stipulation. (r) Be Marsh and Earl Granville. 21 Ch. D. 11.

(s) And except as mentioned above, pp. 100 - 102; 1 Dart, V. & P. 299, 5th ed.; 340, 6th ed.; 335, 7th ed.; and consider Whit-ing to Loomes, 14 Ch. D. 822; 17 Ch. D. 10; Re Wallis & Grout's Contract, 1906, 2 Ch. 206.

(t) 1 Dart, V. & P. 299, 5th ed.; 341, 6th ed.; 335, 7th ed.

(u) 1 Dart, V. & P. 299, 300. 5th ed.; 341,342, 6th ed.; 335, 336, 7th ed.

(x) See Re Harman and Uxbridge, etc. Ry. Co., 24 Ch. D. 720.

The general rule then as to what documents ought to be abstracted is that laid down by Lord St. Leonards (b): - "The solicitor should abstract every document upon which the title depends, or upon which any difficulty has arisen. Wherever he begins the root of title, he ought to abstract every subsequent deed." This general rule is however qualified, as we have seen, by the practice of not disclosing trusts such as the trusts of money advanced by trustees on mortgage, or of purchases where the trustee appears on the face of the conveyance to be entitled for his own benefit; and by the practice of not abstracting merely equitable charges which have been paid off. There is a difference however between equitable charges which may and those which cannot affect the legal estate. A mortgage of an equity of redemption, or second mortgage, made by deed, with a proviso for redemption in the same form as a legal mortgage, could operate to convey the legal estate if it should not have passed by the prior mortgage. Such a charge, Mr. Dart pointed out (c), should rarely or never be suppressed. Equitable charges created by a mere memorandum in writing or by deposit of title-deeds stand on a different footing; for without a deed the legal estate in lands cannot be affected by such charges. In spite of the rule to the contrary laid down in Drummond v. Tracy (d), it is the practice to make no mention of such charges in the abstract after they have been paid off; nor are they generally disclosed, even when still subsisting (e).

(y) 1 Dart. V. & P. 301, 5th ed.; 343, 6th ed.: 337, 7th ed. (z) John. 608, 612. (a) Ibid.

(b) Sug. V. & P. 407.

(c) 1 Dart, V. & P. 300, 5th ed.; 342, 6th ed.; 336, 7th ed.

Some few words should be said about the manner in which deeds or other documents should be abstracted. At the present day, the work of making an abstract of title is often so indifferently performed that it seems necessary to point out that the vendor is bound to furnish such an abstract of the contents of the deeds as shall enable the purchaser's counsel to judge of their effect. The purchaser cannot therefore be required to accept as a proper abstract any mere statement of the effect of any operative clause, which is material to the title; he is entitled to be informed of the exact words used in every material part of any document abstracted. For the whole object of requiring an abstract of title is to enable the purchaser's conveyancing counsel to examine the title in a convenient way (f); the abstract is all he sees; and if the very words used are not placed before him, it is impossible for him to exercise his judgment on the title. And counsel should not accept a mere statement of the effect of a material clause provisionally, subject to the statement proving to be correct; for this is to delegate the determination of a matter, to which he ought to apply his own judgment, to the discretion of the gentleman, who examines the abstract with the deeds (g). The general rule then is that the exact words of all material clauses should appear in the abstract. The material clauses are those which have taken effect upon the estate, to which the title is being shown. Thus in deeds of conveyance, the names and descriptions of the parties, the recitals, which show their intention, the testatum with its statement of the consideration and operative words, the parcels, the habendum, and the declaration of uses or of trusts, if any, are all material to the conveyance of the estate and should be fully abstracted. Of covenants for title, however, it is, as a rule, sufficient to know that they were entered into in the usual way. If therefore such covenants have been given at large in the common forms in use before the year 1882, it is enough to state their effect. When covenants for title have been incorporated in deeds under the Conveyancing Act of 1881 by the use of the proper statutory expressions, these expressions should of course be abstracted verbatim. So all powers which are exercised by any abstracted document should be fully abstracted: but it is sufficient simply to refer to powers which have not been exercised. The same considerations apply to the abstracting of any provisoes which may abridge or affect the estate limited. Shifting clauses, for instance, should be fully abstracted, if they have come into operation; if not, they need only be mentioned with a statement of the events in which they were intended to operate. Joint account clauses ought to be fully abstracted, if they have taken effect. And a proviso for reconveyance should always be so abstracted as to show the charge created, the terms of redemption, and to whom the reconveyance is to be made; for in a mortgage the proviso for reconveyance, being a qualification of the conveyance to the mortgagee, is just as much an operative part of the deed as the conveyance itself (A). All documents material to the title should be abstracted in chief, notwithstanding that they maybe fully recited in some subsequent instrument (i): but if this be done, the subsequent recital need not of course be set out at large; it will be sufficient to refer to the recited document as "hereinbefore abstracted." And all documents should be abstracted which are incorporated in the title by reference - as where land is assured to the uses of some settlement - even though the document be of an earlier date than the time of commencement of title.

The manner of making an abstract.

(d) John. 608.

(e) 1 Dart, V. & P. 300-302, 5th ed.; 342-344, 6th ed.; 336-338, 7th ed.

(f) Ante, p. 105.

(g) See 1 Prest. Abst. 116, 117, 2nd ed.

What are material clauses.

Covenants for title.

Powers.

Shifting clauses

Joint account clauses.

Provisoes for redemption.

(A) See 1 Prest. Abst. 147-153; Sug. V. & P. 407-410; and see Chap. V.. below.

W

Documents incorporated by reference.

The abstract should always state what parties to any title-deed executed the same and whether such execution was attested; and in the case of documents which are invalid unless attested by some particular number of witnesses or executed with some other special formality, such as wills (k), or deeds exercising powers required to be exercised with some special formality (l), the number of attesting witnesses or other circumstances attending the execution of the document in question should always be mentioned; so that the conveyancer may be satisfied that every requisite formality has been duly observed. The receipts usually endorsed on purchase and mortgage deeds before the year 1882 (m) should be mentioned, as their absence was accounted an informality (n). And any formality necessary to give complete effect to any abstracted document should be stated; as probate of a will of personal estate (o), the registration of deeds or wills of lands in Middlesex or Yorkshire (p), the enrolment of a disentailing deed (q), or the acknowledgment (when necessary) of a deed of conveyance by a married woman (r).

Execution of deeds, etc. should be stated.

(i) 1 Dart, V. & P. 299, 5th ed.; 341, 6th ed.; 335, 7th ed.; Re Stamford, etc. Co. and Knight's Contract, 1900, 1 Ch. 287; Re Wallis and Grout's Contract, 1906, 2 Ch. 206.

(k) See Williams, Real Prop. 206, 13th ed.; 245, 21st ed.

(l) Ibid. 298-302, 13th ed.; 384-387, 21st ed.

(m) Williams, Real. Prop, 193-4, 13th ed.; 627, 628, 21st ed.; Williams, Conv. Stat. 227, 229.

(n) Romilly, M. R., Greenslade v. Dare, 20 Beav. 284, 292; 3 Prest. Abst. 15, 2nd ed.

(o) Williams, Pers. Prop. 385, 11th ed.; 447, 16th ed.

(p) Williams, Real Prop. 196, 223, 13th ed.; 212, 262, 21st ed.

It has been considered that a map or plan is no necessary part of an abstract (s). But the correctness of this opinion may be doubted; as the verification of the parcels is part of a conveyancing counsel's duty (t), and he cannot efficiently discharge it without seeing the plans referred to in the various title-deeds. And when, as is now very frequently the case, a conveyance is made identifying the parcels by reference to a plan, without any separate and independent description of them, it is obvious that the plan is really a material part of the deed, and ought as such to be included in the abstract. It is thought therefore that tracings of any plans referred to in the title-deeds should in all cases be inserted at their places in the abstract; and that, at least wherever a plan is a material part of a title-deed, the purchaser can require to be furnished with a copy thereof as part of the abstract (u).

Tracings of maps or plans.