Vendor must, as a rule, give both acknowledgment and undertaking.

(u) Stat. 44 & 45 Vict. c. 41.

(x) See Sug. V. & P. 452: l Dart, V. & P. 555, 5th ed.; 1 Davidson, Prec. Conv. 222, n. (t), 223, 592, 4th ed.: Wms. Conv. Stat.97,102.

(y) Seet. 9 (9), (11).

(z) A vendor is apparently at liberty to covenant absolutely for production and safe custody in the old form, if he will; for his liability is to give such a covenant, though that liability may be satisfied by his giving an acknowledgment and undertaking. But the statutory acknowledgments and undertakings are better for both parties than the covenants in use under the old practice. The giver obtains the limitation of his liability to the time during which he has posses-sion or control of the documents; and the receiver gets the benefit of the statutory obligation running with the documents at 1aw: see stat. 44 & 45 Vict. c. 41, s. 9 (2), (9); above. p. 687. (a) Above, pp. 684- 686 w.

Proper acknowledgment and undertaking can only be given by the person retaining possession of the documents.

Sale by mortgagor with mortgagee's concurrence.

(b) Re Agg-Gardner, 25 Ch. D. 600; Davidson's Concise Precedents, 30, 690, n., 18th ed.

(c) The reason is that, under the old practice, trustees used to covenant for safe custody: though it was considered doubtful whether they were obliged to do so; see Davidson, Prec. Conv. vol. i. 222, n. (t), 223, 592, 613; vol. ii. pt. i. 667, and n. (a), 670, 4th ed.

(d) See stat. 44 & 45 Vict. c. 41, s. 9; Re Pursell and Deakin's Contract, 1893, W. N. 152.

(e) If he were to do so, that would apparently create a contract at common law fixing him with an absolute liability for the safe custody of the deeds, without the exception of fire and inevitable accident: see Expte, Stanford, 17 Q. B. D. 259, 271. But such an undertaking would nut have the statutory effect; not even if the deeds should afterwards come into the undertaker's possession.

(/) This is the duty imposed by a statutory aoknowledgment: stat. 44 & 45 Vict. c. 41, s. 9 (9).

(g) Davidson, Prec. Conv. vol. ii. pt. i. 318, n. (d), 321, n. (c) , 4th ed.: Re Pursell and Deakin's Contract, 1893, W.N. 152. The mortgagor's liability is to give an absolute covenant for safe custody: but it is more beneficial to both parties that he should covenant to give an undertaking and for safe custody in the meantime: see above, p. 689, n. (z).

(h) In such cases the mortgagee is usually under no contract with the mortgagor, and can refuse to join in the conveyance except on his own terms or on being paid off altogether. It is submitted that the suggestion made in 1 Key & Elph. Prec. Conv. 461, n. (c), 7th ed., that a mortgagee not fully paid off and retaining the title deeds by virtue of his mortgage is bound to give an acknowledgment is not warranted by the authorities cited ( Yates v. Plumbe, 2 Sm. & Giff. 174.; 2 Dart, V. & P. 678, 5th ed.; 766, 6th ed.; 697, 7th ed.); for in that case the mortgagees were retaining the deeds, not only in right of their mortgage, but also and chiefly as owners of a larger estate of which the mortgaged lands formed part, and it was as such owners that they were held liable to covenant for production. See now l Key & Elph. Prec. Conv. 483, n. (i), 8th ed.; 520, n. (4), 9th ed, Above, pp. 687 - 689; Davidson. Prec. Conv, vol. ii. pt. i. 321. n. (e), 4th ed.

44(2)

Person in constructive possession of documents.

(k) Above, p. 600. (l) Stat. 41 & 45 Vict. c. 41. (m) See above, pp. 128 - 130; Wms. Pers. Prop. 61- 63, 16th ed.

(n) It is thought that they would be estopped by their conduct from Retting up any lien thereon.

Merits and undertakings from the owners of any documents retained, and not from their solicitors (o).

According to the old practice, a covenant for production of title deeds was usually taken by a separate deed and not contained in the conveyance, unless the deeds to be included therein were recited or noticed in the conveyance (p). And it is thought that this practice may still be usefully followed as regards statutory acknowledgments and undertakings (q). Where these relate only to documents recited or noticed in the conveyance, it appears more convenient that they should be contained therein. It was always desirable under the old practice, where title deeds were retained and covenanted to be produced, to obtain an endorsement on the leading title deed of a memorandum of the covenant in order to affect all persons claiming thereunder with notice thereof (r): but it was considered that this could not be insisted on, if not provided for by special stipulation (s). There is not the same necessity for this in the case of a statutory acknowledgment and undertaking, as these are by force of the statute enforceable at law against all persons who have or may come into possession or control of the docuAcknowledg-ment, whether to be given by separate document.

Endorsement of memorandum on conveyance.

(o) There appears to be no doubt that a simple bailee of documents has such a possession thereof as enables him to give an effectual statutory acknowledgment and undertaking, if authorized to do so by the bailor. Whether he can do bo without the bailor's authority and whether a wrongful possessor of documents can do so ore nice questions: but the statute, in the case of an undertaking at least, certainly appears to empower one who has the lawful possession, but only a limited ownership of title deeds such as a tenant for life), to impose a greater liability on his successors in interest than he could otherwise impose by virtue of his own interest in the deeds.

(p) Sug. V. ,7& P. 450; 1 Dart, V, & P. 554, 6th ed.; Davidson, Prec. Conv. vol. ii. pt. i. 288. n. (h), 319, n. (a) . 4th ed.

(q) 1 Dart. V. & P. 554, 5th ed.; 626, 6th ed.: .577. 7th ed.: Davidson's Concise Precedents, 132, n. (b) , 18th ed.; Wolsten-holme's Conveyancing Acts, 49, 8th, ed.