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A draft, in fact, should be a perfect specimen of reasoning; the recitals stating the premises, and the operative part, the conclusion. The question is, how this may be best accomplished? and the answer will be most satisfactorily given, by stating the chief practical rules by which conveyancers are guided in the arrangement of the matter of their drafts.
The narrative recitals follow next after the par- Narrative reci
ties, and must generally commence at such a period as to shew the creation of all the interests intended to be dealt with. The leading rule for 1 the order of the narrative recitals is, that every in- j strument and fact should be recited according to the date it bears or at which it occurred. This is obviously the natural order, the one in which we always narrate events, and from which, if we depart, we fall into endless confusion. There are certainly a few instances, m which a rigid adherence to the order of date would lead to the interruption of the natural order, by introducing events foreign to the main narration, as in the case of the assignment of a term 1 in which two district series of recitals often occur; tJ Cl> i c i one deducing the title to the fee, the other the representation of the term. But, in nine cases out of ten, i the draftsman, by adhering to the order of date, will \ have the best chance of presenting an intelligible 1 story. Even in many instances, in which the order of date at first appears unnatural, it ultimately turns out to be the true arrangement, as in the case of distinct estates of which the titles are partially but not entirely identical. In this instance, the draftsman is often tempted to endeavour to keep
Recitals within recitals should be avoided.
the recitals of the separate estates quite distinct, and for that purpose to forsake the order of date; but, although such a plan is occasionally successful, and, when successful, is very neat and satisfactory, yet in the greatest part of the cases to which it is applied it fails, and leads to great indistinctness and confusion. An experienced draftsman may trust to his own tact and judgment for indicating the occasions on which he may advantageously lay aside the order of date; but, for the young practitioner, it is the only sure and safe rule; it can very seldom indeed lead him astray, even if for some particular drafts it be not the best possible order.
A necessary consequence of the rule that the recitals should follow each other in order of date is, that recitals within recitals must be avoided. Every instrument and fact must be recited independently, and not given as the copy of a recital in a recited instrument. The opposite course leads to the most bewildering perplexity; the reader continually forgets in what order circumstances occurred, and to what instrument each matter is to be referred, and is totally unable to gain any intelligible view of the subject, till he has in his own mind decomposed and reconstructed the narrative. There is one case, however, in which it is allowable, and usual (though not strictly necessary) to recite matters as copies of the recitals of other instruments; and this is when such matters depend for their authority solely on the instrument in which they are recited, and are not presented to the draftsman as independent facts. Thus, in reciting a deed of disclaimer of trusts, we may state the fact, that the trustee had not acted in the trusts, by setting forth the recital to that effect, contained in the deed of disclaimer; and in stating the transfer of a mortgage, where the amount or condition of the mortgage debt has been varied, we may state the facts affecting it, by setting forth the recitals in that behalf contained in the deed of transfer. In neither of these cases, however, it will be observed, is the order of date deviated from; and, therefore, there is no departure from the general rule, but only from the subordinate rule, where that subordinate ceases to agree with the general rule. In short, it will be perceived, that the rules by which the narrative recitals of drafts are governed, are precisely the same as those by which the narration of any other story is governed; and that the draftsman, in this part of his task, has little more to do than to follow the course which common sense dictates. There are a few precautions to be observed, which depend on the peculiarities of our laws, chiefly in regard to estoppel and notice, and which will be pointed out in the proper places, but which in nowise affect the general princi- j ^
pies of which we are now treating. — • h<U . <
Let us next suppose that the narrative recitals are I The purpose
. . „ 'and manner of
complete, that is, that every instrument and fact i framing the inwhich is necessary for explaining the situation of the j cttaU^ e parties and the subject-matter, with relation to the general design of the subsequent part of the instrument, has been stated in its appropriate order (a).
(a) There is no absolute test and correctness of the narrative for ascertaining the completeness recitals; the draftsman must trust,
Now, to connect our narrative with the operative part of our instrument, we must state the motives which occasion the subsequent arrangement being entered into. This statement consists of one or more recitals, which immediately precede the operative part, and are termed introductory. If they are more in number than one, they should follow one another in the order in which the intentions they indicate are to be carried into effect. In a purchase deed, the introductory recital is the one which states the contract; in a mortgage, the one which states the agreement for the loan or security; in a voluntary deed, the one which expresses the intention or desire of the grantor to make the subsequent settlement. But a deed of arrangement affords the best example of such recitals; because, in an instrument of that nature, they are necessarily complicated, and of the greatest importance. They first state, in the order of execution, all that is intended to be accomplished, and then set forth, in corresponding succession, the different assignments, bonds, conveyances, transfers, and other deeds and acts which require to be executed or done before the execution of the prin
on this point, to attention and be the parties to deal with it. So experience alone, bearing in mind singular, however, is the want, the cardinal principle before re- in some minds, of attention or ferred to, that he must tell every reasoning power, that it is by no thing which will elucidate, and means rare to find a young draftsnothing which will not elucidate, man frame a set of recitals which his general design. He must shew a title in A. B. and C. D., take care to shew in whom the and make C. D. alone convey, whole estate he is dealing with or, vice versa, deduce a title to is vested, and recollect that no A. B., and make A. B. and others except those persons can C. D. convey.
cipal instrument. The precedent XII. and that of "An assignment of a good will and stock in trade," which appear in this Part, and the precedents which will hereafter appear, of releases and other complicated instruments, will afford examples of the manner of handling these recitals. In framing introductory recitals, it should be seen introductory
, . , recitals should
that they are expressed in general terms, so as not be expressed in
i. o i i /. i general terms.
to qualify or restrain the subsequent parts of the instrument, and that the intention expressed is precisely the same as the intention afterwards carried into effect. If this rule be not rigidly adhered to, it is obvious that the logical order of the draft is altogether destroyed, and great risk is, moreover, incurred, that the deed may be reformed by a court of equity, on the ground of mistake; that is, that the intention of the parties, as expressed in the recitals, may be ordered to be carried into effect in preference to the arrangement actually made by the operative parts. To avoid these dangers, it is a rule almost universal to frame the introductory recitals with a clear but general reference to the corresponding act afterwards done: as thus—" that the hereditaments should be settled to the uses hereinafter limited;" "that the parties should enter into the covenants hereinafter contained;" "that such release should be executed as is hereinafter contained;" and so forth.
We come next to the operative parts of instru- The order of the
ments, to which the previous parts are merely intro- of instruments, ductory and subsidiary. It is not necessary for the