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FOR OBTAIN-
ING LETTERS

PATENT.

whatever to interfere or intermeddle in their or either of FOR OBTAINtheir affairs, further or otherwise than the right to require from time to time a full and just account of the profits and emoluments to be derived from the use of the said invention; and that if the said A. B., his executors or administrators, and to lose shall at any time hereafter do any act whatsoever, (other

whatsoever father all interest, if

he act as a than requiring the said account), in the character of a co- partner. partner of the said C. D. and E. F., or of either of them, or of their or either of their executors, administrators, or assigns, or attempt in anywise to bind or render responsible the said C. D. and E. F., or either of them, their or either of their executors, administrators, or assigns, for any act, deed, or matter to be made, done, or executed by him the said A. B., or shall in anywise interfere or intermeddle (otherwise than as aforesaid) in the affairs of the said C. D. and E. F., or either of them, their or either of their executors, administrators, or assigns, or with respect to the said letters patent and invention, or any thing relating thereto, then and in such case the said A. B. shall lose all right and title to have, receive, or take the aforesaid moiety or equal half part hereinbefore provided for him, or any other part or share of the profits and emoluments of the said invention, and the whole of the profits and emoluments to be derived from the said invention, including any balance which shall then be due, but shall not then have been paid over to the said A. B., and all interest in the said invention and in the said letters patent shall thenceforth belong to the said C. D. and E. F., their executors, administrators, and assigns, for their sole use and benefit. IN WITNESS &c.

AGREEMENTS for LEASES (a).

FOR LEASES.

FOR LEASES.

(a) It has been found more convenient to reserve the precedents of these instruments for insertion in a subsequent part. They will appear under the head of “ Leases."

192

PURCHASE DEEDS.

XVI.

CONVEYANCE

IN FEE.

CONVEYANCE in Fee by Lease and Re

LEASE; the Vendor being seised in Fee, and his
Wife joining for the purpose of releasing her
Right of DoWER.

Parties.

THIS INDENTURE, made &c. BETWEEN A. B., of &c. [vendor], and E. B. his wife (a), of the one part; and C. D., of &c. (purchaser], of the other part (6); WHEREAS

Recital of agreement for purchase.

(a) When a married woman is a party to a deed, her husband is always joined, and made a party of the same part as his wife.

As to reciting
the seisin in
fee of the ven-
dor.

(6) When the vendor conveys, in fee, it is unusual to recite that he is seised in fee, that fact being assumed. (See Introd. to this volume, ante, page 4). An advantage might, however, be gained in certain cases, by the insertion of a recital, that the vendor is seised in fee, because he might be thereby estopped from alleging, at a subsequent time, that he was not seised in fee. As, when the vendor had not the fee at the date of the conveyance, but acquired it subsequently, it was held, that the recital operated by way of estoppel so as to bind the vendor. (Bensley v. Burdon, 2 Sim. & Stu. 519; 2 B. & Ad. 282; but see 2 Sugd. Vend. & Pur. 264, n. (b)). As, however, all purchase deeds of this nature contain a covenant by the vendor, that he is seised in fee; and as there seems no reason why such a covenant may not act by way of estoppel, (Newton v. Weeks, All. 79; S. C. Vin. Abr. Estop. M.), the addition of the recital of seisin appears to be superfluous.

It was formerly held, that estoppel could not be by recital, Co. Lit. 352. b.; but the contrary doctrine is now well established.

Estoppel by recital.

IN FEE.

the said C. D. hath contracted and agreed with the said conveyance A. B. for the absolute purchase (c) of the pieces or parcels of land and other hereditaments hereinafter particularly mentioned, and intended to be hereby released, with their appurtenances and the inheritance thereof, in fee simple, in possession, free from incumbrances (d), at or for the price

(Lainson v. Tremere, 1 Ad. & Ell. 792; Bowman v. Taylor, 2 Ad. & Ell. 278; Bowman v. Rostron, Id. 295). But an estoppel should be certain, to every intent; and, therefore, if the matter be not precisely and directly alleged, or be mere matter of supposal, it shall not be an estoppel, nor shall a man be estopped where the truth appears by the same instrument. (Right v. Bucknall, 2 B. & Ad. 278; Doe d. Barker v. Goldsmith, 2 Cro. & Jerv. 674; Doe d. Lumley v. Earl of Scarborough, 3 Ad. & Ell. 12, 897).

(See further, on the subject of estoppel, Co. Lit. 352. a. b.; Vin. Law of estopAbr. Estop. Com. Dig. Estop.; Bonner v. Wilkinson, 5 B. & Ald. pel; 682; Doe d. Strode v. Seaton, 2 Cro. Mee. & Ros. 728; and the authorities cited in Right v. Bucknall, ubi supra).

There can be no estoppel by the surrender of a copyhold; (Taylor -by surrender. v. Philips, 1 Ves. Senr. 230; Goodtitle v. Morse, 3 T. R. 365.)

It is obvious, that great care should be taken in framing recitals, that the facts recited are strictly correct, as all parties to the deeds, and persons claiming under the parties, will be estopped from disputing the correctness of the allegations.

(c) When the vendor and purchaser are each acting on their own Contractbehalf, and are each free to enter into any contract they please, the whether to be contract may be recited either as an agreement for a sale or a pur

. stated as for a

sale " par sale or a purchase. But, if the vendor sell, in pursuance of a power or a trust, chase. the contract should be recited as an agreement for a sale, the power or the trust being for him to sell; and, if the purchaser be a trustee, the contract should be recited as an agreement for a purchase, the trust being for him to purchase. If both vendor and purchaser be trustees, the contract may be recited either way, or as an agreement, both for a sale and purchase. Examples of this principle will be found in different precedents.

(d) After the words “ free from incumbrances,” it is a common Land tax not practice to add, “ except the land tax.” But the practice is erroneous; an incumfor, as all land is primâ facie, and by the law of the land, subject to

brance. land tax, that tax is no more to be considered as an incumbrance than the window or any similar tax, or than tithes or rates, or other public charges. The freedom from land tax, is the exception to the general rule, and that fact may, with propriety, be specially stated; but, in the absence of a statement of redemption of the tax, it is fair to presume, that the general law holds good.

VOL. III.

IN FEE,

conveyance or sum of £- ; AND WHEREAS the said E. B. hath

- agreed to join in these presents, for the purpose and in That wife of

manner hereinafter mentioned: NOW THIS INDENvendor has agreed to join. TURE WITNESSETH, that in consideration of the sum Witnesseth. of £ (e), at or immediately before the sealing and deConsideration.

livery of these presents to the said A. B. (f), paid by the Receipt clause. said C. D., (the receipt of which said sum of £4 , the

said A. B. doth hereby acknowledge, and of and from the same and every part thereof, doth acquit, release, and dis

charge the said C. D., his heirs, executors, administrators, Operative and assigns, for ever, by these presents (9)), he the said

words.

Sometimes, too, the land tax is excepted in the covenant against incumbrances, even when that covenant is restricted to the acts of particular persons. And this is a more serious error than the mistake in the recital; because, the exception from the covenant of an incumbrance, which could, by no possibility, be created by the acts of any of the persons to whose acts the covenant is professedly restricted, affords ground to maintain that, notwithstanding, in words, the covenant is restricted, the obvious intention of the parties deduced from the exception is, that the covenant should be unqualified, and extend to all incumbrances, however created. See, however, the observations of the court, 1 Nev. & Per. 644.

Description of money,

(e) It is very common to describe the consideration as “ £- of lawful money of the United Kingdom,” or “ £- of lawful British money.” But in dealing with property and parties in England, such a description is wholly superfluous; for, in the absence of a special statement to the contrary, the money spoken of will be assumed to be the current and lawful money of the kingdom. If colonial or foreign property, or funded property, is being dealt with, the proper designation for distinguishing the current money of the kingdom is “ sterling.” All monies which are not sterling must have their proper designation given in the instrument each time they are mentioned as “ £— £3 per cent. consolidated bank annuities, £- Jamaica currency,” and so forth.

(f) It has been usual to insert immediately before the word “ paid,” the words “ in hand well and truly.” They are of no use whatever.

Receipt in the deed an estoppel at law.

(9) This receipt contained in the deed estops the vendor and all persons claiming under him, from shewing, at law, that the purchasemoney was not paid. (IIarding v. Ambler, 3 Mee. & Wels. 279; Baker v. Dewey, 1 B. & C. 704; Rountree v. Jacob, 2 Taunt. 141; A. B. hath granted, aliened, released, and confirmed (h), and conveyance

IN FEE.

but the fact of payment must be clearly stated; Lampon v. Cooke, 6 B. & Ald. 606).

Neither the receipt in the deed nor the receipt usually indorsed No receipt an thereon prevents the vendor from shewing, in equity, that the pur- estoppel in

equity, chase-money was not paid. (Coppin v. Coppin, 2 P. Wms. 291-294; Hughes v. Kearney, 1 Scho. & Lef. 132; Winter v. Lord Anson, 1 Sim. & Stu, 434; S. C. on Appeal, 3 Russ. 488, 493). It has, indeed, been usually considered, that this rule only applied as between the vendor and the immediate purchaser; and, that a third person purchasing from the immediate purchaser, and finding a receipt for the original purchase-money indorsed on the purchase-deed, was not bound or entitled to inquire further. (White v. Wakefield, 7 Sim. 401). If the rule were otherwise, no one could be safe in completing a purchase, unless he ascertained, by evidence, foreign to the deed, that the purchase-money on every purchase appearing on the abstract had been actually paid. Of course, if the solicitor of the new purchaser was also the solicitor of the old purchaser, the new purchaser would be affected with notice of the fact, that the purchasemoney was not paid. (Winter v. Lord Anson, 3 Russ. 493). In a late case of Kennedy v. Green, 3 My. & Ke. 699, in which it appeared, that the receipt was not written on the deed in the usual place and manner, and that no money had actually passed, and that the deed had been fraudulently obtained by a solicitor from his client; a mortgagee from that solicitor, who also employed the solicitor professionally, was decreed to assign his mortgage to the original vendor without obtaining payment of his mortgage money. It was admitted, on all hands, that the mortgagee was innocent; but it was held, that the circumstances appearing on the deed, were such as to have excited reasonable suspicions. They, perhaps, were so, but the case should rather be regarded as one governed by its peculiar circumstances, and not as an authority for the general proposition, that if the receipt be written in an unusual place and manner, the purchaser is bound to inquire whether the purchase-money thereby expressed to be received was actually paid.

It may be observed, that the receipt on the back of the deed does Indorsed renot estop the vendor from shewing, even at law, that the purchase- ceipt no estopmoney was not paid; (Lampon v. Cooke, ubi supra; and that, as

thot pel at law.

No estoppel as between strangers to the deed, of course, there can be no estoppel by the matter of the deed, or the receipt on the back; Rex y, Scammonden, 3 T. R. 474; Rex v. Cheadle, 3 B. & Ad. 833; Rex v. Wickham, 2 Ad. & Ell. 517).

(h) In all English instruments of conveyance, except those made Operative in pursuance of powers, the operative words are twice inserted; once words. in the past, and once in the present tense. The custom arose from

to strangers.

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