CONDITIONS AS Curing and making of all certificates, attested, stamped, office, or other copies or extracts of or from any re

TO TITLE

DEEDS.

deeds relating

to the property of different owners.

Purchaser entitled to a covenant for

of deeds, or to the deeds.

relates, is alienated in separate portions; and, in this case, the law seems to be, that the owner of each portion has, in equity, a common property in the deeds, and can, by a suit in equity, compel the owner of the portion in whose custody they are, to produce them for the benefit of the other owners. (Fain v. Ayer, 3 Sim. & Stu. 533; 1 Russ. 256, 259).

But the owner of any one portion has no right to take the deeds out of the hands of the owner of any other portion, they must remain in the custody in which accident has placed them. (Yea v. Field, 2 T. R. 708). And the right of the owner of any portion to retain the deeds, if he has chanced to get possession of them, is not taken away by his having previously taken a covenant for the production of the deeds. (S. C.) No person will be compelled at law to produce his title deeds. (Pickering v. Noyes, 1 B. & C. 262).

A purchaser is not bound to rely on the equitable right to production; but is entitled to have either the deeds themselves, or a covenant for their the production production. (Barclay v. Raine, 1 Sim. & Stu. 449 *). On the sale of a reversion expectant on a lease in an undivided share of an estate, the court refused to compel a purchaser to complete, till the counterpart of the lease (which was in the possession of persons entitled to another share in the estate,) was deposited for the benefit of all parties, Lord Eldon observing, that it would be too much to put the purchaser to the necessity of filing a bill, from time to time, to have the counterpart delivered to him as often as he might want it. (Shore v. Collett, Cooper, 234). In this case, the purchaser had demanded a covenant for the production of the counterpart, and before the hearing the vendor had procured the counterpart to be inrolled in the Court of Common Pleas. Lord Eldon does not seem to have considered the inrolment as of any consequence in that case; but, in an opinion now before me, of a late eminent conveyancer, it is unhesitatingly laid down, that a purchaser cannot require a covenant for the production of a deed which has been inrolled. There seems, however, no good reason for this position.

It has been said, that a purchaser is entitled to have such a covenant for the production of deeds as will run with the land; and Barclay v. Raine is usually cited as an authority for the position. But that case (as corrected in the note), does not appear to support the doctrine.

In practice, such a covenant for the production of the deeds as will

The report of the judgment in this case, as to whether the covenant did or did not run with the land, is said to be incorrect; the Master of the Rolls being of opinion, that, Thring's first covenant did run with the land, but, that his second covenant, was restricted to the period of his being mortgagee, (See 7 Byth. Conv. by Jarman, 375, note). This is, probably, the correct version of the case.

gisters (d), deeds, wills (e), or other documents, and of all CONDITIONS AS declarations or other evidence as to identity, whether

run with the land, can seldom be had; and, therefore, relying on the equitable right to production, the want of such a covenant is seldom made an objection to the title, on behalf of a willing purchaser. And it is the opinion of a large part of the profession, that the want of such a covenant is in no case a valid objection to a title. In cases of this nature, a covenant is usually taken from the tenant for life, mortgagor, or other partial or equitable owner, or from any of the vendors who are in a situation to covenant, partly with a view to obtaining some legal right, although limited or insufficient; but, principally as an express declaration of the purchaser having an interest in the deeds. Assignees of a bankrupt, when selling property of which they retain the deeds, must enter into covenants for their production, limited to the time of their continuance as assignees; (Ex parte Stuart, 2 Rose, 215); and there seems no reason why the same rule should not apply to trustees and mortgagees. A memorandum of the covenant for production should be indorsed on the several deeds to be produced, so as to affect any future holder of them with notice of the covenant; although there is not much doubt that the equitable right to production subsists independent of the notice. It is at present an undecided point, whether, under a covenant for further assurance, the covenantor can be compelled to enter into a covenant for the production of deeds; the better opinion is, perhaps, against his liability. (Fain v. Ayer, 2 Sim. & Stu. 533; 1 Russ. 256, 259).

The right to the custody of the title deeds follows the legal ownership of the freehold; and therefore, trustees, and not cestui que trusts, are the persons entitled to the custody of them. (Harper v. Faulder, 4 Mad. 129; see, too, Pyncent v. Pyncent, Atk. 571). So, trustees are entitled to the custody of any settlement or other trust deed, of which they are the trustees, the cestui que trusts having merely a right to

(d) If the property be copyhold, insert here— "court rolls."

TO TITLE
DEEDS.

Custody of deeds between trustees and cestui que trusts.

(e) A vendor is bound, at his own expense, to furnish every purchaser Attested copies. with attested copies of every document of title which is not to be delivered up to the purchaser; (Dare v. Tucker, 6 Ves. 460; Boughton v. Jewell, 15 Ves. 176); except of instruments on record. (Campbell v. Campbell, 1 Sugd. V. & P. 529; see, too, ante, Vol. 1, pp. 203, 215). Hence, therefore, whenever property is sold in lots, it should be stipulated, that the expense of all attested and other copies shall be borne by the purchaser requiring the same; for, otherwise, the vendor may be put to a ruinous expense. Indeed, in all cases in which attested copies may be required, it is better to stipulate that they shall be furnished at the cost of the purchaser.

CONDITIONS

AS TO TITLE

DEEDS.

Tenant for life and remainder

man.

Verification of abstract.

required for the verification of the abstract (ƒ), or for any other purpose, shall be at the [joint] expense of the

inspect and take copies of the deeds. (Ex parte Holdsworth, 4 Bing. N. C. 386).

When the inheritance is carved out into portions, the owner of the first estate of freehold (generally a tenant for life,) is entitled to the custody of the deeds, because on him it falls to defend the title. (Webb v. Lord Lymington, 1 Eden, 8; Duncombe v. Mayer, 8 Ves. 320; Knott v. Wise, cited 8 Ves. 323; 1 Ves. Jun. 76; 3 Ves. 225; 1 Scho. & Lef. 223; 2 Bro. C. C. 652). If, however, there be a term of years preceding the life estate, the tenant for life will be compelled to produce the deed, for the benefit of the termor. (Brigstocke v. Mansel, 3 Mad. 47). The cases with respect to the rights of remainder-men are numerous, and not very consistent; but it appears to be settled, that a remainder-man has a right to see the deeds, and to have them brought into court for safe custody, if his remainder be immediate and vested; (9 Mod. 132; 1 Atk. 431; 3 Atk. 382; 2 P. Wms. 476; 2 Ves. 611, 612; 1 Ves. Jun. 76); and this right is strengthened, if the tenant for life is the person who would be entitled in fee if the settlement were destroyed. (1 Atk. 431). But a remainder-man, whose estate is not immediately expectant on an estate for life, (Ivie v. Ivie, 1 Atk. 431), or the purchaser of a contingent remainder, (Noel v. Ward, 1 Mad. 322), has no such right. If a remainderman in tail be the son of the tenant for life, he has no right to inspect

(f) If the words relating to the verification of the abstract be omitted, the condition will only protect the vendor from the necessity of furnishing the purchaser with attested or other copies of instruments which have been produced for the verification of the abstract, but cannot be delivered up to the purchaser, and from the necessity of producing instruments which are not essential to the verification of the abstract. In that case, the vendor must make out a complete abstract, and verify it, not only by the production of all the evidence in his possession, but by producing and procuring, at his own expense, every deed, certificate, extract, office copy, and other document, required for such verification. For the purchaser has a prima facie right to have the abstract verified by the vendor, and he cannot be deprived of this right by ambiguous expressions.

Any office copies, certificates, or extracts, which the vendor may procure for the verification of the abstract, will, after being procured, be muniments of title in the vendor's possession, and will follow the destination of the other muniments, either into the hands of the purchaser, or to any other quarter. It may be remarked, that where a property held by one title is sold in lots, the vendor should verify the abstract at his own expense; for otherwise the whole expense would fall on the first purchaser who called for the verification, and the others would have the benefit at his cost.

purchaser requiring the same (g), [and of the vendor, in equal shares].

the deeds, or to have them taken out of the custody of his father, unless he can shew that he needs them for some proper purpose; (Lord Lempster v. Lord Pomfret, Amb. 154; Pyncentv. Pyncent, 3 Atk. 571†); but what is a proper purpose seems undetermined. In one case, as between a father and son, and a mortgagee of the father's life estate, a deed was ordered to be deposited for the benefit of all parties. (Crop v. Norton, 2 Atk. 74).

All the cases however, admit, that if any person entitled in remainder can shew, that there is danger of the deeds being destroyed if they remain in the custody of the tenant for life, the remainder-man is entitled to have them properly secured. (See the preceding cases, and Dixies v. Hillary, Cary, 19). But although the deeds may have been in court for other purposes, they will not be retained without reason shewn to the court. (Webb v. Lord Lymington, 1 Eden, 8; Duncombe v. Mayer, 8 Ves. 320; Church v. Small, Id. 322).

It is said, that if only an estate for life be subsisting prior to a reversion

(g) The stipulations in this condition will not all be applicable on every sale; of course, those only should be employed which are necessary. The words in brackets, (as is obvious), divide the expense equally between vendor and purchaser.

The rule, that in the absence of stipulation to the contrary, the vendor must bear the expenses mentioned in this condition, has encouraged a disposition in purchasers to carry their requisitions on these matters to the furthest length that the law allows; frequently to the great injury of the vendors, and with very little benefit to themselves. And hence, it has been found useful to check this disposition, by stipulating that purchasers shall bear the whole, or some part of the expense which their requisitions occasion; a stipulation to that effect is found to confine their requisitions to such evidence as is needful to make out a reasonably good and safe title.

It must, however, be understood, that no condition as to the custody or the expense of production of the muniments of title, can preclude the purchaser from requiring a perfect title. To have that effect, the stipulation must be direct to the purpose and clear. (Dick v. Donald, 1 Bligh, N. S. 655; Southby v. Hutt, 2 My. & Cra. 207).

* In Mr. Blunt's edition of Ambler, (2nd edit. 1828,) there is an error in the report of this case. In line 4, from the top, it should be, "this court will not give," instead of "this court will give."

In this case, however, so far as the same can be understood, the trustees of the grandfather's settlement were the persons entitled to the custody of the deeds.

CONDITIONS

AS TO TITLE

DEEDS.

The expense of making out the title falls, prima facie, on the vendor.

CONDITIONS

AS TO TITLE-Deeds.

II. That no purchaser shall be entitled to call for the production of, or make any objection on account of the nonproduction of, any deeds or muniments of title, of which the vendor shall produce attested copies (h).

Mortgagee and mortgagor.

Right to drafts

and copies of deeds.

Abstract to be verified by the production of original docu

ments.

in fee, the reversioner, upon confirming the life estate, is entitled to have the deeds delivered up to him. (Joy v. Joy, 2 Eq. Ca. Abr. 284). If such, however, be the law, it would seem, that the reversioner must undertake to defend, as well as confirm the title of the tenant for life. A jointress will be ordered to give up her jointure deed, and the other title deeds, on having her jointure confirmed by the person entitled in reversion or remainder; (Petre v. Petre, 3 Atk. 511; Leech v. Trollop, 2 Ves. 662; see, too, Chamberlain v. Knapp, 1 Atk. 52; 2 Ves. 450; 1 Ves. Jun. 76); and the same rule is said to apply to a dowress. (2 Bro. C. C. 652).

A mortgagee, whose security turns out to be bad, may retain his mortgage deed, if it contains a covenant for payment of his mortgage money. (Opie v. Godolphin, 2 Eq. Ca. Abr. 284; Prec. in Cha. 548). A mortgagor has no right to inspect the deeds while in the hands of a mortgagee, for any purpose whatever.

If deeds are stolen from the custody of a mortgagee, his security is not thereby affected, as against the mortgagor, and he is not liable to make any compensation to the mortgagor for the injury to the title; but, on a reconveyance, he must give the mortgagor an indemnity against being called on to pay over again the mortgage money and interest. (Stokoe v. Robson, 3 Ves. & Bea. 51; 19 Ves. 385; Shelmardine v. Harrop, 6 Mad. 39). But a mortgagee will not be allowed to sue a mortgagor upon a bond given as a collateral security, if he has put it out of his own power to produce the title deeds, and cannot, therefore, give them up on a reconveyance. (Schoole v. Sall, 1 Scho. & Lef. 176). Some observations as to the loss of title deeds, as between vendor and purchaser, will be found in the next note.

In concluding the observations on this subject, it may be proper to notice, that drafts and copies of instruments belong to the persons at whose expense they are made; and that, whether such persons are or are not entitled to the custody of the original instruments. Ex parte Horsfall, 7 B. & C. 528; Ex parte Holdsworth, 4 Bing. N. C. 386; Doe. d. Strode v. Seaton, 2 Ad. & Ell. 171; Davidson v. Napier, 1 Sim. 297.

(h) A vendor is bound to produce the original documents required to make out his title; to produce attested copies is of no avail, unless the originals are lost; (Harvey v. Phillips, 2 Atk. 541; Southby v. Hutt, 2 My. & Cra. 207; Bryant v. Busk, 4 Russ. 1; Skeffington v. Whitehurst, 3 You. & Col. 1); or are upon record, as in case of wills, and inrolled deeds. (Ante, Vol. 1, pp. 214, 215; 1 Sugd. V. & P. 529). And a purchaser cannot be compelled to compare the abstract with the instruments