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AS TO TITLE-DEEDS.
III. That the purchaser of lot — shall presume that CONDITIONE a lease for a year, which cannot now be found, but which is mentioned in a release dated the day of — , was – duly made between, and executed by, the persons by whom, in the said release, the same is mentioned to have been made, and shall make no objection on account of the said lease for a year not being produced (i).
IV. That, as an indenture dated the day of — cannot now be found, the purchaser shall be satisfied with the production of a document purporting to be a copy thereof, and shall take such copy as conclusive evidence of the contents of the original deed, and shall presume that the original deed was duly executed and attested (j).
on record, but has a right to be furnished at the vendor's expense with attested or office copies of them; this is the well-known practice with respect to wills and court rolls. (See ante, Vol. 1, pp. 214–218).
If the title deeds have ceased to exist, their due execution and contents may be proved by competent secondary evidence; (Bryant v. Busk, 4 Russ. 1); but it would seem from that case, that it is requisite that the names of the attesting witnesses should be known, which, when the deeds have been destroyed, it is, in most cases, impossible to ascertain. In such a case, the only means of remedying the defect are, to sell, subject to a stipulation that the purchaser shall take such title as the vendor has; or to a stipulation, in which the state of the title is explained, and it is made incumbent on the purchaser to accept such evidence of the contents of the deeds as the vendor may happen to possess. (See Conditions III. and IV., and CondITIONS AS TO Title, infra, page 61).
(1) The leases for a year, especially in old family titles, are frequently Leases for a missing; if they belong to recovery deeds, the defect is supplied by year. statute; (Holmes v. Aislabie, 1 Madd. 551); in other cases, the matter may be left to the general presumption of the law, or may be mentioned in a special condition, as in the text. A condition, however, is hardly needful, unless the conveyance to which the lease belongs be of recent date.
() See supra, note (h). This condition may be adapted to the case of more than one, or of all the deeds being lost, if plain copies of them exist. With a slight alteration, likewise, it will meet the case of an abstract of a deed, being the only evidence that can be supplied of its contents.
V.(k). That the purchaser of the largest part in value, [of any lots held partially or wholly under the same title], shall, after the sale of all the [said] lots, be entitled to the custody of such of the muniments of title (relating thereto), as are in the possession of the vendor; but such purchaser shall enter into the usual covenants with the purchasers of the remainder of the said] lots for the production and furnishing copies of the said muniments. If any of the [said] lots shall not be sold, the vendor shall retain the said muniments, and enter into the usual covenants for the production and furnishing copies of them, with the purchasers of such of the [said] lots as shall have been sold, such covenants nevertheless to be determinable on the vendor's parting with the said muniments, and procuring the person to whom they shall be delivered, to enter into the usual covenants for the production and furnishing copies of them with the persons then entitled to the benefit of the vendor's covenants. The deeds containing any such covenants as aforesaid, whether original or substituted, shall be prepared by and at the expense of the covenantees.
VI. (1). That the purchaser of lot — shall be entitled to the custody of such of the muniments of title [relating
Destination of (k) When an estate is sold in lots, or when the title deeds of the estate title deeds relate to other property of the vendor, it is usual and proper to make a when an estate is sold in lots provision in the conditions or contract of sale, for the destination of the of nearly equal muniments of title, and for giving facility to all persons who may become value,
interested in them, to inspect and obtain copies of them, as occasion may require. The fifth condition in the text is suited to the case in which the whole estate, to which the muniments relate, is offered for sale in lots, of which no one far exceeds the rest in value; if there be the same title to all the lots, the words which refer to different sets of lots held under different titles, and which are printed in brackets, should be omitted.
-in lots of very (1) The sixth condition is suited to the case in which the whole estate, different value, to which the muniments of title relate, is offered for sale in lots, of which
one far exceeds the rest in value, and to the purchaser of that lot the muniments are assigned. The words in brackets have the same purpose as those in the preceding condition.
thereto,) as are in the vendor's possession, but he shall enter into the usual covenants with the purchasers of the other lots, (which are held either partially or wholly under the same title as lot — ] or with the vendor, so far as relates to any of the said] lots which may not be sold, for the production and furnishing copies of the said muniments. If lot — shall not be sold, the vendor shall retain, &c. (as in fifth condition.]
VII. (m). The vendor shall retain such of the muniments of title [relating to lots — and — ] as relate to other property of the vendor, and shall enter into the usual covenants with the purchasers [of the said lots,] for the production and furnishing copies of the said muniments, such covenants, nevertheless, to be determinable &c. [as in fifth condition.]
(m) The seventh condition applies to the case in which only a part of --when part of the property to which the muniments of title relate, is offered for sale, an estate is sold. and the vendor intends to retain them in his own custody. The words in brackets may be omitted, when all the lots have the same title. Occasionally it is stipulated, that the vendor shall have the option of retaining the muniments, and covenanting for their production, or of giving them up to the purchaser of the largest part in value, or the purchaser of a particular lot, and compelling him to covenant for their production. But this practice is not to be recommended; the vendor ought to decide before the sale, whether he will retain or give up the muniments, and stipulate accordingly. Vendors generally prefer to retain the muniments, for they feel and understand the danger and inconvenience of parting with them, while the liability to which a covenant for production subjects themselves is remote, and not very perceptible to an unprofessional person. In practice, very little injury does result to persons from entering into covenants to produce deeds; for if the covenant or parts with the deeds without procuring himself to be exonerated from his covenant, the covenantee usually prefers to trace the deeds, and obtain the inspection of them by his equitable right, than to bring an action against the covenantor, in which he could only recover damages-perhaps of trifling amount.
It is very seldom stipulated on sales, that the title deeds shall be de- As to the depoposited for the benefit of all parties; but it may sometimes be desirable to sit of title
deeds. stipulate, that a particular deed shall be so deposited in the hands of some banker, or other person named in the condition, or to be selected by the parties. The form of such a condition must depend on the circumstances of each case.
AS TO TITLE-DEEDS.
VIII. That no purchaser shall be entitled to require any covenant, or make any objection on account of the want of any covenant, for the production or furnishing copies of any of the muniments of title, which are not in the possession of the vendor (n). .
IX. That as to such of the muniments of title as are not in the possession of the vendor, but to the benefit of a covenant for the production of which he is entitled, [or, but for the production of which a covenant is in the possession of the vendor,] the purchaser shall be satisfied with such covenant, and shall make no objection on account of the insufficiency or invalidity of such covenant(o).
CONDITIONS as to Title, and Evidence of
I. THAT every recital or statement, in any deed, will, or other document, dated thirty years or upwards prior to the day of sale, shall be deemed conclusive evidence of the fact or matter recited or stated (a).
(n) This condition is essential, if any of the muniments of title are not in the vendor's possession, and he has no covenant and no means of obtaining a covenant for their production. (See ante, page 46).
(o) This covenant meets the case of an existing covenant for production of deeds, not being such as a purchaser can be compelled to accept. (See ante, pages 46, 47). The words in brackets should be substituted for those immediately preceding, if the existing covenant was not made with the vendor himself.
Recitals and (a) It often happens, that, from the deaths of parties, the imperfections statements in of registers, and other circumstances, it becomes difficult or impossible to documents furnish nronor evidence of ti
furnish proper evidence of the facts on which a title depends, but that, at may, by stipu. lation, be made the same time, those facts are recited or stated in some of the documents evidence of of title. When this is the case, either the first or second condition in title.
the text may be advantageously employed, to compel the purchaser to take the recital or statement in the document as evidence of the fact recited or stated. The first condition is the preferable one, as being much less alarming to a purchaser, and equally efficient in ordinary cases with the sccond. It is essential, in the circumstances above mentioned, to make a
TO TITLE AND
II. That every deed, will, or other document, dated conditions AS twenty years, or upwards, prior to the day of sale, shall be 10 deemed conclusive evidence of any birth, death, intestacy, heirship, representation, or other fact, [and of the contents and due execution of any deed, will, or other document], which shall be recited, stated, noticed, assumed, or implied therein (6).
III. That extracts from registers kept by any society or congregation of dissenters, of births, baptisms, deaths, or burials, shall be deemed conclusive evidence thereof (c).
special stipulation, because, independent thereof, a recital or statement in any document is no evidence of the fact recited or stated, except as against the parties to the documents and those who claim through them. (Fort v. Clark, 1 Russ. 601, ante, Vol. 1, pp. 193, 194).
The time specified in the condition must be such as will meet the As to the time exigency of the case; the period usually fixed is twenty, or thirty, years, to be fixed for for a shorter period would, probably, seriously affect the sale, and, of "
and of the purpose. facts mentioned in instruments dated forty years ago and upwards, a willing purchaser, in ordinary cases, does not strongly press for evidence, when there is difficulty in procuring it. The period should always commence as far back as the title will permit.
Conditions of this class are a very favourite resort of vendors, because Conditions of they tend to save expense. They do not, probably, in common cases, much this kind to be prejudice a sale, because purchasers do not understand their effect; but if
but :c used with cau
tion. their effect were known, few persons would risk their money in a purchase subject to stipulations, which, undoubtedly, preclude them from getting any reasonable evidence of the facts on which the title depends. It is very well known that little reliance can be placed on the truth of recitals and statements in documents, till lapse of time has confirmed them, as they are constantly made without any sufficient authority.
A condition is sometimes made, (see the words within brackets in the second Condition), that the recitals of deeds and other documents, not in the vendor's possession, shall be conclusive evidence of the contents and due execution of those deeds and documents. Nothing, however, but absolute necessity can authorize the use o fit; no purchaser, who understood its effect, would buy subject to it.
(6) See the preceding note.
(c) The registers of Quakers, Jews, dissenters, and other societies or Extracts from persons not authorized by law to keep registers of these matters, are ad- the registers of
Quakers, &c. missible in evidence, simply as declarations, and not as records. (Ante, not
records. (Ante, not evidence, Vol. 1, p. 178, and cases there cited). Extracts from such registers are excepi by spehowever, usually accepted by conveyancers as sufficient evidence of the cial stipulation. facts they record, and, therefore, it is only with a view to an action at