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CONDITIONS

AS TO ASSIGNMENT

AND SURRENDER OF TERMS.

III. That, as to lot

a term of
was satisfied in or before the year

never since been assigned or noticed, shall
have been surrendered and merged (c).

IV. That, as to lot

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a term of

years, which but which has be presumed to

years, created

in the year
which was never assigned to attend the
inheritance, and has not been noticed since the year
shall be presumed to have been satisfied, and to have been
surrendered and merged (d).

V. That all satisfied terms of years, whether already assigned to attend the inheritance or not, shall be presumed to have been surrendered and merged (e).

CONDITIONS AS

TO IDENTITY.

surrender of terms which have not been assigned to attend.

I. THAT,

CONDITIONS as to IDENTITY.

as to lot, the vendor shall not be required. to distinguish the copyhold from the freehold part of the

there is evidence or reasonable ground to presume that they have been satisfied, and they have not been noticed on subsequent dealings with the property, on which outstanding terms would usually be noticed, the practice, both of the courts and of conveyancers, is, to presume a surrender, even between vendor and purchaser. (Emery v. Grocock, 6 Mad. 54; Ex parte Holman, 1 Sugd. V. & P. 509).

The second condition in the text should be used, if there is a term subsisting in the property which has been assigned to attend the inheritance, and of which an assigment cannot be had.

(c) This condition is applicable, where a term can be proved to have been satisfied, but the ground for preserving a surrender is slight. As this condition, however, only affirms the general rule of law, it cannot often be needed.

(d) The fourth condition is to be used, when evidence that a term has been satisfied cannot be produced. It may be proper to notice in the condition the purpose for which the term was created, as, "by way of mortgage," or, "for raising portions," &c.

(e) The fifth condition is only to be employed when the terms are numerous, and the means of making out titles to them not easily to be had.

property, and the purchaser shall make no objection to the CONDITIONS AS title on that account (a).

II. That, as to lot, the vendor shall not be required to identify the present description of the property with the description contained in documents dated thirty years ago and upwards; and the purchaser shall make no objection to the title on that account (b).

III. That, as the property comprised in lot

is held by the vendor under several titles, and from the removal

TO IDENTITY.

(a) As has been noticed in a former part of this work, (Vol. 1, pp. 78, Identity. 220), it often happens, that the freehold and copyhold, and sometimes (though more rarely) the leasehold parts of an estate become, from the change of names, the alteration of fences and landmarks, and other circumstances, so blended together, that it is impossible to distinguish them. But, as this forms a most serious obstacle to the deduction of a good title, it is usual to remedy it by means of a special condition, a precedent of which is given in the text. In some cases it may be necessary to add,

"or to distinguish of what manors the different copyholds are holden;"

and different circumstances will most likely require some variations in each particular case.

(b) The necessity of the occasional use of these conditions, is shewn by the remarks on evidence of identity, ante, Vol. 1, pp. 78, 220. It should be observed, that, even in the absence of stipulation, a vendor is not bound to identify the description on the court rolls of copyhold property with the present state of the property. (Long v. Collier, 4 Russ.

267).

In addition to the modes of proving identity referred to in the first Modes of provvolume, ubi supra, it is to be remarked, that receipts for rent, in which ing. the property is described, (Parry v. Hindle, 2 Taunt. 180), entries written by a deceased steward, (Barry v. Bebbington, 4 T. R. 515; Doe d. Strode v. Seaton, 2 Ad. & Ell. 171), and other similar documents, are very valuable evidence of identity. And the declarations of a deceased occupier of land, that he held it as tenant to A. B., are evidence to prove the seisin of A. B. (Peaceable d. Uncle v. Watson, 4 Taunt. 16. See, too, Crease v. Barrett, 1 Cro. Mee. & Ros. 919). In using this kind of evidence, the course is this: the title deeds shew that A. B. had property in a particular place, which was in the occupation of C. D.; C. D., by a receipt for rent, or other document, is shewn to have held land of A. B. in the same place, by the modern description; and such proof is generally sufficient for a purchaser.

TO IDENTITY.

CONDITIONS AS and alteration of fences and other circumstances, the respective parts held under the several titles, cannot now be distinguished, the vendor shall not be required so to distinguish them, or to identify the present with the former description of the property, and the purchaser shall make no objection to the title on that account (c).

CONDITIONS AS

TO INCUM

BRANCES.

Stipulations that purchaser shall accept particular indemnities.

CONDITIONS as to INCUMBRANCES.

I. THAT, by a settlement dated, two rent-charges (d),

amounting to £-a-year, were limited to a lady for her
life, payable out of large estates, of which the property
comprised in the particular formed part, and a gross sum,
of which £- is now unpaid, was charged on the same
estates, and a term of
years was created for securing

(c) See the preceding note.

(d) A court of equity, as has been previously observed, (ante, page 33, note (1), will not, in general, compel a vendor to give, or a purchaser to accept an indemnity. It has, certainly, in some cases been held, that when an estate is charged with trifling incumbrances which cannot be discharged, but against which a satisfactory indemnity can be given, equity will compel a specific performance with the indemnity. (1 Sug. V. & P. 289). But this doctrine is far too uncertain in its application for a vendor to rely upon it; and if his estate be subject to jointures, annuities, gross sums, or any other incumbrances, the fact should be explicitly stated in the conditions, and coupled with a stipulation that the purchaser shall accept an indemnity against the incumbrances, and make no objection to the title on account of them. It will also be proper (as is done in the conditions in the text) to specify the indemnity which the purchaser is to accept; because, if it be one of a sufficient and satisfactory kind, the statement of it destroys the suspicions which the absence of information always inspires, and substitutes confidence in their place; and whether the indemnity offered be or be not satisfactory, the statement of it in the conditions, at any rate, prevents all dispute as to whether it is such an one as a purchaser can be called on to accept. The first four conditions in the text relate to these matters; they are intended only for examples, as it is not likely that any of them will, without alteration, suit any other circumstances than those to which they were originally adapted.

TO INCUM-
BRANCES.

the rent-charges and the gross sum above referred to. The CONDITIONS AS property comprised in the particular is released in equity, (though not at law), from the rent-charges; but it still remains liable to the said sum of £. There is, however, no probability of the property comprised in the particular being resorted to, as other estates, of ample value, included in the charge, are liable to exonerate it, and the purchaser will also have the benefit of the covenant of two highly responsible persons, for indemnifying the present vendor, and all parties claiming under him, against the said sum of £, and for procuring an assignment of the term, and a release from the proper parties, upon the death of the above-mentioned lady. The purchaser shall make no objection in respect of any of the matters mentioned or referred to in this condition.

II. That as the estates comprised in the particular are, together with other estates, which produce a clear yearly rental of £, or thereabouts, subject to a jointure rentcharge of £ -, per annum, and to a gross sum of £ charged thereon for portions, such of the said estates, subject thereto, as are not comprised in the particular shall be henceforth exclusively subject to the said jointure and portions, and shall, before the completion of the purchases, be conveyed, (subject to the said jointure and portions, and to some other charges of small amount, now affecting the same,) to two trustees, to be named by the vendors, upon trust, to indemnify the purchasers against the jointure and portions. The purchasers shall be satisfied with the indemnity so to be provided, and shall make no objection in respect of any of the matters mentioned or referred to in this condition, and shall not be entitled to require any other evidence of the facts than the vendor is able to furnish.

III. That if a sufficient number of lots shall not be sold

to pay off all the incumbrances affecting the property, and which amount to the sum of £—, or thereabouts, the vendors will undertake to satisfy, out of the lots remaining unsold, such of the incumbrances as shall not be paid off, and will execute a declaration of trust to that effect. The purchasers at the sale shall be satisfied with this decla

CONDITIONS AS ration, and shall not require releases from the persons whose

TO INCUM

BRANCES.

Presumption of satisfaction of

mortgages.

incumbrances shall not be paid off, and shall make no objection on account of any of the matters mentioned or referred to in this condition.

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IV. The property comprised in the particular, being subject, together with other estates, to a mortgage for a term of years vested in trustees for securing £—— and interest, for the benefit of parties incompetent to consent to a release from the charge, the charge was, in the year released by the trustees, who were satisfied that the other estates comprised in the mortgage were of ample value to secure the mortgage money and interest. The covenant of two highly responsible persons was added, by way of indemnity, and the purchaser will be entitled to the benefit of this covenant. The purchasers shall make no objection in respect of any of the matters mentioned or referred to in this condition, and shall not be entitled to require any other evidence of the facts than the vendor is able to furnish, or any indemnity in respect of these matters, other than such as the vendor holds. Copies of the deeds by which the covenants by way of indemnity, referred to in this condition, were entered into, will be produced for inspection at the time of sale.

V. That a declaration, that for twenty years and upwards no interest has been paid upon a mortgage made twentynine years since by conditional surrender without admittance of the cottages and croft, which form the copyhold part of lot, and evidence that subsequent mortgages of the same property have since been made and paid off, shall be taken as conclusive evidence that the said mortgage has been satisfied and paid off (b).

(b) Before the stat. 3 & 4 Will. 4, c. 27, it was the established doctrine of the courts of equity, that, even as between vendor and purchaser, the satisfaction of a mortgage debt, in respect of which there was good evidence that no demand for principal or interest had been made for a term exceeding twenty years, would be presumed, and that, under such circumstances, a reconveyance of the legal estate would also be presumed. (Cooke v. Soltau, 2 Sim. & Stu. 154; Christophers v. Sparke, 2 Jac. & Walk. 228; and the cases cited).

By the above mentioned statute, section 40, (ante, Vol. 1, p. 259), it

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