Page images



the production of, or to investigate, or make any objection whatever, in respect of the title of the lessor (6).

VI. That no purchaser shall require any other evidence of the covenants and conditions in the lease having been observed and performed up to the completion of the pur

ration leases.

title, does not preclude the purchaser from investigating that title, if he can procure the inspection of it aliunde, or from objecting to any defects in it, which he can discover. (Shepherd v. Keatley, 1 Cro. Mee. & Ros. 117; Warren v. Richardson, 1 Younge, 1). If the property comprised in the lease be of copyhold or customary tenure, the vendor must shew that the lease was authorised by the custom of the manor, or by a license from the ord; and, if by a license, he must also shew the lord's title to license. (Hanbury v. Litchfield, 2 My. & Ke. 629; Shepherd v. Keatley, ubi supra). In the latter case, however, it does not appear that the lord's title to license was called for.

If a vendor cannot produce the lessor's title, the purchaser may recover his deposit, with interest, and the expenses of investigating the title, and also any other damages which he could recover, in the case of a common defective title; (see ante, Conditions as to title, &c., note (r), p. 62); but he must abandon the contract; for a court of equity cannot assist him in any other way than by committing the vendor to prison.

It is settled, that the purchaser of a bishop's lease cannot call for the In respect of lessor's title; (Fane v. Spencer, 2 Madd. 438; 2 Mer. 430, n.); and the bishops and same principle is applied in practice to the lease of any other corpo- corpo ration which demises by virtue of the disabling statutes. But the rule does not apply to a lease held under a corporation, which the disabling statutes do not affect; (Purvis v. Rayer, 9 Price, 488); although, in practice, in ordinary cases, the production of the title of any corporation is, in such cases, not required. (See ante, Vol. 1, p. 153).

(6) If the term which is offered for sale be held by underlease, and Condition to be that fact appear on the title, care should be taken to guard against a re- used in the sale

of an underquisition, either for the title of the original lessor, or for the title of the

lease. lessee or assignee by whom the underlease was granted; for as the condition speaks only of the lessor's title, it may, and probably would be held, not to preclude a purchaser from requiring the production of the original lease, and the title of the grantor of the underlease. In such case, the following condition may be substituted for that in the text ;“That the title shall commence with the underlease, under which the vendor holds, and no purchaser shall be entitled to call for the production of, or investigate, or make any objection whatever in respect of, the title of the original lessor, or the original lease, or the title of the lessor of the underlease."


[blocks in formation]

chase, than the production of the receipt for the rent up to the — day of — last (c). The nature of the covenants in the lease may be ascertained from an abstract thereof, which will be produced at the sale.

VII. That, upon payment of the remainder of the purchase-money, at the time and place above mentioned, the several purchasers shall have proper assurances executed to them of the lots purchased by them respectively; but such assurances are to be prepared by and at the expense of the respective purchasers, and are to be tendered or left by them, on the said day of — , at the office aforesaid, for execution by the vendor.

VIII. A. That, as the property comprised in the particular is held under one lease at an entire rent of £ per annum, the said rent shall be apportioned among the

Evidence as to (c) Evidence that the covenants and conditions in the lease have been the perform- observed and performed, is always required by purchasers; but as the ance of cove. nants, &c.

burden which such a requisition throws upon the vendor is, in fact, that of proving a negative, viz. that no breach has been committed, it is desirable to specify the evidence which the vendor can furnish, and with

which the purchaser shall be content. As to what is With regard to the nature of the covenants, and other contents of a notice to a pur- lease, it is perfectly settled, that a person who contracts for the purchase chaser of the

of a lease, without any mention of its contents, is taken to have full notice covenants in the lease. of those contents, and cannot afterwards, on account of them, object to

complete his purchase. (Walter v. Maunde, 1 Jac. & Walk. 181). But if the particular of sale affects to state the clauses of the lease, and states them insufficiently, or falsely, it amounts to a misrepresentation by the vendor, so as to discharge the purchaser from his contract; (Flight v. Booth, 1 Bing. N. C. 370; Van v. Corpe, 3 My. & Ke. 269); and the reading the lease at the auction by the auctioneer, is no excuse for a misdescription of the terms of the lease in the particular of sale. (Jones v. Edney, 3 Camp. 285; Flight v. Booth, ubi supra). It is obvious, therefore, that the particular of sale should either state the terms of the lease with accuracy, or should not state them at all; and should never be content with merely describing the covenants as usual covenants, unless they are undoubtedly of that class. (See Propert v. Parker, 3 Russ. & My. 280). It seems, that a person who contracts for an underlease, will be held to have constructive notice of at least all the usual covenants of the original lease ; (Van v. Corpe, ubi supra; Flight v. Barton, 3 My. & Ke. 282); and, perhaps, of all covenants, whether usual or unusual; (Cosser v. Cob linge, 3 My. & Ke. 283).



several lots in the shares mentioned in the particular, and the several purchasers shall, at their own expense, give and execute such mutual indemnities, with regard to the payment of the said apportioned rents, and the observance and performance of the covenants and conditions relating to the lots purchased by them respectively, as are usual in like cases (d).

(d) At common law, no apportionment of services could be effected Apportionment

ts and except by the act of law, even when the tenancy was in fee; and the

liabilities, on a services issuing out of each and every part of the land,—the lord might sale of leasedistrain on any part for the whole. The statute of Quia emptores provides holds in lots. that, in cases of alienation in fee simple, the services shall be apportioned; and hence it is, that, at the present day, rent services are apportionable either by the verdict of a jury, or the consent of the tenant, in manner mentioned in a previous note. (Note (a), p. 73). But as the statute of Quia emptores makes no mention either of terms of years, or of rent-charges, or of rents seck, the original common law remains, with regard to them, unaltered. And hence it is, that the great difficulty arises in effecting a sale in lots of any property which is held for a term of years under one lease at an entire rent for the whole; for, after an assignment of any part of the property to a purchaser, the lessor may distrain upon that part for the rent which accrues due on the whole property included in the lease; the avowry is made for the rent due from the original tenant in the original demise, and nothing appears upon the record as to the assignment. (1 Bing. N. C. 760). For the reasons above noticed, there is no mode of compelling an apportionment, and the consent of the lessor to an apportionment can hardly ever be obtained. The same difficulty occurs in case of a sale in lots of land subject to a rent-charge; each parcel of the land remains subject to the whole rent. In case the lessor or owner of the rent-charge is willing to make an apportionment, the object may be effected by a covenant on his part to levy the apportioned parts of the rent only on those parcels of the land out of which it is intended they shall thenceforward respectively issue.

The condition of re-entry, usually inserted in leases, is another formidable obstacle to effecting sales in lots of the property, because, if the assignee of any one part neglects to pay the rent or perform the covenants as to that part, the lessor may re-enter on the whole property comprised in the lease, and avoid the lease as to the whole. (Walter v. Maunde, 1 Jac. & Walk. 181). Of course, the effect of that proviso is to render the assignee of each part liable to be evicted by the acts of persons over whom he has no control.

An original lessee, notwithstanding his having assigned any part or the Liabilities and whole of the demised property, always remains liable to the payment of

f rights of an as

signee of part the whole rent, and to the observance of the covenants, by reason of his of the estate in




[blocks in formation]

VIII. B. (e) That, as the property offered for sale is held under one lease at an entire rent of £— per annum,

privity of contract. (Rushden's case, Dyer, 4 b; Broom v. Hare, Cro. Eliz. 633). An assignee of part of the property is liable, by reason of his privity of estate, for the observance of the covenants which run with the land, so far as they relate to the part of which he is assignee; (Congham v. King, Cro. Car. 222; see, too, Stevenson v. Lambard, 2 East, 576); and he is entitled to the benefit of all such of the lessor's covenants as run with the land, and relate to the part of which he is the assignee. (Palmer v. Edwards, 1 Doug. 186). Of course, the privity of an assignee of part of the property, like the privity of an assignee of the whole, is destroyed by his assignment of the estate. It is, at present, an unsettled question, whether an assignee of part of the land is liable in an action of debt or covenant for the whole rent; (Hare v. Cater, Coop. 766; Curtis v. Spitty, 1 Bing. N.C. 756); but as he is liable to be distrained upon for the whole, it is clear, that, practically, rent cannot be apportioned by

the alienation of the lessee. Mutual indem It follows, from the preceding considerations, that when property comnities of the as. prised in one lease and demised at an entire rent, is to be sold in lots, it signees of different parts of

becomes needful to provide each purchaser with a security that each of property held the other purchasers shall pay a stipulated part of the rent, and observe under one lease. the covenants relating to his respective share; and to accomplish this

effectually, is a matter of great difficulty. Perhaps, the best way is, for the purchaser of a particular lot, or of the largest part in value, to take an assignment of the original lease, and make under-leases to the other purchasers of their respective portions; or for the vendor to retain the term himself, or assign it to trustees, and for all the purchasers to accept under-leases of their respective portions. In such cases, the under-lessees should execute counterparts of their under-leases, and the under-leases should contain proper covenants for indemnifying the holder of the original lease and the several under-lessees, against the acts of all other parties except themselves. Sometimes cross powers of distress

Modes of indemnity and apportionment.

(e) Perhaps, it may frequently be deemed sufficient to stipulate that the purchaser or all the purchasers but one, shall take under-leases as mentioned in the Conditions numbered VIII. B, and VIII. c, respectively, such under-leases to contain the same covenants and conditions as the original lease, and the under-lessees to have merely a covenant for quiet enjoyment from the person in whom the original lease is vested. If there be a covenant on the part of the lessee in the original lease, to insure against fire, in a given sum, it seems necessary to resort to the method of under-leases, because the original lessor has a right to have the whole property included in one insurance in one sum, and not to have each part of it insured in a smaller sum.

[blocks in formation]

the said rent shall be apportioned among the several lots in the shares mentioned in the particular. The purchaser of the largest part in value shall take an assignment of the existing lease, and shall execute to the other purchasers under-leases, for the whole term wanting three days, of their respective Jots, at the said apportioned rents, such underleases to contain all necessary covenants for indemnifying the several purchasers against the performance of the covenants or payment of the rent in respect of any other lots than their own, and for securing the payment of the rent and performance of the covenants by the several purchasers in respect of their own lots; if any lots remain unsold, the vendor shall, for the purposes of this condition, stand in the place of the purchaser of the largest part in value. All the under-lessees shall execute counterparts of their leases, and all instruments required by this condition, shall be prepared by and at the expense of the respective purchasers.

VIII. c. (f) That, as the property offered for sale is held under one lease at an entire rent of £— per annum, the vendor will execute under-leases to the several purchasers of the lot or lots purchased by them respectively, for the whole of the original term wanting three days, and at the rents apportioned in the particular to the several

and entry are given to the several purchasers over each others' lots, and other kinds of indemnity are employed, which will be mentioned in that part of the work which treats of indemnity deeds. If the lessor can be induced to concur in the sale, the lease should be surrendered, and new and separate leases granted of their respective lots to the separate purchasers; and if the lessor be an ecclesiastical corporation, so that there can be no ground to doubt the lessor's title, this mode is free from objection.

Some precedents of conditions, adapted to the sale of a leasehold estate in lots, are given in the text; and they might, if such a course had been deemed useful, have been greatly multiplied; these, however, which are Observations on furnished, are sufficient to form precedents by which such others as are the form in the

text. needed may be framed. It is impossible, within the limits of a condition of sale, to make with accuracy the precise stipulations which are required, and, therefore, perhaps, the Condition numbered VIII. A, is the most likely to be practically useful. It leaves open the questions, however, what indemnities are “ usual in like cases."

(f) See note (e), p. 84.

« PreviousContinue »