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lots. The under-leases shall contain all necessary covenants for indemnifyiug the several purchasers against the payment of the rent or performance of the covenants, 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. 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.
IX. That the purchaser of the largest part in value shall, after the sale of all the lots, be entitled to the custody of the lease, and such other of the muniments of title as are in the vendor's possession; but such purchaser shall enter into the usual covenants with the purchasers of the remainder of the said lots for the production of the said lease and muniments : if any lots shall remain unsold, the vendor shall retain the said lease and muniments, and enter into the usual covenants for their production with the purchasers of such 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 covenant for their production with the persons then entitled to the benefit of the vendor's covenants. All such covenants, both original and substituted, shall be prepared by and at the expense of the covenantees (9).
X. That each purchaser shall, on the completion of the purchase, execute to the vendor a bond, in the sum of £- for indemnifying him against the rents and covenants of the lease, so far as relates to the part of the property purchased by such purchaser; such bonds to be prepared by the vendor at the expense of the respective purchasers (h).
(9) Variations in the form of the condition given in the text will be found among the precedents of conditions relating to title deeds, with remarks on their application to different circumstances. They can be easily adapted to the case of leasehold property.
Obligation of (h) This condition is not strictly necessary, because, independently of assignee to in'' special stipulation, the assignor of a lease, whether he is the original
XI. and XII, the same as Conditions VI. and VII. of CONDITIONS the Common Conditions of Sale of Freehold or Copyhold Estate, ante, pp. 32–36.
AS TO LEASEHOLDS.
SPECIAL CONDITIONS as to the SALE of CONDITIONS
I. THAT the title shall commence with — , dated , and no purchaser shall be entitled to call for the production of the original lease, or of any mesne assignments thereof, as the same are not now known to be in existence (a).
ent and cove
lessee or not, is entitled to a covenant from the assignee for indemnity demnify asagainst the payment of the rent and the performance of the covenants; signor of a
? lease against (Pember v. Matthew, 1 Bro. C. C. 52; Staines v. Morris, 1 Ves. & Bea. 8); and that, too, even when the assignee gets no covenants for title. (16). nants. The principal object of the condition is, to provide that the indemnity shall be given by bond, instead of being given by a covenant in the indenture of assignment, which does not remain in the possession of the vendor; and the condition also throws the cost of the bond on the purchaser.
The assignees of a bankrupt leaseholder are not entitled to an indemnity against the rent and covenants, and ought not to stipulate for it. (Wilkins v. Fry, 1 Mer. 244; see, too, stat. 6 Geo. 4, c. 16, s. 75).
(a) This condition is intended to be used upon the sale of a long term Stipulations on of years, of ancient creation, and of which the deed of grant is lost. (See the sale of a ante, Vol. 1, p. 151: 1 Sugd. V. & P. 338). If the deed creating the term of ancient
V. & P. 338). If the deed creating thc date. term be in the possession of the vendor, the condition should be altered to the form following: " that the deed creating the term shall be produced, but the purchaser shall not be entitled to call for the production of, or to investigate, or to make any objection in respect of, the mesne assignments of the term or the title thereto, prior to an indenture, dated the day of — , with which the title is to commence.”
In cases of this kind, it will be prudent to preclude the purchaser from calling for the lessor's title, although, probably, the want of it would not be considered a valid objection to the title; certainly, it never would be called for, unless with a view to the rejection of the purchase.
AS TO LEASEHOLDS.
II. That no purchaser shall be entitled to call for the production, or make any objection in respect of the lease or leases which have been surrendered; prior to the grant of the subsisting lease (6).
III. That the ages of the several persons, for whose lives the property comprised in lots — and — , is now held on lease, are believed to be accurately stated; but the purchasers of these lots shall not require any evidence of the ages of these persons, except such as is in the vendor's possession, and shall make no objection on account of any inaccuracy in the statement of those ages (c).
(6) This condition applies to sales of renewable leaseholds, and is, in
such cases, essential. (See ante, Vol. 1, p. 154; 1 Sugd. V. & P. 338). Stipulations But the form in the text is not adapted to the purpose of precluding a against shewing purchaser from requiring the equitable title to the surrendered leases, the equitable title to surren- which, of course, attaches on the existing lease. In ordinary cases it is dered leases. unnecessary, and would be very unfair to stipulate, that the purchasers
shall not see the equitable title to the surrendered leases, because such
the prior title, either legal or equitable. Evidence of (c) In the absence of special stipulation to the contrary, a purchaser ages of cestui is entitled to require evidence, that the ages of the cestui que vies shall que vies.
be proved by extracts from the registers of their baptisms or births, or by other satisfactory evidence; and if such evidence can be procured, it is obvious, that recourse should never be had to any stipulation which precludes the purchaser from getting what he is fairly entitled to, and will reasonably expect. If, however, the vendor be unable to give strict proof of the ages of the cestui que vies, he must protect himself by a condition, and if the ages of the cestui que vies be stated in the lease, the form in
the text, numbered (IV.) will be the one which, in all probability, will Case where a be the least alarming to a purchaser. It must be remembered, that if, cestui que vie after an agreement for a sale of an estate, holden for lives, one or more dies after the sale, before the
of the lives should drop before the completion of the purchase, the loss completion of will fall on the purchaser. (White v, Nutt, 1 P. Wms. 60; 1 Sugd. V. & P. the purchase.
IV. That the ages of the several persons, for whose lives CONDITIONS
AS TO the property comprised in lots — and are now held on lease, are stated in the particular according to the statement of the ages in the lease, and such statement in the lease shall be taken by the purchasers as conclusive evidence of the ages of such persons (d).
CONDITIONS of Sale of REVERSIONARY IN
CONDITIONS AS TO REVERSIONS, &c.
ch. 3, sect. 2; see, too, Mead v. Davison, 3 Ad. & Ell, 303; Bacon v. Simpson, 3 Mee. & Wel. 78; see, however, infra, tit. AGREEMENTS, Precedent IV., notes. But if a life had dropped before the agreement for sale, and the purchaser were not informed of the fact, undoubtedly the sale would be void. And where, in the particulars of sale, property was stated to be held on three lives, and one of the lives had dropped before the sale, it was held, in an action for the deposit, that the auctioneer could not be called to prove that he had stated before the sale, that the life had dropped. (Bradshaw v. Benneit, 5 Car. & Pây. 48). This is in accordance with the well-known doctrine, that the auctioneer cannot vary the printed or written particulars by verbal declarations. (1 Sugd. V. & P. 31; see, however, Bartlett v. Purnell, 4 Ad. & Ell. 792).
(d) See the preceding note.
(e) The conditions to be employed in sales of property of this descrip- Observations on tion, do not materially differ from the common conditions, of which the sales of reverforms have been previously given. The word “ assignment” should be
mont" should be sions, life in
terests, &c. substituted for “conveyance," and such other alterations made as the different nature of the property requires. Conditions, as to the evidence of the ages of the persons interested in the property, or on whose lives the insurances may have been effected, must be used, if legal proof cannot be had; the forms given, with regard to the ages of the cestui que vies of leases will furnish precedents of such condition. (See, ante, Special Conditions as to Leaseholds, Conditions III. and IV.). If the property sold yield no annual profit, as in the case of a reversion or a policy of assurance, the stipulation, that the purchaser, if the purchase be not completed on the day fixed, shall pay interest on his purchase-money from that day, should invariably be inserted in the conditions. If the property be a life interest in possession, the time from which the purchaser is to take the profits should be fixed; if no time be fixed, he will be entitled to the
CONDITIONS profits from the time of the sale. (Anson v. Towgood, 1 Jac. & Walk. 637; A8 TO REVER. see, too, Twigg v. Fifield, 13 Ves. 517). It has been decided, that a court
* of equity will decree a specific performance of a contract for sale of a life
annuity, though the annuitant be dead at the time of the decree. (Kenney
v. Wexham, 6 Madd. 355). Description of The point principally to be attended to, in preparing particulars and property in
conditions of sale of property of the nature above-mentioned is, that the particular.
interest offered for sale is accurately described. There is little difficulty
In a recent case, Gilman Lucas being entitled to a contingent reversionary interest in an equal moiety of a sum of 2,000l., part of a larger sum then invested in the funds, advertised it for sale by auction, as a reversion to 1,0001., principal money, part of a sum of 20,0001., principal money, invested in the 3 per cent. consols, and assigned it to Bond, the purchaser at the sale, by the description of “ all that sum of 1,000l. sterling, being one moiety of the said legacy or sum of 2,000l.;" under these circumstances it was held, that Bond was entitled to the surplus value which a proper share of the consols produced on the sale, and not merely
to a sum of 1,000l. sterling. (Lucas v. Bond, 2 Keen, 136). Sales of policies In respect to sales of policies of assurance on lives; the vendor should of assurance. be prepared to prove that the person, on whose life the assurance is made,
was in a good state of health when the policy was effected, and of the age mentioned in the policy, and that nothing has been done to vitiate the policy. The vendor may, of course, protect himself from such requisitions by special conditions of sale, but unless he use great caution in the matter, he will probably render his property unsaleable. On a sale by auction of a life interest, the life was described in the particular as that of a healthy gentleman, whose life was insurable, and an insurance