A System of Conveyancing: Comprising the Principles, Forms and Laws which ...

CONVEYANCING.

CHAPTER I.

AGREEMENTS FOR PURCHASE AND SALE. OF TITLE.

NOTES.

1. Titles, if good, may be safe to hold by without danger of eviction or disturbance; or they may be absolutely good. The first are frequently accepted by a willing purchaser, who has set his mind upon a particular property; but, without there are special reasons for foregoing the right, a purchaser is entitled to require a marketable title, good against all the world, and such as he may always set up as a defence in an action of ejectment, or compel any future purchaser to accept.

2. Deeds in the hands of a mortgagee.-A mortgagee is entitled to the deeds, and if a mortgagor wishes to dispose of his interest in the mortgaged property, or to make it the subject of a further charge, he cannot compel the mortgagee either to permit an inspection of the deeds or to furnish an abstract of them. Professional courtesy will generally grant a request for inspection; but, if there is no abstract already prepared, the mortgagee's solicitor may insist on his right of preparing it at the cost of the vendor, who must also defray all expenses, if any, which are incurred in the production and inspection of the deeds and other documents of title. If the mortgagee should refuse inspection and abstract, the only remedy of the mortgagor is to pay off the mortgage, and then call upon the mortgagee to deliver up the deeds, which he will be compelled to do. If, however, the mortgage term has not yet expired, it may not be easy to induce the mortgagee to accept payment and discharge the mortgage; but inconveniences of this kind may be prevented by inserting in the mortgage-deed a clause to the effect that, in the event of any contract being entered into for the sale or further disposition of the property, the mortgagee will produce the deeds and grant extracts or abstracts of them.

3. The purchaser of a term in leasehold property has a right to call for the inspection of the title of the original lessor, without the

contract expressly stipulate that he shall not do so; and if it is not produced by the vendor, being demanded, the purchaser may rescind the contract.

4. Limited interests may sometimes be sold much more advantageously with the concurrence of the other parties interested; as, for example, the concurrence of the reversioner where the party wishing to sell is only tenant for life, or vice versa. This, therefore,

is a point which should always be carefully considered.

5. Incumbrances which are matters of conveyance, such as mortgages, crown debts, judgments, decrees, lis pendens, debts, portions, legacies, and outstanding legal estates, are no objection to a title, because it is always in the vendor's power to get them in; but incumbrances which are matters of title are a fatal defect, without the concurrence of the other parties can be obtained, such as executory devises, conditional limitations, conditions at common law, remainders not barrable, as remainders under a settlement which are supported by a protector, leases, jointures, dower, courtesy, annuities and rent charges, forfeitures and powers. The concurrence of the other parties may cure these defects, except in the case of executory devises or executory limitations over, to take place after an estate in fee simple; for such limitations, being in the nature of executory devises, cannot be defeated by any act of the parties claiming the preceding estate in fee simple, though it is otherwise when the limitation over is to arise after an estate tail, unless there be a protector to the settlement who refuses his consent. If property is to be sold subject to incumbrances, they must be clearly set forth, so that the purchaser cannot possibly be misled; for otherwise, if they are matters of title, the purchaser may rescind the contract and cannot be compelled to take the property with any amount of compensation; while as to incumbrances, which are matters of conveyance, though they afford no ground for vacating a sale, the vendor will be compelled to discharge them; and, if there be no express stipulation to the contrary, he cannot oblige the purchaser to take the property subject to those charges by allowing him an adequate compensation for them.

6. Right of entry, for the purpose of working mines, is not barred by simple non-user; for the statute of limitations does not apply to cases of want of actual possession by the plaintiff, but to cases where he has been out of and another in possession, whether adverse or not, for the prescribed time.

7. Unusual covenants in a lease should be set out particularly in the contract of sale. Of this kind is a covenant not to assign without license; for although this covenant is frequently introduced into leases, it is not, therefore, recognized as a common or usual covenant. 8. Payment of interest on the purchase money is frequently matter of express stipulation in case the sale is not completed at the ap

pointed time, and to this is usually added a proviso that such payment of interest shall not give the purchaser any right of entry on the purchased property until the whole of the purchased money is paid. If the delay arises from the vendor's own fault, he will not be entitled to interest under such a clause, though it seems that, where the vendor is not guilty of vexatious conduct, or gross delay, or any unfair dealing, the purchaser must pay interest from the time mentioned in such clause, and not from the time when a good title was first shown. Where there are no express conditions, the rule is that the purchaser shall pay interest on the purchase money, and be entitled to the rents and profits of the premises, from the time at which the purchase was appointed to be completed; but, where the delay is caused by the vendor, or the purchase money has lain unproductive in the hands of the purchaser, of which the vendor had notice, or where the interest exceeds the amount of the rent and profits, the rule does not apply; and, to prevent a purchaser from availing himself of these exceptions, it is sometimes added at the end of the clause, stipulating that the purchaser shall pay interest on his unpaid purchase money, “and which "interest shall be so paid as aforesaid, notwithstanding the pur"chaser shall not be entitled to the possession, or the purchase "money shall have remained unproductive in his hands without pro"ducing interest, and although the vendor shall have express notice "that such purchase money is so lying unproductive as aforesaid."

9. The time for delivery of abstract and making requisitions should always be specified in the contract of sale; for though, in the absence of express stipulations, a “reasonable time" will be presumed, still it is doubtful what time may be considered reasonable, and therefore it is advisable to state a time. This is usually done by a clause to this effect: "That the vendor will, at his own expense, with"in the space of one month from the day of sale, deliver abstracts "of title to the respective purchasers, (or purchaser as the case may be,) or to their (or his,) solicitors, (or solicitor,) and deduce a good "title thereto, subject to the conditions; and each of the said pur"chasers (or the purchaser, as the case may be,) shall, within such a "time next after the delivery of such abstract, signify in writing to "the vendor's solicitor their his or her objection to or requisition on "the title as deduced by such abstract; and that, in default of such "requisition being so made within the appointed time, the purchasers "(or purchaser,) shall be considered as having accepted the title un"conditionally," to which should be further added that "every such 'objection or requisition, not made or taken in writing within such "period, shall be considered as waived; and in this respect that "time shall be considered of the essence of the contract."

10. Where the title is doubtful the vendor should also insert a clause in substance as follows: "That in case any purchaser or pur

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