Page images
PDF
EPUB

SECTION 2.

Right to title deeds, where the estate is sold in lots.

who was bound to render in value in case of eviction, should not be disarmed of the means to defend the title to the land. But if the vendor did not warrant the title, all the charters and evidences, whether they contained any warranty or not, belonged to the purchaser, although not granted to him by express words (a). These warranties, however, which involved much "curious and cunning," and very useless learning, have been almost universally superseded by covenants for title (b). The purchaser, too, has a right not only to the principal deeds and charters which relate to the title to the land, but also to those which are accessory, and concern only the possession, such as court rolls, counterparts of leases, &c. (c).

XX. But although it is a general rule that the

(a) Lord Buckhurst's case, 1 Rep. 1; Shepp. Abr. P. I.

327.

(b) "These, under the modern practice, are entered into by the grantor, on every occasion of an assurance for a valuable consideration (which presupposes a contract), whether on sale, marriage settlement, mortgage, or otherwise. In the instance of mortgage they are absolute, or extend against all rightful adverse claimants whatever; but on sales, marriage settlements, or other conveyances of the absolute interest, the practice is to confine

them to the acts of the grantor,

and of the preceding owners who
have not entered into covenants
for the title; of which negative
description all persons dying
seised, whether testate or intes-
tate, necessarily are.
The pro-
fessed rule is, that there should
be a chain of covenants through-
out the title, connecting those of
the alienor with those of the pre-
ceding owner, who has last cove-
nanted." Humphreys on Real
Property, p. 68.

(c) Shepp. Abr. P. I. 327; Shore v. Collett, Coop. 234. And see Ch. 1, s. 2, art. xiii. p. 66, ante.

SECTION 2.

titled to all the

standing their

title deeds belong to the purchaser, yet where an estate is sold in lots, the practice is to give them to the purchaser of the most valuable portion of the property, upon which he is required to enter into a covenant for the production of them to the other purchasers (a). In the case of a mortgage, however, Mortgagee enit is usual to insist on all the title deeds being deli- deeds, notwithvered into the custody of the mortgagee, notwith- relation to other standing their relation to other property of greater value; for the deeds are considered to be a substantial part of the security; and to allow them to remain with the mortgagor, might, under some circumstances, be considered a badge of fraud. When Precaution to be this rule is departed from, the mortgagee ought to require the deeds to be deposited with some third person, who should give a written declaration of the purpose of such deposit.

XXI. Whenever the original title deeds cannot be delivered into the custody of the purchaser (and there is no express stipulation to the contrary), he is entitled, at the expense of the vendor, to attested copies of them,-at least of such of them as are necessary to set forth a good title according to the usual rule, with a covenant for the production of the originals (b). The original title deeds, how

(a) Real Prop. Rep. iii. 57. "Where the vendor," says Sir Edw. Sugden, "retains the deed by which the estate he is selling was conveyed to him (which is mostly the case when it relates

to other estates), it seems advis
able for a purchaser to require a
memorandum of his purchase to
be indorsed on such deed."
Sugd. Vend. & Pur. i. 531.

(b) Dare v. Tucker, 8 Ves.

mortgagor.

property of the

deeds are not

adopted when

delivered up.

Right to attested copies.

SECTION 2. ever, though not intended to be delivered up, must be produced to the purchaser's solicitor, in order to be compared with the abstract; and no prudent person, said Mr. Justice Taunton (a), will be content with less. (Vide Ch. I. s. 1, Art. 2). If the original deeds are either lost or destroyed, and that fact be clearly made out, then secondary evidence of their contents is admissible; but it must be proved that the original deeds were duly executed (b)

2. Assurances by matter of record.

Acts of parlia

ment.

XXII. 2. "Assurances by matter of record," says Sir William Blackstone, "are such as do not entirely depend on the act or consent of the parties themselves; but the sanction of a court of record is called in to substantiate, preserve, and be a perpetual testimony of the transfer of property from one man to another, or of its establishment, when already transferred" (c). Of this nature are private acts of parliament, fines, and common recoveries.

With regard to the proof of private acts of parliament, they were originally required to be proved by a copy examined with the parliament roll; but to avoid this inconvenience, a clause was usually inserted, declaring that a copy printed by the King's printer should be evidence. It was then objected that, in such cases, it was necessary to prove that

Barn. & Ad. 753.

(b) Bryant v. Busk, 4 Russ. As to secondary evidence of

460; Boughton v. Jewell, 15
Ves. 176; Berry v. Young, 2
Esp. 640, n.; Barclay v. Raine,-
1 Sim. & Stu. 449; Stevens v. writings, see Phill. Evid. i. 454,

Guppy, 2 Sim. & Stu. 439.

1.

457.

(a) Rippinghall v. Lloyd, 5

(c) Bla. Com. ii, 314.

the act produced was in fact printed by the King's SECTION 2. printer; and, to meet this objection, it is now commonly provided that the act shall be deemed and taken to be a public act, and shall be taken notice of as such by all judges, &c., without being specially pleaded. When a private act, therefore, contains such a clause as this, it need not be proved either to have been examined with the parliament roll, or to have been printed by the King's printer (a).

of When the title

XXIII. Whenever a title depends on an act parliament, whether public or private, evidence must be given to shew that all the requisitions of the act have been complied with. Thus, when a sale has been made by the commissioners under the general Inclosure Act for payment of expenses, it must be proved that six weeks' notice of the sale was given in the manner in which other notices are directed to be published by the Local Act, which usually requires certain advertisements to be inserted in the newspapers, and the notices to be affixed to the church door: accordingly, it is necessary to produce the newspapers, and an affidavit that the notices were duly put up (b). Again, (to cite another instance from Mr. Tyrrell's valuable work), when a sale has taken place under the Insolvent Debtors' Act, it must be proved that advertisements were inserted in the London Gazette and another newspaper, to give notice of the meeting

(a) Woodward v. Cotton, 1 Cr. Mees. & R. 44; Beaumont v. Mountain, 10 Bing. 404; 4

M. & Scott, 177.

(b) Tyrrell, Real Prop. Rep. App. i. 519.

depends on an

ment, proof

act of parlia
must be given
quisitions
been complied

that all the re

of the act have

with.

[blocks in formation]

SECTION 2.

Evidence of title where the land was part of the glebe, and has been exchanged under the 55 Geo. 3, c. 147.

of the creditors for approving the manner and place of sale fourteen days previous to the meeting; and that the creditors who approved were the major part in value present at the meeting; and the resolution, and also the particulars of sale, must be produced, to shew that the meeting was held thirty days before the sale, and that the sale took place within six months after the execution of the conveyance to the assignee; or if six weeks had elapsed, that an order of the Insolvent Court to extend the time for sale had been obtained (a).

Again, says Mr. Tyrrell, when a title is to be shewn to land, which was part of the glebe of a living, and has been exchanged under the 55 Geo. 3, c. 147, three newspapers must be produced to prove that notice of the intended exchange was given by advertisements in certain papers for three successive weeks, six months before the exchange; and plans and valuations both of the estate given, and the estate taken, in exchange; the affidavit of the surveyor to verify them; the commission of inquiry directed by the bishop; the return of it properly signed; and a certificate that the deeds, plans, valuations, commissions, and returns are deposited in the office of the registrar of the diocese, must be produced; and it must be proved that notice of the intended exchange was fixed, for three successive Sundays, on a conspicuous part of the church door, previous to the commencement of service, six months before the exchange; that the surveyor who made the plans and valuations was

(a) Real Prop. Rep. App. i. 519.

« PreviousContinue »