CHAPTER VII.

OF PURCHASE-DEEDS.

1. Of the conveyance on the sale of an estate free from incumbrances.

2. Of the conveyance on the purchase of an estate subject to a mortgage.

3. Of the conveyance on the sale of lands, subject to rent-charges, annuities, &c.

4. Of the conveyance of leasehold for lives on a sale.

State of the title.

SECTION I.

Of the conveyance on the sale of an estate free from incumbrances.

Before the contract for purchase be completed, the purchaser should always be satisfied that the vendor can make a clear title for at least sixty-years, though, even with this precaution, cases might arise in which the title would be defective. They are not however, of very frequent occurence, and therefore, if no defect appear during a period of this extent, the fair legal presumption is, that the title is good.

SEC. I.

chase-deeds.

All parties who grant or receive any interest under CHAP. VII. the contract, should be made parties to the purchasedeed, and also all parties who are to be bound by Parties to purits provisions. Thus, on a conveyance to trustees, in trust to sell for the payment of the debts of a person who is living, to disincumber a settled estate, &c., and, particularly, where the residue is declared to be in trust for the vendor, on a conveyance to the purchaser, the parties should be,-the owner of the estate, of the first part, the trustees for sale, of the second,-and the purchaser, of the third.

Where there has been a contract between celles que trust, the intermediate cestui que trust, who has parted with his interest, need not join; for it is quite clear, that an intermediate trust, or equitable estate or interest, is, in real operation, nothing,—the ultimate equitable claimant is the real cestui que trust, and to him only need the trustee, for the original cestui qne trust, convey.

Where the vendor is married, the wife must be a party, and there must be a covenant to levy a fine, unless the sale be of lands purchased by the vendor, and conveyed to him, subject to uses to prevent dower. Where the estate is a remainder or a reversion, as the wife is not dowable out of such an estate, of course she ought not to be a party. In the conveyance of it, however, to a purchaser, it is generally proper to limit it to uses to prevent dower, for otherwise, when it comes into possession, a right to dower will attach.

When a conveyance is made to or by joint-tenants or co-parceners, it is correct to make them all of one part,— but where by tenants in common, they should be of several parts.

Where the vendor is seised of an estate in fee-simple,

and free from any charges or incumbrances, the recitals
will be very simple: it would, in such case, be merely
necessary to state that the vendor is so seised, that he
has agreed to sell the property to the purchaser for a
certain sum,—and that the latter is desirous of having
the estate conveyed to him by a good and valid assur-
ance. It is not unusual in such instances (especially in
old deeds), instead of distinctly reciting the contract,
to introduce it into the witnessing part, in this form,-
"Now this Indenture witnesseth, that in consideration
"of the said sum of £ (being in full for the abso-
"lute purchase of the messuage, &c., hereinafter describ-
"ed, and intended to be hereby granted and conveyed)
"&c." Such a mode of introducing the contract, is
awkward and improper; except, perhaps, where part of
the purchase-money is paid to a mortgagee, and then
such an averment in the witnessing part, even if there
have been a previous recital of the fact, seems not to be
incorrect, but rather to contribute to the clearness of the
draft. In such a case, the contract may be introduced
in these terms,-" In consideration of the sum of £,
"being in full satisfaction and discharge of the princi-
pal money and interest due and owing to the said
'[mortgagee], on his said mortgage and security made
"to him as aforesaid, and also in consideration of the
"said sum of £ other part of the said sum of £-

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agreed to be given, &c., the aggregate of the said two "sums of £, and £--, being in full for the abso"lute purchase of the said messuages or tenements, lands " and hereditaments, and the fee-simple and inheritance "thereof."

Where husband and wife join in a conveyance on

sale, or, indeed, for any other purpose, and the estate belongs to the husband, this fact should be recited; for, in the absence of such a recital, the presumption would be that the estate belonged to the wife. If a woman, either alone, before a second marriage, or afterwards, concurrently with her second husband, convey an estate, of which she is tenant in tail, her title should be recited, in order that it may appear that she is not seised er provisione viri, for she has no power to alien such an

estate.

The recital of the contract or agreement and object of the deed, when the parties contemplate any thing beyond a mere sale at a full value, should be clearly recited. In the case here supposed, when the vendor is seised in fee, and free from incumbrance, the recital may be thus:-" WHEREAS the said [purchaser] hath "contracted with the said [vendor] for the absolute

purchase of the messuages, or tenements and heredi"taments, hereinafter described, and intended to be "hereby granted and released, with the appurtenances " and the inheritance thereof in fee simple in possession, "free from incumbrances, at or for the price or sum of "£. AND WHEREAS the said [purchaser] is de"desirous that the same messuages or tenements, he"reditaments and premises, should be conveyed as here"inafter is mentioned."

Where the tenant by curtesy, either of the legal or equitable estate, joins the remainder man in fee, or the reversioner in a sale, the agreements, as to the division of the purchase-money, should be expressed in the deed immediately after the recital of the contract, and may be done in some such terms as these:-" AND WHEREAS "it hath been agreed between the said [tenant by cur

CHAP. VII.

SEC. I.

CHAP. VII.

SEC. I.

Contract for purchase.

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tesy] and the said [reversioner] that the sum of £

part of the said purchase-money, shall be paid to the "said [tenant by curtesy] as a compensation and satis"faction to him for his estate for life, as tenant by the

curtesy of and in the said premises. Now THIS "INDENTURE WITNESSETH, that in pursuance of the "said agreement, and in consideration of the said sum "of £, part of the said purchase-money, to the "said [tenant, &c.] in hand, &c., as and for the purchase "of his estate for life of and in the said premises (the

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receipt, &c.), And in consideration of the sum of "£, the residue of the said purchase-money, &c.

they, the said [tenant, &c.] and [reversioner] HAVE, and "each of them HATH granted, &c. ;" for the tenant by the curtesy having an estate for life, the freehold will move from him, and the deed will, in law, be considered as the grant of him and the confirmation of the rever

sioner.

Where lands of different tenures, or held under different titles, are contracted to be sold at one price, and are to be conveyed in separate parcels, it is often convenient, with a view to the provisions of the stamp acts, to apportion the consideration-money. Suppose, for instance, that an estate, consisting partly of freehold and partly of copyhold, were sold for an entire sum, it would be proper to introduce the operative part of the deed by such recitals as these:-" AND WHEREAS, "the said [purchaser] hath contracted and agreed with "the said [vendor] for the absolute purchase of the "said freehold and copyhold messuages, or tenements, "lands, hereditaments and premises hereinafter parti"cularly described, and intended to be hereby respec❝tively released and covenanted to be surrendered, with