* S. 298.

order in a

deed, and

proper classifi

writing, but not in cases within the 4th section (a); for the reason probably that under it no present estate or interest actually passes.'

'The section requiring assignments of leases to be in writing is not confined to leases required by ss. 1 & 2 to be created by deed or writing, but extends to all leases however short (b). It will be presently explained (c) that apparently the Statute of Frauds does not apply where the instrument is sealed, in which case it is said signature is not requisite. We shall, however, treat more fully of leases hereafter.'

Fourthly; the matter written should be legally or orderly set forth that is, there must be words sufficient to specify the agreement and bind the parties; which *sufficiency must be left to the courts of law to determine. For it is not abNecessity for solutely necessary in law to have all the formal parts that are usually drawn out in deeds, so as there be sufficient cation of par- words to declare clearly and legally the party's meaning. But, as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity; and therefore we will here mention them in their usual order.

ties, &c.

'It is very inadvisable to depart either from the usual order, or from the well settled precedents. The usual order is important in enabling any particular part of a conveyance to be found at once without reading through a long deed, and is especially so in the hurry of nisi prius on the trial of a cause. And the importance of adhering to precedents, particularly as regards covenants is manifest, for otherwise, on difficulty arising, the parties are all at sea without probably the aid of decisions to guide them, whereas the usual forms

(a) See further as to leases and assignments, ss. 322, 327.
(b) Addison on Contracts, 29.
(c) Sec. 306.

have by a series of decisions during centuries received judicial construction.'

'Punctuation in strictness is not observed in a legal in- Punctuation. strument, nor is it recognised, and the settled forms of conveyances were, formerly at least, so drawn as to be independent of punctuation in their construction; for no one would like to have his title dependent on a comma (a).'

The premises may be used to set forth, 1st, the numbers Premises. and names of the parties, with their additions or titles. They also contain, 2nd, the recitals, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons on which the present transaction is founded; and herein also is set down, 3rd, the consideration on which the deed is made; and then follows, 4th, the grant itself,' and, 5th, the certainty, or description, of the thing granted.

'As to the names and descriptions of the parties, except Names. in so far as the registry laws may affect the question (b), strict accuracy is not requisite, if there be sufficient to identify (c) so if a man be known by a different description than even his name of baptism, it will do (d). It will be always advisable to classify the parties into various parts Classification of parties. and priorities, according to their various estates and interests thus, those conveying the legal estate are placed distinct from and prior to those conveying the equitable estate or more beneficial interest (as mortgagee and mortgagor, trustee and cestui que trust), and to those joining in the deed for the sake of confirmation. Persons having joint estates, as joint tenants, are made parties of one part; those having separate and distinct estates should be parties of separate parts. So a husband conveying, and a wife barring dower, should be distinct parties, by reason of their distinct interests, and the wife placed last, as having no present estate,

(a) Doe v. Martin, 4 T. R. 65; Gascoigne v. Barker, 3 Atk. 9; Sandford v. Raikes, 1 Mer. 651; Wms. Rl. Prop. 168; 16 U. C. L. J. 182. (b) Post (c) Janes v. Whitbread, 11 C.B. 406. (d) Williams v. Bryant, 5 M. & W. 447.

Persons not named as par

ties cannot

take.

Consideration.

but a mere possible right of action contingent on her surviving.'

No person can, by or under an indenture inter partes, take an immediate interest or benefit, unless named as a party, at least if any other be named in the premises as grantee. This rule however, does not extend to remainders (d), nor, it is said, to uses (e); and under a grant of feoffment from A. to B. habendum to the use of C., the latter may take, though not named as a party: so also if the grant had been to B. for life, with remainder to C. in fee. A person named as a party will not be bound by his covenant with one not a party, though a person covenanting and sealing the indenture will be bound by his covenant with one named as a party.'

'When the consideration is a money payment, it is usually expressed in the deed to have been paid, and this, except in cases of fraud, or illegality, at law absolutely estops the Receipt. party so acknowleding the receipt from saying the contrary; Vendor's lien. but the rule in equity is different, and the vendor's lien still subsists for unpaid purchase money as an equitable charge on the property, which may be enforced against the land till conveyance to some purchaser claiming under the vendee without notice of the lien; but it would seem that if the conveyance be registered, the notice must be actual, and not merely constructive, or merely sufficient to put the purchaser on enquiry (ƒ).

Operative words.

The question of consideration and its sufficiency has been before, and will again be alluded to (g). '

"The operative words of the conveyance should be such as are apt and proper according to the mode in which the instrument is intended to operate, as by demise, surrender, assignment, bargain and sale, or otherwise, the nature of

(a) Co. Litt. 231 a. (b) Burton Rl. Prop., 442 n.

(c) R. S. O. c. 111, ss. 80-81, Wigle v. Settering, 19 Grant, 512; Forrester v. Campbell, 17 Grant, 379. (d) Ante s. 296; post s. 338.

:

character.

which will presently be spoken of. Until recently a multiplicity of operative words was used, as "give, grant, bargain, sell," &c., &c.; this is useless, and proceeded from a fear that if one word alone were used, a wrong one might be adopted, and the right omitted. As, however, lands now lie in grant, if the word grant be used it will suffice in every case (a). Moreover, as hereafter shown, if a word cannot operate in its own peculiar character, it may in another; thus, the word release may operate as a grant, and a grant as a release. Still perhaps the neatest mode is to make use of the proper operative word which stamps the character of the instrument, and to this if thought proper the word grant of proper can be added. The present tense alone should be used except in deeds of disclaimer and feoffment: both that and the past tense were formerly used, which arose from the early conveyance by feoffment and livery of seisin, which without deed or writing passed the estate; a charter or deed, however, usually accompanied the transaction, as evidence for the future, which stated, as the fact was, that the feoffor had enfeoffed, and then proceeded in the present tense to con- Tense.. firm it. In deeds of disclaimer also, the past tense is proper, as where a person to whom property is conveyed in trust, declines to accept the conveyance and the trust, it is proper to say that he always has disclaimed and still disclaims, for if he have once accepted he cannot disclaim: in such latter case, if allowable, he should convey, for the estate has vested. in him (post s. 309).'

Description or

'Following the operative words, comes the description of the property, technically called the parcels. In describing parcels, the property it is very inadvisable to describe it or its boundaries, by reference to another conveyance, as "heretofore conveyed by one A. to one B. by deed dated, " &c, or "conveyed by the within indenture," or, "bounded on the

(a) Post s. 317.

north by property conveyed," &c.: this is too frequently done, and leads to great difficulty in proving title, and may, perhaps, in registration of the instrument (a). It is far better to take certain named limits or fixed boundaries, or if there be none, then to make such. We may here mention, however, that though lands are usually described as being a particular lot, or part of it, a general conveyance of all the lunds of the grantor in a particular city or township, is a good conveyance of all such lands, and capable of registry. Falsa demon- Falsa demonstratio non nocet; thus if I convey lot 20 in concession 1 of the township of York now occupied by A., and A. be not occupant, that false addition to what was suf ficiently certain will not affect the conveyance : so also if the addition had been "in the county of Kent,” and there were no such township in that county, but in some other county and if there were such a lot, concession and township in two counties, and no county or other description named, it would be a latent ambiguity, and as such the intention could be shown by parol evidence (b).'

stratio.

Easements,

&c.

'Easements and privileges legally appurtenant to the lands as for instance a right of way, or of drainage of water in alieno solo, founded on prescriptive right, pass by conveyance of the lands simply; but there may be others used and enjoyed with the land, and still not legally appurtenant to it (c) and hence after the description sometimes follows a grant of all easements and privileges enjoyed with the lands. or known as part thereof. The necessity for any such clause is obviated by conveyances drawn under the Acts as to Short Forms of Conveyances, and of Mortgages, Any intended Exceptions. exception out of the property conveyed is most properly made in the premises: it must not, however, be repugnant

(a) Regina v. Registrar of Middlesex, 15 U. C. R. 976.

(b) As to evidence dehors the deed, Nolan v. Fox, 15 C. P. U. C: and inconsistent descriptions, Mills v. King, 14 C. P. U. C. 223, and cases there cited. (c) Sury v. Pigot, Tud. Lg. Cases, 154; post; Pheysey v. Vickary,15 M. & W. 484.