« SebelumnyaLanjutkan »
absolute owner of land, and that he can only hold an estate in it. One of the objects of the Statute of Uses was, that all uses or equitable estates should become legal estates, and subject to the common law rules. Under its provisions an estate of freehold could commence in futuro or upon a contingency, whereas at the common law not such thing was permitted. The modern system of alienation is more simple, and tends more to the happiness of the possessor and the increase of the nation's wealth. In this Province we have abolished the law of Primogeniture, though retained in England. The establishment of registry offices in each county secures a public record for titles, certain and convenient of access.
OF TITLE. On every purchase of real estate or mortgage thereon the purchaser or mortgagee should submit the investigation of the title to some experienced conveyancer, and great care should be taken with regard to wills, many of which being drawn up by the parties themselves, or by persons ignorant of the law, are frequently unskillfully or incorrectly worded. Even in purchasing from the original grantee from the Crown this precaution should be observed.
In all cases a search should be made in the County Treasurer's Office for arrears of taxes or sales for taxes, in the Sheriff's Office for executions against lands, and in the office of the Clerk of the Queen's Bench in Toronto for Crown debts. Before paying over the purchase money or advancing a loan, the deed should be registered and a final search made to ascertain that
conveyance has been recorded or fi. fa. lands placed in the Sheriff's hands, since the preliminary investigation. Registration is notice to the world.
All these precautions are requisite, although the purchaser may have from the vendor covenants for title. There are five usual convenants for title in most modern conveyances, namely: That the vendor is seized in fee, that he has good right to convey, for quiet enjoyment,
free from incumbrance, ai u vra India
utrition. Those as a rule are limited or qualified covenants, that is, covenants limiting the liability to the acts of the vendor. On the other hand, a mortgagor is generally required to give absolute covenants. The vendor should furnish the purchaser with an abstract of all the deeds, wills and other instruments affecting the land, and produce the original title deeds, or account for their non-production.
The furnishing of the abstract is generally waived in simple titles, reliance being had upon the title deeds produced, and on the search in the registry office.
Revised Statutes, cap. 107, sec. 7, provide that “the bona fide payment of any money to, and the receipt thereof by any person to whom the same is payable upon any express, or implied trust, or
purpose, and such payment to and receipt by the survivors or survivor of two or more mortgagees or holders, or the executors or administrators of such survivors, or their or his assigns, shall effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary is expressly declared by the instrument creating the trust or security.”
When a sale is made by trustees who have no beneficial interest in the property, they merely covenant that they have done no act to incumber the premises.
In some cases it might be advisable to have covenants for title from the person beneficially interested. A person who has bought a piece of land and has taken a deed and given a mortgage thereon for the balance of the purchase money, should be very careful how he disposes of such land before the mortgage has been satisfied. He should have it stated in the deed to the purchaser from him that the land is sold subject to such mortgage.
He should consider the solvency of the purchaser, and have inserted in the deed a covenant of indemnity against the mortgage and costs incurred on account thereof. On any sale or mortgage of lands all the title deeds in the hands of the
vendor or mortgagor which relate exclusively to the property in question should be handed over to the purchaser or mortgagee. Where the title deeds relate also to other property of greater value than that conveyed, the purchaser is only entitled to a covenant from the vendor for their production, and also to copies thereof at his own expense. The custody of title deeds is, however, of less importance than formerly, since the passing of the late Registry Act (Revised Statutes, cap. 111) hereinafter mentioned, under which duplicate originals of all deeds relating to land are registered at the time of execution. Where the vendor is married the purchaser should see that his wife joins in the deed in order to bar her dower, and care should be taken that both vendor and wife have attained the age of twenty-one years.
Purchasers at sheriff's sales should be as careful as in other cases, as the sheriff's deed conveys no better title to the land than the judgment debtor himself had. In a contract for the sale of real estate time is not of the essence of the contract unless so stipulated, but either party has in equity the power to make it so by giving the other reasonable notice to perform his part of the agreement.
On taking an assignment of a mortgage also, much of what has been said will have to be observed.
QUIETING TITLES. A defective system of conveyancing, as also carelessness in the preservation, and irregularity in the registration, of title deeds, together with incorrect surveys, have rendered many titles unmarketable, and litigious purchasers, especially where purchases have turned out unfavourably, have put the vendor to much expense and then been able to refuse to carry out the purchase because the proofs of title required by law were not forthcoming.
To remedy this defect, the very important and useful statute for quieting titles to real estate in Upper Canada, 29 Vic. cap. 25, was passed, by the provisions of which any person may have any title, legal or equitable, which
he claims in any land in Upper Canada, investigated at any time in the Court of Chancery, which Court has framed a set of orders for regulating the proceedings under that Act.
The application is made by petition, a certificate of the filing whereof is required to be registered in the county where the lands are situated, and the petition must be supported by the production of all muniments of title and the certificates and proofs required by the Act, and before à certificate of title is granted by the Court, a notice must be inserted in the Gazette, and if the Court so directs, in a local newspaper also.
Where an adverse claimant is known to the Court, notice must be given as prescribed, and finally the Court grants such certificate of title as the circumstances warrant; that is a certificate showing the title as it really exists with all defects which have not been removed during the investigation. Any one purchasing after such certificate is signed, sealed and registered must accept the same as conclusive at law and in equity.
By this Act also, any resident of Upper Canada claiming real estate therein, upon a similar application supported by proper proofs, is enabled to establish his legitimacy or the marriage of himself or of his progenitors, or that he is the heir or one of the co-heirs of any one deceased or that he is a natural born subject of Her Majesty.
It is worthy of note that for the purposes of this Act, a married woman is deemed a feme sole.
ESTATE FOR LIFE. This estate arises when a conveyance is made of lands to a man to hold for the term of his natural life or for that of any other person or for more lives than one. When one holds an estate by the life of another he is usually styled a tenant pur autre vie, and the other
is called the cestui que vie. A grant by deed to a person simply without adding the words “and his heirs,” confers
an estate for life only. He may part with it if he pleases, but it will terminate at his death into whosesoever hands it may come. Any person remaining in possession of lands after the determination of a life estate, without the consent of the persons next entitled in remainder, is considered a trespasser.
A tenant for life has an estate of freehold and he that hath a less estate cannot have an estate of freehold. Some estates which may not last a lifetime, are considered in law as life estates and estates of freehold. Thus an estate granted to a woman during her widowhood, an husband's tenancy by the courtesy, a widow's tenancy in dower, and a wife's jointure, are all in law life estates. A tenant for life has merely a limited interest and cannot of course make any disposition to take effect after his death and cannot make leases to endure beyond his life, unless empowered so to do by the deed or will under which he holds.
ESTATES TAIL. This is an estate given to a man, and the “heirs of his body.” It will descend on the decease of the first owner to all his lawful issue, children, grand-children and remote descendants, so long as his posterity endures in a regular course of descent, but not to collateral relations, and on the other hand, if the first owner should die without issue, his estate will then determine. It'
be either in possession or expectancy.
A tenant in tail has the power
to acquire an estate in fee simple, either in possession or remainder, by barring the entail
, as it is termed. Revised Statutes, cap. 100, regulate the law as to barring estates tail. Previously to this statute, estates tail were barred by the cumbrous and antiquated machinery of a fine or common recovery. This Act has established the office of protector, who is generally the owner of the first existing estate for life, under the settlement prior to the estate tail. When the estate tail is not an estate in possession, but is preceded by a life estate in some other person, the consent of the protector is requisite