Partition. Lease and re lease. Leaseholds. Fines and recoveries. W. 4, c. 87, No. XV. If there is a partition between coparceners, an abstract of the title of each parcener must be made, and the like when under the Land-tax Acts the land-tax has been redeemed on different lands held on different tenures. If the deed be a lease and release, reference must be had to the lease for a year, but see 4 & 5 V. c. 21, which has rendered the lease in this assurance unnecessary for the future. 46. Where the abstract relates to leaseholds it is now settled both at law and in equity, although long questioned, that, if the seller have not protected himself by express stipulation, the purchaser of a leasehold may require to have the title of the original lessor as well as that of the lessee; so where there is notice of any term, it is necessary to ascertain the nature of the covenants, and whether they run with the land or otherwise; and where there is an outstanding term, whether it has been assigned to attend the inheritance; and where it is a renewable lease, whether the former lease has been surrendered, and herein of the learning of surrender and merger; so where any lease is executed by tenant in tail, by husband and wife in right of the wife, by bishops in right of their churches, or by ecclesiastical corporations, it will be necessary to ascertain that they have been made according to the provisions of the enabling and disabling statutes (see Dig. p. iii. tit. LEASES); so where the vendor of a leasehold is a legatee, it must be shown that the executors have given their assent to the legacy; so where a leasehold is sold subject to an apportioned rent, it must be made to appear that the apportionment has been duly made. 47. As to fines, the points to be considered are whether the conusor is competent to levy the fine, and the conusee is capable of taking by a fine; and where the fine has been levied by a married woman before 1834, it must be made to appear that she is not within the provisions of 11 H. 7, c. 20; also, whether the parcels are the proper subject of a fine, and the proper solemnities have been observed so as to render the fine complete. As to a common recovery, the points of consideration are--1. The writ of entry on which the recovery has been suffered; 2. The writ to be brought against the tenant of the immediate freehold, called the tenant to the præcepe; and, 3. Whether the proper party is vouched, and when the voucher is double, whether he vouched over. The law of fines and recoveries, which, for some time to come, will be very important in the deduction of titles, must now be considered, not only with reference to titles prior to the 3 & 4 W. 4, c. 74, but also in reference to titles under the assurances substituted for them by that Act, and also with regard to provisions therein contained for the amendment of fines and recoveries (see Appendix, No. X.) 48. As to wills, it is necessary to consider what might or might Wills. not be devised or bequeathed before the new Will Act, 7 W. 4 & 1 V. c. 26, (see Appendix, No. XVII.) also what estates might be created, and by what words, also whether the will has been proved, or the executors have renounced; and in the case of legacies, it is necessary to ascertain the assent of the executor, and many other points. 49. In deducing a title where there is a mortgage, it must be Mortgages. shewn in the very first instance that the mortgage money has been paid off, and a discharge given by all the persons interested; and next that a conveyance of the legal estate has been obtained from the persons in whom it may be vested; and herein the rights of the mortgagor to his equity of redemption, and the mortgagee to foreclose or sell under a power, will come under consideration; also how far mortgages come within the statutes on this subject (see Dig. p. iii. tit. MORTGAGES). 50. The foregoing observations in regard to freeholds are, in Copyholds. many respects, applicable to lands of copyhold tenure; but in deducing a title to lands of this tenure, regard must be had to the particular customs of each manor, as affecting the rules of descent, fines, heriots, rents, services, and the rights of freebench and curtesy; also to the customary mode of conveyance by surrender; and where there is an enfranchisement, it is necessary that the title of the lord of the manor, as well as of the vendor, should be investigated. As to the changes which the law of copyholds has undergone by the 3 & 4 W. 4, cc. 74, 104; 1 & 2 V. c. 110; and 4 & 5 V. c. 35, see Dig. and Ind. p. i. ii. tit. COPYHOLDS, DEBTS. 51. It is not usual for the vendor's solicitor to abstract judgments Incumbrances. and other incumbrances, although it has been decided that no incumbrance ought to be withheld that is likely to affect the title, Richards v. Barton, 1 Esp. 269. This, therefore, renders it necessary for the purchaser's solicitor to make a search, which, before the 2 & 3 V. c. 11, was made for ten years. The same measure of precaution was and still is, notwithstanding this last-mentioned Act, particularly necessary in regard to Crown debts. As to the statutes relating to accountants to the Crown, see Dig. p. ii. tit. ACCOUNTANTS, ExTENT; and as to judgments, see Dig. p. iii. tit. JUDGMENTS. ments and evi 52. Although the abstract may appear upon the face of it to con- Accompanitain all that is sufficient, yet the conveyancer on the perusal of it dences verifying abstract. will find many things wanting to enable him to deduce a good title. Where a title depends on a fine and recovery, or other assurance upon record, office copies of the records thereof will be required. Of the facts of marriages, births, or deaths, a certificate under the hand of the officiating minister, or of the registrar under 6 & 7 W. 4, c. 86, ss. 34, 35, or an extract from the registry, will be called for; or in the case of a seaman in her Majesty's service, entries in the books of the navy office will be deemed sufficient. Of the legitimacy of a child, certificate of the marriage of the parents, and proof of consent if they were infants, must be adduced; so of failure of issue, an affidavit by some person acquainted with the family has been deemed sufficient, Benning v. Griffiths, 15 E. 293; or an inquisition of an escheat, Faulkner v. Silk, 3 Campb. 1; so of executorship or administratorship, probate must be produced; and of intestacy, letters of administration. Of descents, a pedigree verified by such evidence as would satisfy a jury of honourable men would be deemed satisfactory; and to this end declarations in families, tradition, common reputation, descriptions on monuments, entries in Bibles, engravings on old rings, and other evidences of the like kind, which are free from all suspicion, have been admitted, Whitelock v. Baker, 13 Ves. 511. So recitals in deeds will be admitted as evidence of lost deeds; so even private written documents, as entries in a deceased attorney's book of charges for executing a deed, Skipwith v. Shirley, 11 Ves. 64; see further Preston on Abstracts, passim; 1 Barton's Dissertations on Conveyancing, Diss. I.; 1 Barton, jun. Concise Precedents, 1 et seq. ; 2 Sugd. V. & P. 13 et seq.; 2 Dixon on Title Deeds, chap. xc.; Bythw. & Jarm. Conv. by Sweet, 3d edit. tit. Abstracts. No. I. Abstract of the Title of R. S. to the Fee-simple of a Farm situate By Indenture of Feoffment between W. B. of &c. of the one part, and J. G. of &c. of the other part, It is witnessed that, in consideration of the sum of £ to the said W. B. paid by the said J. G. the said W. B. 12th June, 1799. Did grant, enfeoff and confirm unto the said J. G. All that farm &c., together with all houses, out- Clause of Warranty, whereby the said W. B. agreed to warrant and defend said farm &c. Executed (a) by W. B. and attested by two wit nesses. Memorandum of livery of seisin (b) indorsed, signed No. I. By Indentures (c) of lease and release, the release Settlement. between the said J. G. of the one part, and R. K. of &c., and W. M. of &c., of the other; Reciting the abstracted deed of feoffment; (d) It is witnessed, that in pursuance of the said agree ment, and in consideration (e) of natural love () As to what is requisite in regard to the execution of deeds, see ante, s. 43. (6) As to livery of seisin as incident to a feoffment, see ante, s. 45. (c) As to lease and release, see ante, s. 45. , bearing (d) The recital is usually given in this form: "By indentures of date on or about the 2d &c.," by which all questions respecting the accuracy of the date are obviated, 1 Prest. Ab. 60; as to the effect of recitals, see ante, s. 32. (e) As to the consideration, see ante, s. 33. No. I. and affection, and of 10s. to the said J. G. paid by the said R. K. and W. M., the said J. G. Did grant, bargain, sell and release unto the said R. K. and W. M. (in their actual possession &c.) and to their heirs All that farm (f) &c. To hold unto the said R. K. and W. M., their heirs and assigns, to the uses, and upon and for the trusts, intents and purposes hereinafter expressed; that is to say, To the use of the said J. G. until the said intended marriage shall be had and solemnized; and from and after the solemnization thereof To the use of the said J. G., son of the said J. G., during the term of his natural life; and from and after his decease To the use of the said A. M. (if she should happen to survive the said J. G.) during the term of her natural life; and from and after the decease of the said J. G. and A. M. To the use of all and every the child and children of the said intended marriage as the said J. G. and A. M. or the survivors of them, by any deed under his or her hand and seal, attested by two or more credible witnesses, should direct or appoint; and in default of issue To the use of such person or persons as the said To the use of the right heirs of the said J. G. leases, exchange lands, appoint new trustees, &c. Indemnity to purchasers, &c. also to trustees. For quiet enjoyment, Free from incumbrances, And for further assurance. (f) If there be no variation in the parcels, they need not be described again, but may be referred to. |