reversion in the Crown; but this need not be insisted on in every case, if the deed is lost, and possession has gone with the estate for a Effect of long length of time, Coussmaker v. Sewell, cited 2 Sugd. V. & P. 10th possession. ed. 134; indeed, long possession, enjoyment, and dealing uninterruptedly with an estate, will of itself in some cases afford a reasonable presumption that there is a good title, without either will or deed, Cotterell v. Watkins, 1 Beav. 361; S. C. 3 Jur. 283. Limitations. 26. The general rule in regard to abstracts of title to freehold Effect of the estates of inheritance has hitherto been that the abstract must shew new Statute of a regular deduction of title for sixty years at least; and it does not appear that any material alteration can for the present be made in the time of commencing the abstract, notwithstanding the 3 & 4 W. 4, c. 27 (see Appendix, No. VIII.); for, although this Act has limited the period to forty years, beyond which an adverse possession becomes indefeasible, yet cases may arise, particularly where there is a subsisting tenancy for life, which will render it necessary to carry the abstract further back, see 1 Hayes's Introd. Conv. 5th ed. 280; 2 Sugd. V. & P. 10th ed. 353; 1 Bythw. & Jarm. by Sweet, 3d ed. 59 et seq. Besides this statute, there are several others relating to limitations, Other Statutes of which the conveyancer must take account in the perusal of ab stracts. of Limitations. 27. Advowsons were not within the old Statutes of Limitations, Advowsons. but they are within the provisions of 3 & 4 W. 4, c. 27, ss. 30 et seq.; and the abstracts of title must in such cases be carried back for a century at least, and must contain a statement of the presentations, with the names of the patrons and clerks presented during that period. mindi. 28. The 3 & 4 W. 4, c. 100, (see Appendix, No. VII.) has short- Modus deciened the period for establishing claims to a modus, exemption, or discharge from tithes; but it has not made any new exemption or destroyed the right upon the mere proof of nonpayment within that period, when proof of such nonpayment from time immemorial would not before this Act have established an exemption, Salkeld v. Johnson, 1 Hare, 196; S. C. 6 Jur. 210. 29. The 2 & 3 W. 4, c. 71, (see Appendix, No. VI.) shortening Prescrip ion. the time of prescription in certain cases, has removed some of the difficulties which attend the investigation of titles founded on pre scription. 30. The rights of the Crown are not affected by any statute, unless Limitations of expressly named therein, therefore it is not affected by the 3 & 4 claims of the W. 4, c. 27; but it is expressly within the provisions of the Pre Crown. 2. Contents of the abstract. Recitals. Consideration. Operative words. scription and Modus Decimandi Acts; and by the 3 & 4 W. 4, c. 74, remainders and reversions in the Crown are not to be affected by the provisions for barring entails. The principal statutes, however, directly limiting the claims of the Crown, are the 21 J. 1, c. 2, and 9 G. 3, c. 16 (see Dig. and Ind. p. i. tit. POSSESSION), which restricts the right of bringing actions for the recovery of lands to the period of sixty years; but this latter statute has been held not to give a title, only to take away the right from the Crown to bring an action, Goodtitle v. Baldwin, 11 East, 495. 31. The contents of the abstract, the heads of which have been before enumerated, may be said to comprehend the whole learning of the law of real and personal property, to which the conveyancer must occasionally have recourse in performing the office of perusing abstracts. To enter into details is not within the scope of a preface, but the following outline is intended to direct his attention to the most important points which may demand investigation. 32. In considering the parts of deeds, the recitals are the first in order which claim attention, they being evidence against the parties, Doe v. Rogers, 3 Ad. & Ell. 513; and as against them, they may be relied on as estoppels, Doe v. Dodd, 2 Nev. & Mann. 45; S. C. 5 Scott, 35. So where a recital shews the objects of the parties to the deed, it is necessary to see that it does not vary from the operative part, or it will vitiate the deed itself. 33. The next thing is the consideration, the nature of which, and that it has been fully and properly paid, ought to be duly ascertained and set forth, particularly in annuity deeds, where a failure in these matters will vacate the deed (see Dig. p. ii. tit. ANNUITY). So where the consideration is to be paid in a particular manner, in execution of a power or performance of a trust, &c., it is of importance to know that the consideration money has been paid to the parties competent to give a discharge, and exonerate the lands from the incumbrance. 34. Formerly particular words were necessary in the granting part of a deed, but it is now the practice of the courts, both of law and equity, to give effect to deeds in some way or other, though not according to their literal construction; but care must be taken that the words of the grant proceed from parties competent to do what they profess to do, as where a fee is to be granted that the grant is not made by a tenant for life, unless it be made under the provisions of 11 G. 4 & 1 W. 4, cc. 47, 60 (see Appendix, Nos. II. and IV.); and this will lead to the consideration of disabilities of different kinds, as coverture, infancy, and lunacy; and how far they are affected by the 11 G. 4 & 1 W. 4, cc. 47, 60, 65 (see Appendix, No. II., IV., V.); and also as to aliens at common law, and under the statutes relating to naturalization (see Dig. p. iii. tit. NATURALIZATION). So it will be necessary to consider the character of the grantor, whether as heir, trustee, executor, and the like. Where the grantor is heir, questions will necessarily arise as to his descent, legitimacy, &c.; and in tracing a descent it will be necessary to consider the old law, which governs titles before 1834, and the new law contained in 3 & 4 W. 4, c. 106 (see Dig. p. iii. tit. INHERITANCE, and Appendix, No. XII.); so likewise whether the person, from whom the grantor derives his title, died intestate, or whether dower has attached, or otherwise, and herein of the law of dower as affecting persons married before the 1st Jan., 1834, and since that time, see 3 & 4 W. 4, c. 105, (Appendix, No. XI.) So where the grantor is a trustee, it must appear that he has strictly pursued his power, and herein the doctrine of trusts and powers must be brought under consideration. 35. Under the head of parcels, it is the province of the convey- Parcels. ancer to ascertain that the lands described or referred to in former deeds are comprised in the deed to which his particular attention is directed, and this object can be effected only by a careful comparison of every deed with the one going before. Care must also be taken that the description of the parcels be true and certain, or capable of being reduced to a certainty. Any material error in this point may be fatal. 36. After the parcels follows the habendum, the object of which Habendum. being to define the duration and quantity of interest intended to pass to the grantee, naturally leads to the consideration of estates of dif terent kinds, as whether the grant be in fee simple, fee tail, for life, or for years; whether it be to one grantee or several grantees, and whether, in the latter case, as joint-tenants or tenants in common; also, where it is an estate for life, whether it be for the life of the grantee or some other party, and herein it will be necessary to revert to the statutory provisions affecting estates for life (see Dig. and Ind. p. i. tit. ESTATES); and also, in the case of joint-tenancy or tenancy in common, to the law of partition at common law and by statute (see Dig. p. iii. tit. PARTITION). to the haben 37. In regard to the habendum, there are also two rules which Rules relating ought to be observed, 1. That it do not contradict, nor be repugnant dum. to nor abridge the estate granted, as if in the premises lands be granted to a man and his heirs, an habendum to him for life would be void; although it may enlarge the premises, as when the grant is to a man and his heirs, an habendum to the heirs of his body would Limitations. Trusts of accumulation. Executory devises, &c. Conditions. Reddendum. be good. 2. The second rule as to the habendum is, that, if the grant be of a freehold interest, the habendum must be from the time of the execution of the grant, and not at a future time; therefore in the grant of an estate to a man and his heirs, the habendum must not be from "Michaelmas day next." 38. The limitations which immediately follow the habendum serve to declare for whose use it is intended that the grantee should hold the estate; and herein it will be necessary to distinguish whether it be to the use of the grantee himself or to some other person or persons; and herein of reversions and remainders, and how far they are affected by the provisions of the new Statute of Limitations (see Appendix, No. VIII.); and herein also of uses and trusts at common law and by statute (see Dig. p. iii. tit. USES AND TRUSTS). As limitations also frequently contain powers and trusts of sale, or of exchange and the like, it will be necessary to examine them minutely, as the validity of the title derived under them rests essentially upon the particular mode of their execution; so where there is a power or trust to sell, the clause (if there be any) exonerating the purchaser from seeing to the application of the purchase-money, by declaring the receipt of the trustee to be a sufficient disharge, ought to be particularly noticed. 39. Under this head it will also be proper to consider trusts for accumulation at common law and by statute, see 39 & 40 G. 3, c. 98, (Dig. p. iii. tit. WILLS); and herewith is connected the doctrine of executory devises and contingent remainders. 40. Next to limitations are conditions and provisoes, in respect of which it is necessary to distinguish between conditions precedent, on which estates are sometimes made to commence, and conditions subsequent, which serve to defeat an estate. In the former case care must be taken to see that the condition, or, more properly speaking, the contingency has happened according to the construction of the words; and, in respect to the latter, it must be seen that the condition is not impossible, insensible, or malum in se. Before the 32 H. 8, c. 34, (see Dig. p. iii. tit. LEASES,) such a condition could be reserved only to the grantor or his heirs, but by that Act an assignee may take advantage of every condition. As to the time of limitation for bringing an action in case of a condition broken, see 3 & 4 W. 4, c. 27, ss. 3, 4, (Appendix, No. VIII.) 41. The reddendum (where there is any) may either precede or follow the limitations. Under this head the conveyancer is led to the consideration of rents, as to the mode of reservation, their dif ferent kinds, their recovery and apportionment, &c., and herein also of the statutory provisions on this subject (for which see Dig. p. ii. tit. APPORTIONMENT, DISTRESS, LANDLORD AND TENANT). 42. Where the covenants for title vary from the usual form, the Covenants. conveyancer will desire to see the exact manner in which they are framed, in order that he may judge of their legal effect, particularly when there are any exceptions, as to the covenant for quiet enjoyment, excepting a right of way, of fishing, sporting, and the like; so if there be a covenant for the production of title-deeds, it must appear in the abstract, that he may know what title-deeds ought to accompany the title. deed. 43. Where a deed is to be executed by more than one party, care Execution of must be taken to see that it is executed by all; and if it is to be executed in a particular manner, as in pursuance of a power, the conveyancer will require to see that all solemnities have been duly observed, particularly as regards attestation, see Hawkins v. Kemp, Attestation. 3 East, 410; M'Queen v. Farquhar, 11 Ves. 467; Wright v. Wankeford, 17 Ves. 454; Doe v. Peach, 2 M. & S. 276; Doe v. Pope, 2 Marsh. 102. 44. As the validity of deeds also depends upon their being inrolled Inrolment. or registered according to different Acts, this will demand no less care and attention than their execution (see Dig. p. iii. tit. INROL MENT). deeds. 45. Besides what relates to deeds in general, every particular Requisites of assurance has some points that require to be investigated; as if it particular be a feoffment, whether there has been livery of seisin; and if it be Feoffment. made by attorney, whether the attorney is duly authorized in writing; and also, whether the feoffor be an infant; and if made before 1834, whether there is a clause of warranty, see 3 & 4 W. 4, c. 27, s. 39, abolishing warranty. If it be an exchange, whether it be a common law exchange, having the word "exchange" among the operative Exchange. words, and a consequent implied warranty; and whether the title to the lands received in exchange, as well as that of the lands given in the exchange, be duly set forth. If an allotment or exchange under Allotment, &c. an Inclosure Act or other Act of Parliament, it is necessary to under Inclosure ascertain whether it has the provision giving to the lands received in exchange the precise title which affected the property in lieu of which the allotment or exchange was made, see also as to exchanges in common fields, 6 & 7 W. 4, c. 115. If it be an award under an Inclosure Act it is necessary to ascertain the time of its inrolment, and whether it falls within the provisions of the 3 & 4 Acts. |