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CHAP. II. THE PARTIES. GRANTEES.

that such a relation has existed, it lies upon the party filling the confidential character to prove that it had ceased. "I know," said C. B. Alexander, in a late case of Williams v. Llewellyn, (a)" my Lord Eldon has somewhere said that where a purchase is made by a person standing to the vendor in the relation of trustee or attorney, if the sale is afterwards questioned, it must lie upon that person representing that character to show that he had at the time of the purchase thrown off that relation, and had become adverse to the parties." See also the opinion of Lord Eldon in Cane v. Lord Allen, (b) where his lordship holds, that there may be instances in which the attorney's purchase of his client's property will be sustained.

Where a transaction is supported between a solicitor and his client, the former must prove that he paid such a price for the property as in the exercise of his professional duty he would have advised his client to accept from a third person (c).

(a) 2 Y. & J. 69.

(b) 2 Dow. P. C. 299.

(c) Champion v. Rigby, 1 Russ. & M. 539.

CHAP. III.
OF THE
CONVEYANCE.

CHAPTER III.

OF THE CONVEYANCE OF ANNUITIES.

AN Annuity, being either an incorporeal real right or Annuities must existing by force of an obligation, can only be created and be created by conveyed by deed, devise or bequest. (a)

deed or devise.

ticular cases.

But an exception was made in early times, where co- Except in parparceners made partition, and a rent was granted to one. out of the lands which had been holden in co-parcenary, for equality on the division. As the partition itself might have been by parol, so also it was not necessary that the rent should have been allotted by deed, but it might have been granted by mere words. (b) In like manner where it was granted to a widow, in satisfaction of her dower, no deed was requisite. (c) But if it issued out of other lands than those held in co-parcenary or subject to the dower it could not be by parol. (d) A rent granted on these considerations was said to be by common right.

Although this was the rule at common law, it is apprehended that since the Statute of Frauds, (e) which requires that the conveyance of all interests in land shall be by deed, or by writing signed by the party granting or his agent, although a deed may not be necessary in these instances, yet the grant will not be valid, unless it be in writing. In practice it is not very probably that such a transaction will take place without a deed.

A

is the proper

The proper instrument of conveyance is a deed of grant, deed of grant whereby the grantor immediately and presently grants the instrument of rent out of the land charged, and covenants personally to conveyance. pay the annuity. In most accurate deeds there is the grant of the annuity by the very word "grant." Hence an

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OF THE

CONVEYANCE.

CHAP. III. agreement that Scott should redeem an annuity, formerly granted by Norris to Mores, and that Norris should grant an annuity to Scott, was held not to be the grant of an annuity, and therefore the executors of Norris were compelled to execute a proper grant (a). The Court of King's Bench also decided that an instrument which recited, that it had been agreed to sell an annuity secured upon property in the possession of the grantor, and witnessed that the party would execute proper deeds of conveyance of the property, and covenants for the payment of the annuity, but contained no words of present grant, was not such a deed as conferred any right upon the intended grantee to sue for the arrears in a court of law (b).

Rents are

tute of Uses.

Although at common law a rent can only be created by within the Sta- grant, yet it may be also created by the usual conveyances, which derive their force from the Statute of Uses. (c) Before that statute rents might have been conveyed to uses, though annuities in fee could not. (d) And by the 4th and 5th sections of that act it is enacted, "that the persons for whose use the rent has been granted shall be deemed to be in the seisin and possession of the rent, for the same estate as they had in the use, as if a grant or other lawful conveyance had been executed to them, by such as were or shall be seised to the use of the said rent, and they shall have power to distrain and avow, as though the rents had been granted to them with powers of distress, re-entry or other penalty." At first it was doubted whether this act was prospective and referred to rents subsequently granted, or was intended to apply to those existing at the date of the enactment only; it was, however, decided to be prospective. (e)

Before it a rent might have been created by a bargain and sale, because where money had been given for it as an equivalent, equity would supply what was wanting in legal

(a) Nield v. Smith, 14 Ves. 491.
(c) 3 Prest. Abr. 56.

(b) In re Locke 2 D. & R. 606.
(d) Sir W. Jones, 127.

(e) Danby v. Conyers, 1 And. 51; Anon. Dyer, 362 b.; Rivett v. Godson, Sir W. Jones, 179.

OF THE CONVEYANCE.

effect; but since the act a rent cannot be created by that CHAP. III. instrument, because there must be a freehold in some other person, to be executed in the cestui que use, whereas the bargainor cannot have seisin of the rent, because he cannot have a rent in his own land (a). But where an estate is conveyed by bargain and sale or a covenant to stand seised, a rent may be newly created or limited out of the estate so created in the land by these conveyances, because they do not operate by the transmutation of possession(b).

should be limited to uses.

Where it is intended to limit a new rent to uses, it may How rents be desirable to grant it to a stranger at first, who may regrant it to the intended uses, or it may be granted to the stranger to uses at once, when the legal estate will vest in him. (c) This," says Mr. Butler, "will avoid a doubt which has been sometimes entertained of the effect of the statutes in executing such uses, on the general ground that the statute does not operate on any property which is not in existence before the conveyance to the uses; it also obviates an objection which sometimes arises on the grant of a rent to one for life, and after his decease to his sons successively in tail male, on the ground that each of the persons to whom it is limited takes a distinct rent; the consequence of which would be, that during the life of the tenant for life the rents could not be barred by a recovery, and the rents to the second and younger sons would be void for remoteness, as commencing after an indefinite failure of issue." (d)

rent.

Mr. Watkins, in his Treatise on Conveyancing, (e) says, Instruments of that a rent may be created by a lease and release, but the conveyance of a creation of a rent seems hardly consistent with that instrument, which implies an existing estate.

It

may also be created by the deed to declare the uses of a fine or recovery levied or suffered of the land. (ƒ)

(a) Gilb. Uses, 85.

(b) Rivett v. Godson, Sir W. Jo. 179; Sugd. n. to Gilb. Uses, 85.

(c) Sugd. n. above cited; Co. Lit. 271 b, Butl. note.

(d) F. C. R. 529, n.

(e) Page 179.

(f) Danby v. Conyers, 1 And. 51; Bend. 315.

CHAP. III. While, according to Shep. Touch. p. 11, a fine may be

OF THE

CONVEYANCE.

Conveyance of

annuities of inheritance.

Rents cannot be

of reservation.

levied of a rent not previously existing by itself, and therefore a rent may be so created, but this admits of doubt. It has also been alleged that it may be created by a recovery. (a)

A rent being in existence, it may be undoubtedly conveyed by a fine or recovery, or grant at common law, or by any of the conveyances under the Statute of Uses, for of course the lease and release would be applicable in such a case. (b)

In regard to an annuity of inheritance, it has already been stated that neither a fine can be levied of it nor a recovery suffered of it; and as it could not be holden to uses, the Statute of Uses does not apply to it, consequently it cannot be conveyed at law by any of the modes just mentioned. The proper form is a deed of assignment, which is a species of grant. At the same time if any other conveyance can be construed to operate as an assignment, such effect would probably be given to it; and in a court of equity it would doubtless be sustained as a declaration of

trust.

As to determinable annuities, it has been before contended that they are not legally assignable; however as the assignment is available in equity, they may be assigned in like manner as perpetual annuities. Though as a practical observation it may be remarked that there should be contained in the deed the appointment by the assignor, if he be the original grantee, of the assignee as his attorney, so as to authorise him to sue on the original grant when a necessity arises.

Before the Statute Quia Emtores there might have been created by way the creation of a rent charge by way of reservation; as if land were granted in fee, with a reservation of a rent and a power of distress. But since that statute this cannot be done. (c) If, however, a man grant or assign all his estate (a) Watk. Couv. 179.

(b) Taylor v. Vale, Cro. E. 166; Baker v. Lade, 4 Mod. 149; Saunders and Savin's C. 1 Mod. 178.

(c) Perk. Reservation, s. 662; Roll. Abr. Annuity C.; 2 Wils. 375; Litt. s. 217.

V. Cooper,

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