forty marks, originally reserved to the crown, but a similar rent was granted to trustees in fee, in the usual way, out of a part of the estate not sold, of nearly ten times the annual value of the rent, as an indemnity to the other estates against the rent; the Master of the Rolls (Sir W. Grant) considered the rent as an objection to the title, and did not fall within the agreement, and that the deed of indemnity was not such as a purchaser could be compelled to accept; and on appeal to the Lord Chancellor his judgment was affirmed. (a) A search is sometimes made for memorialized annuities; and wherever the property is much encumbered should never be omitted. V. DEBTS, LEGACIES, AND PORTIONS. Where debts are charged on lands by will or otherwise, the purchaser must be satisfied that they have been paid. (b) The same observation is applicable to legacies which are charged on lands. (c) So also where portions are charged on lands, the proper releases and discharges of and from the same must be produced. (d) VI. DOWER AND CURTESY. Dower and free-bench are very frequent defects in titles; and wherever such a right or title would attach, (a) M. S. Sug. V. & P. 321, 8th edition. (b) The rules as to this are given in Sug. V. & P. p. 525, 8th edition ; 3 Prest. Abs. 359. And see Index, word Debts. (c) As to where a purchaser must see that they have been paid, see 3 Prest. Abs. 360; Sug. V. & P. 525, 8th ed. See post, Chap. XXVIII., and Index, word Legacy. (d) As to when these will be presumed, see post, Chap. XXVIII. if the owner of the lands were married, inquiries should be directed as to his marriage; and his celibacy, or the death of his wife, if he has been married, should be proved by some direct evidence. So also where the owner of the lands is a female, and when, if she were married a title by curtesy would arise, it must be shown that she is not married, or if she has been married, that her husband is dead. A term attendant on the inheritance will protect a purchaser for a valuable consideration, if assigned to a trustee for him, against the claim of dower, although he had notice of the marriage; (a) but not an heir at law, or the assignees of a bankrupt; (b) but the term must be actually assigned to a trustee for such purchaser, and must not be left outstanding. (c) And a court of equity will compel the trustee of an outstanding term, to assign it to a purchaser from the husband, in order to bar the wife's right of dower, 'although it be actually vested in the wife as trustee ; and the purchaser must rely upon the protection of the term. (d) Under this last decision it becomes a matter of doubt whether, if a term can be assigned for the benefit of a purchaser, and the wife's dower be thus defeated, he can insist on a fine. (e) Where a married woman levies a fine for the purpose of extinguishing her dower, it is not necessary, (a) Lady Radnor v. Vandebendy, Show. P. C. 69. Swannock v. Lifford, Co. Litt. 208 a, n. (1) Wynn v. Williams, 5 Ves. 134. (b) 9 Vin. Ab. 227. (d) Mole v. Smith, Jac. 490. (e) See Sug. V. & P. 332, 8th edit. And see Simpson v. Gutteridge, 1 Madd. 609. As to the necessity of a fine where the wife has an equitable (c) Maundrell v. Maundrell, 7 Ves. jointure, see Sug. V. & P. 334. 340. although usual and proper, to make her concur in declaring the uses; for as dower is merely a right and not an estate, it will be extinguished by the fine alone. (a) So also where she joins in a fine in order to give effect to a mortgage by her husband of his lands, her dower being a mere legal right, would seem to be barred notwithstanding the redeemable nature of the security in equity. (b) But a contrary doctrine has been received by some conveyancers with approbation, and a second fine is sometimes demanded on a subsequent purchase or mortgage. This demand, it would seem, may be safely resisted. But there are several cases and dicta against this conclusion, (c) and nothing but a decision can set the point at rest. A person who purchases an estate of inheritance from a married man, has notice that the vendor's wife may have a claim to dower; and therefore, if he negligently omit to take a fine, and does not use common diligence to ascertain and preserve evidence that a jointure has been settled upon her, equity will grant him no relief as against the wife. Any person purprotected in equity chasing from a husband will be from the wife's claim to dower, if there be a contract, although it may not amount to a legal release of the right. But a purchaser, to entitle himself to such protection, must not only show that the wife made some contract on the subject of her dower, but must prove the con (a) Haverington's case, Owen, 6; 13 Vin. Ab. 316, pl. 3. S. C. Eare v. Snow, Plow. 514. (b) See 1 Roper, Husb. & Wife, by Jac. 537; Coote Mort. 548; 2 Cov. Pow. Mort. 675. (c) See Naylor v. Baldwin, 1 Ch. Rep. 130. Goodrich v. Brown, 1 Cha. Ca. 49. Dolin v. Coltman, 1 Vern. 294. Danby's case, 2 Eq. Ca. Ab. 385. pl. 2. Jackson v. Parker, Amb. 687. Corbett v. Barker, 1 Anst. 138. Innes v. Jackson, 16 Ves. 356; 1 Bligh, 104. S. C. Ruscombe v. Hare, 6 Dow. P. C. 1. Reeve v. Hicks, 2 Sim. & Stu. 403. Marten v. Mitchell, 2 Jac. & W. 425. tents of that contract: he cannot be compelled to complete his purchase, unless he has either a fine from her, or such evidence of the contract as will enable him at any time to lay his hand upon it, to repel any future claim of this right. (a) By the contract must be understood, an ante-nuptial agreement for an equitable jointure; as it is clear that a married woman is incapable of entering into a contract as to her dower, except by fine or recovery. It is now settled, that if the husband's estate be defeated by an executory devise, the wife's dower will not also be defeated; (b) and the same rule applies to the curtesy of the husband. (c) VII. MORTGAGES. Mortgages, whether legal or equitable, are defects of a very serious nature; and where they are paid off, it must be seen that the mortgage money is paid to the persons qualified to give a receipt for the same, and that a conveyance is taken from the persons in whom the legal estate is vested. Mortgages are frequently kept on foot, and assigned to a trustee for a subsequent mortgagee or purchaser, as a protection against mesne incumbrances, and to secure priority. (d) (a) Per Lord Chancellor Hart, Power v. Shiel, 1 Beatt. 48. (b) Buckworth v. Thirkwell, 10 J. B. Moo. 235. S. C. 3 Bos. & Pull. 652 n.; 1 Coll. Jurid. 332. Moody v. King, 10 J. B. Moo. 230. (c) Ib. id. (d) See as to this practice, Toulmin v. Steere, 3 Mer. 210. Parry v. Wright, 1 Sim. & Stu 369. And see ante, p. 59. VIII. LOSS OR NON-EXISTENCE OF TITLE-DEEDS. If one of the title-deeds be lost, and the loss can be satisfactorily proved, and an affidavit of the loss be made by the vendor, it is the better opinion in the profession, that a purchaser would be compelled to take the title, if otherwise unobjectionable. (a) It sometimes happens in practice, that a vendor has no title-deeds himself, but simply a covenant to produce them; and some doubt is still entertained as to what a purchaser in such a case may demand. Mr. Fearne was of opinion that a purchaser had a right not simply to a covenant from his vendor to produce the deed of covenant, but a covenant for the production of the title-deeds themselves, unless he could obtain a fresh deed of covenant by the original vendor with the purchaser. (b) But the modern practice is, certainly, to take a covenant for the production of the title-deeds in the possession of the vendor, which will of course include the original covenant to produce the deeds of which the purchaser may then obtain the benefit; and of this opinion is Sir Edward Sugden. (c) If after a contract for the sale of an estate, but before the title is accepted, the title-deeds be destroyed by fire, a court of equity will not compel the specific performance of the contract, unless the vendor can furnish the purchaser with the means of proving that such deeds were duly executed and delivered; and the (a) See Townsend v. Champernown, 1 Yo. & Jer. 538, stated post, p. 329. (b) Fearne Post. 110. |