ledge of its legal operation, and will render him responsible accordingly. (a) III. THE DUTY OF COUNSEL. It is the duty of the counsel before whom the abstract is laid, to decide upon the validity of the title. He must see that it commences at the proper time, and that it is properly deduced; he must consider whether the instruments abstracted will effect the end proposed in preparing them; and whether the persons executing them had the power effectually so to do: he must see that the facts on which the validity of the abstract depends are supported by the proper evidence, and he must point out what that evidence should be; and he must demand every document not produced, which may elucidate in any manner the state of the title. He should point out any defects in the title, and, if they admit of a remedy, should propose it; but if he be satisfied of its validity, he may state the most advisable mode of effectiug the sale, mortgage, or charge intended by the parties. The counsel for the purchaser, mortgagee, &c. should see that there is a clear deduction, as well of the legal as the equitable estate, and that all the particular estates are determined, or can be conveyed to him or for his benefit; (b) and that there are no incumbrances on the estate, such as mortgages, annuities, rents, crown debts, judgments, statutes, legacies, portions, rights, or titles of dower or curtesy, or outstanding terms. (a) See Segrave v. Kirwan, 1 Beatt. 166. (b) See Berkley v. Dauh, 16 Ves. 380. He is not to judge of the prudence of accepting the title, he must simply state all the objections to it. He must point out the facts, and show the real state of the title. And he must always remember, that he must insist on such a title for the purchaser as may not only be quietly enjoyed, but which he may compel a subsequent purchaser or mortgagee to accept. On the examination of an abstract, counsel should, in the first instance at least, very rarely call to his assistance the doctrines of presumption, to explain or relieve the difficulties which occur in its perusal. He must insist on direct evidence of a good title; but if that cannot be given, he may then take into consideration how far courts of justice will presume that the difficulties which he feels do not exist. When other deeds or instruments are referred to in the abstract, in the recitals or elsewhere, they must be called for and examined. All outstanding terms must be assigned to attend the inheritance. The legal title to them must be regularly deduced, and the assignment must be taken from the person in whom the legal estate is vested. Inquiry should be made for the wills of such persons as have died seised in fee. And where a person seised in fee or in tail has married, inquiry should be made for his marriage settlement, as it is unusual to marry without a settlement of the property of the parties; and an affidavit before a Master in Chancery is sometimes demanded, that no settlement, or agreement for a settlement, in fact exists. It frequently happens that it is essential that the consideration money shall be paid in some particular manner, or to particular persons; and where this is the case, it will be the duty of counsel to see that it has been properly paid, and that the proper receipts have been taken for it. It will of course be seen, in such cases, whether the deed or will under which the money is paid contains the usual clause for making the trustees' receipts sufficient discharges. (a) The parcels demand the strictest attention from the conveyancing counsel. He must trace them with the greatest care through the different deeds, wills, and documents contained in the abstract. If the identity of the lands to be sold or charged with those in the abstract is doubtful, the fact must be authenticated by extraneous evidence, as by the production of the assessments to the land-tax, poor-rates, &c., for the last twenty or thirty years; and where these have not varied, except in the name of the owner, it will be reasonable to presume the identity of the parcels. (b) Counsel should never rely on the expressions, "fine levied and recovery suffered accordingly." It should be seen, by the production of the proper evidence, that these assurances actually exist. If a counsel discover any defect, it will of course be his duty to point it out, however small the property may be, or whatever sum may be advanced upon it; but his inquiries should be more rigorous and extensive if the value of the lands is considerable, than if it be trifling. So, also, he will more readily accept a title which has recently passed through the hands of several purchasers, than one which is quite fresh in the market. A common report that a title is bad, will also provoke a more than usually careful examination. Where a defect occurs in an abstract, it should be seen (a) As to the parts of deeds, see the notes to the preliminary di visions of Vol. I. whether it has not been cured by adverse possession, non-claim on a fine, or by the release or confirmation of the persons capable of releasing or confirming; or whether, from any other cause, it has not become immaterial. (a) Where a valuable consideration is necessary to the validity of the deed, as in a bargain and sale, attention must be paid to this circumstance; but where the fact of payment is not mentioned in the deed, it may, nevertheless, be averred, and proved to have been paid. (b) It should always be seen that there are grantors to the deed, who are properly qualified, both as to their estates and their personal abilities; that there are grantees capable of receiving a grant; that there are proper words of grant; that there is a subject matter to be granted which is sufficiently described; that the estate is well limited, in point of law, and by proper and technical words, and that it is not too remote. In examining an abstract, no portion of legal learning is so thoroughly essential as that of uses and trusts. It will always be particularly necessary to consider the operation of a deed, and its limitations, first, as to its effect at common law, and next, under the Statute of Uses, and, in particular, in what person or persons the legal estate is vested. The rules as to the merger of estates will also come into constant operation in examining an abstract of title. Where the legal estate is found to be vested in one person, and the equitable estate in another, the histories of the legal and equitable titles should be traced distinctly throughout the abstract. So the history of the outstanding terms should be traced distinctly from that of the fee, as this plan will be found greatly to (a) 2 Prest. Abs. 26. (b) 1 Prest. Abs. 300. facilitate the perfect comprehension of the exact state of the title. Where also there have been several mortgages of the lands which have been respectively transferred to different owners, it will be found better to keep the several mortgages distinct, and also the title of the equity of redemption. A knowledge of the rules as to the construction of wills, and the power to apply them to practice, is also absolutely necessary in advising on an abstract. The most important questions constantly arise in abstracts, on the wills abstracted. They often depend on the construction of a single word; and the most anxious attention is therefore necessary in examining every line of these parts of the abstract. If the lands are situated in Kent, it should be inquired whether they have been disgavelled, as they are presumptively of gavelkind tenure; and it is to be remembered, that the customary descent in gavelkind cannot be applicable to property not in existence at the time of the Conquest. (a) When a deed is to have a peculiar operation, as that of a feoffment, it should be first seen that the proper ceremonies have been complied with; and if a deed cannot operate in the mode in which it is intended to operate, it should be seen whether it may not take effect in some other way. Thus a deed, which will be inoperative as a grant, may take effect as a bargain and sale, or a covenant to stand seised, or vice versa. And a feoffment which is defective for want of livery of seisin, may take effect as a grant of the reversion in the premises; and as in most titles there are outstanding terms of years or occupation leases, most instruments, if they fail to take effect as the intended assurance, will operate (a) Hougham v. Sandys, 2 Sim. 154. |