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v. Emery, 1 Phillips, 388; S. C., 10 Sim. 609; Barclay Production of v. Ruine, 1 Sim. & St. 449; see also Sugd. Vend. 434. In the case of trustee vendors the usual practice, formerly, was that they should enter into a covenant, not only for production of the deeds, but also for the safe custody thereof, the obligation being limited so as to bind covenantors only so long as they should respectively continue trustees, and as such hold or be entitled to hold the documents (s). See the forms of covenants given in Lewin on Trusts, p. 387, note (d). This obligation was thus in effect identical with that incurred by a person giving both an acknowledgment and also an undertaking under this section. Latterly, however, it appears to have become the practice of several eminent conveyancers to limit the liability imposed in covenants by trustees for production and safe custody to so long only as they should have the “actual custody” of the documents.
A statutory undertaking renders the giver liable so long as the documents are in his “possession or control," i.e., not only for his own acts, but for the acts of his agents or others to whose charge he may have committed the documents. It is an admitted principle that trustees cannot generally be required to covenant except for their own acts; but it may be questioned whether the principle is applicable so as to relieve them from giving any undertaking whatever with regard to documents of title retained by them, merely because the form provided by the statute imposes on them an obligation somewhat more onerous than that which they have been in the habit of incurring without question.
If the rule is to be admitted that trustees are to give only an acknowledgment, and no undertaking, purchasers from them (or from an equitable tenant for life who does not hold the deeds) will have no security for the proper care of the documents necessary to establish the title, nor any remedy in case of their loss, injury or destruction, “from
(8) A proviso wholly repugnant to a covenant creating a liability is void; but a proviso merely limiting the liability is valid : Williams v. Hathaway, 6 Ch. D. 544.
Production of whatever cause arising," or even in case of a sale by
the trustees of the lands retained, and of the deeds being handed over to the purchaser. It will be observed, moreover, that in the case of lands purchased or taken in exchange from persons who have given undertakings and conveyed to trustees, the liability with regard to safe custody of the documents will necessarily attach to the trustees on the completion of the transaction: it has indeed been suggested that in such a case the trustees should require an indemnity from the tenant for life, before complying with his directions to apply trust moneys
in the purchase of land (t), or accepting a conveyance; but that would surely be to carry
the notion of protecting trustees rather far.
The question above discussed cannot be regarded as free from doubt until it shall be settled by judicial decision; and till then counsel acting for purchasers from trustees will probably insert undertakings, and counsel for conveying trustees will endeavour to strike them out; but, for the reasons above given, it is conceived that a purchaser under an open contract may insist upon the undertaking being retained in the case of fiduciary as well as beneficial vendors. In one of the following precedents will be found a proviso qualifying, in the case of trustees, the liability imposed by a statutory undertaking in a manner which perhaps may, in case of dispute, be accepted as affording a compromise satisfying the reasonable requirements of both parties: vide post, p. 261. Of course, where it is practicable, trustees may protect themselves by special stipulation from being required to give an undertaking.
Mortgagees can protect themselves by making their concurrence in any transaction conditional on not being required to give more than an acknowledgment.
A statutory acknowledgment and undertaking under the Conveyancing Act, 1881, need not generally be under seal: where it is under hand only, it is doubtful whether or not any stamp is necessary; but the safest course is to put on it a 6d. agreement stamp.
As to mortgagees.
(1) See Settled Land Act, 1882 (45 & 46 Vict. c. 38), s. 22 (2).
I. MEMORANDUM by a JUDGE to be endorsed on
or written at the Foot or in the Margin of a DEED
ACKNOWLEDGED by a MARRIED WOMAN. This deed was this day produced before me and acknow- Memorandum ledged by [insert names in full of the married woman and her by judge. husband] therein named, to be her act and deed, previous to which acknowledgment the said married woman was examined by me, separately and apart from her husband, touching her knowledge of the contents of the said deed, and her consent thereto, and declared the same to be freely and voluntarily executed by her. WITNESS my hand this
in England, or a judge of the
II. MEMORANDUM by a COMMISSIONER to be en
dorsed on or written at the Foot or in the Margin
WOMEN. This deed was this day produced before me and acknow- Memorandum ledged by [names in full of the married women and their hus- commissioner. bands] therein named, tó be their several acts and deeds, previous to which acknowledgments the said [married women] were examined by me separately and apart from their respective husbands touching their respective knowledge of the contents of the said deed, and their consent thereto, and each of them declared the same to be freely and voluntarily executed by her : And I DECLARE that I am not interested Declaration. or concerned either as a party, or as a solicitor, or clerk to a
II. Memoran- solicitor of one of the parties, or otherwise, in the transaction missioner. giving occasion for the said acknowledgment. WITNESS my hand this
18(Signed) A. B., A perpetual commissioner for taking
acknowledgments of deeds by married women.
III. MEMORANDUM by a SPECIAL COMMISSIONER
to be endorsed on or written at the Foot or in the Margin of a DEED ACKNOWLEDGED by a MarRIED WOMAN who is a FOREIGNER or DEAF and
Dumb (a). Memorandum This deed was this day produced before me and acknowcommissioner. ledged by [names in full of the married woman and her hus
band] therein named, to be her act and deed, previous to which acknowledgment the said [married woman), being an Italian [or being deaf and dumb], the nature, purport, and contents of the said deed were fully explained to her in my presence by C. D., being a person accustomed and competent to hold conversation in the Italian language [or to hold conversation by signs with the said (married woman), or with deaf and dumb persons]; and the said [married woman] was then also examined by me separately and apart from her husband by means of the interpretation of the said C. D., touching her knowledge of the contents of the said deed, and her consent thereto, and from the aforesaid explanation and
interpreted examination, I am satisfied that the said married Declaration. woman freely and voluntarily executed the said deed: And I DECLARE, &c.
(Signed) A. B., The special commissioner appointed to
take the aforesaid acknowledgment. (a) This form is adapted from the form of certificate of acknowledgment approved by the court in the case of Re Harper, 6 Man. & G. 732, where the married woman was deaf and dumb. A variation from the form of memorandum prescribed by the rules does not render the acknowledgment invalid (ante, p. 246); and certificates being no longer required, it appears advisable that special circumstances attending the taking of the acknowledgment should be stated in the memorandum.
IV. ACKNOWLEDGMENT by a VENDOR of a
PURCHASER's Right to PRODUCTION of Deeds, &c.
and UNDERTAKING for the safe Custody thereof. MEMORANDUM.
WHEREAS by an indenture, bearing even date with and Recitals ; executed before this memorandum, and expressed to be made of even date; between [vendor], of the one part, and [purchaser], of the other part, for the consideration therein mentioned, a certain leasehold piece of land situate at in the county of
has been assigned and conveyed to the said (purchaser] for the residue henceforth to come of the term of 99 years created by an indenture of lease dated the day of
18—, and expressed to be made between (parties] : AND WHEREAS the deeds and documents specified in the of agreement schedule hereunder written relate not only to the premises shall be recomprised in the hereinbefore-recited indenture, but also to tained by the
vendor, other property of the said [vendor], and it has been agreed that the said [rendor] shall retain possession of such deeds and documents, and that he shall give the acknowledgment and undertaking hereinafter contained respectively, with regard to the same: NOW THEREFORE, the said [rendor] Acknowledghereby acknowledges the right of the said [purchaser] to the production of the several deeds and writings specified in the schedule hereunder written, and to delivery of copies thereof, and he hereby undertakes for the safe custody thereof. As WITNESS the hand of the said [rendor].
The SCHEDULE ABOVE REFERRED TO.
V. ACKNOWLEDGMENT by TRUSTEES, on a Sale
by a Tenant for Life of the PURCHASER's Right to
TAKING for safe Custody thereof (6).
of conveyance cuted before this memorandum, and expressed to be made of even date ; between (tenant for life], the tenant for life in possession of the estates devised by the will of [testator], late of, &c., de
(6) See note (6), infra, p. 262.