In its popular usage the word “conveyance” signifies the
document employed to carry out a purchase of land. But the
term “conveyancing” is of much wider import, and comprises
the preparation and completion of all kinds of legal instruments.
A well-known branch of the conveyancer’s business is the investigation
of title—an important function in the case of purchases
or mortgages of real estate. With personal estate (other than
leasehold) he has perhaps not so much concern. Chattels are
usually transferred by delivery, and stocks or shares by means
of printed instruments which can be bought at a law-stationer’s.
The common settlements and wills, however, deal wholly or
mainly with personal property; and an interest in settled
personalty is frequently the subject of a mortgage. Of late
years, also, there has been an enormous increase in the volume
of conveyancing business in connexion with limited joint-stock
companies.
In the preparation of legal documents the practitioner is much assisted by the use of precedents. These are outlines or models of instruments of all kinds, exhibiting in accepted legal phraseology their usual form and contents with additions and variations adapted to particular circumstances. Collections of them have been in use from early times, certainly since printing became common. The modern precedent is, upon the whole, concise and businesslike. The prolixity which formerly characterized most legal documents has largely disappeared, mainly through the operation of statutes which enable many clauses previously inserted at great length to be, in some cases, e.g. covenants for title, incorporated by the use of a few prescribed words, and in others safely omitted altogether. The Solicitors’ Remuneration Act 1881, has also assisted the process of curtailment, for there is now little or no connexion between the length of a deed and the cost of its preparation. So long as the draftsman adheres to recognized legal phraseology and to the well-settled methods of carrying out legal operations, there is no reason why modern instruments should not be made as terse and businesslike as possible.
It is not usual for land to be sold without a formal agreement in writing being entered into. This precaution is due, partly to the Statute of Frauds (§ 4), which renders a contract for the sale of land unenforceable by action “unless Contracts for sale. the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized,” and partly to the fact that there are few titles which can with prudence be exposed to all the requisitions that a purchaser under an “open contract” is entitled by law to make. Such a purchaser may, for example, require a forty years’ title (Vendor and Purchaser Act 1874). Under an open contract a vendor is presumed to be selling the fee-simple in possession, free from any incumbrance, or liability, or restriction as to user or otherwise; and if he cannot deduce a title of the statutory length, or procure an incumbrance or restriction to be removed, the purchaser may repudiate the contract. The preparation of an agreement for sale involves accordingly an examination of the vendor’s title, and the exercise of skill and judgment in deciding how the vendor may be protected against trouble and expense without prejudice to the sale. Upon a sale by auction the agreement is made up of (1) the particulars, which describe the property; (2) the conditions of sale, which state the terms upon which it is offered; and (3) the memorandum or formal contract at the foot of the conditions, which incorporates by reference the particulars and conditions, names or sufficiently refers to the vendor, and is signed by the purchaser after the sale. The object of the agreement, whether the sale is by private contract or by auction, is to define accurately what is sold, to provide for the length of title and the evidence in support of or in connexion with the title which is to be required except so far as it is intended that the general law shall regulate the rights of the parties, and to fix the times at which the principal steps in the transaction are to be taken. It is also usual to provide for the payment of interest at a prescribed rate upon the purchase money if the completion shall be delayed beyond the day fixed for any cause other than the vendor’s wilful default, and also that the vendor shall be at liberty to rescind the contract without paying costs or compensation if the purchaser insists upon any requisition or objection which the vendor is unable or, upon the ground of expense or other reasonable ground, is unwilling to comply with or remove. Upon a sale by auction it is the rule to require a deposit to be paid by way of security to the vendor against default on the part of the purchaser.
The signature of the agreement is followed by the delivery
to the purchaser or his solicitor of the abstract of title, which
is an epitome of the various instruments and events
under and in consequence of which the vendor derives
Abstract of title.
his title. A purchaser is entitled to an abstract at
the vendor’s expense unless otherwise stipulated. It begins
with the instrument fixed by the contract for the commencement
of the title, or, if there has been no agreement upon the subject,
with an instrument of such character and date as is prescribed
by the law in the absence of stipulation between the parties.
From its commencement as so determined the abstract, if properly
prepared, shows the history of the title down to the sale; every
instrument, marriage, birth, death, or other fact or event constituting
a link in the chain of title, being sufficiently set forth
in its proper order. The next step is the verification of the
abstract on the purchaser’s behalf by a comparison of it with
the originals of the deeds, the probates of the wills, and office
copies of the instruments of record through which the title is
traced. The vendor is bound to produce the original documents,
except such as are of record or have been lost or destroyed, but,
unless otherwise stipulated, the expense of producing those
which are not in his possession falls upon the purchaser (Conveyancing
Act 1881). After being thus verified, the abstract
is perused by the purchaser’s advisers with the object of seeing
whether a title to the property sold is deduced according to the
contract, and what evidence, information or objection, in respect
of matters appearing or arising upon the abstract, ought to be
called for or taken. For this purpose it is necessary to consider
the legal effect of the abstracted instruments, whether they
have been properly completed, whether incumbrances, adverse
interests, defects, liabilities in respect of duties, or any other
burdens or restrictions disclosed by the abstract, have been
already got rid of or satisfied, or remain to be dealt with before
the completion of the sale. The result of the consideration of these
Requisi-
tions.matters is embodied in “requisitions upon title,” which
are delivered to the vendor’s solicitors within a time
usually fixed for the purpose by the contract. In making
or insisting upon requisitions regard is had, among other things,
to any special conditions in the contract dealing with points as to
which evidence or objection might otherwise have been required
or taken, and to a variety of provisions contained in the Vendor
and Purchaser Act 1874, and the Conveyancing Act 1881, which
apply, except so far as otherwise agreed, and of which the following
are the most important: (1) Recitals, statements and
descriptions of facts, matters and parties contained in instruments
twenty years old at the date of the contract are, unless proved
inaccurate, to be taken as sufficient evidence of the truth of such
facts, matters and descriptions; (2) a purchaser cannot require
the production of, or make any requisition or objection in respect
of, any document dated before the commencement of the title;
(3) the cost of obtaining evidence and information not in the
vendor’s possession must be borne by the purchaser. The
possibility of the rescission clause now commonly found in contracts
for the sale of real estate being exercised in order to avoid
compliance with an onerous requisition, is also an important
factor in the situation. The requisitions are in due course
replied to, and further requisitions may arise out of the answers.
A summary method of obtaining a judicial determination of
questions connected with the contract, but not affecting its
validity, is provided by the Vendor and Purchaser Act 1874.
Before completion it is usual for the purchaser to cause searches
to be made in various official registers for matters required to
be entered therein, such as judgments, land charges, and pending
