actions, which may affect the vendor’s title to sell, or amount to an incumbrance upon the property.
When the title has been approved, or so soon as it appears reasonably certain that it will be accepted, the draft conveyance
is prepared and submitted to the vendor. This is
commonly done by and at the expense of the purchaser,
Convey-
ances.
who is entitled to determine the form of the conveyance,
provided that the vendor is not thereby prejudiced,
or put to additional expense. The common mode of conveying
a freehold is now, as already mentioned, by ordinary deed,
called in this case an indenture, from the old practice, where a
deed was made between two or more parties, of writing copies
upon the same parchment and then dividing it by an indented
or toothed line. Indenting is, however, not necessary, and in
modern practice is disused. A deed derives its efficacy from
its being sealed and delivered. It is still a matter of doubt
whether signing is essential. It is not necessary that its execution
should be attested except in special circumstances, as, e.g.
where made under a power requiring the instrument exercising
it to be attested. But in practice conveyances are not only
sealed, but also signed, and attested by one or two witnesses.
The details of a conveyance in any particular case depend upon
the subject-matter and terms of the sale, and the state of the
title as appearing by the abstract. The framework, however,
of an ordinary purchase-deed consists of (1) the date and parties,
(2) the recitals, (3) the testatum or witnessing-part, containing
the statement of the consideration for the sale, the words
incorporating covenants for title and the operative words, (4)
the parcels or description of the property, (5) the habendum,
showing the estate or interest to be taken by the purchaser, and
(6) any provisos or covenants that may be required. A few
words will illustrate the object and effect of these component
parts.
(1) The parties are the persons from whom the property, or some estate or interest in or in relation to it, is to pass to the purchaser, or whose concurrence is rendered necessary by the state of the title in order to give the purchaser the full benefit of his contract and to complete it according to law. It is often necessary that other persons besides the actual vendor should join in the conveyance, e.g. a mortgagee who is to be paid off and convey his estate, a trustee of an outstanding legal estate, a person entitled to some charge or restriction who is to release it, or trustees who are to receive the purchase-money where a limited owner is selling under a power (e.g. a tenant for life under the power given by the Settled Land Act 1882). Parties are described by their names, addresses and occupations or titles, each person with a separate interest, or filling a distinct character, being of a separate part. (2) The recitals explain the circumstances of the title, the interests of the parties in relation to the property, and the agreement or object intended to be carried into effect by the conveyance. Where the sale is by an absolute owner there is no need for recitals, and they are frequently dispensed with; but where there are several parties occupying different positions, recitals in chronological order of the instruments and facts giving rise to their connexion with the property are generally necessary in order to make the deed intelligible. (3) It is usual to mention the consideration. Where it consists of money the statement of its payment is followed by an acknowledgment, in a parenthesis, of its receipt, which, in deeds executed since the Conveyancing Act 1881, dispenses with any endorsed or further receipt. A vendor, who is the absolute beneficial owner, now conveys expressly “as beneficial owner,” which words, by virtue of the Conveyancing Act 1881, imply covenants by him with the purchaser that he has a right to convey, for quiet enjoyment, freedom from incumbrances, and for further assurance—limited, however, to the acts and defaults of the covenantor and those through whom he derives his title otherwise than by purchase for value. A trustee or an incumbrancer joining in the deed conveys “as trustee” or “as mortgagee,” by which words covenants are implied that the covenantor individually has not done or suffered anything to incumber the property, or prevent him from conveying as expressed. As to the operative words, any expression showing an intention to pass the estate is effectual. Since the Conveyancing Act 1881, “convey” has become as common as “grant,” which was formerly used. (4) The property may be described either in the body of the deed or in a schedule, or compendiously in the one and in detail in the other. In any case it is usual to annex a plan. Different kinds of property have their appropriate technical words of description. Hereditaments is the most comprehensive term, and is generally used either alone or in conjunction with other words more specifically descriptive of the property conveyed. (5) The habendum begins with the words “to hold,” and the estate, on a sale in fee-simple, is limited, as already mentioned, not only to, but also to the use of, the purchaser. Before the Conveyancing Act 1881, it was necessary to add, after the name of the purchaser, the words “and his heirs,” or “his heir and assigns,” though the word “assigns” never had any conveyancing force. But since that Act it is sufficient to add “in fee-simple” without using the word “heirs.” Unless, however, one or other of these additions is made, the purchaser will even now get only an estate for his life. If the property is to be held subject to a lease or incumbrance, or is released by the deed from an incumbrance previously existing, this is expressed after the words of limitation. (6) Where any special covenants or provisions have been stipulated for, or are required in the circumstances of the title, they are, as a rule, inserted at the end of the conveyance. In simple cases none are needed. Where, however, a vendor retains documents of title, which he is entitled to do where he sells a part only of the estate to which they relate, it is the practice for him by the conveyance to acknowledge the right of the purchaser to production and delivery of copies of such of them as are not instruments of record like wills or orders of court, and to undertake for their safe custody. This acknowledgment and undertaking supply the place of the lengthy covenants to the like effect which were usual before the Conveyancing Act 1881. A trustee or mortgagee joining gives an acknowledgment as to documents retained by him, but not an undertaking. The foregoing outline of a conveyance will be illustrated by the following specimen of a simple purchase-deed of part of an estate belonging to an absolute owner in fee:—
This Indenture made the day of between A. B. of, &c., of the one part and C. D. of, &c., of the other part Whereas the said A. B. is seised (among other hereditaments) of the messuage hereinafter described and hereby conveyed for an estate in fee simple in possession free from incumbrances and has agreed to sell the same to the said C. D. for £100 Now this Indenture witnesseth that in pursuance of the said agreement and in consideration of the sum of £100 paid to the said A. B. by the said C. D. (the receipt whereof the said A. B. doth hereby acknowledge) the said A. B. as beneficial owner doth hereby convey unto the said C. D. All that messuage or tenement situate &c., and known as, &c. To Hold the premises unto and to the use of the said C. D. his heirs and assigns [or in fee simple] And the said A. B. doth hereby acknowledge the right of the said C. D. to production and delivery of copies of the following documents of title [mentioning them] and doth undertake for the safe custody thereof In Witness, &c.
It will be observed that throughout the deed there are no stops, the commencement of the several parts being indicated by capital letters. The draft conveyance having been approved on behalf of the vendor, it is engrossed upon stout paper or parchment, and there remains only the completion of the sale, which usually takes place at the office of the vendor’s solicitor. A purchaser is not entitled to require the vendor to attend personally and execute the conveyance in his presence or that of his solicitor. The practice is for the deed to be previously executed by the vendor and delivered to his solicitor, and for the solicitor to receive the purchase-money on his client’s behalf, since a purchaser is, under the Conveyancing Act 1881, safe in paying the purchase-money to a solicitor producing a deed so executed, when it contains the usual acknowledgment by the vendor of the receipt of the money. Upon the completion, the documents of title are handed over except in the case above referred to, and any claims between the parties in respect of interest upon the purchase-money, apportioned outgoings, or otherwise, are
