settled. The conveyance is, of course, delivered to the purchaser, upon whom rests the obligation of affixing the proper stamp—which he may do without penalty within thirty days after execution (Stamp Act 1891). It may be added that, subject to any special bargain, which is rarely made, the costs of the execution by the vendor and other parties whose concurrence is necessary, and of any act required to be done by the vendor to carry out his contract, are borne by the vendor.
Ordinary leases at rack-rents are not generally preceded by a formal agreement, such as is common on a sale of land, or by an investigation into the lessor’s title. As a rule, the principal terms are arranged between the parties, and Leases. embodied with various ancillary provisions in a draft lease, which is prepared by the lessor’s advisers and submitted to the lessee, the ultimate form and contents of the instrument being adjusted by negotiation. If an intending lessee desires to examine the title he must make an express bargain to that effect, for under a contract to grant a lease the intended lessee is not entitled, in the absence of such express stipulation, to call for the title to the freehold (Vendor and Purchaser Act 1874). By the Statute of Frauds all leases, except leases for a term not exceeding three years, and at not less than two-thirds of the rack-rent, were required to be in writing. And now by the Real Property Act 1845, leases required by law to be in writing are void at law unless made by deed. An instrument, void as a lease under the act, may, however, be valid as an agreement to take a lease; and since the Judicature Act 1873, under which equitable doctrines prevail in the High Court, a person holding under an agreement for a lease, of which specific performance would be granted, is treated in all branches of that court as if such a lease were already executed. Unless otherwise agreed, a lease is always prepared by a lessor’s solicitor at the expense of the lessee; but the cost of the counterpart (i.e. the duplicate executed by the lessee) is usually borne by the lessor.
Upon the sale and conveyance of a leasehold property substantially the same procedure is observed as above indicated in the case of a freehold. A few additional points, however, may be specially mentioned. Under an open Assignment of leaseholds.contract the vendor cannot be called upon to show the title to the freehold reversion (Vendor and Purchaser Act 1874; Conveyancing Act 1881). Accordingly, the abstract of title begins with the lease, however old; but the subsequent title need not be carried back for more than forty years before the sale. The purchaser, apart from stipulation, must assume, unless the contrary appears, that the lease was duly granted, and upon production of the receipt for the last payment due for rent before completion, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion. The appropriate word of conveyance is “assign,” and a conveyance of leaseholds is generally called an assignment. The vendor’s covenants for title implied by his assigning “as beneficial owner” include, in addition to the covenants implied by those words in a conveyance of freehold, a covenant limited in manner above mentioned, that the lease is valid, and that the rent and the provisions of the lease have been paid and observed up to the time of conveyance (Conveyancing Act 1881). Where the vendor, as is the common case, remains liable after the assignment for the rent and the performance of the covenants, the purchaser must covenant to pay the rent, and perform and observe the covenants and provisions of the lease, and keep the vendor indemnified in those respects.
A mortgage is prepared by the solicitor of the mortgagee, and the mortgagor bears the whole expenses of the transaction. It is seldom that there is any preliminary agreement, because (1) a contract to lend money is not specifically Mortgages. enforceable; and (2) inasmuch as the primary object of a mortgagee is to have his money well secured, he is not, generally, willing to submit to restrictions as to title or evidence of title which might give rise to difficulty or expense in the event of a sale of the mortgaged property. An intending mortgagor is accordingly required to show a title easily marketable, and to verify it at his own cost. A mortgage follows the same general form as a conveyance on sale, the principal points of difference being that the conveyance of the property is preceded by a covenant for the payment of the mortgage money and interest, and followed by a proviso for reconveyance upon such payment, and by any special provisions necessary or proper in the circumstances, such as a covenant for insurance and repairs where the security comprises buildings. The covenants for title implied by a mortgagor conveying “as beneficial owner” are the same as in the case of a vendor, but they are absolute and not qualified in the manner above pointed out.
The beneficial operation of the Conveyancing Act 1881 in shortening conveyances is well illustrated by a modern mortgage. For, by virtue of the act, a mortgagee by deed executed after its commencement has, subject to any contrary provisions contained in the deed, the following powers to the like extent as if they had been conferred in terms: (1) a power of sale exercisable after the mortgage money has become due (a) if notice requiring payment has been served and not complied with for three months, (b) if any interest is in arrear for two months, or (c) there has been a breach of some obligation under the deed or the act other than the covenant for payment of the mortgage money or interest; (2) a power to insure subject to certain restrictions; (3) a power, when entitled to sell, to appoint a receiver; and (4) a power while in possession to cut and sell timber. The act contains ancillary provisions enabling a mortgagee upon a sale to convey the property for such estate or interest as is the subject of the mortgage, and to give a valid receipt for the purchase-money, and the purchaser is amply protected against any irregularities of which he had no notice. There are also large powers of leasing conferred by the act upon mortgagor and mortgagee while respectively in possession, and a power for the mortgagor, whilst entitled to redeem, to inspect and take copies of title-deeds in the mortgagee’s possession. The elaborate provisions for all these purposes which were formerly inserted in mortgage deeds are now omitted; but sometimes the operation of the act is modified in certain respects. The procedure upon a sale by a mortgagee is the same as in the case of any other vendor. He conveys, however, “as mortgagee,” these words implying only a covenant by him against incumbrances arising from his own acts.
The frame of a strict settlement of real estate, which is usually made either on marriage or by way of resettlement on a tenant in tail under an existing settlement attaining twenty-one, has been much simplified; but such settlements still Settlements. remain the most technical and most complicated of legal instruments. By virtue of the Settled Land Acts 1882 to 1890, tenants for life and many other limited owners have extensive powers of sale, of leasing, and of doing numerous other acts required in a due course of management. These powers cannot be excluded or fettered by settlors. They are, as a rule, considered in practice to be sufficient, and the corresponding elaborate provisions formerly inserted in settlements are now omitted, the operation of the acts being merely supplemented, where desirable, by some extension of the statutory powers, in relation, e.g., to the investment and application of capital money. To complete the statutory machinery it is desirable that persons should be nominated by the settlement trustees for the purposes of the acts. Since the Conveyancing Act 1881, provisions for the protection of jointresses or persons entitled under settlements to rent charges or annual sums issuing out of the land are no longer required, as all such persons have now powers of distress and entry, and of limiting terms to secure their respective interests. Terms for raising portions must still, however, be expressly created. The Conveyancing Act 1881 also confers large powers of management during the minorities of infants beneficially entitled upon persons either appointed for the purpose by the instrument or being such trustees such as are mentioned in § 42. An estate in tail may now be limited by the use of the words “in tail” without the words “heirs of the body” formerly necessary. And a settlor generally conveys “as settlor,” by which only a covenant for further assurance is implied under the Conveyancing Act 1881. Personal settlements are most often made upon marriage. The settled property is vested in trustees, either by the settlement itself, or in the case of cash, mortgage debts, stocks or shares, by previous delivery or transfer, upon trusts declared by the instrument.
The normal trusts after the marriage are (1) for investment; (2) for payment of the income of the husband’s property to him for life, and of the wife’s property to her for life for her separate use without power of anticipation whilst under coverture; (3) for
