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CONVEYANCING
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CONVEYANCING , in See also:English See also:law, the See also:art or See also:science of conveying or effecting the See also:transfer of See also:property, or modifying interests in relation to property, by means of written documents.
In See also:early legal systems the See also:main See also:element in the transfer of property was the See also:change, generally accompanied by some public
Nlatory. ceremony, in the actual See also:physical See also:possession: the See also:function of documents, where used, being merely the
preservation of See also:evidence. Thus, in See also:Great See also:Britain in the feudal See also:period, the See also:common mode of conveying an immediate See also:freehold was by See also:feoffment with See also:livery of seisin—a proceeding in which the
transferee was publicly invested with the feudal possession or See also:seisin, usually through the See also:medium of some symbolic See also:act per-formed in the presence of witnesses upon the See also:land itself. A See also:deed or See also:charter of feoffment was commonly executed at the same See also:time by way of See also:record, but formed no essential See also:part of the See also:conveyance. In the See also:language of the old See also:rule of the common law, the immediate freehold in corporeal hereditaments See also:lay in livery, whereas reversions and remainders and all incorporeal hereditaments lay in See also: It enacted, in substance, that whoever should have a use or trust in any hereditaments should be deemed to have the legal seisin, See also:estate and possession for the same See also:interest that he had in the use; in other words, that he should become in effect the feudal tenant without actual delivery of possession to him by the actual feoffee to uses or trustee: In its result the statute was a fiasco. It was solemnly decided that the act transferred the legal possession to the use once only, and that in the See also:case of a conveyance to A to the use of B to the use of or upon trust for C, it gave the legal estate to B, and See also:left C with an interest in the position of the use before the statute. Thus was completed the See also:foundation of the See also:modern system of See also:trusts fastened upon legal estates and protected by the equitable doctrines and practice of the judicature. But the statute not only failed to abolish uses: it also opened the way to the evasion of the public ceremony of livery of seisin, and the avoidance of all notoriety in conveyances. Other ways, besides an actual feoffment to uses, of creating a use had been in See also:vogue before the statute. If A bargained with B, in See also:writing or not, for the See also:sale of land, and B paid the See also:price, but A remained in legal possession, the See also:court of See also:chancery enforced the use or equitable interest in favour of B. The effect of a bargain and sale (as such a transaction was called) after the statute was to give B the legal interest without any livery of seisin. This fresh danger was met in the very year of the statute itself by an enactment that a bargain and sale of an estate of See also:inheritance or freehold should be made by deed publicly enrolled. But the Statute of Enrolments was in terms limited to estates of freehold. It was allowed that a bargain and sale for a See also:term, say, of one year, must transfer the seisin to the bargainee without enrolment. And since what remained in the bargainor was merely a reversion which " lay in grant," it was an easy See also:matter to See also:release this by deed the See also:day after. By this ingenious See also:device was the publicity of feoffment or enrolment avoided, and the See also:lease and release, as the process was called, remained the usual mode of conveying a freehold, in posession down to the 19th See also:century. It was not until 1845 that the modern system of transfer by a single deed was finally established. By the Real Property Act of that year it was enacted that all corporeal hereditaments should, as regards the immediate freehold, be deemed to See also:lie in grant as well as in livery. Since this act the See also:ancient modes of conveyance, though not abolished by it, have in practice become obsolete. Traces of the old learning connected with them remain, however, embedded in the modern conveyance. Many a See also:purchase-deed recites that the vendor is seised in See also:fee-simple of the property. It is the practice, moreover, to convey not only " to " but also " to the use of " a purchaser. For before the Statute of Uses, a conveyance made without any See also:consideration or See also:declaration of uses was deemed to be made to the use of the party conveying. In view of the operation of the statute upon the legal estate in such circumstances, it is usual in all conveyances, whether for value or not, to declare a use in favour of the party to whom the grant is made. 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 See also:instruments. A well-known See also: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 See also:personal estate (other than leasehold) he has perhaps not so much concern. Chattels are usually transferred by delivery, and See also:stocks or shares by means of printed instruments which can be bought at a law-stationer's. The common settlements and See also:wills, however, See also:deal wholly or mainly with personal property; and an interest in settled personalty is frequently the subject of a See also:mortgage. Of See also:late years, also, there has been an enormous increase in the See also:volume of conveyancing business in connexion with limited See also:joint-stock companies. In the preparation of legal documents the practitioner is much assisted by the use of precedents. These are outlines or See also:models of instruments of all kinds, exhibiting in accepted legal phraseology their usual See also:form and contents with additions and See also:variations adapted to particular circumstances. Collections of them have been in use from early times, certainly since See also: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 See also: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 drafts-See also:man adheres to recognized legal phraseology and to the well-settled methods of carrying out legal operations, there is no See also: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 See also:contract for the sale of land unenforceable by See also:action " unless the agreement upon which such action shall be brought, or some memorandum or See also:note thereof, shall be in writing and signed by the party to be charged therewith or some other See also: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 See also:forty years' title (Vendor and Purchaser Act 1874). Under an open contract a vendor is presumed to be selling the fee-simple in possession, See also: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 See also:judgment in deciding how the vendor may be See also:pro- tected against trouble and expense without See also:prejudice to the sale. Upon a sale by See also:auction the agreement is made up of (1) the particulars, which describe the property; (2) the conditions of sale, which See also:state the terms upon which it is offered; and (3) the memorandum or formal contract at the See also:foot of the condi- tions, 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 agree- ment, 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 See also:general law shall regulate the rights of the parties, and to See also:fix the times at which the See also:principal steps in the transaction are to be taken. It is also usual to provide for the See also:payment of interest at a prescribed See also:rate upon the purchase See also:money if the completion shall be delayed beyond the day fixed for any cause other than the vendor's wilful See also:default, and also that the vendor shall be at See also:liberty to rescind the contract without paying See also:costs or compensa, tion 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 See also:deposit to be paid by way of See also:security to the vendor against default on the part of the purchaser. _ The See also:signature of the agreement is followed by the delivery to the purchaser or his See also:solicitor of the abstract of title, which is an See also: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 See also: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 See also:character and date as is prescribed by the law in the See also: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, See also:marriage, See also:birth, See also:death, or other fact or event constituting a See also:link in the See also:chain of title, being sufficiently set forth in its proper See also: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 See also:office copies of the instruments of record through which the title is traced. The vendor is See also:bound to produce the See also: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, See also: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 matters is embodied in " requisitions upon title," which are delivered to the vendor's solicitors within a time itens.susually fixed for the purpose by the contract. In making or insisting upon requisitions regard is had, among other things, to any See also: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 See also: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 See also:borne by the purchaser. The possibility of the rescission clause now commonly found in See also:con-tracts for the sale of real estate being exercised in order to avoid compliance with an onerous requisition, is also an important See also:factor in the situation. The requisitions are in due course replied to, and further requisitions may arise out of the answers. A See also: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 See also:official registers for matters required to be entered therein, such as judgments, land charges, and pending Contracts for sale. 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, 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 See also:ordinary deed, called in this case an See also:indenture, from the old practice, where a deed was made between two or more parties, of writing copies upon the same See also:parchment and then dividing it by an indented or toothed See also: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 See also:signing is essential. It is not necessary that its See also:execution should be attested except in special circumstances, as, e.g. where made under a See also: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 See also: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 See also: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 See also: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 See also: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 See also: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 See also: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 See also:acknowledgment, in a See also:parenthesis, of its See also: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 See also:body of the deed or in a See also:schedule, or compendiously in the one and in detail in the other. In any case it is usual to annex a See also: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 See also: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 See also: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 See also: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 See also:supply the See also: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. Additional information and CommentsThere are no comments yet for this article.
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