An abstract of title is a narrative in writing stating in summary the different instruments and facts by force of which the land became vested in the vendor. It commences with some instrument disposing of the land, which instrument is called the root of title.

Now the Vendor and Purchaser Act, 1874, provides in effect that on the sale of any estate in land of any tenure (see Interpretation Act, 1889), the root of title shall be an instrument, vesting the estate in the vendor or his predecessor in title, executed not less than forty years. before the sale. This general principle is subject, however, to the following qualifications:

(a) Under a contract for the grant of a lease or sublease, or the assignment of an existing lease or sub-lease, the grantee or assignee is not entitled to call for the title to either the freehold or the leasehold in reversion on the lease or sub-lease granted or assigned (V. and P. Act, 1874, s. 2; Con. Act, 1881, s. 3 (1); s. 13).

(b) Under a contract to sell freehold land which once was land of copyhold or customary tenure but has been enfranchised, the purchaser is not entitled to call for the title to make the enfranchisement (Con. Act, 1881, s. 3 (2)).

No instrument dealing with the land executed before the root of title need be produced or abstracted by the vendor, nor can the purchaser require any information or make any requisition or objection (h) concerning any such instrument, even although such instrument is recited, covenanted to be produced, or noticed in the instruments abstracted. This rule applies even when the prior instrument created a power which is exercised by one of the abstracted instruments (Con. Act, 1881, s. 3 (3)). And when an abstracted instrument is an instrument carrying into effect a previous written agreement, this previous agreement forms no part of the instrument, and need not be abstracted or produced (Con. Act, 1882, s. 4; S. L. Act, 1882, s. 31 (4)).

(h) Re Cox & Neve, [1891] 2 Ch. 109.

2. As to evidence to prove the title set out in the abstract.

The abstract is of course merely the vendor's description of his title. He must prove the different instruments abstracted and facts stated in the abstract. The instruments are usually proved by producing the originals; the facts by certificates of births and deaths and statutory declarations.

The Acts under discussion have, however, in order to facilitate proof of title, introduced certain presumptions which on certain evidence being produced are to be taken as true between the parties, until it is shown that they are not true.

The most sweeping of these is, that all recitals, statements, and descriptions of facts, matters, and parties, contained in deeds, instruments, Acts of Parliament, or statutory declarations twenty years old at the date of the contract, shall raise a presumption of the truth of such facts, matters, and descriptions (V. & P. Act, 1874 s. 2 (1) ).

Another presumption nearly of the same kind is, that the recital of any instrument prior to the root of title contained in the abstracted instruments is true, and that it gives all the material parts of such instrument, and that such instrument was duly executed (Con. Act, 1881, s. 3 (3)).

Another presumption which arises on the sale of land held by lease or underlease is, that the lease or, in the case of an underlease, it and all superior leases, were duly granted, and that, on the production of the receipt for the last rent (not being a mere peppercorn rent (i)) due under the lease or the underlease before the date of actual completion of the purchase, all the covenants and provisions of the lease, or in the case of an underlease of it and all superior leases, have been duly performed and observed up to the date of actual completion (k), and in the case of an underlease all the rents due on the superior (i) In re Moody and Yates' Con- Beav. 331; Re Highett and Bird's tract, (1885) 30 Ch. D. 344. Contract [1902] 2 Ch. 214.

(k) Howell v. Kightley, (1855) 21

leases have been duly paid up to such date (Con. Act, 1881, s. 3 (4) (5)).

A decision of the Court (1) has given the rule as to recitals in deeds twenty years old a peculiar effect in shortening the length of title required by sect. 1 of the Vendor and Purchaser Act, 1874. Conveyances frequently contain a recital that the vendor is seised in unincumbered fee simple of the land to be conveyed: this is what is called a recital of seisin. Now, by this decision it has been held that when such a recital occurs in a document of title over twenty years old produced by the vendor, as such recital must be presumed to be true, the document is sufficient to show that at that time there was a good title in the vendor or his predecessors in title, and accordingly that the vendor need not abstract any documents prior to it. This practically reduces under these circumstances the period limited by sect. 1, from forty to twenty years.

3. Who is to pay the costs of the investigation of title? The general rule is, that the vendor must at his own expense prepare and deliver to the purchaser a proper abstract of title (m), and also produce all the abstracted deeds in his possession for the purpose of proving such abstract. Two provisions are made by the Conveyancing Act, 1881, in this connection:

(a) Where property held under a common title is sold in lots, the purchaser of two or more lots is not entitled to more than one abstract, save at his own expense (Con. Act, 1881, s. 3 (7)).

(b) The cost of producing or obtaining the production of documents abstracted, but not in the vendor's possession, must be borne by the purchaser, should he require their production (Con. Act, 1881, s. 2 (6)) (n).

(1) Bolton v. London School Board, (1878) 7 Ch. D. 766.

(m) In re Stamford, Spalding and Boston Banking Company and

S.C.-VOL. I.

Knight's Contract, [1900] 1 Ch. 287. (n) In re Stuart and Olivant and Seadon's Contract, [1896] 2 Ch. 328.

FF

FORM OF CONVEYANCE.-When the title of the vendor has been duly investigated the conveyance is prepared.

Already the various parts of a deed have been set out. We will now repeat them in more detail as they appear in a modern conveyance; pointing out the changes effected by the Conveyancing Acts.

Before the Conveyancing Act, 1881, it was usual to insert in every conveyance the following clauses in the order here given :-

day of

First came the date of the conveyance: "This inden"ture made the ." This was, or should have been, the date on which the instrument was executed. Then followed the parties to the conveyance, that is the name and description of the grantor, then of anyone directing or consenting to the grant, and then of the grantee.

Following the parties came the recital of title, that is, a short statement of the grantor's title to the land, as disclosed in the abstract.

Next came the recital of the contract, which consisted of a short statement of the agreement between the parties, which the conveyance was intended to carry out.

After the recital of contract came the testatum: “Now "this indenture witnesseth." The purpose of the testatum was to introduce the operative part of the conveyance, that is, the part which carried out the contract between the parties which had been already recited. If there were several operative parts in the conveyance, which there often were when the contract referred to different parcels of land, each operative part was introduced by a new testatum: "Now this indenture further witnesseth."

After the testatum followed the consideration-that is, a statement of the price given by the purchaser; and the receipt that is, an acknowledgment by the vendor that he had received the consideration.

Then came the operative words and parcels. In the operative words, "The vendor doth grant unto the

purchaser all that piece or parcel of land," etc., the word "grant" was almost invariably used, because it was the word used in the Real Property Act, 1845, which made a freehold in possession lie in grant as well as in livery. The parcels consisted of a description of the premises which were to be conveyed. Technical words of description were often used in them, but they were not necessary. Any words which identified the premises were sufficient.

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Then came what were called the general words. These consisted of a long string of phrases, introduced by together with," describing things which might be connected or enjoyed with the premises-such as rights of way, rights of light, etc.; but the words were inserted whether they were so connected or not. At first probably these were inserted for caution, but later conveyancers possibly retained them for profit, as, before the Conveyancing Act, 1881, conveyances were paid for by what is called in the press "lineage."

After the general words came the exceptions and reservations. By an exception is meant some interest in or right over the land which is excepted from the grant. Thus, if land is granted without the minerals in it, that is an exception. A reservation means some new right created by the conveyance for the benefit of the vendor. The commonest reservation is a rent.

When the estate conveyed was a fee simple, the next clause was what was called all the estate clause. It simply was a wordy statement to the effect that the conveyance carried all the vendor's interest in the land.

After this came the habendum. The habendum set out the use to which the land was conveyed, and the extent of it: "To hold the same unto and to the use of the purchaser and his heirs." For present purposes, the point to be noted about it is, that where the purchaser was an individual, the only words which could transfer to him a fee simple were the words "and his heirs," and the only words which could transfer a fee tail were "and the