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being liable for all expenses attending the resale, as well as for any deficiency in the price so obtained. It seems to be doubtful how far this condition would be allowed to be enforced. Probably not at all, where the purchaser is able and willing to put the vendor in the situation in which he would have been had the contract been carried out. The purchaser would, in any case, be held liable for the expenses of a resale, and the deficiency, if any, in price at such a sale, but the condition should always be inserted, as it enables the vendor to make a resale without having recourse to the courts, and prevents any question being raised as to his right of forfeiting the deposit — at least to the extent necessary to pay all such expenses and deficiency.
Attached to the conditions of sale is the memoran- Memoranduni
of sale. dum referred to in the first condition. The form of this often provides for the auctioneer signing as agent for “the vendor" without naming him, but having regard to the somewhat conflicting decisions as to whether this is a sufficient compliance with the Statute of Frauds, it is at any rate safer for the name of the vendor to appear on the memorandum of sale.3
Besides these ordinary conditions of sale, there will have to be inserted, in almost every case, special conditions rendered necessary by the nature of the title, or of the property to be sold. Into these we do not propose to enter. Their number is, practically, infi
. nite ; and little advice can be given beforehand as to
1 1 Dav. Con. 453.
2 29 Car. II. c. 3. 8 See Williams v. es, 2 N. R. 47; 2 Dav. Con. 2; Dart, V. & P. 202; Hood v. Barrington, L. R. 6 Eq. 218; Bourdillon v. Collins, 24 L. T. (N. S.) 341; Sale v. Lambert, L. R. 18 Eq. 1; Potter v. Duffield, L. R. 18 Eq. 4.
their preparation, since this varies with each case. But a careful study of the conditions ordinarily employed, and of the principles on which they are construed by the courts, will form a solid foundation on which to construct these more complicated forms of
OF PURCHASE DEEDS.
We now come to the consideration of those Purchase
An ordinary purchase deed may be conveniently Division of a • divided into the following parts : 1st, the Premises, Deed.
The Premises are again subdivided into various The Premises. clauses. Of these the first is the Introductory Part, Introductory
Part. which consists merely of the words “ This Indenture
1 1 Dav. Con. 33.
made on " such and such a date. It does not call
Next come the Parties to the deed. These should,
After the parties come such Recitals as may be considered necessary. Recitals are of two kinds, namely, narrative recitals, which set out the facts and instruments necessary to show the title and the relation of the parties to the subject matter of the deed ;3 and introductory recitals, which explain the motives for the preparation and execution of the deed. Narrative recitals, when used, should go back far enough to show a clear root of title, which can only be done by showing the creation of the estates and interests of the conveying parties; but they should not go beyond this, neither should they, as a rule, contain
I See Dart, V. & F. 469, as to an exception to this rule.
4 Dart, V. & P. 476.
any thing which is not logically connected with the particular matter in band. It has, however, been pointed out by an eminent writer 1 that, in view of the common condition of sale as to recitals being evidence, they may sometimes be used as a statement of facts tending to validate the title, even where they do not strictly comply with the above rule; and the effect of the Vendor and Purchaser Act 18742 (which makes all recitals twenty years old at the date of the contract, unless proved to be inaccurate, sufficient evidence of the statements contained in them) will probably be to increase the practice of introducing them.
Introductory recitals, when used, should come im- Introductory
recitals. mediately after the narrative recitals, which they connect with the rest of the deed by showing why, and how, the state of things previously existing is about to be altered by the deed. It follows that introductory recitals are unnecessary when the deed contains no narrative recitals, vor is their employment essential in every case where narrative recitals have been introduced. But whenever there have been narrative recitals, an introductory recital, stating an agreement for the sale or purchase of the property at the price fixed, makes the deed more complete and scarcely adds to its length. This recital should not refer to the formal written agreement, or to the conditions of sale (whichever may have been used), except in cases when it is necessary to do so, as in that of a sale under an order of court.
In the simplest form of purchase deeds no recitals When recitals of any kind need be introduced ; 3 and opinions would are to be used. appear to be somewhat divided as to the extent to
1 Dart, V. & P. 476.
2 37 & 38 Vict. c. 78. 8 See 1 Dav. Con. 43, and 2 Dav. Con. 206, note (a).