Is there any difference in substance between the case of a limita- estate and on the owners of the estate for all time, and it seems to me to be plain that the rules as to remoteness apply to one case as much as to the other" (1). Before the year 1799 when the Act which is generally known Thellusson as the Thellusson Act was passed, trusts for the accumulation of Act. the income of property were allowed for the same periods as those which the law permitted in respect of executory devises with reference to the corpus of property. In this state of the law a Mr. Thellusson brought his perverse ingenuity to bear upon the subject, and directed that the rents of his estates should be accumulated and invested during the lives of all his children, grandchildren, and other issue, living at his death, for the benefit of some more remote descendant. This will was, of course, disputed, and gave rise to the well-known and lengthy case of Thellusson v. Woodford (2), which finally decided that the testator had not broken any rule against perpetuities, so that the trust for accumulation was not set aside. But the Act of Parliament above referred to, which was passed to prevent the repetition of such a cruel absurdity (to borrow Mr. Joshua Williams's phrase), with regard to the accumulation of income for the future provided as follows: Accumulation is allowed for any one of the four following alternative periods: The life or lives of any grantor or grantors, settlor or settlors; or The term of twenty-one years from the death of the grantor, settlor, devisor, or testator; or In the very recent case of In re Harvey. Peek v. Savory, 39 Ch. Div. 289, where the gift over was not in the alternative on the happening of either of two distinct events, but a single gift over on an event involving two things, one of which transgressed the rule against perpetuities, the Court of Appeal decided that as the testatrix had not separated the gift, the Court could not separate it, and (2) 4 Vesey, 227. The parties en- Thellusson During the minority or respective minorities of any person or persons who shall be living or in ventre sa mère at the time of the death of the grantor, devisor or testator; or During the minority or respective minorities of any person or persons who under the uses or trusts of the deed, surrender, will, codicil, or other assurance, directing such accumulations would for the time being, if of full age, be entitled to the rents, issues, and profits, or the interest, dividends, or annual produce so directed to be accumulated. It is however provided that nothing in the Act is to extend(1) To any provision for the payment of the debts of the settlor; or (2) To any provision for raising portions for any child or children of the settlor, or for any child or children of any person taking any interest under the instrument; or (3) To any direction touching the produce of timber or woods upon any lands or tenements. It must be borne in mind that the four different periods beyond which the accumulation of income is unlawful are alternative and rot cumulative, i.e., only one of the four periods can be taken, and when one period has been applied and exhausted, a second period cannot be resorted to and applied, in order to extend the time for accumulation. In applying the Act the Court is bound to consider not merely the events which have happened, but also those which might have happened (1). It has been decided that any direction which exceeds the limits prescribed by the Thellusson Act is not void altogether like an executory limitation which transgresses the rule against perpetuities, but only so far as it exceeds the time allowed by the statute (2). (1) Jagger v. Jagger, 25 Ch. Div. p. 729. (2) See the cases on this Act col lected with a summary of the points decided in Lewin on Trusts, 8th ed. p. 90, et seq. CHAPTER IX. CONVEYANCE ON SALES. of Convey ancing. First amongst the various modes in which real property may be dealt with, comes that of conveyance by one person to another. The main subject of this chapter therefore is Conveyance on Sale. Before proceeding, however, to deal with this specific subject, and certain other matters incidentally connected with it, it may be well to invite the attention of the student to the consideration of the question, What is Conveyancing? Conveyancing has been defined as the science and art of Definition transferring property from one owner or owners to another owner or owners in due form, according to the law which obtains under any given set of circumstances. It is a science, inasmuch as it is founded on a system of general principles. It is an art, inasmuch as it consists of a putting of these principles into practice (1). The main object of the following pages is to give a short account of the nature of a modern conveyance along with some practical advice as to the mode in which the theory of conveyancing is to be applied to practice, and it may be pointed out that nearly all that is here said upon the latter branch of this subject is equally applicable to the subjects of mortgages, leases, and settlements, of which we shall treat hereafter (2). Before, however, we come to the conveyance itself, a good many preliminary matters require to be considered. A purchase of land is usually preceded by an agreement, and here it must be borne in mind that (by the Statute of Frauds, 29 Car. 2, c. 3, s. 4) any contract for the sale or purchase of lands, tenements, or hereditaments, or any estate or interest concerning them, must be in writing, signed by the party to be charged, (1) Cavanagh, Principles and Precedents of Modern Conveyancing. (3) A conveyance is defined by the Conveyancing Act, 1881 (unless a contrary intention appears), to inIclude in the interpretation of that Act, assignment, appointment, lease, settlement, and other assurance, and covenant to surrender made by a deed on a sale, mortgage, demise, or Conditions of sale. Statutory conditions of sale. or his agent thereunto lawfully authorised, though, as we shall hereafter see in some cases, agreements not in writing may be specifically enforced (see post, p. 574, et seq.). A man who offers property for sale on what is called "an open contract," i.e. a contract not guarded by any conditions of sale, incurs certain serious responsibilities which are stated by Mr. Prideaux as follows :-"He is bound, in the absence of stipulation, to deduce and verify his title for a period of at least forty years preceding the day of sale. This obligation involves the delivery to the purchaser of an abstract of title extending over the above period; the production of all deeds and documents stated in the abstract; the identification of the property as described in the particulars with the property described in the several documents of title, and the strict proof by certificates, declarations, or otherwise, of all births, marriages, deaths, heirships, and other matters and facts forming a link in the chain of title, unless such facts are recited or stated in documents twenty years old." In order to guard against this liability, it is usual to employ particulars and conditions of sale-the proper office of the particulars, as is well said by Mr. Davidson, being to describe the subject-matter of the contract, that of the conditions to state the terms on which it is sold. The particulars should describe the property accurately, and if there be anything connected with it important to be known which cannot be discerned, or may be misapprehended by ocular inspection, or any right or restriction interfering with its absolute possession or enjoyment, it ought to be plainly stated in the particulars, as even its partial concealment may afford the buyer a ground for abandoning his purchase (1). A considerable number of important conditions of sale are now implied by virtue of the Vendor and Purchaser Act, 1874, and the Conveyancing Act, 1881 (2). These "statutory conditions" provide as follows: Forty years' title only need be shewn. No objection shall be raised on the ground of the vendor's inability to furnish a legal covenant to produce documents, when the purchaser will, on completion, have an equitable right to production. The purchaser shall bear the costs of the acknowledgment and undertaking for production and safe custody of deeds and (1) Davidson's Conveyancing, vol. i. Conditions of Sale. (2) 37 & 38 Vict. c. 78, ss. 1, 2; 44 & 45 Vict. c. 41, s. 3. See Clerke and Brett's Conveyancing Acts, 3rd ed. p. 268. conditions documents, except costs of perusal and execution on behalf of Statutory and by the vendor and on behalf of and by necessary parties of sale. other than the purchaser. Where the vendor retains part of the land, he shall retain the deeds. 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, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions. A purchaser of any property shall not require the production, or any abstract or copy, of any deed, will, or other document, dated or made before the time prescribed by law, or stipulated, for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; nor shall he require any information, or make any requisition, objection, or inquiry with respect to any such deed, will, or document, or the title prior to that time, notwithstanding that any such deed, will, or other document, or that prior title is recited, covenanted to be produced, or noticed; and he shall assume, unless the contrary appears, that the recitals, contained in the abstracted documents, of any deed, will, or other document forming part of that prior title, are correct, and give all the material contents of the deed, will, or other document so recited, and that every document so recited was duly executed by all necessary parties, and perfected, if and as required, by fine, recovery, acknowledgment, inrolment, or otherwise. On a sale of any property, the expenses of the production and inspection of all Acts of Parliament, inclosure awards, records, proceedings of Courts, Court rolls, deeds, wills, probates, letters of administration, and other documents, not in the vendor's possession, and the expenses of all journeys incidental to such production or inspection, and the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the vendor's possession, and all attested, stamped, office or other copies or abstracts of, or extracts from, any Acts of Parliament or other documents aforesaid, not in the vendor's possession, if any such production, inspection, journey, search, procuring, making, or verifying is required by a purchaser, either for verification of the abstract, or for any other purpose, shall be borne by the purchaser who requires the same; and where the vendor retains possession of any document, the expenses of making any copy |