to bid [up to the reserve]. No pson shall advance a less or, evidence of ance of 5. By the Conv. Act, 1881, s. 3 (4, 5), on a sale of leaseholds (which in 5. Receipt this case would it is presumed include a lease for lives) the last receipt for for rent rent prior to completion is made evidence of the performance of the performcovenants in the lease, and any superior lease, up to completion, and of the payment of the rent under any superior lease; unless the contrary appears. covenants. It is conceived that this condition would not apply where there has been a breach of covenant, so as to bind the purchaser to assume that it has been waived; a case which often has to be provided for. 6. As to expenses. By the Conv. Act, 1881, s. 3 (6), on a sale of any 6. Exproperty, real or personal, the purchaser is to bear the expense of any of the penses. following matters which he may require: a. of the production and inspection of all documents not in the vendor's possession, and incidental journeys; b. of searching for, procuring, and verifying all evidences, &c., not in the vendor's possession; c. of all copies or abstracts of or extracts from documents not in the vendor's possession, and d. of making copies of documents in the vendor's possession which are retained by him on completion. The last provision (d) would, it is conceived, apply to all documents not handed over to the purchaser, although they are delivered to the purchaser of another lot; but the clause does not throw on the purchaser the expense of furnishing him, during the investigation of the title, with copies of documents in the vendor's possession which are handed over to the purchaser on completion; and it also does not provide for the expense of stamping unstamped and insufficiently stamped documents (a matter which it would be contrary to policy to provide for by statute), and registering unregistered documents. Otherwise the clause is sufficiently comprehensive. Covenants for title, 7. As to the frame of the conveyance. The Conv. Act, 1881, s. 7, enables 7. Frame of conveythe covenants for title, or against incumbrances, to be in all ordinary cases ance. omitted; similar covenants being implied by virtue of the Act, subject to a doubt which has been raised (but which does not appear to be well founded), whether the words extending the implied covenants of a beneficial vendor &c. to the acts of "all persons through whom he derives title otherwise than by purchase for value" do not (contrary to the ordinary express covenant) include all his ancestors, testators, &c., although anterior to the last conveyance for value (see CONVEYANCES). If this doubt should be thought to have any substance, it would be proper to insert a proviso in the conveyance restricting the operation of the statutory covenants, and to provide for this in the conditions of sale. Subject to this point it will probably in most cases be a matter of indifference to the vendor whether the Act is relied on or not, so that (with this possible exception) no further condition as to the vendor's covenants need be inserted than has hitherto been usual. 8. As to the muniments to be retained by the vendor. By the V. & P. 8. MuniAct, 1874, s. 2 (5), where the vendor retains any part of an estate to which ments to be any documents of title relate, he is entitled to retain them; but this does retained by vendor. not apply to documents which relate to any property other than an "estate," VOL. I. Expense of covenant for production. Acknow ledgment and under taking under the Conv. Act, 1881. By a beneficial owner. By trustees. by the auctioneer on putting up the lot," and no bidding shall be retracted. e.g., a settlement relating to personalty; and the right of a purchaser to a covenant for production of the documents retained is left to implication. An express provision on this subject should be inserted when any muniments are retained. By the same Act, s. 2 (4), the expense of covenants for production required by the purchaser (other than of the perusal on behalf of and execution by the vendor or covenantor), is to be borne by the purchaser. The Conv. Act, 1881, s. 9, contains provisions for enabling a short clause in the form of an acknowledgment of the right to production and delivery of copies of documents, and an undertaking for their safe custody, to be substituted for the ordinary covenant for production. The operation of the statutory acknowledgment and undertaking is the same, whether the person giving it is a beneficial owner or only a trustee; and is similar to that of the ordinary trustee's covenant, the liability ceasing when the deeds are parted with, but going with the deeds so as to bind every successive possessor during the period of his possession. Where the vendor is a beneficial owner, it is considered that the statutory acknowledgment and undertaking is on the whole more beneficial to him, and not less so to the purchaser, than the old form of absolute covenant with proviso for substituted covenant (although the latter form may sometimes facilitate the tracing of the deeds when the covenantor has parted with them); and that there is no reason why it should not be used. In the case of trustees and mortgagees there has been a difference of practice as to their giving a covenant for safe custody of the deeds as well as for production (see Dav. Prec., vol. I., and Messrs. Wolstenholme & Turner's valuable edition of the late Act), the reason for not giving the former being that it is doubtful whether the trustees or mortgagees would have a right to be recouped damages incurred under the covenant; but whatever the correct practice may have been, it is not altered by the Act, as the statutory undertaking is the same in effect as the old form of covenant. It is to be observed that trustees or mortgagees to whom title deeds are delivered will necessarily, by s. 9 (9), be saddled with the liability under any such statutory undertaking which may have been given by any previous possessor of the deeds. Possibly this is a liability in respect of which they should obtain an express indemnity. The statutory acknowledgment and undertaking respectively are, by s. 9 (8, 11), to satisfy any liability to give a covenant for the like purpose. General The above statutory provisions applicable to contracts for sale will be of effect of great value for the protection of vendors selling under open contracts, and statutory they may to some extent be relied on where it is wished to shorten the provisions. conditions; but as the saving in this respect would not (as will be seen from the forms in the text) be considerable, and they would often (as above indicated) fall short of what is required, it is considered that it will in general be better and more convenient to insert the usual express conditions. 2. Valuations of timber, fixtures, &c., if required, see SPECIAL CONDITIONS, p. 240. 3. THE [Each] pchaser shall immediately after the sale Deposit and completion. pay into the hands of the auctioneer a deposit of £— per cent. on his pchase-money, and sign an agreemt in the form subjoined, and shall pay the residue of the pchase-money [togr with the amount of the afsd valuation] to the vendors, or as they shall direct, on the office of the vendors' solors, Messrs. time and place the pchase shall be completed. day of next, at the at at which As to the powers of trustees for sale to sell by auction or private contract Sales by and subject to any conditions as to title, &c., &c., see 23 & 24 Vic., c. 145, trustees. s. 1, 2, applying to trusts under instruments executed, or wills or codicils confirmed or revived by codicil since the 28th August, 1860, but to "land" only; and the Conv. Act, 1881, s. 35, applying to trusts under instruments coming into operation since the 31st December, 1881 (and to which both enactments will apply concurrently), and to any kind of property, real or personal; Lewin on Trusts, p. 397. Neither of these enactments applies to executors. Notwithstanding the powers given by these Acts or the instru ment creating the trust, trustees should avoid inserting unnecessarily depreciatory conditions; see as to this, under the old law, Dance v. Goldingham, L. R. 8 Ch. Ap. 902. As to the power of trustees to join with owners of other property, or with co-owners, in selling, see Re Cooper, 4 Ch. D. 802, and the cases there cited; and the Conv. Act, 1881, s. 35. and solicitors See also the important provisions in the V. & P. Act, 1874, s. 3, protecting Protection trustees who sell or buy without excluding the application of that Act, and of trustees in the Conv. Act, 1881, s. 66, protecting solicitors and trustees and executors who adopt the provisions of that Act, or omit to negative or exclude them; adopting so that such adoption or omission will not be a breach of trust or duty, or statutory involve them in liability. provisions. Reference should here be made to the Conv. Act, 1881, s. 56, whereby the Payment of production by the vendor's solicitor of the conveyance duly executed, with a purchaseduly signed receipt for the purchase-money in the body thereof or endorsed, money to is to be a sufficient authority for the payment of the purchase-money to the solicitor. solicitor. As to the previous law, see Viney v. Chaplin, 4 Drew. 237, 2 De G. & J. 468; Ex parte Swinbanks, 11 Ch. D. 525. This should be borne in mind, especially where the vendors or purchasers are trustees; but they would be protected in respect of the payment by the 66th section. As to the necessity for stating whether the sale is subject to a reserve Reserve price, see the Sale of Land by Auction Act, 1867, 30 & 31 Vic., c. 48; and price. as to reserving liberty to bid up to that price, see Gilliat v. Gilliat, L. R. 9 Eq. 60. See also as to the law on the subject of contracts and conditions of sale before the late Act, Dart, V. & P., and Dav. Prec., vols. I. and II., pt. 1. Possession and interest. The same. Provision for com pletion between 4A. THE vendors shall pay and discharge all rates, taxes, and outgoings which shall have become payable, and shall be entled to the rents and profits or possion up to the day of next, as from which day the pchaser [respive pchasers] shall be entled to the rents and profits, or possion, and shall pay and discharge all rates, taxes and outgoings [add where the property is in hand, including any rates made before but not demanded till after that day], and the rents, profits, and outgoings shall, if necessary, be apportioned for the ppose of this provon (b): [Provided that, in the event of the completion of the pchase [of any lot] being delayed, the pchaser shall not be let into possion of such pt of the ppty as is in hand until the pchase shall be actually completed]. If from any cause whatever (c) the pchase [of any lot] shall not be completed on or before the next, the pchaser shall pay day of to the vendors interest on the balance of the pchase-money 4B. THE [Each] pchaser shall on the completion of the (b) The following is sometimes added where the time for completion is between two rent days:-" and the vendors' proportion of the rents and profits becoming due after completion of the rent days. pchase, less their proportion of the outgoings, shall be paid to them by the pchaser [respive pchasers] on completion." (c) The words," other than the [wilful] default of the vendors," would often be inserted here in a sale by private contract, and the subsequent words excluding any claim to compensation for their delay would in that case be omitted. See as to this condition, Dart, V. & P., p. 636. (d) The following is sometimes added here:-" Or the vendors shall Option to vendors to have the option of taking the rents and profits (less outin lieu of goings) up to the actual day of completion in lieu of interest interest. as afsd." take rents form. pchase be let into possion or rect of the rents and profits as Shorter from the sd day of next, up to which day all rates, taxes, and outgoings which shall have become payable will be discharged by the vendors; and the rents, profits, and outgoings shall, if necessary, be apportioned for the ppose of this condon. Add condition as to interest, see last form. brances, 5. THE ppty is sold subjt [if copyhold, to the manorial Incumrights, and] to all chief, quit, and other rents, rights of way & and water and drainage, and other easemts affecting the same [liability to repair or contribute to the repair of roads, bridges, seawalls, dykes, sewers, drains, fences, and other like matters] and other outgoings and incidents of tenure, and subjt also to the existing tenancies and tenant-rights, or, "the leases and agreemts with the tenants and occupiers, the counterparts or copies whof [will be produced at the sale, and] may be inspected at the office of the vendors' solor at any time within one week prior to the day of sale during business hours" (e). 6. Conditions as to commencement and evidence of title, &c., see SPECIAL CONDITIONS. abstracts 7. [A PCHASER of two or more lots held wholly or partially as to under a common title shall not be entled to more than one common to abstract of such title, otherwise than at his own expense]. several lots (f). incum (e) Occasionally the sale is subject to a mortgage (so as to be a sale of the Sale subequity of redemption) or to a rentcharge. In that case add, " and to a ject to mtge for £- and interest at per cent. per annum, brances. payable half yearly, or, ' to an annuity or rentcharge of £per annum charged thereon and payable during the life of X.,' which sd principal sum and the interest thereon from the day of, or, which sd annuity from the day of -,' shall be paid by the pchaser, and the vendors shall be indemnified thfrom by the pchaser's covenant to be contd in the conveyance or, at the option of the vendors, in a separate deed to be prepared by and at the expense of the vendors, and to be executed at the same time as the conveyance." (f) This condition may be omitted; see the Conv. Act, 1881, s. 3 (7), above, p. 224, note. |