sd premes to which he [or his sd wife] is or claims to be entled, or which he [or his sd wife] has or claims to have power to appoint or dispose of as hinbefore recited, and not further."

II. PROVD ALWAYS that, as respects the reversion or Proviso restricting remr expectant on the life este of the sd, life tenant, in the covenants premes and the title to and further assurance of the premes by tenant after his death, the covenants by the sd, life tenant, hinbefore for life (q). contd [implied by statute] shall not extend to the acts or defaults of any pson or psons other than or besides himself and his own hrs [exs or ads], and psons claiming through or in trust for him, them, or any of them.

vendor's

under

III. PROVD ALWAYS, and it is hby decld that the covenants Proviso of the sd A. for the title to and further assurance of the sd restricting premes, which are implied by statute, shall not extend so liability as to render him liable in respect of the acts or defaults of statutory the sd B. (a person conveying by his direction), or of pson claiming under the sd B.

and

and

any covenant

covenants

person

his direc

tion (7).

limiting

resply liability

IV. PROVD ALWAYS, and it is hby agrd, that the total conveys by amount recoverable from each of them the sd or from his hrs, exs, or ads, by way of damages under the Proviso respive covenants by them the sd hinbefore contd, or, "which are implied by statute," for the nantors title to and further assurance of the sd premes hby assured, to shall not exceed the sum of £hinafter mentd, that is to say, from the sd

or,

of cove

shares

"the several sums of the

money.

exs, or ads, the sum of £

and from the sd

his hrs, purchasehis

(7) This form is intended for a case where a tenant for life, who was himself the settlor, enters into covenants for title, express or statutory, on a sale by the trustees.

(r) See p. 366, note, p. 382, notes (j), (k).

VOL. I.

сс

COVENANTS FOR PRODUCTION OF
DEEDS (a).

To produce deeds.

I.

COVENANT by one VENDOR to one PURCHASER for PRODUCTION of deeds; with proviso for SUBSTITUTED COVENANT on the vendor PARTING WITH the deeds. VARIATIONS for LEASEHOLDS or PERSONALTY, for a CONVEYANCE by or to JOINT TENANTS or TENANTS IN COMMON, and where the covenant for production is contained in a SEPARATE DEED.

THE sd, vendor, doth hby, for himself and his assigns, covenant with the sd, purchaser or grantee to uses, his hrs and

Statutory (a) The Conv. Act, 1881, s. 9, contains provisions intended to obviate the covenants insertion of the full covenants for production and safe custody of documents for produc- by substituting very short forms of-1. An acknowledgment of the right to custody of production and delivery of copies; and, 2. An undertaking for safe custody; title deeds, to which an operation is given similar to that of the ordinary covenant

tion and

Operation

trustees

by trustees or mortgagees (Form II.), in respect of the personal liability ceasing on the covenantor parting with the deeds, but the obligation attaching on the deeds against the holder for the time being; whereas the liability under the usual covenant of a beneficial owner continues after he parts with the deeds, unless there is a proviso for cesser of the liability on his procuring a substituted covenant (see Form I.), and this is procured; which, however, it seldom is, on account of the trouble and expense. Probably the Act will lead to an assimilation of the practice in the two cases; see above, p. 226, note.

The statutory covenant differs from the ordinary trustees' and mortgagees' of statutory covenant in this, that the latter imposes a liability only while the covenantors covenant have the "actual custody" of the deeds, but, under the statute, they are in case of liable while having the "custody or control" of them; this is of no importance as regards the covenant for production, but it renders the undertaking for safe custody more onerous by making the covenantors liable for the defaults of their agents, as well as their own personal defaults; and it may be proper to qualify the undertaking in this respect in the case of trustees or mortgagees, if it is given at all; see above, p. 226, note, the remarks

and mortgagees.

assigns, [in a conveyance in joint tenancy, "with the sd, purchasers, their hrs and assigns," in a conveyance in com

in which apply also to mortgagees. As to the liability of a mortgagee to pay compensation to the mortgagor for the loss of the deeds, see Hornby v. Matcham, 16 Sim. 325; Brown v. Sewell, 11 Hare, 49; James v. Rumsey, 11 Ch. D. 398. A mortgagee is now bound to produce the deeds to any person interested in the equity of redemption; see the Conveyancing Act, 1881, s. 16.

The Act applies whether the documents relate to real or personal estate.

An acknowledgment or undertaking under the Act is to satisfy any liability Right of to give a covenant for production or safe custody respectively (sub-ss. 8 purchaser and 11); so that a purchaser cannot, as it seems, insist on the ordinary to express express covenant, although stipulated for in the contract. But the statutory

operation of the acknowledgment or undertaking is to be subject to any express provisions contained in it (sub-ss. 12 and 13); it may therefore be modified.

covenant.

Form of

It is important to notice that sub-s. 1 appears to require that the acknowledgment, in order to be effectual, should be of the right not only to produc- acknowtion, but also to delivery of copies (and see the form in schedule IV. 3); so ledgment. that without the latter words it would fail of any statutory effect.

A mere acknowledgment does not include a covenant for safe custody Acknow(sub-s. 6); if this is intended, an undertaking must also be given under ledgment sub-s. 9. An acknowledgment or undertaking need not be under seal; if does not under hand only it will require only a 6d. agreement stamp.

include

under

covenantor.

The statutory covenant only applies to documents "in the possession" taking. of and "retained" by the covenantor (see sub-ss. 1 and 9); the fact that they Stamp. are in his possession should therefore be stated in the acknowledgment or in- The docutroductory recital. Of course the retaining need be only momentary, and ments the acknowledgment may no doubt be given by a purchaser, to whom the must be in deeds are delivered on completion, to the vendor or a third party. Occasion- the possesally a vendor covenants for production of documents in the hands of third sion of the parties, who cannot or will not give a covenant, e.g., mortgagees, or the trustees of a settlement; in that case an express covenant in the old form must be given, as the statute would not apply, even though the documents should afterwards come into the possession of the vendor; the doctrine of estoppel not being applicable to such a case. The statutory form of acknowledgment and undertaking if given in such a case would operate according to its tenor independently of the statute, and would probably create a more onerous liability than the ordinary express or statutory covenant.

Except in the last-mentioned case, and where the property is situate Express abroad, the statutory provisions on this subject appear entirely to supersede covenant the necessity for the insertion of the full covenants for production, &c., and it now generally unis considered that they should be adopted in the case of absolute owners as necessary. well as trustees and mortgagees (with a possible variation in the case of the latter, see last page); but the ordinary forms of such covenants are here given for comparison with the statutory provisions, and for use, if preferred.

mon, "with the sd, purchasers, their hrs and assigns, and as a separate covenant with each of them, his hrs and assigns" (b), that he, the sd, vendor, his hrs or assigns (c), will at all times hereafter, unless prevented by fire or other inevitable accident, upon every reasonable request, and at the cost of the sd, purchaser[s] or grantee[s] to uses, his [their] (d) hrs or assigns, or any of them, or any pson or psons having or claiming through him or them any estate or interest at law or in equity in the sd premes hby assured (e), or any pt thof, produce or cause to be produced [in England or Wales, but not elsewhere] to him or them, or his or their agent or solor, or such other pson or psons as he or they shall direct, or in the course of any judicial or other proceedings, or otherwise as occasion shall require, all or any of the deeds and writings mentd in the schedule hereunder written, or, "the sd recited indres of, &c.," or, "a certain indre, dated, &c., and expd to be made, &c., and

"" 66

(b) For leaseholds or personalty substitute throughout the covenant for "heirs,' exors, admors," in the case both of the covenantor and covenantee. The covenantor is made to covenant for his " assigns," as the burden of the covenant is to run with the land, or other property, to which the deeds relate; but he need not covenant for his "hrs, exs, and ads," see p. 8, note.

(c) If the vendors are joint tenants, or tenants in common, the covenant will commence :-" The sd, vendors, do hby, for themselves and their assigns [if tenants in common, add, and each of them doth hby, for himself and his assigns], covenant, &c., that they, the sd, vendors, their [if tenants in common, respive] hrs [exs, ads] or assigns will, &c." The rest of the covenant will be as above. Where one of the vendors is a married woman, she may cove. nant so as to bind her separate estate (see above, p. 371), or her husband may covenant in her stead.

(d) If the purchasers are tenants in common insert here and subsequently in the corresponding place, "respive."

(e) Where the covenant for production is contained in a separate deed, substitute here, and subsequently, for, "hby assured," the words, comprd in and assured by the hinbefore recited indre of even date hwith."

a certain other indre, dated, &c., and expd, &c." [and all other deeds, evidences, and writings (if any), other than documents of record, now in the custody or power of the sd, vendor, relating to the sd premes hby assured (e), or any pt thof] (ƒ), for the proof, defence, and support of the title and possion of the sd, purchaser[s] or grantee[s] to uses, his [their] heirs or assigns, or any such other pson or psons as afsd to the sd premes hby assured, or any pt thof, and will permit the same to be examined, inspected, or given in evidence; AND WILL also at the like request and cost of the Furnish copics. sd, purchaser [s] or grantee[s] to uses, his [their] hrs or assigns, or any such other pson or psons as afsd, make and furnish, or cause to be made and furnished to him or them such true, attested, or other copies or abstracts of or extracts from the same deeds and writings resply, or, "indres," as he or they may require; AND WILL keep the same deeds and For safe writings, or, "indres," safe, whole, and uninjured, fire or custody. other inevitable accident only excepted; PROVIDED always, Proviso and it is hby decld, that in case the sd deeds and writings, tuted coveor, "indres," hinbefore covenanted to be produced, or any nant. of them, shall at any time hereafter be delivered by the holder or holders thereof to any other pson or psons lawfully entitled to the custody thof, and such pson or psons shall thereupon enter into with, and deliver to the pson or psons for the time being entitled to the benefit of the covenant for production hinbefore contd, and without expense to him or them, a covenant for the production and furnishing copies and safe custody of the deeds and writings, or, "indres," which shall have been so delivered up, similar to the covenant hinbefore contd, then and in such case the sd last-mentd covenant shall thenceforth be null and void, so far as regards the deeds and writings, or, "indres," to which the sd substituted covenant shall relate.

for substi

(e) See preceding page, note (e).

(f) The part in brackets is not usual.