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Real Property
Amendment

Act.

Attornment. 4 & 5 Anne, c. 3.

Fines and
Recoveries
Abolition Act.

Lease and

unnecessary.

4 & 5 Vict. c. 21.

note in writing, signed by the party assigning, granting, or surrendering the same, or by his agent thereunto lawfully authorised, or by act and operation of law.

These provisions of the Statute of Frauds were supplemented by the Real Property Amendment Act, the 8 & 9 Vict., c. 106, which (h) makes void all feoffments, partitions, leases, assignments, and surrenders unless made by deed, except feoffments made under a custom by an infant, partitions and exchanges of copyholds, and leases not required by law to be in writing-that is, those excepted by the Statute of Frauds.

The next change effected in the transfer of land was by the 4 & 5 Anne, c. 3. This Act (i) makes good all grants of any manors or rents, or of the reversion or remainder of any messuages or lands, without any attornment of the tenants of the manors or lands out of which such rent issues; or of the particular tenants upon whose particular estate any such reversions or remainders shall be expectant or depending.

The next Act to be mentioned is that for the Abolition of Fines and Recoveries (j), which substituted a deed, inrolled within six calendar months after execution, for the ancient process of a fictitious suit.

Next we find the 4 & 5 Vict., c. 21, which did away with Release made the necessity for two deeds in a conveyance by Lease and Release; for it enacted that every deed of release of freehold estates, expressed to be made in pursuance of the Act, should, thenceforth, be as effectual as if the releasor had also executed a deed or instrument of bargain and sale, or lease for a year, for giving effect to such release.

Real Property
Amendment

Act.

Next to be noticed is the Real Property Amendment Act (k), already referred to, which, in addition to its other

(h) S. 3.

(j) 3 & 4 Wm. IV. c. 74.

(i) S. 9.
(k) 8 & 9 Vict. c. 106.

provisions, effected an important change in the mode of conveying freeholds. For it rendered unnecessary any conveyance of land by way of lease and release, by declaring (1) that from thenceforth all corporeal hereditaments should, as regards the immediate freehold thereof, lie in grant as well as in livery, thus enabling all hereditaments, whether corporeal or incorporeal, to be conveyed by a simple deed of grant. The Act also (m) put an end to the tortious operation Tortious of feoffments, and thus caused a feoffment in fee-simple by put an end to. any tenant with a limited interest to operate as a conveyance of such interest only (n). Next we have to mention the Inclosure Acts (o), enabling changes to be made through the Inclosure instrumentality of the Board of Agriculture (whose order permitting an exchange or partition is good without any further conveyance or release).

feoffments

Acts.

Acts, 1875 and 1897.

Lastly by the Land Transfer Acts, 1875 (p) and 1897 (q), Land Transfer the owner of land may be registered as the proprietor of that land and the land can then be transferred by a registered transfer or mortgaged by a registered charge. Registration of title is compulsory in the County and City of London.

We may also mention the Vendor and Purchaser Act, 1874 (r), the Conveyancing Acts, 1881 to 1911 (s), and the Settled Land Acts, 1882-90 (t). These, however, have not created any new modes of assurance, although they have brought about important changes in their forms. And since these changes will be considered in detail in the subsequent chapters, it will not be necessary to discuss them now.

(1) S. 2.

(m) S. 4.

(n) Shelf. R. P. Statutes, 637, note (k).

(0) 8 & 8 Vict. c. 118; 10 & 11 Vict. c. 111; 11 & 12 Vict. c. 99; 12 & 13 Vict. c. 83; 15 & 16 Vict. c. 79; 17 & 18 Vict. c. 97; 20 & 21 Vict. c. 31; 22 & 23 Vict. c. 43; 31 & 32 Vict. c. 89; 39 & 40 Vict. c. 56; 45 & 46 Vict. c. 38; 52 & 53 Vict. c. 30; 3 Edw. VII. c. 31.

(p) 38 & 39 Vict. c. 87.

(q) 60 & 61 Vict. c. 65.

(r) 37 & 38 Vict. c. 78.

(s) 44 & 45 Vict. c. 41; 45 & 46 Vict. c. 39; 55 & 56 Vict. c. 13; 1 & 2 Geo. 5, c. 37.

(t) 45 & 46 Vict. c. 38; 47 & 48 Vict. c. 18; 50 & 51 Vict. c. 30; 52 & 53 Vict. c. 36; 53 & 54 Vict. c. 69.

We have thus traced the history of conveyancing down to the date of the Statute of Uses; examined the great changes made by the statute, not only in the nature of legal estates, but in the modes also in which they could be settled and conveyed; and observed the origin and growth of the power of disposition by will; the safeguards against fraud provided by the Statute of Frauds and the Real Property Amendment Act; the abolition of the ceremony of attornment, and of the cumbrous process of fines and recoveries; the enactments by which the lease and release gave way, first to the release alone, and then to the simple grant; the simplicity introduced by the Inclosure Acts into the exchange and partition of land, and finally the mode of registered transfer introduced by the Act of 1875. The result, from a conveyancing point of view, is that we have now the Grant and Assignment (comprehended under the general name of Purchase Deeds), and Registered Transfer, for the sale of land; the Mortgage Deed, or Registered Charge, for its pledge; the Lease to give its temporary possession; the Settlement whereby estates can, subject to due precautions, be preserved in families; and the Will, which can either operate as a settlement, or effect a direct transmission of property, from one person to another.

In the succeeding chapters the assurances enumerated above will be considered; and we may take this opportunity of stating that our remarks will, as a rule, extend only to the simplest forms of those instruments which convey the legal estates in the various kinds of property which have been referred to in this Chapter.

CHAPTER II.

OF CONTRACTS FOR THE SALE OF LAND.

HAVING thus traced the history of conveyancing down to our own times, we have next to consider, in detail, the various instruments at present used for the transfer of real property. Now, each of these instruments marks the carrying out of some pre-existing purpose, which may have been that of one person, or of several. In the latter case, it will usually be found that the terms of the assurance have been the subject of previous negotiations, which have resulted in an agreement, or contract, and this contract forms an important part of the transaction, being the foundation of the edifice of which the assurance is the completion. This remark applies particularly to the ordinary case of vendors and purchasers of land. Hence, it is proposed, before considering purchase deeds of real and leasehold estates, to turn our attention to the contracts by which they are preceded.

Such a contract is, like all contracts, subject to various rules of law, non-compliance with which will render it invalid. There are also certain statutory requirements which are essential to the proof of its existence, though not to its creation. Under the former, a contract may be set aside on account of the incapacity of one, or more, of the parties to it; on account of there having been some fraud, or mistake, committed with reference to it; and on several other grounds which need not be further particularised. With these we shall not occupy ourselves to any great extent, for our aim is chiefly to ascertain how a contract of sale of land ought to be drawn up, supposing it to have been properly entered into. This, however, involves the consideration of the statutory requisites for such a contract, and of the judicial decisions

Division of the subject.

Summary of the steps on a sale of land.

upon the wording of Acts of Parliament relating to these requisites.

And it may be as well here to remind the reader of the important change made in our system of jurisprudence by the Judicature Acts, 1873 and 1875 (a). The Act of 1873 enacts (b), that except in matters therein particularly mentioned (none of which relate to our subject), whenever there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail. Consequently, although reference will occasionally be made in this and the following chapters to rules of law which differed from those of equity, it will only be in order to mark out equitable doctrines with more distinctness.

Since, then, the preparation of a contract of sale of land is governed by the enactments and decisions to which reference has been made above, we will, in this chapter, discuss separately the statutory requisites for such a contract; and the proper form of the contract when embodied in an Agreement, or in Conditions of Sale.

We shall then consider the effect of the contract pending completion of the sale; the Abstract of Title, its verification and proof; the Requisitions on the abstract and the answers to such requisitions; the completion of the contract; the searches usually made by the purchaser; how the costs of the sale are borne; the capacity of the parties and their power to convey; and, finally, the remedies for breach of the contract.

Before considering these points in detail, it may be useful to set out a summary of the steps that usually occur on a sale of land, namely, 1st, The contract of sale; 2nd, The vendor (or his legal adviser) prepares an Abstract of Title, containing an analysis of his title to the land; 3rd, The

(a) 36 & 37 Vict. c. 66; 38 & 39 Vict. c. 77.
(b) S. 25, sub-s. 11.

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