or connected with the contract (not being a question affecting the existence or validity of the contract), and the judge shall make such order upon the application as to him shall appear just, and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid. It follows that, unless the validity or existence of the contract itself is disputed, it is unnecessary to have recourse to the former mode of procedure, particularly as it has been decided (ƒ) that under such a summons, evidence can be gone into, both by affidavits and cross examination on them, upon any question at issue between the parties. (ƒ) In re Burroughs, Lynn & Sexton, 5 Ch. D. 601. Division of a The Premises. CHAPTER III. OF PURCHASE DEEDS. WE now come to the consideration of those Purchase Deeds which form the final step in carrying out contracts for the sale of land, and cause them to lose their character of executory, and to assume that of executed, contracts. And in doing this, we propose to notice, in turn, the various clauses of which such a deed is composed, pointing out, when necessary, the different ways in which they are framed, according as the estate dealt with is freehold, copyhold, or leasehold. An ordinary purchase deed may be conveniently divided into the following parts:-1st, the Premises, which include all that part of the deed which comes before the habendum; 2nd, the Habendum, which defines the estates to be held in the property dealt with; 3rd, the Covenants; and 4th, the Testatum, or witnessing part. If the deed is more complex, it may contain, in addition to the above, Declarations of any trusts which may be fastened on the legal estate, followed by such Provisos or explanatory statements as may be necessary. These parts, if inserted, come immediately after the habendum (a). The Premises are again subdivided into various clauses. Of these the first is the Introductory Part, which consists merely of the words "This Indenture made on" such and such a date. It does not call therefore for further remark. (a) 1 Dav. Con. 31. Next come the Parties to the deed. These should, Parties. in general, comprise, besides the vendor and purchaser, every person from whom any legal or equitable estate or interest is transferred to the purchaser; or whose consent or concurrence is necessary to make a perfect conveyance, and also all persons who enter into any of the covenants contained in the deed. The most convenient order of their arrangement is to place first the party or parties from whom the legal estate in the property is transferred; next, any persons whose concurrence is requisite, or who enter into any covenants; and last, the party or parties to whom the legal estate is to be given by the deed. The names and descriptions of all the parties should be set out in full, so as to prevent any difficulty in their subsequent identification, but a deed is not invalidated by a defect in this respect, so long as the name or description given to any party is that by which he, or she, is generally known (b). After the parties come such Recitals as may be Recitals. 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 (c); and introductory recitals, which explain the motives for the preparation and execution of the deed. Narrative recitals, when used, should go back Narrative refar enough to show a clear root of title (d), 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 anything which is not logically connected with the particular matter in hand. It has, however, been pointed out by an eminent writer (e) that, in citals. Introductory recitals. view of the practice, in framing conditions of sale, of making recitals evidence, they may sometimes be used as statements 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, 1874 (f), (which it will be remembered 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. Under that Act it has been held that, in the case of a contract containing no stipulation as to the commencement of the title, a recital in a conveyance more than twenty years old, that the then vendor was seised in feesimple of the property, is sufficient evidence of that fact, and precludes the purchaser from requiring any earlier title to be shown, unless he can prove that the recital is inaccurate (g). Introductory recitals, when used, should come immediately 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, nor 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. (f) 37 & 38 Vict. c. 78, s. 2. (g) Bolton v. London School Board, 7 Ch. D. 766. are to be used. In the simplest form of purchase deeds no recitals When recitals of any kind need be introduced (h); and opinions would appear to be somewhat divided as to the extent to which they should be used, even in preparing more complicated deeds. There can, however, be no doubt that the tendency of modern conveyancing is to do away with the amount of unnecessary recitals, as well as to omit the verbiage, with which deeds of all kinds were formerly overloaded. The better rule appears to be, that recitals are necessary whenever the deed itself does not clearly imply for what purpose any person joining in it is made a party; or whenever the covenants into which he enters show that he has only a qualified interest in the property sold. From this it would follow that recitals are requisite in all cases where the property is vested in different persons, each having a partial estate; or in trustees, or others, selling under a power of sale; and also, whenever the estate is subject to incumbrances which are noticed in the deed. should, as a On the assignment of leaseholds it is customary to Recitals describe them fully in the recitals, by setting out the rule, be in parcels as worded in the original lease; and then in general terms. the operative part (or that in which the property is transferred to the purchaser) to describe them merely by reference to that lease. In other cases, as we shall see presently, the parcels are described fully in the operative part. Subject to the exception just noticed in the case of leaseholds, care should be taken that the recitals are expressed in general terms; since otherwise they may conflict with the operative part (i). When they do so their tendency is to override the latter. Thus (), when the owner of land situate in Middlesex and comprising a certain manor, mortgaged to A. some of his property in Middlesex, (h) See I Dav. Con. 44. (i) See Jenner v. Jenner, L. R. 1 Eq. 361. |