Acknowledgment of duction. In the days when express covenants for title were right to pro- put into purchase deeds, their place was next after the habendum. And if any part of the title-deeds were retained by the vendor, these covenants were followed by a further covenant by him that he, his heirs, or assigns would produce the title-deeds in question to the purchaser, or to any person lawfully claiming under him, whenever reasonably requested so to do; and would, in the meantime, keep the deeds safe, unless prevented by insuperable accident. In the case of a trustee the covenant was limited so as to affect him, or his estate, so long only as he had custody of the deeds. The Conveyancing Act, 1881, has (m) substituted for these covenants an acknowledgment by the vendor of the purchaser's right to production of the title-deeds and an undertaking for their safe custody. These have the same effect as the ordinary covenants for production formerly inserted, with the advantage of shortening the wording of the deed. If the vendor is a trustee or mortgagee, he merely gives an acknowledgment of the purchaser's right to production. This binds him to produce the deeds whilst they are in his custody, but does not impose upon him any liability on account of loss or destruction of, or injury to the deeds, from whatever cause arising. An obligation to produce deeds can, if necessary, be enforced by means of an application to the High Court. Testimonium. Having thus gone through the essential parts of a purchase deed, it only remains to mention that the whole is concluded by a Testimonium, which sets forth that the several parties to the deed have duly affixed thereto their respective hands and seals; and to point out that the fact of their having done so should be attested by at least one witness, whose attestation is usually to be found indorsed on the deed along with the receipt clause. (m) S. 9. CHAPTER IV. OF LEASES. HAVING thus considered the instruments which relate to the sale of land, we come next to those which are employed when it is to be let. These, as we know, are called leases, and will form the subject of discussion in this chapter. The simplest form perhaps of a lease is that of a dwelling-house and grounds for a short term of years which is to commence on, or very shortly after, the execution of the instrument of demise. And since our object is to deal only with the more ordinary and simple forms of conveyancing, we will confine our remarks to leases of this description. And, in so doing, we will follow the plan adopted in the case of purchase deeds, and divide our present subject into Ist, Agreements for Leases; and 2nd, Leases. for Leases. Agreements for leases, again, may be classified Agreements under two headings; namely, those instruments which have been expressly entered into by the parties as agreements for leases, and those instruments which operate as agreements by construction of law, although not expressly entered into as such. Before, however, considering agreements for leases with reference to this classification, we have to say a few words on the statutory requisites relating to all such agreements generally. Prior to the passing of the Statute of Frauds (a), any lease, and also any agreement for a lease, of land, (a) 29 Car. II. c. 3. Statute of ance. might be made by parol. But by this statute it is enacted (b) that no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in, or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. It follows, therefore, that no person is liable on a mere contract to grant, or take, a lease, unless he has signed some written document which, either in itself, or in conjunction with other writings, contains the Part Perform substantial parts of the contract. But if something more has been done than simply entering into a nonbinding agreement, the contract may come within the class of cases which are considered as taken out of the Statute of Frauds by part-performance. Thus, it has been held that possession taken by a lessee, and payment of rent by him, when these acts are distinctly referable to a parol or unsigned agreement, were sufficient to induce a court of equity to decree specific performance of the agreement, against either the lessor (c) or the lessee (d). And this rule extends also to the representatives of a lessor or of a lessee. Thus, where there had been a verbal agreement for a lease, and the lessee had entered into possession of the property, paid rent, and made improvements on the property, and afterwards died: it was held that his representatives were entitled to have, from the representative of the lessor, a formal lease, in terms corresponding to those of a draft lease found amongst the papers of the lessor, who was also dead (e). (b) S. 4. (c) Pain v. Coombs, 1 De G. & J. 34. (d) Kine v. Balfe, 2 Ba. & B. 343. (e) McFarlane v. Dickson, 13 Grant, 263. See also Nunn v. Fabian, L. R. I Ch. 35. ments for desirable. We now come to agreements for leases, expressly Express agreeentered into as such. We shall not, however, dwell leases. long on this point, since, as a rule, preliminary agree- Not in general ments are neither usual, nor desirable, in the case of those ordinary leases with which alone we are concerned. Where the lease is to take effect at once, and is not to contain any but the ordinary covenants, there can be no object in having a formal preliminary agreement (which can only be safely prepared by specifying precisely all the covenants and clauses which are to be inserted in the lease (f)), this agreement being immediately followed by a formal lease. Such agreements, consequently, are seldom entered into, except in cases where the intended lessee has to fulfil certain conditions before he becomes entitled to require a lease. which should ments are pre With regard to formal agreements for leases, we will Stipulations only call attention to two stipulations which should be inserted be inserted when these instruments are prepared by when agreethe conveyancer, premising that the fact of their being pared. necessary, if there is an agreement, does not conflict. with the statement that an agreement is not usually desirable. One of these stipulations is, that the lease is to contain a proviso for the forfeiture of the lessee's interest on the breach of any of his covenants: the necessity for this stipulation arising from the fact that under an agreement that a lease shall contain all " usual" clauses the forfeiture clause must be limited to the case of non-payment of rent (g). The agreement should also, whatever may be the length of the term to be granted, contain a statement that the instrument is intended only as an agreement, and does not pass any legal interest to the lessee. We will enter into the reasons for this when speaking of the second of the headings under which agreements have been (f) See 5 Dav. Con. 19. (g) Hodgkinson v. Crowe, L. R. 10 Ch. 622. Usual and proper covenauts. classified. It may be added that, unless otherwise provided, all the expenses attending the preparation of the agreement, and of the lease, fall upon the lessee (h), whilst the expense of preparing the copy of the lease retained by the lessor, and known as the counterpart," must be borne by him (i). Hence if some different plan is contemplated it should be so stated in the agreement. It was remarked just now that an agreement for a lease could not be drawn safely unless it specified the covenants to be contained in the lease. But it may not be out of place to point out here how agreements will be construed which are either silent on the question of covenants or (which comes to the same thing) merely provide that the lease to be prepared shall contain the "usual" or "proper" covenants. Whenever an open agreement of this kind is executed, the law will imply a further agreement by both parties to enter into certain covenants which are applicable to all leases, and no covenants can, generally speaking, be inserted in a lease made in pursuance of an open agreement other than those which are implied by the law as being strictly incidental to the subject-matter of the contract. It seems to be pretty well settled that these are covenants by the lessee (1) to pay rent, (2) to pay taxes, except such as are expressly payable by the lessor, (3) to keep and deliver up the premises in repair, and (4) to allow the lessor to enter and view the state of repair; and a covenant by the lessor that the lessee shall quietly enjoy the premises (j). It follows that, in the absence of precise stipulation, a lessee is not bound to enter into a covenant not to assign the lease without licence from the lessor (k), even though the property is a house in London, and |