SECTION 3.

AS TO THE PARTIES TO WHOM THE ASSURANCE IS

MADE.

Having come to a conclusion as to the parties from whom the estate and interest in the property is to be divested, the next consideration will be the party or parties in whom the estate is to be vested.

How Conveyed.-An ordinary contract of sale is not only to convey to the purchaser, but to convey as the purchaser shall direct. When it is simply a question of convenience to the purchaser, not involving any matter of substance affecting the vendor, it is idle for the vendor to raise objections to the form of conveyance (q). So long as he does not increase. the burden cast upon the vendor, the purchaser may require the property to be conveyed in any number of lots and to any number of persons; and the vendor cannot object to convey on his being paid the additional expense occasioned by his joining in several conveyances instead of one (r). It is not, however, in the contemplation of the parties that the vendor shall remain a trustee for the purchaser for an indefinite period; and, therefore, the purchaser is bound to accept a conveyance to himself or his nominees, and cannot elect to rely upon his equitable title or require the vendor to keep his legal estate for a long period and convey it in portions at various times (s).

(4) Cooper v. Cartwright (1860), John. 684.

(r) Earl of Egmont v. Smith (1877), 6 Ch. D. 469, at p. 474. (8) In re Cary Elwes' Contract, [1906] 2 Ch., at p. 149.

Purchase in Name of Another.-If an assurance is made to a person who does not actually pay the purchase money, a trust is thereby implied in favour of the person paying the amount, and parol evidence to prove that such is the case will be admitted in a court of equity. If, however, the purchase be taken in the name of a wife, child or children, grandchild or illegitimate child, or any person to whom the purchaser stands in loco parentis, it will be assumed that the purchase was intended as an advancement, unless evidence is produced to negative such a presumption (t).

Partners. When real estate is purchased for partnership purposes it will be desirable to take the conveyance unto and to the use of the partners, as joint tenants at law, upon trust for such partners as part of the personal estate of the partnership, according to the shares and interests of the partners

therein.

But if the conveyance be made to the partners as joint tenants merely, though there would be a survivorship at law in case of the death of either of them, still, in equity, the survivor would hold the share of the deceased partner in the estate as a trustee for his representatives (u); and the same rule would apply to a purchase by two or more for the purpose of a joint speculation (x).

(t) See Dyer v. Dyer (1788), Wh. & Tu., Vol. II., and notes thereto.

(u) Morris v. Barnett (1829), 3 Y. & J. 384; and cf. 53 & 54 Vict. c. 39, s. 20.

(x) Lake v. Craddock (1732), Wh. & Tu., Vol. II.

Joint Tenants.-When a purchase is made by trustees for the purposes of their trust, the property is vested in them as joint tenants. It is usual, in the case of a conveyance to trustees, either not to disclose the trusts at all, or to convey to them upon trust for sale, the trusts of the proceeds being disclosed by a separate deed which does not concern a subsequent purchaser. The ordinary recitals and forms used in conveyances to trustees, with the view of keeping all notice of the trust off the title, are not misrepresentations on the face of the document which will displace the equitable title of the cestui que trust (y).

In all cases where land is conveyed on sale to more than one person so as to create a joint tenancy, if the purchase money has been advanced by them in equal shares, such joint tenancy will exist both at law and in equity (2); but if the purchase money be paid in unequal proportions, the purchasers are entitled in equity to the property in the shares in which the purchase money was paid by them (a). If persons entitled to an equitable estate as tenants in common take a conveyance of the legal estate as joint tenants, a joint tenancy is ended in law and equity; since two or more persons cannot be trustees for themselves for an estate co-extensive with their legal estate (b).

(y) Carritt v. Real and Personal Advance Co. (1889), 42 Ch. D. 263.

(2) Aveling v. Knipe (1815), 19 Ves. 441.

(a) Lake v. Gibson (1729), 1 Eq. Ca. Abr. 291; and Sugden's Vendors and Purchasers, 11th ed., 902.

(b) In re Seloos, [1901] 1 Ch. 921.

Tenants by Entireties. If land is conveyed to a husband and wife, they no longer take as tenants by entireties, but as joint tenants, the wife's interest belonging to her for her separate use; but if land is conveyed to a husband and wife and a third party, as between them and such third party, the husband and wife are regarded as one person, and only take a moiety of the estate (c).

Rights of Persons not Parties to a Deed.-Prior to the Act to amend the Law of Real Property, when a deed was in the form of an indenture, every person taking any immediate benefit under it was made a party thereto. But that Act (d), provides that under an indenture an immediate estate or interest in any tenements or hereditaments, and the benefit of a condition or covenant respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture (e).

A person dead at the date of a deed can take no interest under it (f); and it seems doubtful whether a person non-existent at the date of a deed can enforce a covenant contained in it (g), unless the covenant is entered into with a trustee for such non-existent person, or unless, of course, such person is an assignee of the benefit of the covenant.

(c) In re Jupp (1888), 39 Ch. D. 148 Thornley v. Thornley, [1893] 2 Ch. 229.

(d) 8 & 9 Vict. c. 106.

(e) Ibid., s. 5, which repealed 7 & 8 Vict. c. 76, s. 11, which was a similar provision.

(ƒ) Re Tilt (1896), 74 L. T. 164.

(g) Kelsey v. Dodd (1882), 52 L. J. Ch., at p. 39.

SECTION 4.

RECITALS.

Following the parties to the assurance will be the recital of such facts and circumstances as are necessary to explain the position and interests of the parties executing the instrument; thus, if the vendor is seised in fee, the fact of the seisin will be recited, and that he has contracted with the purchaser for sale of the estate, which will be sufficient without referring to any contract previously entered into between the parties, whether the sale was by auction or otherwise.

If the vendor possesses a power of appointment over the estate which it is intended shall be exercised by him, the instrument creating the power should be recited.

If the sale is by a mortgagee or trustee in exercise of a power of sale, the instrument creating the power should be recited, and the material parts of the power set out verbatim.

If the sale is effected by a mortgagor and mortgagee, it will be sufficient to recite that the mortgage has been effected, that the money remains owing on the security, and that the mortgagor and mortgagee have contracted with the purchaser for the sale to him of the estate.

If incumbrancers join in the conveyance to release or discharge the property from their charges thereon, the nature of such charges and the documents creating them must be recited; or should the estate sold be subject to outstanding charges or incumbrances, the documents effecting them should also be recited.