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If the property is situated in Middlesex or Yorkshire, the local registers (s) should be searched, except in the case of copyholds.

If the vendor is a company, the purchaser should, if possible, search the register of mortgages which is kept by the company under s. 43 of the Companies Act, 1862; and it is also desirable to search the register kept by the Registrar of Joint Stock Companies (t).

If the property is copyhold, the Court rolls must be searched.

If the property sold has been registered under the Land Transfer Acts, no searches need be made in any other place than the Land Registry since the time of registration. But if, as is usually the case, only a possessory title has been registered, the usual searches should be made up to the time of registration.

An authority should be obtained from the vendor to inspect the register (Rule 284), and an official search made (Rule 289). The official certificate of the result of a search protects solicitors and persons acting in a fiduciary capacity (Rule 293).

It is, moreover, a proper precaution to search the index-map of registered land to see whether the land sold has been registered (Rule 283).

In appropriate cases inquiry should be made of the local authority as to the existence of charges for paving and sewering expenses.

(8) The Middlesex deeds registry has now been removed to the Land Registry Office.

(1) 63 & 64 Vict. c. 48, s. 14; 7 Edw. 7, c. 50, s. 10.

CHAPTER XIX.

EXECUTION OF ASSURANCE AND PAYMENT OF PURCHASE MONEY.

SECTION 1.

DUTY OF THE PURCHASER TO SEE TO THE APPLICATION OF HIS PURCHASE MONEY.

Trustees.

When real estate was sold by trustees, it was formerly the duty of the purchaser to see that the purchase money was duly applied for the benefit of the beneficiaries, unless the trust directed the land to be sold for the payment of debts generally, or in express terms conferred upon the trustees the power of giving receipts (a).

Now, however, by s. 20 of the Trustee Act, 1893 (b), which re-enacts a similar provision in the Conveyancing Act, 1881 (c), it is provided that the receipt in writing of any trustee (which expression includes a constructive trustee or legal personal representative) (d) "for any money, securities, or other personal property or effects payable, transferable, or deliverable to him under any trust or

(a) See Elliot v. Merryman (1740), Wh. & Tu., Vol. II., and notes thereto.

(b) 56 & 57 Vict. c. 53.

(c) 44 & 45 Vict. c. 41, s. 36 (1); and ef. Lord Cranworth's Act (23 & 24 Vict. c. 145), s. 29.

(d) 56 & 57 Vict. c. 53, s. 50.

power shall be a sufficient discharge for the same, and shall effectually exonerate the person paying, transferring, or delivering the same from seeing to the application or being answerable for any loss or misapplication thereof." This section applies to the case of a bare trustee selling by the direction of the persons beneficially entitled (e). Section 40 of the Settled Land Act, 1882 (ƒ), contains a similar provision with regard to receipts by Settled Land Act trustees. As the trust for sale is a joint office, the receipt must be signed by all the trustees.

Mortgagees. Where mortgagees are parties to the conveyance, and one or more of the original mortgagees is dead, it is necessary, in the case of mortgages made before the Conveyancing Act, to see whether there was a proper joint account clause in the mortgage deed (g).

In the absence of a joint account clause the presumption in equity is that the money was advanced in equal shares; and even if the language of the deed rebuts this presumption, the purchaser can require evidence that the joint tenancy has not been severed (h).

With regard, however, to mortgages executed since December 31st, 1881, it is enacted (i) that " where in a mortgage, or an obligation for payment of money,

(e) Re British Land Co. and Allen's Contract (1900), 44 Sol. J. 593.

(f) 45 & 46 Vict. c. 38.

(g) As to form of joint account clause, see supra, p. 263. (h) As to severance of a joint tenancy, see supra, p. 254. (i) 44 & 45 Vict. c. 41, s. 61 (1).

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or a transfer of a mortgage or of such an obligation, the sum, or any part of the sum, advanced or owing is expressed to be advanced by or owing to more persons than one out of money, or as money belonging to them on a joint account, or a mortgage, or such an obligation, or such a transfer is made to more persons than one, jointly, and not in shares, the mortgage money, or other money or money's worth for the time being due to those persons on the mortgage or obligation, shall be deemed to be and remain money or money's worth belonging to those persons on a joint account, as between them and the mortgagor or obligor; and the receipt in writing of the survivors or last survivor of them, or of the personal representatives of the last survivor, shall be a complete discharge for all money or money's worth for the time being due, notwithstanding any notice to the payer of a severance of the joint account."

This section applies only if and as far as a contrary intention is not expressed in the mortgage, or obligation, or transfer, and shall have effect subject to the terms of the mortgage, or obligation, or transfer, and to the provisions therein contained (k).

With regard to mortgagees selling under the powers conferred by the Conveyancing Act, 1881 (1), it is enacted that "the receipt in writing of a mortgagee shall be a sufficient discharge for any money arising under the power of sale conferred by this Act, or for any money or securities comprised in his mortgage, or arising thereunder; and a person paying or transferring the same to the mortgagee shall not be

(k) 44 & 45 Vict. c. 41, s. 61 (2). (1) See Chap. VI., s. 6.

concerned to inquire whether any money remains due under the mortgage" (m). Lord Cranworth's Act contains a similar provision (n).

It is generally considered that trustee mortgagees, who have power to vary securities under their trust, can release a portion of the property comprised in their security without receiving an adequate proportion of the purchase money (o).

Keeping Trusts off the Title.-It is usual and proper, when a mortgage is made to trustees, to keep the trusts off the face of the mortgage deed, and to introduce a recital that the persons who are in fact trustees are entitled to the mortgage money on a joint account. The court will not look behind this recital into the trusts affecting the mortgage money; and the purchaser need not concern himself as to the nature of those trusts (p).

But if the vendor inadvertently discloses the fact that the mortgagees are trustees of a particular settlement, the purchaser is entitled to an abstract of the settlement, so as to show that the mortgagees were duly appointed trustees, and are in a position to give a valid receipt for the mortgage moneys (9).

Heir or Devisee.-Before concluding this section, it is necessary to consider the case of a sale by an

(m) 44 & 45 Vict. c. 41, s. 22.

(n) 23 & 24 Vict. c. 145, s. 12.

(0) Dart's Vendors and Purchasers, pp. 689, 690.

(p) In re Harman and Uxbridge and Rickmansworth Rail Co. (1883), 24 Ch. D. 720; Re Whitham (1901), 84 L. T. 585. (q) In re Blaiberg and Abrahams, [1899] 2 Ch. 340.

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