PRECEDENT COVENANT FOR 1. Parties. 2. Recital of conveyance of even date. Covenants for -should Who should covenant. Covenantor subsequently selling the rest of the estates, his LXXVI. COVENANT to PRODUCE DEEDS (a), with a PROVISO for MAKING VOID the COVENANT on parting with the Deeds and PROCURING a SUBSTITUTED COVENANT. THIS INDENTURE, made &c., BETWEEN A. B., of &c. [vendor], of the one part; and C. D., of &c. [purchaser], of the other part: WHEREAS, by an indenture bearing even date with these presents, and expressed to be made (a) With respect to covenants for the production of deeds, see ante, Vol. I., pp. 145, 531; Dart, 93, 214, 357, 442; Sugd. 446. Where the covenant extends to documents not noticed in the conveyance, it should, as a general rule, be entered into by a separate deed: the question to be considered being, whether any document covenanted to be produced is of such a nature as to render it desirable that it should, as soon as practicable, be taken off the title : Dart, 357. After the lapse of some years, it is frequently very difficult to trace deeds covenanted to be produced; and, consequently, a covenant for production contained in a conveyance often becomes an inconvenience to the vendor selling without conditions restrictive of the purchaser's rights, by disclosing the existence of deeds affecting the title, which the vendor can obtain, if at all, only at considerable expense. As to the right to the custody of the deeds where part only of an estate is sold, or where it is sold in lots, see ante, Vol. I., p. 531; Dart, 94. As to the persons from whom such covenants should be obtained, see ante, Vol. I., p. 534; Dart, 358. It is, as has been previously mentioned, Vol. I., p. 534, desirable, for the purchaser's protection, to have a notice of the covenant indorsed on the deeds to be produced; but the purchaser, independently of agreement, has no more right to insist on such an indorsement than he has to require a memorandum of the conveyance to himself to be indorsed upon the leading document of title retained by the vendor: see Dart, 450. When the vendor has covenanted with a former purchaser for the production of the deeds, a purchaser of the residue of the estate, if he takes the deeds, must covenant for their production to the first purchaser: Dart, 362. And the fact of the vendor having already PRECEDENT COVENANT FOR BY ABSOLUTE that vendor retaining the title deeds should enter into a qualifie covenant. between [parties], in pursuance of an agreement for sale therein referred to, a messuage, farm, and hereditaments, situate &c., and known as Farm, with the appurtenances, have been limited to such uses [recital of Dower Uses in favour of C. D., supra, p. 269, or as the case may be, to the use of the said C. D., his heirs and assigns]: AND WHEREAS the several deeds and writings specified in 3. agreement the schedule hereto relate as well to the hereditaments comprised in the hereinbefore recited indenture as to other hereditaments, and are in the possession of the said A. B., and upon the treaty for the said purchase it was agreed that the said deeds and writings should remain in his custody, and that he should enter into the [qualified] covenant hereinafter contained: NOW THIS INDEN- 4. Testatum: TURE WITNESSETH, that, in pursuance of the said agreement and in consideration of the premises, He the covenant by said A. B. doth hereby, for himself, his heirs, executors, administrators, and assigns, covenant with the said C. D., his heirs and assigns, that he the said A. B., his heirs or assigns, unless prevented by fire or other inevitable accident, WILL, upon every reasonable request in writing by the said C. D., his heirs, [appointees,] or assigns, or any person lawfully or equitably claiming through him any vendor liabilities. covenanted for production to a former purchaser will not justify him rights and in refusing to deliver the deeds, if the second purchaser will allow notice of the covenant to appear in or upon his conveyance, and will covenant to perform the prior covenant. This covenant by the second purchaser will be entered into with the first purchaser, if the vendor's covenant was determinable on his obtaining, or the first purchaser will accept, such a substituted covenant; otherwise, with the vendor himself, and will then take the shape of a covenant to produce the deeds, and to indemnify him against liability under the former covenant: Dart, 439. It seems that a covenantee applying under the covenant for production of, or for information respecting the deeds, should tender the costs which will be incurred in complying with his demand; and that if on obtaining the deeds he should shew them to a third party to the covenantor's detriment, he would commit a fraud on the covenantor: Bethell v. Casson, 3 N. R. 29. Deeds, how to be obtained and used by covenantee. PRECEDENT COVENANT FOR OWNER. to produce scheduled deeds, and furnish copies. and keep deeds safe. 5. Proviso for cesser of covenant. Substituted covenants for production. estate or interest in the said hereditaments comprised in the hereinbefore recited indenture or any part thereof, at the cost of the person.or persons requiring the same, produce and show at such times, in such places, and to such persons as he or they shall require, every or any of the said deeds and writings specified in the said schedule hereto for the manifestation, defence, and support of the estate, title, and possession of the said C. D., his heirs, [appointees,] or assigns, and every or any such other person as aforesaid: AND WILL at the like cost make and furnish (b) to the said C. D., his heirs [appointees,] or assigns, or any such other person as aforesaid, such true copies, attested or unattested, of all or any of the same deeds and writings as he or they may require; AND WILL in the meantime keep the same deeds and writings safe, whole, uncancelled, and undefaced: PROVIDED ALWAYS, and it is hereby agreed and declared (c), that, if the said A. B., his heirs or assigns, shall deliver the said deeds and writings, or any of them, to any person or persons lawfully entitled to the custody thereof, and shall thereupon, at his or their own expense, procure the person or persons to whom the same deeds or writings shall be so (b) Lord St. Leonards says that the covenant should authorise the purchaser to take copies or extracts of the deeds, unless the price to be paid for the copies be limited to their mere cost, which, in his opinion, is the better plan, Sugd. 452: but this is not the practice. (c) Beneficial owners sometimes stipulate that their covenant for production shall be qualified, and the assignees of a bankrupt are entitled to qualify their covenant, by such a proviso as that in the text; Ex parte Stuart, 2 Rose, 215: but, at the present day, assignees in bankruptcy as well as trustees and mortgagees usually, and beneficial owners occasionally, limit their liability to the period of their retaining the control of the deeds by employing the form of covenant in Precedent LXXVII. The proviso, when inserted, should provide for the actual delivery of the substituted covenant to the purchaser or his representatives: Dart, p. 358. Where the cost of the substituted covenant is thrown on the covenantor, the proviso seems not only unobjectionable, but even advantageous to the purchaser, since it may enable him to trace the deeds whenever the covenantor parts with them. delivered, to enter into with, and deliver to, the person or persons then entitled to the benefit of the covenant hereinbefore contained, a covenant to the like purport and effect, then and thenceforth the covenant herein before contained shall become void, so far as relates to the deeds and writings the subject of such substituted covenant. IN WITNESS, &c. (d) PRECEDENT LXXVI. COVENANT FOR LXXVII. COVENANT for PRODUCTION of DEEDS by TRUSTEES or MORTGAGEES: variation where the DEEDS are held by several DIFFERENT PERSONS (a). PRECEDENT COVENANT FOR BY FIDUCIARY OWNERS. THIS INDENTURE, made &c. between A. B., of &c. 1. Parties. C. D., of &c., and E. F. [covenantors], of the one part, (d) A separate deed of covenant for production arising out of a sale Stamps on or mortgage, is, by the Act 13 & 14 Vict. c. 97, chargeable with covenants for the same duty as the conveyance or mortgage deed when that duty production. does not exceed ten shillings, and in other cases with a duty of ten shillings; but if the covenant does not arise out of a sale or mortgage it is chargeable with a duty of thirty-five shillings. So that the covenant for production arises out of a sale or mortgage, it is immaterial whether it be entered into simultaneously with, or after the conveyance or mortgage; and whether the covenator be the vendor, or the purchaser of part of the estate, or any third person: in any of these cases only a ten-shilling duty is chargeable; as in the familiar instance of a sale in lots, subject to a stipulation that the deeds shall be retained by the vendor until all the lots have been sold, and shall then be delivered to the largest purchaser in value, on his entering into covenants for production to the other purchasers. (a) Trustees and mortgagees cannot be required to enter into Form of cove covenants for production which will involve them in future nants for personal liability; and yet as they are usually the persons seised production by of the legal estate, covenants entered into by any other parties mortgagees. will not run with the land in respect of which the deeds are re trustees and PRECEDENT COVENANT FOR PRODUCTION OWNERS. 2. Recital of conveyance. for covenant. and G.H., of &c. [purchaser] of the other part: WHEREAS by an indenture dated &c. [or bearing even date with these presents], and expressed to be made between BY FIDUCIARY [parties] in pursuance of an agreement for sale therein referred to, divers messuages and hereditaments in the parish of in the county of have been conveyed and assured to the use of the said G. H., his heirs and 3. Of agreement assigns [or to dower uses, supra, p. 269]. AND WHEREAS the several deeds and writings specified in the schedule hereto relate as well to the hereditaments comprised in the hereinbefore recited indenture, as to other hereditaments, and are in the possession of the said A. B., C. D., and E. F. (b), and it was a condition of the said sale that the said deeds and writings should remain in their custody, and that they should enter into the covenant hereinafter contained: NOW THIS INDENTURE WITNESSETH, that in performance of the said condition, and in consideration of the premises, each of them the said A. B., C. D., and E. F. so far as relates to the acts of himself, and his own heirs, executors, and administrators alone, and so as to bind himself, his heirs, executors, and administrators, respectively only while having the actual custody of the deeds and writings hereby covenanted to be produced, and so far as practicable to bind such deeds and writings into whosesoever hands the same may come, and not so as to bind himself, his heirs, executors, or administrators, or to incur any liability in relation thereto further or otherwise, doth 4. Testatum. tained. Various forms of covenant have been framed, and are |