XIV. BOND to RESIGN a LIVING (d). Bond from A. to B., see p. 204. of coy WHAS the above-named B., as the patron of the vicarage or Recital. livg of - in the wch is now vacant, has agrd & intends forthwith to psnt the above bounden A. thto, upon the condon or understandg that the sd A. shl, at the request of the sd B., or the patron or patrons for the time being of the sd livg, resign & relinquish the same to the intent that the sd B. or such patron or patrons may psnt thto C. or D. (two of the sons of the sd B.), if & when eir of such sons shl be of a sufft age & qualified to hold the same, & that the sd A. shl enter into the above-written bond for the due pformce of the sd engagemt, with such condon for makg void the same as is hinafter contd: NOW THE CONDON, &c., that if the sd A. Condition. shl be duly presented, instituted, & inducted to the sd vicarage or livg of & eir of them, the sd C. & D. shl, durg the life of the sd A., attn a sufft age & become qualified to hold the sd vicarage or livg, & the sd A. shl, within one calr month after reqt in writg in that behalf made to him or left at his usual or last-known place of abode, by & at the costs & chges of the sd B., or the patron or patrons for the time being of the sd vicarage or livg, absolutely resign, relinquish & yield up the sd vicarage or livg with all the rights & appurts thof, & (d) A general resignation bond, i.e., a bond whereby the obligor binds As to bonds himself to resign a living at the request of the patron, generally, is void; to resign Bishop of London v. Ffytche, 2 Br. P. C. 211. A bond to resign in favour of livings. one of two named persons was held void in Fletcher v. Lord Sondes, 1 Bligh, N. S., 144; but an Act, 7 & 8 Geo. 4, c. 25, was passed, giving validity to such bonds executed before 9 Apr. 1827. By 9 Geo. 4, c. 94, a bond to resign in favour of one person or one of two persons named and described therein is rendered valid, if executed before presentation, nomination, collation or appointment of the obligor (s. 1), and if, two persons being named, each is within the degree of relationship therein defined to the patron (s. 2), and provided the bond be deposited in the diocesan registry within two months of its date (s. 4). A presentation is valid under an engagement entered into by such a bond (s. 3). The resignation must state the engagement entered into by a bond of this kind, and the name of the person on whose behalf it is made; and it will be void if the person named be not presented within six months (s. 5). The Act is only applicable to cases of patronage as private property (s. 6). all the este & intt of the sd A. in the same, & procure such resignon to be duly accepted so that the sd vicarage or livg may within such month become vacant, to the intent that the sd B., or such patron or patrons as afsd, may be enabled to psnt thto such one of them, the sd C. & D., as the sd B., or such patron or patrons as afsd, shl think fit, or in case the sd A. shl not be duly presented, instituted, & inducted to the sd vicarage or livg as afsd, or in case neir of them, the sd C. & D., shl durg the life of the sd A. attn a sufft age & become qualified to hold the same, or in case no such reqt as afsd shl be made to the sd A. by the sd B., or such patron or patrons as afsd, THEN & in any of the sd cases, &c. Recitals. Expectation. XV. POST-OBIT BOND with VARIATION where a SURETY joins. Bond from A. to C., or jt & sevl bond from A., ppal, & B., surety, to C., see pp. 204, 205. yrs or or WHAS the above bounden A. is in expecton of succeedg to a considerable sum of moy or other ppty upon the death of D., of, &c. AND WHAS the sd A. is now of the age of Ages. thrabouts & in good health, & the sd D. is of the age of Agreement. thrabouts: AND WHAS the sd A. havg occasion for the sum of £ to supply his immediate wants, has applied to the above-named C. to lend him the same, wch the sd C. has agrd to do upon the sd A. [& the sd B. as his surety] enterg into the above-written obligon, with such condon for makg void the same as is hinafter contd, for securg the repaymt to the sd C. of the sum of £- in case the sd A. shl survive the sd D., Alternative but not orwise: [or, AND WHAS the above-named C. has form of contracted with the above-named A. for the pchase of the sum of £, to be pd to the sd C. in case the sd A. shl survive the sd D., but not orwise, for the price or sum of £: AND WHAS upon the treaty for the pchase of the sd contingent sum of £, it was also agrd that the paymt thof in the event afsd shd be seed by the above-written obligon of the sd A. [& the sd B. as his surety], with such condon for makg agreement. void the same as is hinafter contd]: AND WHAS in psuance of Payment of the sd agrmt the sd C. has pd the sd sum of £ to the sd money. A., as he the sd A. doth hby acknowe: NOW THE CONDON, Condition. &c., that if the sd A. shl survive the sd D., & the sd A., 4 his hrs, exs, or ads, [the sd A. & B. or eir of them, or the any dedon, or if the sd A. shl die in the lifetime of the sd D., CONDITIONS OF SALE. 1. As to title. Title prior to com mence inent. PRELIMINARY NOTE. THE following is a short notice of the recent statutory provisions (which will apply unless excluded by the terms of the contract), and of some of the principal points bearing on conditions and contracts of sale. Other points are dealt with in the notes to the forms. 1. As to length of title and abstract. By the Vendor and Purchaser Act, 1874, s. 1, 40 was substituted for 60 years as the commencement of title under a contract for the sale of "land" (which by 52 & 53 Vict. c. 63, s. 3, includes "messuages, tenements and hereditaments, houses and buildings of any tenure," and extends therefore to incorporeal as well as corporeal hereditaments), except in those cases in which an earlier title than 60 years might have been required under the previous law; but this exception is qualified by the enactment in the Conv. Act, 1881, s. 3 (3), mentioned in the next paragraph, making a conveyance a good root of title, although made in exercise of a power in a previous instrument. Where the deed with which the title is to commence, though 40 years old, is exceptional in its nature, or might be objected to as unsuitable (e.g., a voluntary deed of gift: see Re Marsh, 24 Ch. D. 11), an express stipulation stating its nature should be inserted. By the Conv. Act, 1881, s. 3 (3), on a sale of any "property" (real or personal, see s. 2), the purchaser is precluded from going into the title prior to the time stipulated or prescribed by law for the commencement, even though a power exercised by an abstracted instrument was created previously to such commencement. This, though sufficient for ordinary cases, falls short of the usual express condition in the case of a title commencing with a general devise in a will, in not providing that the ownership of the testator shall be assumed (as to which see Dart, V. &. P. 338); and it does not bar an objection to the earlier title which the purchaser may discover from collateral sources (see Nottingham, &c., Co. v. Butler, 15 Q. B. D. 261, 16 Q. B. D. 778; see also Waddell v. Wolfe, L. R. 9 Q. B. 515; Re Cox, [1891] 2 Ch. 109; Dart, 169). In practice, an express provision barring objections in respect of the anterior title is still often inserted, and is desirable except in simple cases. It is to be borne in mind, moreover, that the statutory provision does not apply where the deed forming the root of title is itself defective on its face for want of parties or of due execution or otherwise; and where a conveyance subject to a mortgage then existing and subsequently paid off is made the root of title, the purchaser (as is conceived) would have the right, unless specially barred or qualified, to have the previous title to the mortgage deduced. See also infra, SPECIAL CONDITIONS, as to commencement of title. By the Conv. Act, 1881, s. 3 (2), on a sale of enfranchised copyhold or Enfran customary land, the lord's title cannot be called for. But this does not chised bar any patent objection to such title; and it does not of course apply to copyholds. a contract for enfranchisement. By the same Act, s. 3 (7), on a sale in lots a purchaser of two or more Abstract lots held wholly or partially under a common title cannot require more of title than one abstract of such title, except at his own expense; so that a con- common dition on that point is unnecessary. 2. As to leaseholds. By the V. & P. Act, 1874, s. 2 (1), a purchaser of leaseholds, whether held by lease or underlease, cannot call for the title to the freehold. By the Conv. Act, 1881, s. 3 (1), the purchaser of an underlease cannot call for the title to the leasehold reversion (but he can of course call for an abstract of the underlease itself and the dealings therewith, Gosling v. Woolf, [1893] 1 Q. B. 39); and by s. 3 (4, 5), a purchaser of leaseholds is to assume, unless the contrary appears, that the lease, and (in the case of an underlease) that every superior lease was duly granted. These enactments would not bar an objection on account of any defect in the lessor's title which may be patent (such an objection not being covered, as is conceived, by s. 3 (3) of the Conv. Act, 1881), or may be discovered, aliunde; see above. to several lots. 2. Leaseholds. Title to reversion. In the case of a sub-sub-lease, the provisions requiring the purchaser to As to subassume the validity of the original and every derivative lease may be sub-lease. sufficiently protective, although the clause, s. 3 (1), precluding the purchaser from calling for the title to the leasehold reversion, would seem to apply only to the immediate (and not to the superior) reversion. The above provisions as to leaseholds, both in the Act of 1874 and that Leases for of 1881, only apply to terms of years, and not to leases for lives, as to lives. which, therefore, the necessary conditions as to title must be inserted. The enactment in the Act of 1874 limiting the length of title to 40 years Long leasewould apply to long leaseholds; but the creation of the term would also holds. have to be shown: see Frend v. Buckley, L. R. 5 Q. B. 213; Dart, 335. By the Conv. Act, 1882, s. 4, on the sale of a lease granted under a Contract power, a preliminary contract for or relating to the lease is not to form for lease. part of the title. In the case of a building lease granted under the power in the Settled Land Act, 1882, the preliminary contract might be very material to the title; see Re Chawner, [1892] 2 Ch. 192. 3. As to recitals being evidence. By the V. & P. Act, 1874, s. 2 (2), 3. Recitals recitals, statements, and descriptions of facts, matters, and parties in made eviinstruments 20 years old are, unless proved to be inaccurate, to be taken as dence. sufficient evidence. It is perhaps necessary to point out that this provision does not make a sub-recital evidence. In Bolton v. London School Board, 7 Ch. D. 766, this was held to apply to a recital of the vendor's seisin, so as to deprive the purchaser of the right, which he would otherwise have had, to have a 40 years' title deduced; a strong decision. The statutory clause is less full than the usual express condition, which extends to matters assumed or implied as well as to actual statements (but see Re Marsh, 24 Ch. D. 11, where the Act was held to apply although there was merely an implication); and also (when necessary) makes recitals of documents evidence of their contents and due execution, &c.; and the clause only applies to sales of "hereditaments" (see above). An express condition should be K.E.-VOL. I. ૨ |