Time

essence of

contract on default of vendor.

accept such title as the vendor may be able to make, or by notice in writg to the vendor to annul the contract, & thrupon to recover from the vendor all expses pd or sustained by the pchaser in the investigon of the title, or orwise in respt of the sd intd sale, togr with the further sum of £, as liquidated & ascertained damages for the breach of the contract on the pt of the vendor, & not as a penalty.

x. IF the vendor shl not deliver an abstract of his title to the pchaser, or his solor, at or bfe the expiron of one calr month from the date hrof, or shl not deduce a good & marketable title to the premes to the satisfon of the counsel of the pchaser bfe the expiron of calr months from the date hrof, then & in eir of the sd cases this contract shl be wholly void [shl be voidable at the option of the pchaser, provd that such option be decld in writg to the vendor within 1 calr month after the expiron of such last-mentd time], it being the intention of the pties hto that in such case time shl be of the essce of this contract, & the jurisdon of any ct to enforce the same wholly barred. And the vendor shl thrupon repay to the pchaser the sd deposit of £, &c., see clause VIII., above. XI. IF the pchase shl not be in all respts completed on the day of, then this contract shl, as agst the pty default of through whose neglect or default such non-complon shl have happened, be voidable at the option of the other pty, provd that such option be decld in writg to the pty in default within 1 calr month after the sd day of -, it being the intention of the pties hto that in such case time shl be of the essce of this contract, & the jurisdon of any ct to enforce the same wholly barred. And in such case all expses pd or sustained by the pty not in default in the dedon or investigon of the title or orwise in relon to the premes shl be repd to him on demand by the pty in default.

Time

essence of

contract on

either

party.

Liquidated damages

on default of either party (a).

Reservation to

sd

XII. AND for the due pformce of the sevl stipulons & agrmts hinbfe contd on the pt of the vendor & pchaser resply, each of them the sd pties doth hby bind himself unto the other of them in the sum of £, to be considered as liquidated & ascertained damages, & not as a penalty.

XIII. IN case the premes hby agrd to be sold shl at any time

(a) Such a clause as this is of very doubtful utility; see above, p. 220,

note.

vendor of right of tion in a

pre-emp

certain

event.

hrafter durg the lives & life of the vendor & the pchaser, & the chn now livg of the vendor, & the survors & survor of such psons, or within 21 yrs after the death of such survor (b), cease to be used for the pposes for wch the same were sold as afsd, the rt or option of pre-emption or repchase thof, at a valuon to be made by two indifferent psons, one to be chosen by each pty, or their umpire, or in case of default by eir pty to nominate a valuer within 21 days after being required in writg so to do by the other pty, then by the valuer nominated by such last named pty alone, shl be reserved & secd to the vendor, his hrs & assns, the owner or owners of the - este, or (in the event of such este havg become severed or divided in ownership) the larger pt in value of such este, in mner follg (that is to say), the pchasers, their hrs or assns, shl forthwith, or as soon as may be after the premes shl cease to be used as afsd, make to the pson or psons last afsd an offer in writg of the rt or option of repchasg the premes at such valuon as afsd, wch offer shl be open for acceptce for 6 calr months from the time of the same being made (not being later than the expiron of such 21 yrs as asfd), & the pchasers, their hrs or assns, shl not be at liberty to sell, let or orwise dispose of or deal with the premes or any pt thof, for any ppose save as afsd, unless such pson or psons shl decline such offer, or shl neglect or fail to accept the same within such time, but in the event of such offer being so declined or not accepted, the pchasers, their hrs or assns, shl thenceforth be at liberty to sell, let, or orwise dispose of or deal with the premes for such pposes as they may think fit, free from the restrons contd in this clause, but subjt nevs to the restrons & stipulons next hinafter contd, wch are to be at all times hrafter bindg on the pchasers, their hrs & assns (that is to say), That no act or thing shl at any time hrafter Restrictive be done in or upon the premes or any pt thof, wch shl or may provisions be or grow to the annoyce, nuisce, or damage of the vendor, of premises his hrs or assns, or his or their lessees or tenants, or any of them, or wch may be calculated to depreciate or lessen the

as to user

(c).

(b) As to the necessity for this restriction of the right of pre-emption, see Right of London & South Western Rail. Co. v. Gomm, 20 Ch. D. 562. It might be pre-empbetter to substitute the lives of the royal family, as at p. 323.

(c) For other restrictive provisions of this nature, see CONDITIONS OF SALE, pp. 291 et seq.

tion.

Reserva

tion to vendor of rights of altering buildings and right to lights

(a).

Costs of

agreement.

Vendors'

costs to be paid by purchaser

(b).

Incorpora

tion of common

value of the afsd este of the vendor or any pt thof as residential ppty.

XIV. THE vendor reserves to himself, his hrs & assns, & his & their lessees, full liberty to alter or rebuild at any time hrafter any of the houses or bldgs on the south or west side of the premes hby agrd to be sold, & eir on the site of the existg bldgs or on any other pt of the ground held with the same resply, & with all such windows & opengs for light & air, & in such mner in all respts as he or they may think fit, witht any consent whatever on the pt of the pchasers, their hrs or assns, being required to any such alteron or rebldg, or any rt on their pt to object thto or claim compenson, on the ground of any interferce with the access of light & air to the premes hby agrd to be sold or orwise, & no windows or lights now existg, or wch may hrafter be placed in any such houses or bldgs, or the access of light or air thto, shl at any time hrafter be in any mner stopped, obstructed, or interfered with by the pchasers, their hrs or assns, or their lessees or tenants. XV. THE costs of & incidental to the preparon & exon of this agrmt in duplicate shl be borne & pd by the vendor & pchaser eqlly.

XVI. ALL the costs, chges, & expses incurred by the vendors of & relatg to the preparg, engrossg, & executg this agrmt, & the preparg & fair copyg the abstract & deducg & verifying the title, & the perusg, approval, & exon of the assurce & any other deeds or orwise in relon to the psnt sale, shl be borne & pd by the pchaser, who shl also pay the chges of the surveyo employed by the vendors to survey & report upon the ppty, or, "the pchaser shl on complon pay the chges of the vendors' solors accdg to scale & the pper chges of the vendors' surveyor in relon to the sale."

XVII. THIS agrmt shl be deemed to incorporate the common form condons of the - Law Society (a copy whcf is hrunto conditions annexed), so far as the same are applicable to a sale provincial private contract, but so that in case of any variance or inconlaw society sistency the provons of this agrmt shl prevail.

of sale of a

(c).

(a) Compare the form in CONDITIONS OF SALE, p. 298, and see note thereto. (b) See another form, throwing all costs on the purchaser, in Precedent V., at p. 325.

(c) For a form of agreement for sale by private contract, referring to conditions of sale by auction, see p. 232.

CONVEYANCES ON SALE.

RECITALS (d).

ASSURANCES, &c.

I. WHAS by an indre, dated, &c. & made betn, pties, the hds hby assured (e) [togr with other hds] were grted to the use of, &c.

Conveyance

of freeholds
by grant
(general in
form).

As to

(d) See 1 Dav. Prec., pp. 44 et seq.; Elph. Introd. 59. For other forms of recitals specially adapted to mortgages and settlements, see those headings. recitals. In framing recitals the possibility of their hereafter becoming useful as evidence in support of the title should often be considered; see as to this the V. & P. Act, 1874, s. 2; Bolton v. London School Board, 7 Ch. D. 766 (a strong decision); Re Marsh, 24 Ch. D. 11. As to estoppel by recital see Clarke v. Hall, 24 L. R. (Ir.) 316; Elph. N. & C., Interp. p. 140 et seq. The practice of making deeds supplemental to prior deeds so as to save recitals (as in the case of endorsed deeds), has of late come considerably into use in some cases, mainly in consequence of the Conv. Act, 1881, s. 53; see infra, DEEDS. (e) The word "assured" is used here and elsewhere instead of "grted," &c., as being of general import, and applicable to any conveyance, whether by grant, assignment, appointment, bargain and sale, or otherwise. The short form "hby assured," is for the most part used conveyinstead of "hinafter expd to be hby assured," or "hinafter desed & intd to be hby assured; but the latter forms are often used in practice. Where several sets of parcels derived under different titles are to be conveyed by the same deed, but by different modes, e.g., one by grant and another by appointment, it may be convenient to use the

Mode of

reference to subjectmatter of

ance.

distinctive words "grtd," "appted," or as the case may be, instead of "assured;" if they are all conveyed together, they may be described in the parcels as, "First all that, &c., & Secondly all that, &c." and referred to as “the hds first [or, secondly] hinafter assured." By means of the provision in the Conv. Act, 1881, s. 49, that the word As to use grt" is not necessary in a conveyance of hereditaments (which however

is merely a declaration of the previous law), and by the use of the word

of word

66

convey."

The same (particular in form). Variation for subrecitals.

Conveyance to uses to

bar dower

(general in form) (a).

Lease and
release,

aud fine, or
recovery
(general in
form).

Lease and release, and appoint

ment.

II. WHAS by an indre, dated, &c., & made, &c., [after recitg (among other things) that, or, "to the effect that," or, "after recitals whby it appeared that," &c., it is by the indre now in recital witsd that] in conson of the sum of £- — pd by the sd B. to the sd A., or, "for the conson thrin mentd," the sd A. grted unto the sd B., his hrs & assns, the hds hby assured [togr with other hds] to hold the same unto & to the use of the sd B., his hrs & assns.

III. WHAS by an indre, dated, &c., & made, &c., the hds hby assured were assured to such uses & in such mner as the sd B. shd by deed appt, & in default of such apptmt to the use of the sd B. & his assns durg his life, with remr to the use of the sd C. & his hrs [or, exs & ads] durg the life of the sd B., in trust for the sd B. & his assns, with remr to the use of the sd B., his hrs & assns.

yr of the

IV. WHAS by an indre of rele, dated, &c., grounded on a lease for a yr, & made betn, &c., & by a fine levied by the sd to the sd in or as of term in the reign of His Majesty, &c., & by a declon of the uses of the sd fine contd in the sd indre of rele, [or, by a common recovery duly suffered in psuance of the same indre of rele in the Ct of Common Pleas in ➖➖➖ term in the sd yr] the hds hby assured were assured to the use of, &c.

V. WHAS by an indre of apptmt & rele, dated, &c., grounded so far as the same operated as a rele on a lease for a yr, & made, &c., if the recital is parlar in form, "the sd A. appted that the hds hby assured shd thenceforth go & remain to the uses thinafter decld concerng the same, & by the indre now in recital the sd A. reled unto the sd B. & his hrs the sd hds &

convey" in the forms in the fourth schedule to the Act, coupled with section 57 (declaring that those forms and deeds using expressions to the like effect shall be "sufficient "), the latter word has acquired an appropriateness as a term of art which it did not previously possess; and it may properly be used, if preferred, instead of grt," or "assn" in a conveyance of any kind of property except in the cases mentioned in Elphin. Introd. 87; but the fact that the word " convey" is used in the Act, with the aid of the interpretation clause (s. 2), in a still larger sense, so as to apply even to an appointment, or a lease, or a covenant to surrender, is not of course a reason for extending the use of the word in deeds in that manner.

(a) This and the next five forms of recital of old modes of conveyance, though still occurring frequently in abstracts, can now rarely be wanted in practice; but their retention seems desirable.