S. 7 (5), (6), (7), (8); S. 8 (1). SALES AND OTHER TRANS ACTIONS. Covenants for Title. Benefit of implied covenants in this customary or copyhold lands can be dealt with as freeholds, for instance, where they pass by bargain and sale under a power in a will, or by deed and admittance, or where an equity is conveyed. (6.) The benefit of a covenant implied as aforesaid shall be annexed and incident to, and shall go with, the estate or interest of the implied covenantee, and shall be capable of being enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time vested. This subs, makes all covenants implied under this section run with the land so as to be enforceable by every person interested under the conveyance. It precludes any difficulty as to what covenants do or with the land. do not run with the land. An implied covenant under this section will therefore be more valuable than the ordinary covenant. section to run Variation of statutory covenants may be made. Execution of Purchase Deed. Rights of purchaser as to execution. (7.) A covenant implied as aforesaid may be varied or extended by deed, and, as so varied or extended, shall, as far as may be, operate in the like manner, and with all the like incidents, effects, and consequences, as if such variations or extensions were directed in this section to be implied. This subs. enables provisions to be inserted modifying the statutory covenant in any agreed manner. As so modified it will be equivalent in effect for the purpose of running with the land and otherwise, to the simple statutory covenant. The proviso limiting the covenants for title by a tenant for life is an example of a variation under subs. 7, and is a valid proviso and not repugnant to the covenant (see Williams v. Hathaway, 6 Ch. D. 544). (8.) This section applies only to conveyances made after the commencement of this Act. Execution of Purchase Deed. 8.-(1.) On a sale, the purchaser shall not be entitled to require that the conveyance to him be executed in his presence, or in that of his solicitor as such; but shall be entitled to have, at his own cost, the execution of the conveyance attested by some person appointed by him, who may, if he thinks fit, be his solicitor. (2.) This section applies only to sales made after the S. 8 (2); S. 9 commencement of this Act. This section precludes the questions raised in Viney v. Chaplin, 4 Drew. 237, 2 D. & J. 468; Essex v. Daniel, L. R. 10 C. P. 538; and Ex parte Swinbanks, 11 Ch. D. 525. Production and Safe Custody of Title Deeds. 9.-(1.) Where a person retains possession of documents, and gives to another an acknowledgment in writing of the right of that other to production of those documents, and to delivery of copies thereof (in this section called an acknowledgment), that acknowledgment shall have effect as in this section provided. (2.) An acknowledgment shall bind the documents to which it relates in the possession or under the control of the person who retains them, and in the possession or under the control of every other person having possession or control thereof from time to time, but shall bind each individual possessor or person as long only as he has possession or control thereof; and every person so having possession or control from time to time shall be bound specifically to perform the obligations imposed under this section by an acknowledgment, unless prevented from so doing by fire or other inevitable accident. (3.) The obligations imposed under this section by an acknowledgment are to be performed from time to time at the request in writing of the person to whom an acknowledgment is given, or of any person, not being a lessee at a rent, having or claiming any estate, interest, or right through or under that person, or otherwise becoming through or under that person interested in or affected by the terms of any document to which the acknowledgment relates. (4.) The obligations imposed under this section by an acknowledgment are (i.) An obligation to produce the documents or any of them at all reasonable times for the purpose of inspection, and of comparison with abstracts or (1), (2), (3), (4). SALES AND OTHER TRANS ACTIONS. Production and Safe Custody of Title Deeds. Acknowledg ment of right to production, and undertaking for safe custody of documents. S. 9 (4), (5), (6). SALES AND OTHER TRANS ACTIONS. Production and Title Deeds. Legal right to production assimilated to the equitable right. Effect of s. 9. copies thereof, by the person entitled to request production or by any one by him authorized in writing; and (ii.) An obligation to produce the documents or any of them at any trial, hearing, or examination in any court, or in the execution of any commission, or elsewhere in the United Kingdom, on any occasion on which production may properly be required, for proving or supporting the title or claim of the person entitled to request production, or for any other purpose relative to that title or claim; and (iii.) An obligation to deliver to the person entitled to request the same true copies or extracts, attested or unattested, of or from the documents or any of them. (5.) All costs and expenses of or incidental to the specific performance of any obligation imposed under this section by an acknowledgment shall be paid by the person requesting performance. (6.) An acknowledgment shall not confer any right to damages for loss or destruction of, or injury to, the documents to which it relates, from whatever cause arising. This section removes certain difficulties as to covenants for production running with the land, and makes the legal right to production co-extensive with the equitable right (as to which, see Dart, ch. ix., s. 2, 5th ed.). Also it removes the personal liability of the original covenantor after he has parted with the documents, and transfers that obligation to each subsequent possessor, but for the period only of his possession. This personal liability has sometimes compelled a covenantor to retain documents after he had ceased to be interested in any land affected by them, or else to incur the expense of obtaining, and of procuring the covenantee to accept, a substituted covenant, and consequently to sell subject to special conditions. A person retaining documents is now enabled to give (1) an acknowledgment of the right to production, and (2), an undertaking for safe custody, together or separately. The first, unlike a covenant to the same effect, may safely be given by a trustee or mortgagee. He can always produce the documents while he has possession of them, and he ceases to be liable after he has parted with them. He should only give the acknowledg ment and not the undertaking. An ordinary vendor will be liable to give both in the absence of special contract. "Retain" is used in this section in its primary signification of "to keep": see Todd's Johnson, see also Webster. Subs. 6 expressly excludes all liability to damages for loss or destruction where an acknowledgment only is given. The liability for damages arises only upon an undertaking under subs. 9. (7.) Any person claiming to be entitled to the benefit of an acknowledgment may apply to the Court for an order directing the production of the documents to which it relates, or any of them, or the delivery of copies of or extracts from those documents or any of them to him, or some person on his behalf; and the Court may, if it thinks fit, order production, or production and delivery, accordingly, and may give directions respecting the time, place, terms, and mode of production or delivery, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application. (8.) An acknowledgment shall by virtue of this Act satisfy any liability to give a covenant for production and delivery of copies of or extracts from documents. S. 9 (6), (7), (8), (9). SALES AND OTHER TRANS ACTIONS. Production and "Retain." ment substi Where by general law, and in the absence of special contract, a Acknowledgperson would be bound to give a covenant for production and delivery of copies, subs. 8 enables him to give an acknowledgment in place of the covenant, but does not compel him to do so. He still has the option of giving a covenant, an option not likely to be exercised, as the covenant creates a more onerous liability. (9.) Where a person retains possession of documents and gives to another an undertaking in writing for safe custody thereof, that undertaking shall impose on the person giving it, and on every person having possession or control of the documents from time to time, but on each individual possessor or person as long only as he has possession or control thereof, an obligation to keep the documents safe, whole, uncancelled, and undefaced, unless prevented from so doing by fire or other inevitable accident. This subs., as compared with the ordinary covenant for production, operates as a relief to the person bound to produce. It makes him tuted where liability to give covenant to produce. Liability under undertaking is on possessor only. S. 9 (9), (10), (11), (12),(13), (14). SALES AND liable for damages only while the documents are in his possession. On the other hand, it imposes an additional liability on any person afterwards acquiring possession of the documents, making him liable in damages for loss or destruction, a liability not necessarily devolving OTHER TRANS- on him under the ordinary covenant merely by reason of his receiving the documents from a person who had covenanted for safe custody. Production and As to the question of damages, see Hornby v. Hatcham, 16 Sim. 325, Safe Custody of and Brown v. Sewell, 11 Hare, 49. In James v. Rumsey (11 Ch. D. 398) the mortgagor was held entitled to an indemnity, but not to compensation. ACTIONS. Title Deeds. Damages for loss of deeds. (10.) Any person claiming to be entitled to the benefit of such an undertaking may apply to the Court to assess damages for any loss, destruction of, or injury to the documents or any of them, and the Court may, if it thinks fit, direct an inquiry respecting the amount of damages, and order payment thereof by the person liable, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application. Application An application to the Court under this subs. or under subs. 7 under acknow- should be by summons: see s. 69 (3). ledgment or for damages, how made. (11.) An undertaking for safe custody of documents shall by virtue of this Act satisfy any liability to give a covenant for safe custody of documents. See note to subs. 8. (12.) The rights conferred by an acknowledgment or an undertaking under this section shall be in addition to all such other rights relative to the production, or inspection, or the obtaining of copies of documents as are not, by virtue of this Act, satisfied by the giving of the acknowledgment or undertaking, and shall have effect subject to the terms of the acknowledgment or undertaking, and to any provisions therein contained. (13.) This section applies only if and as far as a contrary intention is not expressed in the acknowledgment or undertaking. (14.) This section applies only to an acknowledgment |