on a conveyance by an infant under the custom of gavelkind (ante, p. 12 (1)), and such a conveyance need not be evidenced by deed. and sale. A bargain and sale is a conveyance depending for its effect Bargain upon the operation of the Statute of Uses (ante, p. 17). Under it an implied use arises in favour of the purchaser, on payment of the purchase-money; and to the use thus raised the Statute of Uses annexes the seisin, thus vesting the estate in the purchaser (ante, p. 18). seised. A covenant to stand seised, which is a form of conveyance Covenant very rarely employed, is similar in its operation to a bargain and to stand sale. It consists in a covenant by the party conveying that he will stand seised of the land to the use of another in consideration of natural love and affection to a child or near relation, or in consideration of marriage. The Statute of Uses by annexing the seisin to the use thus declared (see ante, p. 18), vests the estate in the party in whose favour the declaration is made. A deed made in consideration of a sum of money will not operate as a covenant to stand seised. The effect of these two forms of conveyance has been well explained, as follows: "A bargain and sale enrolled, and a covenant to stand seized, wholly derive their effect from the Statute of Uses; the first is considered a real contract, by which the bargainor, for a pecuniary consideration, sells and contracts to convey the lands to the bargainee; the second is a real covenant by which a person covenants to stand seized to the use of his or her husband, wife, child, or near relation. Neither of those conveyances has any effect at the common law, or independently of the Statute of Uses, in conveying the land from the party selling or covenanting to stand seized to those in whose favour they are intended to operate; so that at common law they have no legal operation, and are merely declarations of trust, binding the land in equity. But the statute attaches on them, and divests the land from the party selling or covenanting to stand seized, and vests it in the persons to whom it is limited" (2). And now having briefly reviewed the various forms in which a conveyance of real property may be made, and the usual preliminaries to a purchase, let us consider a little more closely the nature of the deed by which it may be effected. (1) Davidson on Conveyancing, vol. ii. 4th ed. p. 177, and see form of feoffment made by an infant under custom of gavelkind, p. 244. Parts of a deed. Form of conveyance. The different parts of a deed, after the words "This indenture," are the date, the parties, the recitals (if any), the consideration (if any), the grant, release, or other operative part, the parcels, i.e. description of the property conveyed, the habendum, the declaration of uses or trusts, the provisoes, and other explanatory clauses, the covenants (if any), and, finally, the testimonium, commencing with the words "In witness," which connect the contents with the signatures and seals. In deeds-poll the instrument commences, if there be recitals, with the words, "To all to whom these presents shall come," and if there be no recitals, with the words, "Know all men by these presents," and the date is placed last. The attention of the reader may now be directed by way of illustration to a short form of conveyance in fee simple, which may serve to some extent to bring before his mind the present state of the law. This Indenture made the 1st day of January, 1890. Between A.B., of Egham Hythe, in the county of Surrey, Esq., of the one part, and C.D., of Staines, in the county of Middlesex, merchant, of the other part: Whereas the said A.B. is seised in unincumbered fee simple in possession of the hereditaments hereinafter expressed to be hereby conveyed: And whereas the said A.B. has agreed with the said C.D. for the sale to him of the said hereditaments for the sum of £5000. Now THIS INDENTURE WITNESSETH that in pursuance of the said agreement and in consideration of the sum of £5000 upon or before the execution of these presents to the said A.B., paid by the said C.D. (the receipt whereof the said A.B. hereby acknowledges), He the said A.B., as beneficial owner doth hereby convey unto the said C.D., All that messuage, or farmhouse and farm, with the several cottages and parcels of land belonging thereto, known as the Manor Farm, situate in the parish of Selborne, in the county of Oxford, and more particularly described in the 1st schedule hereto, and delineated in the plan drawn in the margin of these presents, and therein contained within a pink border-line, the said schedule and plan being respectively extracts from the apportionment of the tithe commutation rent-charge for the said parish and from the map therein referred to: To hold all the said premises Unto and to the use of the said C.D., in fee simple. Suppose that A.B. were retaining the deeds, the following acknowledgment and undertaking would be added: "And the said A.B. hereby acknowledges the right of the said C.D. to the production and delivery of copies of the documents specified in the 2nd schedule hereto (which are now in the possession of the said A.B.): And hereby undertakes with the said C.D. for the safe custody of the same documents." In witness, &c. The first schedule above referred to (description of premises). The second schedule above referred to (the documents retained by the vendor). Let us now endeavour to analyse the various parts of this conveyance, but before doing so, it may be useful to premise for the benefit of the uninitiated, that writings of legal instruments are without punctuation, though the forms contained in the present books are punctuated. Marks of parenthesis are employed, but are disregarded unless consonant with the sense and required by the context. The date is invariably placed at the commencement of the Date. deed, but it is not an essential part of it, and the deed takes effect from delivery. With regard to parties, the rule is that all persons from whom anything is to pass, or who are to enter into any engagement, ought to be parties and execute the instrument. It is, however, provided by the 8 & 9 Vict. c. 106, that the benefit of a covenant contained in an indenture may be taken by a person not named as a party. With regard to the order of the parties, the rule is that Order of those from whom the property passes are placed first, the parties. premier position of all being conceded to those who convey the legal estate, the next to those who have partial or temporary interests, e.g., second mortgagees, incumbrancers, and the last to those to whom, subject to the preceding incumbrances, &c., belongs the ultimate interest in the property conveyed. Recitals are the narrative of the facts and instruments show- Recitals. ing the title and the relation of the parties to the subjectmatter, and the motive for the operative parts of the instrument. They are generally divided into narrative recitals, which set forth the facts and instruments, and introductory recitals which explain the motive for the operative parts. As a general rule, recitals in conveyances upon sales, mortgages, exchanges, partitions and the like, should be confined to such matters as are required to elucidate the existing condition of circumstances, and the estates and interests and intentions of the parties, excluding such as are merely matters of title which are omitted as irrelevant (1). Where the vendor is owner in fee no recitals are really required, and a conveyance from him might well proceed straight from the parties to the operative part. But even in (') Davidson's Precedents, vol. i. 5th cd. pp. 21, 31, 44, 46. Recitals. (the vendor) is such a case, a recital, “Whereas the said And here, as we are speaking of recitals, it may be well, though the observation is not altogether germane to the consideration of an ordinary conveyance, to direct the reader's attention to the well settled rule that a release of claims, however generally expressed, only extends to matters of which the releasor was cognizant when he executed the release. In preparing a deed of this nature, therefore (2), it is essential that full and accurate recitals should be inserted in order to show on the face of the instrument what are the claims to be released. In framing recitals the usual and the safest rule is to recite the necessary assurances and facts in chronological order; and moreover each of them should be recited as an independent matter, "recitals within recitals" being the abhorrence of the conveyancer. The draftsman must bear in mind that he is telling a story; his business is to make it a clear and accurate one, and to present to the reader, as far as the subject-matter will allow, "a round unvarnished tale." The recitals in a deed may on occasion exercise a most material influence on its construction. The general rule of law on this point has lately been expressed in the following terms : "If the recitals are clear and the operative part is ambiguous, the recitals govern the construction. If the recitals are ambiguous, and the operative part is clear, the operative part must prevail. If both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is to be preferred" (3). A recital in a deed in certain circumstances, as it is technically said, "operates as an estoppel," i.e., a party may be held bound not to deny it; but it will not so operate against a party to the (1) Bolton v. London School Board, 7 Ch. D. 766; see, however, some observations on this case: 1 David. 5th ed. p. 110. (2) Turner v. Turner, 14 Ch. D. 829; and see as to setting aside release: Re Garnett. Gandy v. Macaulay, 31 Ch. Div. 251. (3) Ex parte Dawes. In re Moore, 17 Q. B. D. 286. deed in an action not founded on the deed, but collateral to Recitals. it (1). The law on this subject has been well summed up as follows: "If a distinct statement of a particular fact is made in a recital of a bond or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true that as between the parties to that instrument, and in an action upon it, it is not competent for the party bound to deny the recital. But there is no authority to shew that a party to the instrument would be estopped in an action by the other party, not founded on the deed, and wholly collateral to it to dispute the fact so admitted, though the recitals would certainly be evidence" (see, as to Estoppel, post, p. 863). tion. Grant. With reference to the next portions of our conveyance, it may Considerasuffice here to point out that a deed of itself imports consideration, though of course in a conveyance on sale a consideration is always expressed. Sect. 49 of the Conveyancing Act provides that the word "grant" shall no longer be necessary to convey tenements or hereditaments, corporeal or incorporeal. Sects. 54 and 55 of the same Act render a receipt in the body of the deed Receipt. sufficient (see as to solicitor producing deed with receipt indorsed in the body of it, post, p. 848). A deed is sometimes delivered to a third party until some condition, ex gr., the payment of money is fulfilled, and is then called an escrow, i.e., a mere scriptum, or writing, and when the condition is fulfilled it dates from the time of execution (2). Escrow. clause. Formerly, an elaborate form of words, as to "all the estate, Estate right, title," &c., of the conveying party would have been inserted in the deed. The "all the Estate" clause, as it was called, had become so firmly established, that an eminent conveyancer predicted, that though wholly unnecessary, it would hardly be eradicated by less force than an Act of Parliament. The words are now implied by the Conveyancing Act, and the clause is consequently invariably omitted (3). It will be observed that in the above deed covenants for title Covenants. are conspicuous by their absence. This is in accordance with the invariable practice of conveyancers, the reason being that in a conveyance for valuable consideration other than a mortgage when a person conveys, and is expressed to convey, as beneficial owner, the following covenants which were formerly (1) Ex parte Morgan. Re Simpson, 2 Ch. D. 72. (2) See Walker v. Ware Railway Co., 35 Beav. 58, where the deed was delivered by a man to his solicitor to be exchanged against the purchase (3) Sect. 63 of Conveyancing Act, |