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CONVEYANCING AND LAW OF

PROPERTY ACT, 1881,

AND THE

Solicitors Remuneration Act, 1881,

WITLI

EXPLANATORY & PRACTICAL NOTES,

AND

PRECEDENTS IN CONVEYANCING.

BY
MERYON WHITE, M.A.,
Of Christ Church, Oxford, and of the Inner Temple, Barrister-at-Law.
duthor of Weekly Notes Digest of Cases not reported in the Law Reports, 1866–1879."

BIBLIOTHECA

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LONDON:
SHAW AND SONS, FETTER LANE AND CRANE COURT,

Printers and Publishers,

LONDON : PRINTED BY SHAW AND SONS, FETTER LANE, E.C.

PREFACE.

THE Conveyancing and Law of Property Act, 1881, which came into operation on the 1st of January, 1882, contains many important alterations in the law of real property, and will probably have the effect of curtailing to a considerable extent the length of deeds by rendering unnecessary the use of many “common form” conditions of sale, covenants for title, “ general words," the “estate clause," and covenants for production of documents. The ordinary powers incident to the estate or interest of a mortgagee, viz., a power of sale, to insure, to appoint a receiver, and to cut and sell timber, will, unless a contrary intention is expressed, be implied in the mortgage deed. In wills and settlements powers of appointing new trustees and powers of sale by trustees are implied. Trustees have power to compound debts and to apply income at their discretion for the maintenance of infants. Powers of distress and entry are attached to rentcharges and other annual sums charged on land. Nearly forty years ago an attempt was made in this direction by Lord BROUGHAM but without success. In that Act reform was attempted by providing that certain short forms of covenants should be regarded as equivalent to certain lengthy forms there set out.

The clauses implied by this Act seem to have been most judiciously chosen, and those relating to contracts for sale are, as a rule, more advantageous to a vendor than to a purchaser. The general words, and “the estate clause, which are to be implied seem to be those in most general use in modern conveyances, and in hardly any case will it be necessary to exclude the operation of the Act.

In ordinary conveyances for value it will be unnecessary to insert the usual covenants for right to convey, quiet enjoyment, freedom from incumbrances, and further assurance, and in the case of leaseholds as to the validity of a lease.

An acknowledgment and undertaking for safe custody is more effectual than the ordinary covenant for production of documents; for it will be seen that the obligation created by an acknowledgment actually runs with the possession of the documents.

The attempt (for it is much to be feared that it amounts to nothing more) to get rid of the practice of inserting recitals, by the provisions of the 53rd section, does not seem to be of great promise. The practical effect apparently is to give unlimited constructive notice without putting the purchaser really on his guard.

In the original draft of the bill (sect. 6) introduced by the Lord Chancellor, into the House of Lords, an attempt was made to restrict the present doctrine as to constructive notice. That section failed to become law upon the passing of the Act.

It will be noticed that in contracts for sale various expenses of production of documents, &c., not in the vendor's possession, and of verifying a vendor's title, &c., are, in the absence of express stipulation, thrown upon a purchaser; and the alteration of the law in this respect will, in some cases, probably induce a purchaser to hesitate before signing an open agreement to purchase.

On a sale of leaseholds the usual covenant by an assignee for payment of rent and performance of covenants and indemnity is not included in the covenants implied by the Act, and it will probably be considered advisable that the covenant should, for the vendor's protection, be inserted in the conveyance.

A conveyance of freehold land may now be made by a person to himself jointly with another, or to his wife,

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