« ForrigeFortsett »
ing to the truth of these observations, would not take upon themselves the responsibility of dispensing with the requisitions formerly insisted on; but I still think, especially in the many small cases where the solicitor is content to retain the responsibility of investigating the title without advice, the great body of purchasers would have little to fear if forty years was more generally adopted as the period to which the investigation of titles should in future be liniited.
It should be remembered, that an abstract ought to be something more than a statement of the deeds and other documents affecting the title; it should be an abstract of the whole title, and should contain a statement of every circumstance forming a link in the title, as deaths, marriages, heirships, intestacies, births, &c., which should be stated in their
In considering what parts of deeds and other instruments should be abstracted, it will perhaps be better to enquire what parts may be omitted, as every part which is not clearly unnecessary should be stated.
The description of the parties in a deed may be omitted where it does not differ from a previous description.
Recitals of instruments previously abstracted or recited in the same terms, recitals of facts previously stated or recited, or of instruments or facts not connected with the subject of the abstract, should only be referred to where the object is simply the statement of the facts themselves; but if the original deeds are lost, the recitals of them should be stated fully as evidence of their contents.
Where the description of the parcels is the same in several deeds, it may be omitted in all but the first, simply stating that the description is the same. The heads only of the general words are noticed. Uses and trusts should generally be stated fully, but where, as in some settlements or wills, the limitations are very long, those ulterior to the one under which the title is traced, and also trusts which never took
effect, as of portions for younger children, where none come into existence, may be referred to very shortly. Powers and provisos that have been, or are intended to be, acted upon, should be stated fully ; others may be simply referred to. Covenants for title, or other ordinary covenants, need only be referred to, noticing, however, any qualifications to them as exceptions in the covenant against incumbrances. The habendum consideration, stamps, execution, attestation, receipts, and other indorsements, as of livery of seisen, enrolment, &c., should be always carefully stated.
The abstract of a will should show its date, the A will. name, and description of the testator, and of the devisee or legatee, and the appointment of executors ; and it is very advisable that devises or bequests under which the title is derived should be stated in the words of the testator. It should set forth the execution and attestation, the death of the testator, and if the will affects real property, who was the testator's heir at his death ; the court where, and the person by whom proved ; if in a register county, the registry.
An abstract of an ADMINISTRATION should state An admini. the date, by what court granted, of what, whether stration, general, de bonis non, or special, of whom, to whom ; if any of the administrators are dead, when they died; which should be shown by their burial-certificates, probates, or administrations.
The abstract of a private ACT OF PARLIAMENT, Act of parliausually called an estate act, if made before 33 Geo. ment. III., c. 3, should state the session in which it was made; if after that time, the day when the act received the royal assent, the title of the act, the recitals
, the enacting clause, the mode of paying the purchase-moneys, the indemnity clause to purchasers, &c.
In the case of an exchange, &c., the eviction Exchange. clause, the powers, and the saving clause, should be always particularly stated.
The abstract of an AWARD under an enclosure act An enclosure need only state that [the commissioners,] acting un- award.
der and by virtue of an act passed, &c., entitled, &c., by their award, bearing date, &c., allotted unto, &C., in respect of, &c., all that, &c. ; at the end it should state where the award has been enrolled. There should be a title shown to the lands, in respect of which the allotment is made, previously to abstracting the award. Bythewood's Noy, ninth edition, p. 160
In abstracting a decree, such part of it only as affects the title should be abstracted; as by declaring the will of the real estate duly proved, decreeing a redemption, a foreclosure, partition, directing a sale in performance of trusts, or a mortgage to be made, or portions to be raised, &c., with any direction for the application of money, and the master's report thereon, with the order for its confirmation. I Pres. ton on Abst. 189.
From what fell from Mr J. Taunton in the discussion of the case of Drax v. Scroope," it would appear, that it is part of the duty of an attorney to peruse an abstract before he takes the opinion of counsel upon it, in order to ascertain whether it is necessary that he should do so; but the point does not appear to have received the sanction of
direct decision in its favour.
An attorney will not relieve himself from responsibility in accepting a title by taking the opinion of counsel, unless he lays the whole case before him. Thus, in a case, in which the attorney, instead of setting out in the abstract the terms of sonie instrument, stated what he conceived to be its effect, and Mr Preston, before whom it was laid, approved of the title, upon its proving to be defective, the attorney was held liable to his client for the loss thereby sustained, it appearing that the attorney had misconceived the effect of such instrument, and that, had it been properly set out, Mr Preston would have disapproved of the title.
rl Dowl. 69.
s Ireson v. Pearman, 3 Barn, and C. 799; 5 Dowl, and R. 687; 3 Law Jo. 119.
Recitals in old deeds are not evidence of facts unless properly corroborated. Fort v. Clarke, 1 Russ. 601.
The abstract should have four margins, the first for the parties, provisos, covenants, and powers; the second for the recitals, habendum, uses, and trusts ; the third for the operative part; and the fourth for the parcels and general words and execution. The date should be extended beyond the outer margin.
Forms of Abstract. 16th and 17th March, 1804. Indentures of lease Lease and
Release. and release, the release made between A. B., of, &C., on the first part; C. D., of, &c., of the second part; and E. F., of, &c., of the third part;
It is witnessed, that in consideration of the sum of L.500 to the said A. B. paid by the said C. D., he, the said A. B., did grant, bargain, sell, alien, release, and confirm unto the said C. D., his heirs and as
All [state the parcels as in the deed,] together with all outhouses, &c, and the reversion, &c., and all the estate, &c.;
To hold unto the said C. D., his heirs and assigns, to such uses, upon and for such trusts, intents, and purposes, and with, under, and subject to such powers, provisos, and declarations, as the said C. D., by any deed or deeds, writing or writings, with or without power of revocation, to be by him signed, sealed, and delivered in the presence of, and attested by two or more credible witnesses, should from time to time direct, limit, or appoint; and in the meantime, and until default should be made in any such direction, limitation, or appointment, and so far as the name (if incomplete) should not extend,
To the use of the said Č. D. and his assigns, during his life, without impeachment of waste; and after the determination of that estate by any means in his lifetime,
To the use of the said E. F. and his heirs, during
the life of the said C. D., in trust for him and his assigns during his natural life, and from and after the determination of the estate so thereby limited, to the said E. F., as aforesaid ; and in the meantime subject thereto, and to the trusts thereof, to the use of the said C. D., his heirs and assigns, for ever.
Covenants from the said A. B. he was lawfully seised ; that he had good right to convey ; for quiet enjoyment; free from incumbrances; and for further assurance.
Executed by the said A. B., attested by two wit. nesses, and a receipt for the consideration-money indorsed, signed, and witnessed.
Date. Indentures of lease and release, and settlement, the latter between, &c.
It is witnessed, that, in pursuance and performance of the said agreements, and in consideration of natural love and affection, &c., and of 10s. to the said W. B. paid by the said W. H. and E. L., the said W. B. did grant, bargain, sell, release, and confirm unto the said W. H. and E. L., (in their actual possession, &c.,) and to their heirs and assigns ;
All, &c. (set out the premises fully.)
To bold unto the said W. H. and E. L., their heirs and assigns, to the uses, upon and for the trusts, intents, and purposes thereinafter expressed, declared, and contained ; (that is to say ;)
To the use, (set out the uses fully.)
Power of entry and distress to the said N. B., A. B., and C. B., respectively ; and to the said W. H. and E. L., in case of non-payment of the said respective annuities within twenty-one days.
Power to the said annuitants respectively, in case of non-payment for forty days, to enter and enjoy, and take rents of the said hereditaments, until satisfaction of the said respective annuities and costs.
And subject to the said annuities, and to the powers and remedies thereby provided, for securing