Conveyancing
CONVEYANCING, in English law, the art or science of conveying or effecting the transfer of property, or modifying interests in relation to property, by means of written documents.
History
In early legal systems the main element in the transfer of property was the change, generally accompanied by some public ceremony, in the actual physical possession: the function of documents, where used, being merely the preservation of evidence. Thus, in Great Britain in the feudal period, the common mode of conveying an immediate freehold was by feoffment with livery of seisin - a proceeding in which the transferee was publicly invested with the feudal possession or seisin, usually through the medium of some symbolic act performed in the presence of witnesses upon the land itself. A deed or charter of feoffment was commonly executed at the same time by way of record, but formed no essential part of the conveyance. In the language of the old rule of the common law, the immediate freehold in corporeal hereditaments lay in livery, whereas reversions and remainders and all incorporeal hereditaments lay in grant, i.e. passed by the delivery of the deed of conveyance or grant without any further ceremony. The process by which this distinction was broken down and the present uniform system of private conveyancing by simple deed was established, constitutes a long chapter in English legal history.
The land of a feudal owner was subject to the risk of forfeiture for treason, and to military and other burdens. The common law did not allow him to dispose of it by will. By the law of mortmain religious houses were prohibited from acquiring it. The desire to escape from these burdens and limitations gave rise to the practice of making feoffments to the use of, or upon trust for, persons other than those to whom the seisin or legal possession was delivered. The common law recognized only the legal tenant; but the cestui que use or beneficial owner gradually secured for his wishes and directions concerning the profits of the land the strong protection of the chancellors as exercising the equitable jurisdiction of the king. The resulting loss to the crown and the great lords of the feudal dues and privileges, coupled with the public disadvantages arising from ownership of land which, in an increasing degree, was merely nominal, brought about the passing in the year 1535 of the famous Statute of Uses, the object of which was to destroy altogether the system of uses and equitable estates. It enacted, in substance, that whoever should have a use or trust in any hereditaments should be deemed to have the legal seisin, estate and possession for the same interest that he had in the use; in other words, that he should become in effect the feudal tenant without actual delivery of possession to him by the actual feoffee to uses or trustee: In its result the statute was a fiasco. It was solemnly decided that the act transferred the legal possession to the use once only, and that in the case of a conveyance to A to the use of B to the use of or upon trust for C, it gave the legal estate to B, and left C with an interest in the position of the use before the statute. Thus was completed the foundation of the modern system of trusts fastened upon legal estates and protected by the equitable doctrines and practice of the judicature.
But the statute not only failed to abolish uses: it also opened the way to the evasion of the public ceremony of livery of seisin, and the avoidance of all notoriety in conveyances. Other ways, besides an actual feoffment to uses, of creating a use had been in vogue before the statute. If A bargained with B, in writing or not, for the sale of land, and B paid the price, but A remained in legal possession, the court of chancery enforced the use or equitable interest in favour of B. The effect of a bargain and sale (as such a transaction was called) after the statute was to give B the legal interest without any livery of seisin. This fresh danger was met in the very year of the statute itself by an enactment that a bargain and sale of an estate of inheritance or freehold should be made by deed publicly enrolled. But the Statute of Enrolments was in terms limited to estates of freehold. It was allowed that a bargain and sale for a term, say, of one year, must transfer the seisin to the bargainee without enrolment. And since what remained in the bargainer was merely a reversion which "lay in grant," it was an easy matter to release this by deed the day after. By this ingenious device was the publicity of feoffment or enrolment avoided, and the lease and release, as the process was called, remained the usual mode of conveying a freehold, in possession down to the 19th century.
It was not until 1845 that the modern system of transfer by a single deed was finally established. By the Real Property Act of that year it was enacted that all corporeal hereditaments should, as regards the immediate freehold, be deemed to lie in grant as well as in livery. Since this act the ancient modes of conveyance, though not abolished by it, have in practice become obsolete. Traces of the old learning connected with them remain, however, embedded in the modern conveyance. Many a purchase-deed recites that the vendor is seised in fee-simple of the property. It is the practice, moreover, to convey not only "to" but also "to the use of" a purchaser. For before the Statute of Uses, a conveyance made without any consideration or declaration of uses was deemed to be made to the use of the party conveying. In view of the operation of the statute upon the legal estate in such circumstances, it is usual in all conveyances, whether for value or not, to declare a use in favour of the party to whom the grant is made.
In its popular usage the word "conveyance" signifies the document employed to carry out a purchase of land. But the term "conveyancing" is of much wider import, and comprises the preparation and completion of all kinds of legal instruments. A well-known branch of the conveyancer's business is the investigation of title - an important function in the case of purchases or mortgages of real estate. With personal estate (other than leasehold) he has perhaps not so much concern. Chattels are usually transferred by delivery, and stocks or shares by means of printed instruments which can be bought at a law-stationer's. The common settlements and wills, however, deal wholly or mainly with personal property; and an interest in settled personalty is frequently the subject of a mortgage. Of late years, also, there has been an enormous increase in the volume of conveyancing business in connexion with limited joint-stock companies.
In the preparation of legal documents the practitioner is much assisted by the use of precedents. These are outlines or models of instruments of all kinds, exhibiting in accepted legal phraseology their usual form and contents with additions and variations adapted to particular circumstances. Collections of them have been in use from early times, certainly since printing became common. The modern precedent is, upon the whole, concise and businesslike. The prolixity which formerly characterized most legal documents has largely disappeared, mainly through the operation of statutes which enable many clauses previously inserted at great length to be, in some cases, e.g. covenants for title, incorporated by the use of a few prescribed words, and in others safely omitted altogether. The Solicitors' Remuneration Act 1881, has also assisted the process of curtailment, for there is now little or no connexion between the length of a deed and the cost of its preparation. So long as the draftsman adheres to recognized legal phraseology and to the well-settled methods of carrying out legal operations, there is no reason why modern instruments should not be made as terse and businesslike as possible.
Contracts for sale
It is not usual for land to be sold without a formal agreement in writing being entered into. This precaution is due, partly to the Statute of Frauds (§ 4), which renders a contract for the sale of land unenforceable by action "unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized," and partly to the fact that there are few titles which can with prudence be exposed to all the requisitions that a purchaser under an "open contract" is entitled by law to make. Such a purchaser may, for example, require a forty years' title (Vendor and Purchaser Act 1874). Under an open contract a vendor is presumed to be selling the fee-simple in possession, free from any incumbrance, or liability, or restriction as to user or otherwise; and if he cannot deduce a title of the statutory length, or procure an incumbrance or restriction to be removed, the purchaser may repudiate the contract. The preparation of an agreement for sale involves accordingly an examination of the vendor's title, and the exercise of skill and judgment in deciding how the vendor may be protected against trouble and expense without prejudice to the sale. Upon a sale by auction the agreement is made up of (1) the particulars, which describe the property; (2) the conditions of sale, which state the terms upon which it is offered; and (3) the memorandum or formal contract at the foot of the conditions, which incorporates by reference the particulars and conditions, names or sufficiently refers to the vendor, and is signed by the purchaser after the sale. The object of the agreement, whether the sale is by private contract or by auction, is to define accurately what is sold, to provide for the length of title and the evidence in support of or in connexion with the title which is to be required except so far as it is intended that the general law shall regulate the rights of the parties, and to fix the times at which the principal steps in the transaction are to be taken. It is also usual to provide for the payment of interest at a prescribed rate upon the purchase money if the completion shall be delayed beyond the day fixed for any cause other than the vendor's wilful default, and also that the vendor shall be at liberty to rescind the contract without paying costs or compensation if the purchaser insists upon any requisition or objection which the vendor is unable or, upon the ground of expense or other reasonable ground, is unwilling to comply with or remove. Upon a sale by auction it is the rule to require a deposit to be paid by way of security to the vendor against default on the part of the purchaser.
Abstract of title
The signature of the agreement is followed by the delivery to the purchaser or his solicitor of the abstract of title, which is an epitome of the various instruments and events under and in consequence of which the vendor derives his title. A purchaser is entitled to an abstract at the vendor's expense unless otherwise stipulated. It begins with the instrument fixed by the contract for the commencement of the title, or, if there has been no agreement upon the subject, with an instrument of such character and date as is prescribed by the law in the absence of stipulation between the parties. From its commencement as so determined the abstract, if properly prepared, shows the history of the title down to the sale; every instrument, marriage, birth, death, or other fact or event constituting a link in the chain of title, being sufficiently set forth in its proper order. The next step is the verification of the abstract on the purchaser's behalf by a comparison of it with the originals of the deeds, the probates of the wills, and office copies of the instruments of record through which the title is traced. The vendor is bound to produce the original documents, except such as are of record or have been lost or destroyed, but, unless otherwise stipulated, the expense of producing those which are not in his possession falls upon the purchaser (Conveyancing Act 1881). After being thus verified, the abstract is perused by the purchaser's advisers with the object of seeing whether a title to the property sold is deduced according to the contract, and what evidence, information or objection, in respect of matters appearing or arising upon the abstract, ought to be called for or taken. For this purpose it is necessary to consider the legal effect of the abstracted instruments, whether they have been properly completed, whether incumbrances, adverse interests, defects, liabilities in respect of duties, or any other burdens or restrictions disclosed by the abstract, have been already got rid of or satisfied, or remain to be dealt with before the completion of the sale. The result of the consideration of these matters is embodied in "requisitions upon title," which are delivered to the vendor's solicitors within a time usually fixed for the purpose by the contract. In making or insisting upon requisitions regard is had, among other things, to any special conditions in the contract dealing with points as to which evidence or objection might otherwise have been required or taken, and to a variety of provisions contained in the Vendor and Purchaser Act 1874, and the Conveyancing Act 1881, which apply, except so far as otherwise agreed, and of which the following are the most important: (1) Recitals, statements and descriptions of facts, matters and parties contained in instruments twenty years old at the date of the contract are, unless proved inaccurate, to be taken as sufficient evidence of the truth of such facts, matters and descriptions; (2) a purchaser cannot require the production of, or make any requisition or objection in respect of, any document dated before the commencement of the title; (3) the cost of obtaining evidence and information not in the vendor's possession must be borne by the purchaser. The possibility of the rescission clause now commonly found in contracts for the sale of real estate being exercised in order to avoid compliance with an onerous requisition, is also an important factor in the situation. The requisitions are in due course replied to, and further requisitions may arise out of the answers. A summary method of obtaining a judicial determination of questions connected with the contract, but not affecting its validity, is provided by the Vendor and Purchaser Act 1874. Before completion it is usual for the purchaser to cause searches to be made in various official registers for matters required to be entered therein, such as judgments, land charges, and pending actions, which may affect the vendor's title to sell, or amount to an incumbrance upon the property.
Conveyances
When the title has been approved, or so soon as it appears reasonably certain that it will be accepted, the draft conveyance is prepared and submitted to the vendor. This is commonly done by and at the expense of the purchaser, who is entitled to determine the form of the conveyance, provided that the vendor is not thereby prejudiced, or put to additional expense. The common mode of conveying a freehold is now, as already mentioned, by ordinary deed, called in this case an indenture, from the old practice, where a deed was made between two or more parties, of writing copies upon the same parchment and then dividing it by an indented or toothed line. Indenting is, however, not necessary, and in modern practice is disused. A deed derives its efficacy from its being sealed and delivered. It is still a matter of doubt whether signing is essential. It is not necessary that its execution should be attested except in special circumstances, as, e.g. where made under a power requiring the instrument exercising it to be attested. But in practice conveyances are not only sealed, but also signed, and attested by one or two witnesses. The details of a conveyance in any particular case depend upon the subject-matter and terms of the sale, and the state of the title as appearing by the abstract. The framework, however, of an ordinary purchase-deed consists of (1) the date and parties, (2) the recitals, (3) the testatum or witnessing-part, containing the statement of the consideration for the sale, the words incorporating covenants for title and the operative words, (4) the parcels or description of the property, (5) the habendum, showing the estate or interest to be taken by the purchaser, and (6) any provisos or covenants that may be required. A few words will illustrate the object and effect of these component parts.
(1) The parties are the persons from whom the property, or some estate or interest in or in relation to it, is to pass to the purchaser, or whose concurrence is rendered necessary by the state of the title in order to give the purchaser the full benefit of his contract and to complete it according to law. It is often necessary that other persons besides the actual vendor should join in the conveyance, e.g. a mortgagee who is to be paid off and convey his estate, a trustee of an outstanding legal estate, a person entitled to some charge or restriction who is to release it, or trustees who are to receive the purchase-money where a limited owner is selling under a power (e.g. a tenant for life under the power given by the Settled Land Act 1882). Parties are described by their names, addresses and occupations or titles, each person with a separate interest, or filling a distinct character, being of a separate part. (2) The recitals explain the circumstances of the title, the interests of the parties in relation to the property, and the agreement or object intended to be carried into effect by the conveyance. Where the sale is by an absolute owner there is no need for recitals, and they are frequently dispensed with; but where there are several parties occupying different positions, recitals in chronological order of the instruments and facts giving rise to their connexion with the property are generally necessary in order to make the deed intelligible. (3) It is usual to mention the consideration. Where it consists of money the statement of its payment is followed by an acknowledgment, in a parenthesis, of its receipt, which, in deeds executed since the Conveyancing Act 1881, dispenses with any endorsed or further receipt. A vendor, who is the absolute beneficial owner, now conveys expressly "as beneficial owner," which words, by virtue of the Conveyancing Act 1881, imply covenants by him with the purchaser that he has a right to convey, for quiet enjoyment, freedom from incumbrances, and for further assurance - limited, however, to the acts and defaults of the covenantor and those through whom he derives his title otherwise than by purchase for value. A trustee or an incumbrancer joining in the deed conveys "as trustee" or "as mortgagee," by which words covenants are implied that the covenantor individually has not done or suffered anything to incumber the property, or prevent him from conveying as expressed. As to the operative words, any expression showing an intention to pass the estate is effectual. Since the Conveyancing Act 1881, "convey" has become as common as "grant," which was formerly used. (4) The property may be described either in the body of the deed or in a schedule, or compendiously in the one and in detail in the other. In any case it is usual to annex a plan. Different kinds of property have their appropriate technical words of description. Hereditaments is the most comprehensive term, and is generally used either alone or in conjunction with other words more specifically descriptive of the property conveyed. (5) The habendum begins with the words "to hold," and the estate, on a sale in fee-simple, is limited, as already mentioned, not only to, but also to the use of, the purchaser. Before the Conveyancing Act 1881, it was necessary to add, after the name of the purchaser, the words "and his heirs," or "his heir and assigns," though the word "assigns" never had any conveyancing force. But since that Act it is sufficient to add "in fee-simple" without using the word "heirs." Unless, however, one or other of these additions is made, the purchaser will even now get only an estate for his life. If the property is to be held subject to a lease or incumbrance, or is released by the deed from an incumbrance previously existing, this is expressed after the words of limitation. (6) Where any special covenants or provisions have been stipulated for, or are required in the circumstances of the title, they are, as a rule, inserted at the end of the conveyance. In simple cases none are needed. Where, however, a vendor retains documents of title, which he is entitled to do where he sells a part only of the estate to which they relate, it is the practice for him by the conveyance to acknowledge the right of the purchaser to production and delivery of copies of such of them as are not instruments of record like wills or orders of court, and to undertake for their safe custody. This acknowledgment and undertaking supply the place of the lengthy covenants to the like effect which were usual before the Conveyancing Act 1881. A trustee or mortgagee joining gives an acknowledgment as to documents retained by him, but not an undertaking. The foregoing outline of a conveyance will be illustrated by the following specimen of a simple purchase-deed of part of an estate belonging to an absolute owner in fee: -
This Indenture made the day of between A. B. of, etc., of the one part and C. D. of, etc., of the other part Whereas the said A. B. is seised (among other hereditaments) of the messuage hereinafter described and hereby conveyed for an estate in fee simple in possession free from incumbrances and has agreed to sell the same to the said C. D. for £100 Now this Indenture witnesseth that in pursuance of the said agreement and in consideration of the sum of £100 paid to the said A. B. by the said C. D. (the receipt whereof the said A. B. doth hereby acknowledge) the said A. B. as beneficial owner doth hereby convey unto the said C. D. All that messuage or tenement situate etc., and known as, etc. To Hold the premises unto and to the use of the said C. D. his heirs and assigns [or in fee simple] And the said A. B. doth hereby acknowledge the right of the said C. D. to production and delivery of copies of the following documents of title [mentioning them] and doth undertake for the safe custody thereof In witness, etc.
It will be observed that throughout the deed there are no stops, the commencement of the several parts being indicated by capital letters. The draft conveyance having been approved on behalf of the vendor, it is engrossed upon stout paper or parchment, and there remains only the completion of the sale, which usually takes place at the office of the vendor's solicitor. A purchaser is not entitled to require the vendor to attend personally and execute the conveyance in his presence or that of his solicitor. The practice is for the deed to be previously executed by the vendor and delivered to his solicitor, and for the solicitor to receive the purchase-money on his client's behalf, since a purchaser is, under the Conveyancing Act 1881, safe in paying the purchase-money to a solicitor producing a deed so executed, when it contains the usual acknowledgment by the vendor of the receipt of the money. Upon the completion, the documents of title are handed over except in the case above referred to, and any claims between the parties in respect of interest upon the purchase-money, apportioned outgoings, or otherwise, are settled. The conveyance is, of course, delivered to the purchaser, upon whom rests the obligation of affixing the proper stamp - which he may do without penalty within thirty days after execution (Stamp Act 1891). It may be added that, subject to any special bargain, which is rarely made, the costs of the execution by the vendor and other parties whose concurrence is necessary, and of any act required to be done by the vendor to carry out his contract, are borne by the vendor.
Leases
Ordinary leases at rack-rents are not generally preceded by a formal agreement, such as is common on a sale of land, or by an investigation into the lessor's title. As a rule, the principal terms are arranged between the parties, and embodied with various ancillary provisions in a draft lease, which is prepared by the lessor's advisers and submitted to the lessee, the ultimate form and contents of the instrument being adjusted by negotiation. If an intending lessee desires to examine the title he must make an express bargain to that effect, for under a contract to grant a lease the intended lessee is not entitled, in the absence of such express stipulation, to call for the title to the freehold (Vendor and Purchaser Act 1874). By the Statute of Frauds all leases, except leases for a term not exceeding three years, and at not less than two-thirds of the rack-rent, were required to be in writing. And now by the Real Property Act 1845, leases required by law to be in writing are void at law unless made by deed. An instrument, void as a lease under the act, may, however, be valid as an agreement to take a lease; and since the Judicature Act 1873, under which equitable doctrines prevail in the High Court, a person holding under an agreement for a lease, of which specific performance would be granted, is treated in all branches of that court as if such a lease were already executed. Unless otherwise agreed, a lease is always prepared by a lessor's solicitor at the expense of the lessee; but the cost of the counterpart (i.e. the duplicate executed by the lessee) is usually borne by the lessor.
Assignment of leaseholds
Upon the sale and conveyance of a leasehold property substantially the same procedure is observed as above indicated in the case of a freehold. A few additional points, however, may be specially mentioned. Under an open contract the vendor cannot be called upon to show the title to the freehold reversion (Vendor and Purchaser Act 1874; Conveyancing Act 1881). Accordingly, the abstract of title begins with the lease, however old; but the subsequent title need not be carried back for more than forty years before the sale. The purchaser, apart from stipulation, must assume, unless the contrary appears, that the lease was duly granted, and upon production of the receipt for the last payment due for rent before completion, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion. The appropriate word of conveyance is "assign," and a conveyance of leaseholds is generally called an assignment. The vendor's covenants for title implied by his assigning "as beneficial owner" include, in addition to the covenants implied by those words in a conveyance of freehold, a covenant limited in manner above mentioned, that the lease is valid, and that the rent and the provisions of the lease have been paid and observed up to the time of conveyance (Conveyancing Act 1881). Where the vendor, as is the common case, remains liable after the assignment for the rent and the performance of the covenants, the purchaser must covenant to pay the rent, and perform and observe the covenants and provisions of the lease, and keep the vendor indemnified in those respects.
Mortgages
A mortgage is prepared by the solicitor of the mortgagee, and the mortgagor bears the whole expenses of the transaction. It is seldom that there is any preliminary agreement, because (1) a contract to lend money is not specifically enforceable; and (2) inasmuch as the primary object of a mortgagee is to have his money well secured, he is not, generally, willing to submit to restrictions as to title or evidence of title which might give rise to difficulty or expense in the event of a sale of the mortgaged property. An intending mortgagor is accordingly required to show a title easily marketable, and to verify it at his own cost. A mortgage follows the same general form as a conveyance on sale, the principal points of difference being that the conveyance of the property is preceded by a covenant for the payment of the mortgage money and interest, and followed by a proviso for reconveyance upon such payment, and by any special provisions necessary or proper in the circumstances, such as a covenant for insurance and repairs where the security comprises buildings. The covenants for title implied by a mortgagor conveying "as beneficial owner" are the same as in the case of a vendor, but they are absolute and not qualified in the manner above pointed out.
The beneficial operation of the Conveyancing Act 1881 in shortening conveyances is well illustrated by a modern mortgage. For, by virtue of the act, a mortgagee by deed executed after its commencement has, subject to any contrary provisions contained in the deed, the following powers to the like extent as if they had been conferred in terms: (1) a power of sale exercisable after the mortgage money has become due (a) if notice requiring payment has been served and not complied with for three months, (b) if any interest is in arrear for two months, or (c) there has been a breach of some obligation under the deed or the act other than the covenant for payment of the mortgage money or interest; (2) a power to insure subject to certain restrictions; (3) a power, when entitled to sell, to appoint a receiver; and (4) a power while in possession to cut and sell timber. The act contains ancillary provisions enabling a mortgagee upon a sale to convey the property for such estate or interest as is the subject of the mortgage, and to give a valid receipt for the purchase-money, and the purchaser is amply protected against any irregularities of which he had no notice. There are also large powers of leasing conferred by the act upon mortgagor and mortgagee while respectively in possession, and a power for the mortgagor, whilst entitled to redeem, to inspect and take copies of title-deeds in the mortgagee's possession. The elaborate provisions for all these purposes which were formerly inserted in mortgage deeds are now omitted; but sometimes the operation of the act is modified in certain respects. The procedure upon a sale by a mortgagee is the same as in the case of any other vendor. He conveys, however, "as mortgagee," these words implying only a covenant by him against incumbrances arising from his own acts.
Settlements
The frame of a strict settlement of real estate, which is usually made either on marriage or by way of resettlement on a tenant in tail under an existing settlement attaining twenty-one, has been much simplified; but such settlements still remain the most technical and most complicated of legal instruments. By virtue of the Settled Land Acts 1882 to 1890, tenants for life and many other limited owners have extensive powers of sale, of leasing, and of doing numerous other acts required in a due course of management. These powers cannot be excluded or fettered by settlors. They are, as a rule, considered in practice to be sufficient, and the corresponding elaborate provisions formerly inserted in settlements are now omitted, the operation of the acts being merely supplemented, where desirable, by some extension of the statutory powers, in relation, e.g., to the investment and application of capital money. To complete the statutory machinery it is desirable that persons should be nominated by the settlement trustees for the purposes of the acts. Since the Conveyancing Act 1881, provisions for the protection of jointresses or persons entitled under settlements to rent charges or annual sums issuing out of the land are no longer required, as all such persons have now powers of distress and entry, and of limiting terms to secure their respective interests. Terms for raising portions must still, however, be expressly created. The Conveyancing Act 1881 also confers large powers of management during the minorities of infants beneficially entitled upon persons either appointed for the purpose by the instrument or being such trustees such as are mentioned in § 42. An estate in tail may now be limited by the use of the words "in tail" without the words "heirs of the body" formerly necessary. And a settlor generally conveys "as settlor," by which only a covenant for further assurance is implied under the Conveyancing Act 1881. Personal settlements are most often made upon marriage. The settled property is vested in trustees, either by the settlement itself, or in the case of cash, mortgage debts, stocks or shares, by previous delivery or transfer, upon trusts declared by the instrument.
The normal trusts after the marriage are (1) for investment; (2) for payment of the income of the husband's property to him for life, and of the wife's property to her for life for her separate use without power of anticipation whilst under coverture; (3) for payment to the survivor for his or her life of the income of both properties; (4) after the death of the survivor, both as to capital and income, for the issue of the marriage as the husband and wife shall jointly by deed appoint, and in default of joint appointment as the survivor shall by deed or will appoint, and in default of such appointment for the children of the marriage who attain twenty-one, or being daughters marry, in equal shares, with the addition of a clause (called the hotchpot clause) precluding a child who or whose issue takes a part of the fund by appointment from sharing in the unappointed part without bringing the appointed share into account. Then follows a power for the trustees with the consent of the parents whilst respectively living to raise a part (usually a half) of the share of a child and apply it for his or her advancement or benefit. Power to apply income, after the death of the life tenants, for the maintenance and education of infants entitled in expectancy, is conferred upon trustees by the Conveyancing Act 1881. The ultimate trusts in the event of there being no children who attain vested interests are (1) of the husband's property for him absolutely; and (2) of the wife's property for such persons as she shall when discovert by deed, or whether covert or discovert by will, appoint, and in default of appointment, for her absolutely if she survive the husband, but if not, then for her next of kin under the Statute of Distributions, excluding the husband. For all ordinary purposes the trustees have now under various statutes sufficient powers and indemnities. They may, however, in some cases need special protection against liability. A power of appointing new trustees is supplied by the Trustee Act 1893. It is usually made exercisable by the husband and wife during their joint lives, and by the survivor during his or her life.
Wills
The form and contents of wills are extremely diverse. A will of, perhaps, the commonest type (a) appoints executors and trustees; (b) makes a specific disposition of a freehold or leasehold residence; (c) gives a few legacies or annuities; and (d) devises and bequeaths to the executors and trustees the residue of the real and personal estate upon trust to sell and convert, to invest the proceeds (after payment of debts and funeral and testamentary expenses) in a specified manner, to pay the income of the investments to the testator's widow for life or until another marriage, and subject to her interest, to hold the capital and income in trust for his children who attain twenty-one, or being daughters marry, in equal shares, with a power of advancement. Daughters' shares are frequently settled by testators upon them and their issue on the same lines and with the same statutory incidents as above mentioned in the observations upon settlements; and sometimes a will contains in like manner a strict settlement of real estate. It is a point often overlooked by testators desirous of benefiting remote descendants that future interests in property must, under what is known as the rule against perpetuities, be restricted within a life or lives in being and twenty-one years afterwards. In disposing of real estate "devise" is the appropriate word of conveyance, and of personal estate "bequeath." But neither word is at all necessary. "I leave all I have to A. B. and appoint him my executor" would make an effectual will for a testator who wished to give all his property, whether real or personal, after payment of his debts, to a single person. By virtue of the Land Transfer Act 1897, Part I., real estate of an owner dying after 1897 now vests for administrative purposes in his executors or administrators, notwithstanding any testamentary disposition.
It remains to mention that by the Land Transfer Act 1897 a system of compulsory registration of title, limited to the county of London, was established. (See Land Registration.)
Conveyancing counsel to the court (i.e. to the chancery division of the High Court) are certain counsel, in actual practice as conveyancers, of not less than ten years' standing, who are appointed by the lord chancellor, to the number of six, under s. 40 of the Master in Chancery Abolition Act 1852. They are appointed for the purpose of assisting the court in the investigation of the title to any estate, and upon their opinion the court or any judge thereof may act. Any party who objects to the opinion given by any conveyancing counsel may have the point in dispute disposed of by the judge at chambers or in court. Business to be referred to conveyancing counsel is distributed among them in rotation, and their fees are regulated by the taxing officers.
United States. - American legislation favours the general policy of registering all documents in the contents of which the public have an interest, and its tendency has been steadily towards more and more full registration both of documents and statistics. From the early days of the colonial era it has been customary to record wills and conveyances of real estate in full in public books, suitably indexed, to which free access was given. During the last decade of the 19th century, three states - Illinois, Massachusetts, and Ohio - adopted the main features of the Torrens or Prussian system for registering title to land rather than conveyances under which title may be claimed. These are the ascertainment by public officers of the state of the title to some or all of the parcels of real estate which are the subject of individual property within the state; the description of each parcel (giving its proper boundaries and characteristics) on a separate page of a public register, and of the manner in which the title is vested; the issue of a certificate to the owner that he is the owner; the official notation on this register of each change of title thereafter; and a warranty by the government of the title to which it may have certified. To make the system complete it is further requisite that every landowner should be compelled to make use of it, and that it should be impossible to transfer a title effectually without the issue of such a government certificate in favour of the purchaser.
Constitutional provisions have been found to prevent or embarrass legislation in these directions in some of the states, but it is believed that they are nowhere such as cannot be obeyed without any serious encroachment on the principles of the new system (People v. Chase, 165 Illinois Reports, 527; State v. Guilbert, 56 Ohio State Reports, 575; People v. Simon, 176 Illinois Reports, 165; Tyler v. Judges, 173 Massachusetts Reports; 55 North-Eastern Reporter, 812; Hamilton v. Brown, 161 United States Reports, 256).
Conveyances which have been duly recorded become of comparatively little importance in the United States. The party claiming immediately under them, if forced to sue to vindicate his title, must produce them or account for their loss; but any one deriving title from him can procure a certified copy of the original conveyance from the recording officer and rely on that. Equitable mortgages by a deposit of title-deeds are unknown.
The general prevalence of public registry systems has had an influence in the development of American jurisprudence in the direction of supporting provisions in wills and conveyances, which, unless generally known, might tend to mislead and deceive, such as spendthrift trusts (Nichols v. Eaton, 91 United States Reports, 716).
Conveyances of real estate are simple in form, and are often prepared by those who have had no professional training for the purpose. Printed blanks, sold at the law-stationers, are commonly employed. The lawyers in each state have devised forms for such blanks, sometimes peculiar in some points to the particular state, and sometimes copied verbatim from those in use elsewhere. Deeds intended to convey an absolute estate are generally either of the form known as warranty deed or of that known as release deed. The release deed is often used as a primary conveyance without warranty to one who has no prior interest in the land. Uniformity in deeds is rendered particularly desirable from the general prevalence of the system of recording all conveyances at length in a public office. Record books are printed for this purpose, containing printed pages corresponding to the printed blanks in use in the particular state, and the recording officer simply has to fill up each page as the deed of similar form was filled up. One set of books may thus be kept for recording warranty deeds, another for recording release deeds, another for recording mortgage deeds, another for leases, etc.
AUTHORITIES - Davidson, Precedents and Forms in Conveyancing (London, 1877 and 1885); Key and Elphinstone, Compendium of Precedents in Conveyancing (London, 1904); Elphinstone, Introduction to Conveyancing (London, 1900); Prideaux, Precedents in Conveyancing (1904); Pollock, The Land Laws (London, 1896).
(S. Wa.; S. E. B.)
Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)
