for title.

:

Covenants (purchaser) and his heirs AND the said (vendor) doth hereby for himself and his heirs covenant with the said (purchaser), his heirs and assigns, in manner following; that is to say, that notwithstanding anything made, done or suffered by him the said vendor), he hath good right by these presents to appoint the said hereditaments to the uses hereinbefore limited, and also (by way of further assurance) to grant the same hereditaments in manner aforesaid, and according to the intent of these presents. (Other covenants for title, ut supra, p. 65.) Recital as AND WHEREAS the title deeds and writings relating to purchase to the said purchased premises relate also to other

deeds not delivered.

and more valuable lands of the said (vendor), and the same title deeds and writings are therefore to remain in his custody on his covenanting to produce them, and furnish attested copies of them to the effect hereinafter contained: WHEREFORE THIS INDENTURE FURTHER WITNESSETH, that in pursuance of the same agreement, and for the considerations aforesaid, the said (vendor) doth hereby for himself and his heirs further covenant with the said (purchaser), his heirs and assigns, that he the said (vendor), his heirs or assigns, unless prevented by fire or some other inevitable accident which may happen to the deeds and writings hereinafter mentioned, while kept by the said (vendor) as he shall keep his own deeds and writings or other valuable effects, will from time to time hereafter on every reasonable request, in writing and at the costs of the said (purchaser), his heirs or assigns, produce or cause to be produced (but in England only) unto the said (purchaser), his heirs or assigns, or to any person or persons whom he or they shall under his or their hands appoint

Remark on

tion of

for that purpose," or to any court of law or equity, or at any trial, hearing, commission for the examination of witnesses, or otherwise" (7), as occasion shall require, the said several deeds and writings undefaced and uncancelled for the proof of the title of the said (purchaser), his heirs or assigns, to the said premises: AND ALSO that the said (vendor), his heirs, executors or administrators will, from time to time, at the request and costs of the said (purchaser), his heirs or assigns, deliver to him or them fair, true and attested or other copies or extracts of and from the same deeds and writings, or any of them, and suffer such copies and extracts to be examined with the originals thereof, either by the said (purchaser), his heirs or assigns, or any person or persons whom he or they shall appoint in manner aforesaid for that purpose.

IN WITNESS, &c.

(7) It is, I believe, an almost universal practice to add this provision indefinite provision, and when it is added the previous specificafor production of course is useless. Some gentlemen, however, do not extend the anticipated requisition beyond definite limits; and if the specification be full and accurate, this plan is perhaps the preferable one.

deeds.

Principle of the

covenant

and precaution to be taken.

As to Covenants for production of Deeds.

When a purchaser cannot obtain the title deeds, but only attested copies of them, it is because the latter are not sufficient

to produce, security to him; that he is also entitled at the expense of the vendor, unless there be a stipulation to the contrary, to a covenant to produce the deeds themselves at the expense of the purchaser, which should in most cases be made by a separate deed. Sir E. Sugden observes, that where a vendor retains the deed by which the estate he is selling was conveyed to him (which is mostly the case when it relates to other estates), it seems advisable for the purchaser to require a memorandum of his purchase to be endorsed on such deed. This remark is just, for even when the title may appear to be legal it may, in fact, be only equitable; a term may be outstanding, and such a memorandum would then be the only means of preventing a vendor under these circumstances of committing an effective fraud by selling the lands again to a bonâ fide purchaser without notice, who may on discovering the previous sale protect himself by taking an assignment of the term. (Supra, p. 94.)

Proviso limiting the cove

nant to a beneficial retention of the deeds by the vendor.

Reasons for having

It is not unusual to add a proviso to this covenant, determining it in the event of the vendor selling the part of the lands which he retains ; and procuring him, to whom the lands are sold and deeds delivered, to enter into a similar covenant with the first purchaser.

"PROVIDED NEVERTHELESS, that if the said (vendor), his heirs or assigns, shall make an absolute and bonâ fide sale and conveyance of the other hereditaments to which the said deeds and writings relate, or of the greater part in value of those hereditaments, and shall procure such grantee for himself, his heirs and assigns, to enter into a covenant with the said (purchaser), his heirs and assigns, in relation to the same deeds and writings, to as full an extent as the one herein before contained, and shall deliver such covenant unto the said (purchaser), his heirs or assigns, then the foregoing covenant shall cease, without prejudice, however, to any right which may have accrued to the said (purchaser), his heirs or assigns, for any breach of the said covenant prior to its cesser."

[It has been before stated that a covenant to produce deeds should be by a separate instrument. Where the covenant is stipu.

covenant

rate deed.

lated to be at the purchaser's expense, he can of course elect by a sepa- whether he will add the covenant to his conveyance, or take a distinct deed; but in cases where the expense, from the absence of stipulation, falls on the vendors, they often contend that it should be appended to the conveyance. In a case of this kind, the folowing reasons were satisfactory to the vendor, and produced his execution of a distinct deed

["The vendors are bound to put the purchaser in a position as nearly similar to that in which he would be if the documents were delivered to him. If they were delivered, the purchaser might, on subsequent dealings, use such of the deeds as the state of the title required, or gave notice of, or as a subsequent purchaser was entitled to call for. If he could make out a title on a future occasion by production of a portion only of such docucuments, or even by the withholding of them entirely, the actual possession of them would enable him so to do. To procure the purchaser this similarity of benefit, the covenant to produce must be distinct from the conveyance; for if the covenant be appended to it as at present, the purchaser must necessarily on future dealings give notice of those documents, and thus render their production inevitable from that reason alone, and without reference to the state of the title."]

[A more restricted proviso as regards the purchaser is frequently desired to be framed for vendors. The following form is therefore submitted. It will also furnish the terms of the condition of sale, which can alone force it on a purchaser:"Provided nevertheless, that if the said covenantees, their heirs "or assigns, shall on an absolute and bona fide sale of the "whole or the greater part in value of the other hereditaments, "to which the said deeds and documents relate, deliver the same to the purchaser of such hereditaments, and shall procure such purchaser to enter into a covenant with the said (purchaser), his heirs and assigns, in relation to the same deeds " and documents, to as full an extent as the one hereinbefore "contained (such covenant to be prepared and tendered by and "at the expense of the said purchaser, his heirs or assigns), "then on the delivery of such covenant to him or them, or on "his or their refusing or omitting to tender the same as aforesaid, "after notice of such intended conveyance and delivery, the "foregoing covenant shall cease.”

CHAPTER IV.

[DISENTAILING ASSURANCES UNDER THE ACT FOR THE ABOLITION OF FINES AND RECOVERIES.]

[THE Act for the abolition of fines and recoveries, and the substitution of more simple modes of assurance, requires a short notice of its principal provisions as regards entails, before introducing those Precedents which the Act has given rise to.

[A Fine, in its origin, was an amicable compromise of an actual suit, whereby the lands were acknowledged to be the right of one of the parties, and at common law all persons were barred by it who did not claim within a year and a day. The safe title acquired by this process led, it is supposed, to the practice of transferring lands by means of a fictitious suit of the same nature as the real suit above alluded to. This was the origin of the modern fines. The common-law bar after a year and a day was at an early period taken away, and five years substituted, extendible by infancy, coverture, lunacy, and absence beyond seas. The effect of barring estates tail was given by statute to fines levied with proclamations, from the last of which the five years for claiming commenced. Some of the principal uses of a fine were to bar estates tail, and enable a tenant in tail to acquire or pass a base fee determinable on the failure of the issue in tail, and the fine usually resorted to for those purposes was one- Sur conuzance de droit come ceo, &c. The effect of the fine as a conveyance was, that when levied by a tenant in tail, who had an immediate remainder or reversion in fee to himself, the base fee acquired by the fine merged in the remainder or reversion, which immediately became an estate in possession, and all the estates and charges made on the remainder or reversion, not only by the tenant in tail himself, but also by those who were previously entitled