"the whole interest or interests so to be sold to the purchaser or purchasers, or in such manner as the said court shall think "proper; and every such conveyance, release, surrender, assignment, or other assurance shall be as effectual as if the person "who shall make and execute the same were seised or possessed "of the fee simple or other whole estate so to be sold 1." And the stat. I Will. 4, c. 60, s. 17, contains a similar provision, enabling a tenant for life, or other person having a partial interest, to convey the fee, where there has been a decree for a specific performance of an agreement for sale of land.

15. Order of the Parties.]—The parties should be in this order: the conveying before the receiving parties; the legal before the equitable owner; the freehold before the chattel tenant; persons having estates before those having mere rights; and these latter before consenting parties: the vendor follows the whole of the conveying parties, but the purchaser precedes the parties on his behalf; trustees of the fee come before trustees of terms, and these according to the priority of the terms. The general rule is, worthiness of estate, and not order of acting in the deed. Sometimes a party stands in two capacities, in one of which (for instance) he is a joint party with others, in another he stands by himself; or, in one is executor to one person, and in another is heir-at-law to another person: in such a case the modern practice, especially in great concerns, is to make him party in as many parts as he has distinct characters. Where many parties are united in, or claim under, one title, they should be classed under the same division. Some draftsmen are in the habit of describing at length the character and situation of the parties to a deed,—a practice more troublesome than useful, except where the transaction is small, for then a description of this nature may serve the place of recitals.

16. Effect of being a Party.]-It sometimes happens, when the contents of a deed are extensive and complicated, that persons object to be parties to it, lest, by their being so, they should be considered as bound by the recitals, or by the effect of the deed; and the objection has sometimes been allowed. It seems, however, to be clear, as a general rule, that none of the parties would be considered as bound further than he appears from the evident import of the deed to have agreed to be bound; and the general expression, "it is hereby agreed and declared," would be considered to affect those only who are immediately interested in the

agreement; but, at all events, a general clause

may be inserted, which, by referring each distinct part of the deed to the person particularly interested in it, will obviate every objection.

9°. Provisoes for Redemption, 32. 14. Effect of a Recital as Evidence, 36. 10°. Powers, 33.

1. Object of Recitals.]-Recitals are of modern invention; and their object is to give a history of the title since the last purchase-deed, where the transaction to be effected is a purchase, in order to shew a connexion of title, and an entire chain of warranty. In other transactions so much must be recited as is necessary to shew that the parties have power to do what the deed in preparation proposes to effect. They are not a necessary part of a deed, either at law or in equity, except where a man is to take any new estate from the King, of a thing whereof there is any estate in being; for then the former estate, if it be good and of record, must be recited in the deed, or else the second grant will not be good. But though not, in general, absolutely necessary, recitals are in all cases highly important, as affording evidence of intention,-giving notice of dormant claims,—as statements of facts, and as pointing to other assurances, which may exercise a considerable influence on the operation of the deed. In every well drawn deed, therefore, all facts relative to deaths, failure of issue, marriages, survivorships, contingencies, successions or descents, intestacies, majority, &c., which are necessary to preserve the chain of title unbroken, are uniformly stated.

2. As to the Recital of certain Facts.]—A defect which has been remedied may be recited; but one which is not cured should

not be noticed. The technical mode of reciting a probable circumstance is " And whereas there is reason to believe." So, where a conclusion of law is stated, the technical words are "by reason whereof." Negative recitals are sometimes necessary to obviate evident presumptions, as that on the marriage of a daughter no settlement was made; and the general rule is, that wherever a reasonable presumption of a fact does arise, and such fact does not exist, a negative recital should be introduced. On a conveyance by husband and wife, if the estate be the inheritance of the husband, it should be so recited; for, in the absence of such recital, the presumption is, that the estate belonged to the wife. If a widow, or a woman concurrently with a second husband, convey an estate of which she is tenant in tail, her title should be recited, in order that it may appear that she is not tenant in tail ex provisione viri; for, in this case, she has no power of alienation. Recitals should never be framed in such a manner that they may at any future time mislead the readers of them; and, therefore, when a jointure is charged upon an estate, and a part of that estate becomes the subject of a future deed, it is proper to recite, that that part and also other estates are charged with the jointure. Generally speaking, the deeds should be recited according to their date; but when there are distinct transactions to be stated, independent of one another, it is sometimes usual to go through the recital of each chain of transactions in succession. Where a deed is voluminous, it is usual to introduce such recitals as serve to keep up a chain of transactions in the reader's mind. Thus, after mentioning the death of one trustee of a term, it is usual to say, that thereby the lands vested in the surviving trustee for the residue of the term. In the same manner, in reciting a common recovery, it may be said that by it, the intail created by such a deed, and the remainders expectant on it, were barred, and the lands limited and assured to the use of A. and his heirs, subject to the jointures, portions, and charges, &c.

Where a person is a party to any instrument on account of any particular estate and interest he has in the land, or by reason of any trust reposed in him, it is usual to recite the deed which shews the nature of the estate or interest; and common sense requires, that what is necessary to shew the object of the deed should be stated by way of recital. When trustees convey, it is absolutely necessary to shew so much as authorizes them to make the

conveyance in question. Thus, if A. is originally a trustee for B., and C. afterwards becomes entitled to the benefit of the trust, the instrument or event which gives rise to the change in the beneficial interest should appear on the face of the deed: a general statement that C. is so entitled is not sufficient. When a deed has been executed, and another deed is to be prepared, which recites the first, and the nature of the second requires only that the estate raised by the first deed, or the immediate rights or interests raised under it, should be stated, it does not seem necessary to recite anything more than the general operation of the first deed. Thus, if a person, having his estate incumbered with jointures, portions, mortgages, annuities, limitations, and other incumbrances, executes an instrument by which an entire new arrangement takes place, it seems nugatory to recite, in any future deed, the anterior state of the incumbrances. For the same reason it is unnecessary, generally speaking, to recite the motives of the deed in recital,-as, for instance, if there is to be a recital of a mortgage, there seems no reason to recite that the mortgagor wanted the money, and applied to the mortgagee to lend it him. And, indeed, it may be laid down as a very general rule, that there should not be a recital of recitals. It is sufficient to state the agreement of the parties, without entering into the various inducements that led to it; except where the transaction is a sale from the child to the father, from a ward to the guardian, or from a cestui que trust to a trustee; for in these instances the nature of the transaction should be stated. The recital of the contract or agreement and the object of the deed is, in equity, of material importance; for if the operative part of the deed, by mistake, vary in substance from the agreement, the court will reform the legal operation of the deed; on the other hand, the recital will be controlled by the body of the deed, if, on taking the whole instrument into consideration, such appears to have been the meaning of the parties1.

.

1 Dearden v.

8 Pri. 417.

3. Scope of the Recitais.]-Upon the whole, it may be laid Lord Byron, down as a general rule:-1st, With respect to the grantee, that if the deeds delivered over to the party are of themselves sufficient to enable him to defend or enforce his title at law or in equity, if necessary, no recitals are essential to his security; and therefore the recitals which are introduced may, in this case, be very short. If, on the other hand, his title depends on circumstances which do not appear on the face of the deeds delivered

to him, these circumstances should be fully stated in the recitals. 2ndly, With respect to the grantor, enough should appear on the face of the deed to justify him in making the conveyance; and, therefore, as has been observed before, if a trustee convey, the deed creating the trust, and the subsequent acts which alter the object of the trust, should be stated.

4. Recital of a Deed.]—A deed may be recited either formally and directly, or by merely stating its effect and substance. In preparing a draft, attention should always be paid to the circumstance whether the recital in preparation is a recital of the language of the deed, or merely of its effect. In the latter case, it is enough if the substance and effect of the deed be accurately expressed;-in the former case it is essential to adhere closely to the deed, and, as a general rule, neither to alter nor omit any part of its language. Such a mode is correct in point of principle, and very convenient as a matter of practice, since it affords great facility to the parties, through whose hands the deeds must pass, for comparison and examination. Thus, it may be recited: "And whereas, by indentures of lease and release, bearing date the and days of &c., respectively, the release being made between &c., the messuages or tenements, lands and other hereditaments hereinafter described, were conveyed and assured by the said A. B. to the said C. D. in fee, free from incumbrances;" or it may be recited that a conveyance was "to such uses as A. should appoint, in manner and by the means in the said indenture mentioned; and in default of appointment and subject thereto, To the use of A. for life, with remainder to B. and his heirs, for the life of A. and his assigns, with remainder to A. in fee." Recitals so formed are in general introduced only where brevity is a material object, or where the deed so recited is matter of inducement rather than an essential link in the chain of title. In such a case it is enough if the effect of the deed be accurately comprehended, and that effect clearly and concisely stated. Such a mode of recital can, however, be recommended only in those cases where the true construction of the instrument is so clear, that there can be no doubt whatever of its legal and technical effect. In these cases also, it is always to be remembered, that that should never be stated as the effect of the deed or will, which is in fact only the probable construction of it. The precaution here suggested indeed admits of a more extensive application, for it is the duty of the draftsman to take care