CHAPTER VII.

OF ABSTRACTS OF TITLE OF LEASEHOLDS AND
CHATTELS REAL.

PERSONAL property, in a former period of our jurisprudence, was accounted of very trifling importance, and the laws relating thereto were few and illdefined; but subsequent events have rendered personal property nearly as important as real property, and it now almost equally divides the attention of the courts. Personal property consists of chattels real and chattels personal. Chattels real partake of the nature of real property; and of this kind are all terms for years in land or real property, annuities charged on land, statutes merchant, &c. (a) Chattels personal are moveable things, such as money, stock in trade, furniture, jewels, &c. (b)

An interest in land, bounded by a particular event which may happen within a given number of years, is also a chattel real. Thus a devise to trustees or executors, "for payment of the testator's debts, and

(a) Co. Litt. 43, b.

(b) 2 Bla. Com. 386.

until his debts be paid," confers only a chattel interest, and will go to the executor of the surviving trustee or executor, if the debts are not discharged in his lifetime. (a)

We shall first consider the rules respecting the titles of chattels real; and this chapter may be properly divided into-I. Titles of leaseholds. II. Titles of terms of years in gross. III. Titles of attendant terms. IV. Titles under tenants from year to year, &c. V. Titles under tenants by statute merchant, &c.

I. TITLES OF LEASEHOLDS.

Titles to leasehold property should commence with the original lease, and all subsequent assignments should be abstracted; (b) and it should also contain statements of all the circumstances and facts incident and relative to the property.

In considering titles of leaseholds, it will be proper to see that the lessor has good right to lease, that the lessee is of capacity to receive the lease, the deduction of the title under the term, the description of the parcels, and the words of limitation in the lease. (c)

All leases, except those of an infant, will be valid at common law, although no rent is reserved. (d)

Freehold estates for lives, in lands of the legal estate, must, however created, be transferred by feoffment and livery of seisin, or by lease and release, or some other similar assurance; but estates in lands

(a) Co. Litt. 42 a. Doe v. Simp son, 5 East. 162.

(b) 1. Prest. Abs. 12.

(c) 2 Prest. Abs. 16.

(d) 1 Prest. Abs. 19.

under terms for years may be transferred by mere writing, except they confer a title to the reversion and services; and under such circumstances there must, it is apprehended, be a grant or assignment by deed.. (a)

When a term of years is in two joint tenants, an assurance by one of them will not pass more than his moiety or share; but one of several executors or administrators may assign the entirety of the lands, or demise them for all or any part of the term; (b) and an assignment purporting to be from several executors, and executed by one only, will be effectual for the entirety. (c)

It must also carefully be seen that there exists under the lease that duration of interest which is professed to be granted, and that this interest is only determinable at the time and in the manner agreed upon by the parties, and that only the specified rent is payable.

Where the lease is made in consideration of the surrender of a former lease, the reference made to such lease leads to the necessity of investigating the title of the lessor to such lease, and the mesne assignments, as any encumbrance upon them would attach on the new lease. (d) And it will be proper to see that the surrender was properly made; and if in pursuance of any statute, that its provisions have been complied with.

It must also be seen that the leases have been uniformly granted to the persons who had the former

(a) 2 Prest. Abs. 20.

(b) Prest. Shep. Touch. 484. (c) 2 Prest. Abs. 22.

(d) Coppin v. Fernyhough, 2 B. C. C. 291. And see Nesbit v. Tredennick, 1 Ball. & B. 29.

interest. If they have not, and two interests are subsisting at the same time in different persons, as mortgagor and mortgagee, the former having renewed in his own name after mortgage made, without a surrender from the latter, the title is defective, but may be made good by the assignment and merger of the interest under the old lease in the new term.

The assignor of a lease should covenant that the lease is good for the assigned term. In renewable leaseholds he must also covenant for the due exercise of the right of renewal. If the reserved rent is considerable, and the purchaser has no means of satisfying himself whether it has been duly paid, a covenant may be inserted from the assignor that it has been duly paid.

In an assignment of leaseholds, the purchaser, except in the case of a purchase from the assignees of a bankrupt, must covenant to pay the rents and perform the covenants contained in the lease on the part of the lessee, and to indemnify the vendor therefrom. (a) And if he does not give a covenant or bond, he will, in general, be liable to an action on the case, to indemnify the vendor against the rents and covenants. (b)

If the original lessor's assent be necessary to complete the purchase, the vendor, and not the purchaser, must procure it. (c)

Where the estate agreed to be leased was com

(a) Pember v. Mathers, 1 B. C. C. 52. Staines v. Morris, 1 V. & B. 8. Wilkins v. Fry, 1 Mer. 244.

(b) See Burnett v. Lynch, 5 B. & C. 589.

(c) Lloyd v. Crispe, 5 Taunt. 249.

Mason v. Corder, 2 Marsh. 332; 7 Taunt. 9. As to covenants and conditions against assignment, see tit. "Leases." Park. and Stew. Cont. Byth. 435-437.

H

prised with others in an original lease, under which the lessor had a right of re-entry on breach of covenants, the lessee will not be bound to accept the title, even with an indemnity. (a)

Whether a lessee can require the production of the title of the lessor, has been a point frequently discussed. It is generally provided for by one of the articles of sale, and a lessee should always insist on it. (b) But in the absence of stipulation, a vendor cannot compel a specific performance without furnishing such abstract. (c) And when a lease is made under a power, either in an act of parliament or in a private conveyance, the title, so far as it was connected with the power, must be stated. (d)

But a lessor who enters into a contract for land, does not thereby impliedly engage that he will deliver to the lessee an abstract of the title to the freehold; (e) and it has been very lately decided at nisi prius, by Lord Tenterden, that upon the sale of a lease without any stipulation for making a good title, or for the production of the lessor's title, that the purchaser cannot insist on its production. This was decided on an action for the deposit, brought on account of the title not being produced. (f) But where A., by agreement made on the 31st day of March, agreed to grant a lease of certain premises, habendum, from the 29th of September then next, for twenty-one years, in con

(a) Fildes v. Hooker, 3 Madd. 193. (b) Sug. V. & P. 306.

(c) Fildes v. Hooker, 2 Meriv. 424. Keech v. Hall, Doug. 22; 3 Mad. 193. Purvis v. Rayer, 9 Pri. 488.

And see Deverell v. Bolton, 18 Ves. 505.

(d) 2 Prest. Abs. 9.

(e) Temple v. Brown, 6 Taunt. 60. Gwillim v. Stone, 3 Taunt. 433; Sug. V. & P. 307, 8th ed.

(f) George v. Pritchard, 1 Ry. & Moo. 417.