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him or them or any of them shall be reasonably 44 & 45 required:

Vict. c. 41,

8. 7.

On mort

(D.) In a conveyance by way of mortgage of leasehold property, the following further covenant by a person who gage of conveys and is expressed to convey as beneficial owner by benefi (namely):

leaseholds,

cial owner.

lease.

covenants.

That the lease or grant creating the term or estate for Validity of which the land is held is, at the time of conveyance, a good, valid, and effectual lease or grant of the land conveyed and is in full force, unforfeited, and unsurrendered and in nowise become void or voidable, and that all the rents reserved by, and all the covenants, conditions, and agreements contained in, the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed, and performed, have been paid, observed, and performed up to the time of conveyance; and also that the person so Payment conveying, or the persons deriving title under him, of rent and will at all times, as long as any money remains on ance of the security of the conveyance, pay, observe, and perform, or cause to be paid, observed, and performed all the rents reserved by, and all the covenants, conditions and agreements contained in, the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed, and performed, and will keep the person to whom the conveyance is made, and those deriving title under him, indemnified against all actions, proceedings, costs, charges, damages, claims and demands, if any, to be incurred or sustained by him or them by reason of the non-payment of such rent or the non-observance or nonperformance of such covenants, conditions, and agreements, or any of them:

ment.

(E.) In a conveyance by way of settlement, the follow- On settleing covenant by a person who conveys and is expressed to convey as settlor (namely):

44 & 45 Vict. c. 41, 8. 7.

For

further

assurance, limited.

On convey. ance by

That the person so conveying, and every person deriving title under him by deed or act or operation of law in his lifetime subsequent to that conveyance, or by testamentary disposition or devolution in law, on his death, will, from time to time, and at all times, after the date of that conveyance, at the request and cost of any person deriving title thereunder, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the conveyance to the persons to whom the conveyance is made and those deriving title under them, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by them or any of them shall be reasonably required:

(F.) In any conveyance, the following covenant by every trustee or person who conveys and is expressed to convey as trustee mortgagee. or mortgagee, or as personal representative of a deceased

Against

incumbrances.

person, or as committee of a lunatic (k) so found by inquisi-
tion, or under an order of the Court, which covenant shall
be deemed to extend to every such person's own acts only
(namely):
That the person so conveying has not executed or done,
or knowingly suffered, or been party or privy to,
any deed or thing, whereby or by means whereof
the subject-matter of the conveyance, or any part
thereof, is or may be impeached, charged, affected,
or incumbered in title, estate, or otherwise, or
whereby or by means whereof the person who so
conveys is in anywise hindered from conveying
the subject-matter of the conveyance, or any part
thereof, in the manner in which it is expressed to
be conveyed.

(k) The usual way of conveying property of a lunatic is for the lunatic himself to convey by deed sealed and delivered in his name and on his behalf by the committee, and in like manner to covenant for

title, not for the committee to convey and covenant for title on behalf of the lunatic, see Prec. XXVIII., and see also Laurie v. Lees, L. R. 7 Ap. Ca. 24.

Vict.

c. 41,

8. 7.

(2.) Where in a conveyance it is expressed that by direc- 44 & 45 tion of a person expressed to direct as beneficial owner another person conveys, then, within this section, the person giving the direction, whether he conveys and is expressed to convey as beneficial owner or not, shall be deemed to convey and to be expressed to convey as beneficial owner the subject-matter so conveyed by his direction; and a covenant on his part shall be implied accordingly.

(3.) Where a wife (1) conveys and is expressed to convey as beneficial owner, and the husband also conveys and is expressed to convey as beneficial owner, then, within this section, the wife shall be deemed to convey and to be expressed to convey by direction of the husband, as beneficial owner; and, in addition to the covenant implied on the part of the wife, there shall also be implied, first, a covenant on the part of the husband as the person giving that direction, and secondly, a covenant on the part of the husband in the same terms as the covenant implied on the part of the wife.

(4.) Where in a conveyance a person conveying is not expressed to convey as beneficial owner, or as settlor, or as trustee, or as mortgagee, or as personal representative of a

(7) On a conveyance by a married woman not entitled for her separate use it was usual for the husband to give covenants for title to the effect that notwithstanding anything by him or his wife or her ancestors or testators done or suffered he and she had good right to convey &c. Covenants on the part of the wife were not usually given. This section provides for the implication of four covenants, 1. by the wife as conveying as beneficial owner, 2. by the husband as directing her conveyance, 3. by the husband in the same terms as that of the wife, 4. by the husband as conveying, see Clerke

& Brett's Conv. Act, 2nd ed. p. 56.
The covenant No. 1 implied on the
part of the wife will by the Married
Women's Property Act, 1882, sec. 1,
subs. 3, bind her separate property
unless the contrary be shown. It
may therefore be that henceforth
married women will object to give
the covenant on a conveyance of pro-
perty to which they are entitled not
for their separate use, and the con-
veyance may then be framed under
subs. 2, by making the wife convey
by the direction of the husband as
beneficial owner and the husband

convey as beneficial owner, see
Prec. XIII., p. 21.

S

Vict. c. 41, s. 7.

44 & 45 deceased person, or as committee of a lunatic so found by inquisition, or under an order of the Court, or by direction. of a person as beneficial owner, no covenant on the part of the person conveying shall be, by virtue of this section, implied in the conveyance.

(5.) In this section a conveyance includes a deed conferring the right to admittance to copyhold or customary land, but does not include a demise by way of lease at a rent, or any customary assurance, other than a deed, conferring the right to admittance to copyhold or customary land (n).

(6.) The benefit of a covenant implied as aforesaid shall

(n) A deed conferring the right
of admittance to copyhold land, such
as a bargain and sale by trustees of
a will in pursuance of the directions
in the will contained for sale of the
copyholds, see Prec. XIX., an ap-
pointment of copyholds by the
trustee of a bankrupt under s. 22 of
the Bankruptcy Act, 1869, a convey-
ance of copyholds by a person ap-
pointed to convey under s. 28
of the Trustee Act, 1850, or by a
tenant for life under the Settled
Land Act, 1882, see Prec. XXII.,
requires no surrender.
The pur-
chaser can be admitted forthwith.
A covenant to surrender copyholds
which is the ordinary mode of con-
veying requires to be followed by a
surrender and does not confer any
right to admittance, and if the
vendor dies before surrendering the
purchaser cannot be admitted until
the vendor's heir or devisee has first
been admitted and then surrendered,
or until an order of the Court has
been obtained vesting the right to
admittance in the purchaser. It
would seem therefore that in a cove-
nant to surrender copyholds the
covenants for title will not be implied
by the use of the words "as benefi-

cial owner," see Clerke & Brett's
Conv. Act, 2nd ed. p. 57. More-
over if they could be implied they
would not be appropriate. The
covenants for title given on a cove-
nant to surrender copyholds are to
the effect that notwithstanding any-
thing by the vendor or his ancestors
or testators done or suffered the
vendor hath good right to surrender
the copyholds. Now the covenants
given by the Conveyancing Act,
1881, make the vendor covenant
that he has full power to convey,
and by s. 2, subs. 5, conveyance in-
cludes a covenant to surrender made
by deed, but not the surrender it-
self. Consequently if the covenant
for title could be implied it would
merely be that the vendor cove-
nanted that notwithstanding &c.,
he had full power to covenant to
surrender. Any one has power to
covenant to surrender or to do any-
thing else. The point is whether
he can perform his covenant.
the above reasons covenants for
title have been inserted in the pre-
cedents of covenants to surrender
copyholds contained in the first part
of this book, as being the safer

course.

For

be annexed and incident to, and shall go with, the estate or interest of the implied covenantee, and shall be capable of being enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time vested.

(7.) A covenant implied as aforesaid may be varied or extended by deed, and, as so varied or extended, shall, as far as may be, operate in the like manner, and with all the like incidents, effects, and consequences, as if such variations or extensions were directed in this section to be implied.

(8.) This section applies only to conveyances made after the commencement of this Act.

Execution of Purchase Deed.

8.—(1.) On a sale, the purchaser shall not be entitled to require that the conveyance to him be executed in his presence, or in that of his solicitor, as such; but shall be entitled to have, at his own cost, the execution of the conveyance attested by some person appointed by him, who may, if he thinks fit, be his solicitor.

(2.) This section applies only to sales made after the commencement of this Act.

Production and Safe Custody of Title Deeds (0).

44 & 45 Vict. c. 41,

ss. 7-9.

Execution of purchase deed. Rights of purchaser

as to exe

cution.

Production and safe

custody of

9.-(1.) Where a person retains possession of documents, title deeds. and gives to another an acknowledgment in writing of Acknow

(0) This section provides for the giving of an acknowledgment which is equivalent to the covenant for production and for furnishing copies of deeds, and an undertaking which is equivalent to the covenant for safe custody thereof. Both covenants used to be given by all grantors except trustees and mortgagees, who only gave the former covenant. In future therefore both

the acknowledgment and the under-
taking will be given by all persons
except trustees and mortgagees, who
will only give the acknowledgment.
It is to be observed that the
acknowledgment or undertaking can
only be given by the person retain-
ing possession of the documents :
consequently where a mortgagor is
selling part of the lands comprised
in a mortgage, and the mortgagee

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