take the term in his own name, if he do not wish his estate to be personal assets.

If after the death of a person who has taken an assignment of a term in his own name, and a conveyance of the inheritance in the name of a trustee, his personal representative assign the term to attend the inheritance, it will cease to be assets at law; and the creditors or legatees will be entitled to satisfaction against the personal representative, as for a devastavit; and may, it should seem, even follow the term in equity, unless as against a bona fide purchaser without notice, against whom the term will not be severed or disannexed from the inheritance in favor of the creditors or legatees, although the purchaser did not take an assignment of the term, or was even not aware of its existence(/)(249).

But these distinctions will, as to persons who have died since the 29th August 1833, or who shall hereafter die seised of freehold, customary hold or copyhold estates, in a great measure cease to exist; for the 3 & 4 W. 4, c. 104, has made all such estates assets for the payment of even simple contract debts.

10000

(*)SECTION III.

Of Attested Copies.

THUS have we taken a cursory view of the doctrine respecting terms of years, a learning which demands the practical conveyancer's peculiar attention; and we are

(1) Charlton v. Low, 3 P. Wms. 32.

(249) See The People v. Pleas, and Clark, 2 Johns. Cas. 376.

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(*529)

now to consider in what cases a purchaser is entitled to attested copies of the title-deeds.

If a purchaser cannot obtain the title-deeds, he is, as we have already seen, entitled to attested copies of them at the expense of the vendor, unless there be an express stipulation to the contrary(m); and although he may not be entitled to the possession of the deeds, yet he has a right to inspect them, and the vendor must produce them for that purpose(n).

But a purchaser is not entitled to attested copies of instruments on record.

This was decided in the case of Campbell v. Campbell (o), where the Master, in taxing costs incurred by the sale of considerable estates, disallowed the charges for attested copies of deeds and documents upon record and upon exceptions to his report on that account coming on, the Master of the Rolls over-ruled them, and held that a purchaser was not entitled to such copies at the expense of the vendor.

In some cases, however, a purchaser can obtain attested copies even of instruments on record. For a purchaser is entitled to examine the abstract with the original titledeeds, or with attested copies of them; and, therefore, if a vendor has not the instrument itself, and cannot (*)obtain it, he is bound to procure an attested copy of it, to enable the purchaser to ascertain that the abstract is correct; and when it is obtained, the purchaser is of course entitled to it on the completion of the purchase; unless, indeed, the vendor retains other estates holden under the same title.

In a case before Lord Rosslyn, where there was an

(m) Dare v. Tucker, 6 Ves. jun. 460; Berry v. Young, 2 Esp. Ca. 640, n.

(n) Berry v. Young, ubi sup.

(0) Rolls sittings after

Term, 1793, MS.

agreement that the vendor should produce the original title-deeds, his Lordship construed it, not only as an engagement to produce the title-deeds, but as a negative stipulation, that he should not give attested copies. This was certainly presuming a great deal. Lord Eldon has since thought that the pressure of the stamp duties led to that decision(p); and, it is probable, that a similar case would now receive a different determination.

In a recent case, Lord Eldon compelled the vendor, at his own expense, to furnish attested copies, the purchaser having had no intimation that he could not have the deed. For, his Lordship said, if he had notice that he was not to have them, he would regulate his bidding accordingly; conceiving that he was to bear the expense of procuring copies (q). From this, it may be inferred, that notice that the purchaser cannot have the deeds is tantamount to a stipulation, that he shall not be furnished with attested copies at the seller's expense. The general practice of the profession, founded on the decided cases, is, that the seller, in the absence of an express stipulation to the contrary, is bound, at his own expense, to furnish the purchaser with attested copies: and Lord Eldon does not appear to have intended to establish a new rule.

Where a purchaser cannot claim the title-deeds, it is of great importance to him to obtain attested copies of them. But attested copies are not of themselves sufficient security (*)to a purchaser,—they are indeed mere waste paper against strangers, and cannot be used upon an ejectment, unless, perhaps, as between the parties themselves. Therefore, in order to enable a purchaser to effectually manifest and defend his title and possession, he is also entitled, at the expense of the vendor, to a covenant to produce the deeds themselves, at the expense of the pur

(p) See 6 Ves. jun. 460.

(q) Boughton v. Jewell, 15 Ves. jun. 176.

chaser(r); which should, in most cases, be carried into effect by a separate deed. And 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 indorsed on such deed.

And where the title-deeds cannot be delivered, assignees must, like any other vendor, give attested copies of them at the expense of the estate, but their covenant for the production of the deeds should be confined to the time of their continuance as assignees(s). If, however, the covenant is so confined, the purchaser should have some security that the person who shall ultimately become entitled to the custody of the deeds will covenant for their production. The proper course seems to be for the assignees' covenant to be made determinable in case they shall procure the person to whom they shall deliver the deeds to enter into a similar covenant with the purchaser.

It may here be remarked, that although a purchaser of part of an estate has taken a covenant for the production of the deeds, yet, if they afterwards come into his possession by accident, no person can recover them from him who has not a better right to them than he has(t).

And if a purchaser without fraud leave the title-deeds (*)in the hands of the seller, yet he may recover them in trover from the holder of them, although the latter may have advanced money upon them to the seller, and he is not bound to pay the money advanced(u).

Supposing a purchaser to be entitled to the custody of the deeds themselves, yet if any of them be lost, and the

(r) Berry v. Young, 2 Esp. Ca. 640, n.

(8) Per Lord Eldon, Ex parte Stuart, 2 Rose, 215.

(t) Yea v. Field, 2 T. Rep. 708.

(u) Harrington v. Price, 3 Barn. & Adolp. 170.

vendor can deliver over copies which would be admitted as evidence at law, the purchaser will be compelled to take the title(w). But where a deed essential to the title is in the hands of a third person who is entitled to retain it, and would be compelled to produce it to the purchaser, the Court will not compel the purchaser to take the title unless the deed is deposited for the benefit of all parties(x). The purchaser is not bound to rely upon the equitable right to compel the production, but is entitled to the deeds, or a valid covenant to produce them(y).

It frequently happens, that a person having a covenant for production of the title-deeds to his estate, sells only part of the estate, and retains his purchase-deed, and the covenant to produce the deeds; and in such cases I should conceive the practice to be for the vendor to enter into the usual covenant for production of the title-deeds in his possession, which of course would include the original covenant to produce the deeds. But it seems that Mr. Fearne thought(z) that a purchaser was, in cases of this nature, entitled to require the vendor to covenant for the production of the deeds to such an extent as the covenant in the vendor's possession entitled him to the production (*) thereof, unless he could procure a new covenant for that purpose from his grantors to the new purchaser; but that such covenant from the vendor should not be enforced, in case he produce the original covenant to produce the deeds, when it should be required to defend the purchaser's title.

(w) Harvey v. Phillips, 2 Atk. 541. See an opinion of Mr. Booth's 2 Ca. and Opin. 223. As to the cases in which the execution of an instrument will be presumed, see Skipwith v. Shirley, 11 Ves. jun. 64 ; Ward v. Garnons, 17 Ves. jun. 134; and see Holmes v. Ailsbie, 1 Madd. 551.

(x) Shore v. Collett, Coop. 234.

(y) Barclay v. Raine, 1 Sim. & Stu. 449.

(=) Posth. 113.