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the sale. It was impossible to say there was no risk : if there was any, those persons should indemnify against it, who were paid as for a perfect title.
The above case of Lloyd v. Griffiths was stated : and it was said that the decision in that case, and the principles therein laid down, had never been controverted; but, on the contrary, had been the rule adhered to and pursued in practice by every conveyancer of that time.
It might be objected, that purchasers would have an equal right to call upon fimple contract creditors, whose debts were by will charged on the real estate, 10 covenant for the title; and that in sales under the crown, or by the assignees of bankrupts, there were no covenants.
To which it was answered, that with respect to fimple contract creditors, whose debts were charged by the will upon the real estate, they could not be considered as volunteers, and standing in the place of the testator ; and the course and practice of conveyancing had been, not to require that they should be parties to the conveyance, or enter into any covenants. The argument, therefore, in this case could not imply, on the part of the vendors, any undertaking for such covenants, and the appellants did not require what it was unusual to grant. As to contracts for the purchase of an estate from the crown, or from the assignees of a bankrupt, the party, who contracts to buy, is apprised at the time he enters into the contract,
that he can have no covenants for the title ; and, therefore, in these cases there is no breach of agree. ment on the part of the vendees, which made them perfectly distinct from the present. Besides, the cases lait mentioned were exceptions to the generar ruie ; and could not therefore be urged to prove its nonexistence.
On the other side it was coñtended, that the appellánts were not entitled to any other covenants than tuch, as were usually entered into by trustees, and a disinherited heir at law. If it were adopted as an éstablished principle, that the persons beneficially in. terested in the monies, arising from the sales of estate's circumstanced as the estate in question was, were necessary parties to the conveyance of such estates; and that they must enter into covenants for the title in proportion to the interest they respectively claimed
in the purchase monies, the inconvenience would be : without measure, and the execution of numberless
trusts rendered impossible. It would extend to all fales from the assignees of bankrupts; to all sales by trustees for the payment of debts, where the creditors were not named, and frequently could not be found, until after it might be necessary to sell the estate ; to all sales where infants were, and unborn persons were, when born, to be interested in the purchase money in any degree; and even to fales under decrees of courts of equity Besides, if the covenants required could be insisted upon, it was easy to conceive the impofsibility, in many cases, and the difficulty and expence, in most cases, of ascertaining the quantum of damages
to be answered by the covenantor, his heirs, executors, administrators, or assigns, at perhaps very distant periods of time. Many more objections must necefsarily occur to any one conversant with the subject. It had been urged that the legateés, chiefly interested in the purchase money, ought to covenant to the value of their interest : but the rule and principle, upon which the court was to act, could not poflibly depend on the quantum of the legacy, which a party took. Every simple contract creditor, whose debt was paid out of money arising from the fale of land, charged with simple contract debts, in fact, receives payment of his legacy, under the effect of that will. If any of the legatees are compellable to covenant for the title, all of them must be compellable to covenant in respect of the value of their legacies, whether vested, contingent, remote, to be presently paid, or to be paid in future, to be enjoyed in gross, or to be taken by persons born and unborn in succession; and every simple contract creditor, who could not have his debt paid, if the will had not charged the land purchased, and who, under the will takes before legatees, must also be compellable to covenant to the value of his debt.
Such covenants, therefore, as were then required, must be mischievous ; principle could not require that they should be inserted; and in practice they were seldom inserted in conveyances by trustees of estates, devised to them to be fold.
In the present case, the purchasers knew they were contracting with such trustees ; and of course they. purchased with notice that they could only expect to have from those, with whom they contracted, such covenants as were, in the ordinary course of business, entered into by trustees, and a disinherited heir at law, in case he was willing to join in the conveyance. And they further knew the almost utter impossibility, in the present case, of procuring some of the persons beneficially interested in the purchase money, to execute the proposed conveyance, on account of their residence beyond the seas; and there was nothing in this case, which calls for a deviation from the common course of business. The title was clear; and there was no fair objection which could be made against it.
The decree was affirnied with 200 l. costs.
S 70. The eighth and last part of a deed is tne Conclufion. conclufion, which mentions the execution of the deed, and the date, either expressly or by reference to some day and year previously mentioned.
DE E D.
Of a Feoffment, Gift, and Grant. $ 1. Different kinds of Deeds. $ 32. Creates a Discontinuance. 3. Of a Feoffment.
33. And also a Forfeiture. 7. Of Livery of Seisin.
34. Of a Gift. 21. Who may convey by Feoffment. 35. Of a Grant. 26. A Feoffment cannot commence 39. No technical Words necef. in futuro.
- fary. 28. Operation of a Feoffment. 41. Who may convey by Grant, 29. Transfers the Freehold by 43. Operation of a Grani.
Different Kinds of Deeds.
Section 1. L AVING discussed the general nature of deeds, so it will now be necessary to consider the several kinds which are known to the law, together with their various incidents and qualities. All deeds by which lands may be conveyed or charged derive their effect, either from the common law, or from the statute of uses. Of those which derive their effect from the common law, some may be called original or primary, which are those by means whereof the estate is originally created or arises. Others are derivative or secondary, whereby an estate already created, is enlarged, restrained, transferred, or extinguished. And there is a third class which are used, not to convey, but to charge or incumber lands, and to discharge them again.
S 2. The