SECTION II.

OF STAMPS.

1. Instruments executed, stamped upon 10. Endorsements, &c. to be counted.

1. THERE are few duties more imperative upon the legislature than to simplify the law as to stamps. Titles ought not to be endangered by fiscal regulations, but the present system is so complicated, that a volume of considerable extent is occupied in an able exposition of its leading features (a). Agreements and deeds may however be properly stamped where they have been executed without any or with improper stamps (6), upon payment of a penalty, and any proposal to restrict this liberty ought to be received with jealousy. But if the instrument be lost, the want of proper stamps cannot be supplied (c).

2. Of course an agreement is only to be stamped as such, and not with an ad valorem stamp, which is imposed only upon the *conveyance whether the interest be legal or equitable (d), although it may possibly happen that a purchaser might, to avoid the payment of the duty, not take a conveyance of the equitable interest; but there is no danger of many such cases occurring, as a purchaser of an equitable estate is always desirous of having a regular convey

ance with regular covenants, and without it might find it difficult to obtain at the proper period a conveyance of the legal estate. 3. The real consideration is required to be set forth in conveyances (e), under severe penalties upon the seller and purchaser, and the person preparing the deed. But this direction has properly been held not to vitiate the deed (f), so that although the whole price is not stated and the duty paid upon it, yet the deed will be valid if it is stamped according to the consideration stated upon the face of it (g).

4. And a seller may reduce, if he please, the amount to be actually paid, so as to enable the purchaser to bring his puchase-deed within a lower class of duty, or in other words, to evade the higher duty (h), which can often be accomplished without any real sacrifice.

5. Where the purchaser is authorized to distribute the purchasemoney between the several conveyances of a property which requires different modes of conyevance, it has always been considered that the purchase-money may, if it can, be so apportioned as to lessen the amount of duty which would have been payable on the aggregate sum, and the words of the statute appear expressly to authorize this view.

6. However numerous the parties to a conveyance may be, and whether they have the fee, some legally and some equitably, as in the case of mortgagors and mortgagees, or for different estates, as in the case of tenant for life and remainder-men, or are severally interested in the estate, as in the case of tenants in common, only one set of stamps is necessary, and it is indifferent whether the conveyance is to one purchaser or to several jointly, or as tenants in common. The statute even provides that where several persons convey by one deed property separately contracted to be purchased at distinct prices, the ad valorem duty shall be paid on their aggregate amount, and that where under a joint purchase separate parts *are conveyed to different persons by the same deed, the duty is to be paid in like manner on the aggregate amount (i). A deed of confirmation by the seller (where the conveyance with an ad va

lorem stamp was executed by an attorney without authority) was of course held not to require an ad valorem stamp (k).

7. Where a conveyance on the sale of any property operates also as a conveyance of any other than the property sold, by way of settlement, or for any other purpose, or contains any other matter or thing besides what is incident to the sale and conveyance of the property sold, or relates to the title thereto, the deed is liable to the same duty (exclusive of progressive duty) as a separate deed containing the other matter would be chargeable with (7).

8. But this does not seem to affect a conveyance of the property sold to such uses as the purchaser may choose to direct (m); and of course no additional stamp is necessary where the deed contains only what is incidental to it, e. g. a covenant to produce deeds, or an assignment of terms to attend the inheritance (n).

9. Where, in a lease, a third party joined to enter into a covenant for payment of the rent, the lease stamp alone of 17. 10s. was held to be sufficient; for the covenant was only ancillary to the lease, and the question was, what was the leading character of the instrument (o).

10. The common endorsements, such as attestations, receipts, or the like, are counted as part of the deed; but certificates of enrolment or registry, it is apprehended, would not (p); for they are not within the control of the parties at the time of the execution of the deeds.

11. If an inventory be referred to by an agreement as annexed thereto, although it be not annexed until after the execution of the agreement, it will be counted as part of the agreement in fixing the duty, and it is unimportant that the inventory is stamped as such (q).

12. A mere attornment in writing requires no stamp (r).

*13. It seems clear that where an ad valorem stamp is imposed a deed stamp is not necessary, although the former is less in amount than 17. 15s. (s); but the exemption from further ad valorem duty,

(k) Doe v. Weston, 2 Adol. & Ell. N. S. 249.

(1) 55 Geo. 3, c. 184, Conveyance, Schedule, Part I.; see Hartwright v. Fereday, 12 Adol. & Ell. 23.

(m) See Covent. on Stamps, 276. (n) See Wolseley v. Cox, 2 Adol. & Ell. N. S. 321.

(0) Pratt v. Thomas, 4 Carr. & Payn. 554; see Doe v. Phillips, 11 Adol. & Ell. 796.

(p) Coventry on Stamp Laws, 93

contra.

(9) Veal v. Nicholls, 1 Mood. & Rob. 248.

(r) Doe v. Edwards, 2 Adol. & Ell. 95.

(8) See Warren v. Howe, 2 Barn. & Cress. 282; Clayton v. Burtenshaw, 5 Barn. & Cress. 41; Doe v. Wheeler, 2 Adol. & Ell. 28; Doe v. Gray, 3. Adol. & Ell., 89; Doe v. Rowe, 4 Bing. N. C. 737.

as in the case of a further security for a sum upon which that duty has already been paid, will not prevent the necessity of a deed stamp (1).

14. If a conveyance to a purchaser be also a mortgage, it will require two ad valorem stamps, one upon the sale and the other upon the mortgage (u).

15. An award under an enclosure act allotting a parcel of land to a purchaser, does not subject the award to an ad valorem stamp (x). But a deed of assignment executed by the sheriff, on a sale under a fieri facias, requires an ad valorem stamp (y).

16. I may here observe, that although the only conveying party has executed the deed, yet if upon the objection of another party a clause is struck out, and he re-execute it, and the other parties execute it, a new stamp is not necessary, if upon all the circumstances the fair conclusion is, that the execution may be considered as in fieri only (z).

(t) Lant v. Peace, 3 Nev. & Per. 329; 392. 8 Adol. & Ell. 248.

(u) 55 Geo. 3, c. 184, Sched. Mortgage; and as to mortgages, see 3 Geo. 4, c. 117.

(x) Doe v. Preston, 7 Barn. & Cress.

41.

(y) Nagle v. Ahern, 3 Ir. Law Rep.

(z) Jones v. Jones, 1 Crompt. & Mees. 721.

*SECTION III.

OF COVENANTS FOR TITLE.

1. Attorney answerable to seller for im- 10. No covenants for title where estate proper covenants.

2. Usual covenants.

3. Synonymous covenants.

sold under will for debts, &c.

11. Or by a court of equity.

12. Practice in those cases.

4. Agreement to take bad title with 14. Purchaser is entitled to covenants if

1. Let us now, in connexion with the conveyance, proceed to consider to what covenants for title a purchaser is entitled. This is a point to which the attention of the seller's attorney should be particularly drawn; for if he permit his client to enter into an unusual covenant for title without explaining to him the liability he thereby incurs, he (the attorney) will be liable to the client for consequent loss, although the client was aware at the time he entered into the covenant of the fact, in respect of which the liability on his covenant was incurred (a).

2. The covenants usually entered into by a vendor seised in fee, are, 1st, that he is seised in fee; 2dly, that he has power to convey; 3dly, for quiet enjoyment by the purchaser, his heirs and assigns; 4thly, that the estate is free from incumbrances; and lastly, for further assurance (b) (1).

3. Where a vendor has only a power of appointment, the first covnant ought to be, that the power was well created, and is subsisting; and the other covenants should be similar to those entered into by a grantor seised in fee. In small purchases the first covenant is sometimes omitted, which may be safely done, for the first and second are synonymous covenants (2).

*4. It sometimes happens, that a purchaser consents to take a defective title, relying for his security on the vendor's covenants. Mr. Butler remarks, that where this is the case, the agreement of the parties should be particularly mentioned, as it has been argued, that as the defect in question is known, it must be understood to have been the agreement of the purchaser to take the title subject to it, and that the covenants for the title should not extend to warrant it against this particular defect (c) (3). And it may be further observed, that in cases of this nature, unless the objection to the title appear on the face of the conveyance, the agreement to indemnify against the defect,

(a) Stannard v. Ullithorne, 10 Bing.

491; 4 Moo. & Scott, 359. (b) See post, ch. 14, s. 2.

(c) See Butler's n. (1) to Co. Litt. 384 a. See also Savage v. Whitbread, 3 Cha. Rep. 14.

(1) See 2 Cruise Dig. by Mr. Greenleaf, vol. 4, Tit. 32, Deed, Ch. 26, §47 et seq. and notes.

(2) Per Parsons Ch. J. in Marston v. Hobbs, 2 Mass. 437; Slater v. Rawson, 1 Metcalf, 455, 456, per Dewey J.

(3) See Beck v. Simmons, 7 Alabama, 71. The grantor will be liable on his covenant against incumbrances, although the grantee knew of the existence of the incumbrance at the time when the deed was executed. Townsend v. Weld, 8 Mass. 146; Harlow . Thomas, 15 Pick. 66; Hubbard v. Norton, 10 Conn. 431; Kellogg v. Ingersoll, 2 Mass. 97; Dunn v. White, 1 Alabama, 645; Cathcart v. Bowman, 5 Barr, 31. See Swan v. Drury, 22 Pick. 485; Tharin v. Ficklin, 2 Rich. 361.