writing between two or more indented on the top or side. Indenting is necessary to make an indenture, but if a deed intended to be an indenture should be executed by mistake previous to its being indented, it is apprehended that the circumstance of its being indented afterwards would not affect its validity.

Of parties there are two distinct classes. The active, who convey or release some estate, right, or interest, enter into any covenant, acknowledge the truth of any statement, or consent to, or direct the execution of any other party; and the passive, as grantees, releasees, covenantees, &c. All of the former class should execute the deed, but except in the case of trustees, to remove all doubts as to their acceptance of the trusts, the execution by the sive parties is of no importance.

pas

The order in which the parties are named is not very material, but there are certain rules, the adherence to which tends to the neatness and clearness of a deed; the parties, whether active or passive, should be placed according to the worthiness of the estate or interest conveyed or received by them. Thus, the party conveying the legal estate should stand before all the other active parties, and the person to whom such estate is conveyed before all the other passive parties; the freehold tenant should be placed before the chattel tenant; persons having estates before those having rights, and persons executing by the direction, or with the approbation of another, should be placed before the parties testifying their consent or approbation. If persons are parties to a deed in different characters, and act jointly with different persons, they may with propriety (but it is not necessary that they should) be named in different parts, according to their several characters. Joint tenants should be named as one party, but tenants in common, and others having separate interests, should be named in different parts. Where there is no difference in worthiness of estate, as trustees of different terms, there the order of time

in which they act will point out the order in which they should be named.

The object with which recitals are used in a deed is twofold; to explain the object of the deed, by stating the agreement or other inducement upon which it is founded, and to show the interest which the several parties have and intend to pass in the subject-matter of the deed, and this will in general point out how far it is proper to go back in reciting the state of the title; but under some circumstances the draftsman may with propriety trace the title to an earlier period than such rule would require, for the sake of keeping a connected record of the links of the title. Thus, though a recital of the ancestor's seisen would be sufficient to show the title of his heir, yet it would be desirable to recite the conveyance or other instrument under which the ancestor became entitled, and in assignments of terms where there have been but one or two previous transfers, the instrument creating, and each assignment of the term, should be recited; but if they have been numerous, then they may be shortly referred to, and recitals of the deed creating the term, and the last transfer, will be sufficient, introducing the latter by some few words of reference to the intermediate assignments. [See p. 32.]

All things necessary to be recited should, if possible, be introduced as distinct substantive recitals, and not as recitals within recitals; but this latter course is sometimes unavoidable, for parties to a reconveyance, standing in the place of trustees or mortgagees, generally object to any thing being stated in any other way than as a recital of the contents of the conveyance to them, not choosing to pledge themselves to the truth of such facts. This observation cannot, of course, apply to facts that have occurred subsequent to the execution of such original conveyance.

It is difficult, if not impossible, to give any directions as to the selection of what facts or instruments,

or what parts of the latter, should be recited, it being from practice alone that this can be properly learnt; but a slight consideration of the end for which an instrument is recited will best point out what part is material to recite. Thus, the appointment of executors is the only part of the will necessary to be noticed, where the statement of their title is the only object, as in an assignment by an executor of a term of which his testator was possessed. When a tenant for life is stating his title, the ulterior limitations are unimportant, and, unless very short, should not be noticed. In the two cases just mentioned, there are several other things which should be noticed, as necessary to perfect the title of the parties; as, in the first instance, the death of the testator without having revoked his will, or the appointment of his executors, and the subsequent probate; and, in the latter, the determination of any preceding estates, or the happening of any other event upon which the estate in question became vested.

It need scarcely be observed, that a party is said to be "seised" of freehold interests, but to be “ possessed" of chattel interests.

The subject-matters of conveyances are either corporeal or incorporeal : land, and every thing thereon, as houses, mills, &c., which are said to lie in livery, the possession of them being capable of actual delivery, are of the former class; whilst incorporeal are said to lie in grant, being incapable of such delivery, as advowsons, rents, rights of way, and other ease

ments.

Where a deed comprises several properties held under different titles, the recitals as to each should be kept distinct from the other, and those relating to the larger property should stand first.

In assignments of terms of years, the parcels should be set out fully in the recital of the deed creating the term, and only referred to in the operative part; but in other conveyances, especially if by lease and release, which should correspond as far as possible, the

parcels should be set out fully in the operative part, and not in the recitals, unless it is intended to add a modern description, when, for the sake of keeping up the identity, the old description may be either inserted in the recitals or in the operative part; if in the latter, it would be, perhaps, most correct to convey them first by the old description, introducing the new one afterwards by such words as the following:-" All which messuages, lands, hereditaments, and premises, are now better known by the names, quantities, and descriptions following. That is to say," &c. ; but the mode in which it is done is of no great importance, so that the identity is sufficiently shown.

On every purchase it is the duty of the purchaser's solicitor to procure a release of all the unsatisfied judgments, mortgages, and other charges on the property, and the merger of all equitable terms, and such legal terms as are not thought necessary to be assigned to attend the inheritance.

No property, of which a party is not seised or possessed, can be conveyed at law; for the assignment of a mere right would be but the transfer of litigation, which the law does not permit; therefore, though a bona fide purchaser for a valuable consideration of property assignable at law is safe, if he has a good legal title, whatever prior equitable rights there may be opposed to his, if he purchased without notice of such prior rights; yet as to the assignees of all choses in action, except bills of exchange, (which, for commercial reasons, are exempted from this rule of law,) the case is different; for, though assignable in equity, they cannot be transferred at law, and, consequently, the assignee takes them subject to all the equities to which they were liable in the hands

Roe v. Dawson, 1 Ves. 332; Whitfield v. Faussett, id. 391; Browne v. Heathcote, 1 Atk. 160.

i3 Lev. 312; 4 Mod. 48; 1 Inst. 266, a.

of the assignor, and his situation is not improved by his having given a valuable consideration for the transfer. Hence it is unadvisable to purchase a chose in action, however low and tempting the terms, unless, from the character of the parties, the legality and fairness of the original contract is placed beyond a doubt.

PERUSING DEEDS.

Of almost equal importance with that of preparing deeds is the duty of perusing them previous to their execution, and as this duty, in many instances, devolves upon the solicitor, the editor has thought it not altogether out of place, in a work of this character, to insert a few observations respecting that duty, and to point out, as far as the decided cases have determined the points, what covenants and provisions vendors and purchasers have a right to demand the one from the other.

A purchaser of an estate in fee is entitled from his vendor, if beneficially interested, to the five common covenants, namely, that he is seised in fee-has good right to convey-for quiet enjoyment-that the estate is free from incumbrances, and for further assurance; but these covenants are qualified according to the title under which the vendor claims; thus: If the vendor was a purchaser for a valuable consideration, he can only be called upon to covenant as to his own acts; but if he claims under a voluntary conveyance, or by devise or descent, his covenant must extend, in the first case, to the acts of the person last seised, and, in the two latter, to the acts of the devisor or immediate ancestor.1

k

j Priddy v. Rose, 3 Meriv. 107; Turton v. Benson, 1 P. Wms. 497.

k Henderson v. Hay, 3 Bro. C.C. 632.

Lloyd v. Griffiths, 3 Atk. 264; Church v. Brown, 15 Ves. 263; Browning v. Wright, 2 Bos. and Pul. 22; Pickett v. Loggon, 14 Ves. 239.