A treatise on conveyancing

Front matter

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Preface

TO THE

SECOND PART. OF THE FIRST EDITION

OF THIS VOLUME.

TO account for the delay in completing the second part of this volume would be as tedious to the reader as to the author. The reader may be assured, that the delay has given him the advantage of possessing this n^ part of the work in a far more enlarged and perfect state than it would have been if published from the original MSS.

For the Index the Profession are in a great measure indebted to John James Park, Esq. a gentleman who will soon become a competitor for public favour in the line of his

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iv PREFACE.

Profession : and to William Lee, esq. I have ' to acknowledge his kindness, in having devoted a large portion of time in researches for authorities in support of the propositions advanced in the work. As the work was written ^without any previous collection of authorities, the completion has been retarded more on that, than on any other account.

A review of the Table of Contents will give to the reader a general outline and comprehensive view of the various interesting subjects he may expect to find in this volume.

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PREFACE

TO TBB

FIRST EDITION OF THE SECOND VOLUME.

A long interval has elapsed since the publication of the former volume of this work.

The second volume has been delayed longer than was intended. This delay has dfcsen from various causes, personal to the author, and which, if fully detailed, would, he is satisfied, be received as an excuse, by those to whom he has to apologize. His anxiety for the success of this volume, and his still greater anxiety not to submit to the public any thing that had not been well considered, have principally caused the delay.

Not content with the manuscript as originally intended for publication, each chapter has been enlarged, and the new arrangement which became . necessary on that account, has caused

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V

infinitely more labour and anxiety than the original composition.

The chapters now offered to the Profession treat of declarations of uses, of fines, and recoveries, also of leases; and there is added the first part of the chapter on that important subject, the assurance by lease and release. Something very extraordinary must happen to delay the publication of the remainder of this volume beyond Michaelmas Term. I* will complete the chapter on lease and releasAf and give a few selected precedents with the indexes* :

The importunity with which., this volume has been demanded by the Profession, has induced the author to publish it in parts, and- he has more Teadily concurred in this arrangement, that the purchasers of the former volume, who think fit to have part of the second volume, may be gratified ; . and that the Profession at large may be satisfied that the work is . in a state of forwardness. To many also, it is more eligible to pursue a subject of this sort, by slow and gradual means, than to be burthened at once with a large bopk.

Whatever may be the opinion respecting the facility of discussing these three apparently simple subjects, of deeds leading and

PREFACE. v«

deeds declaring the uses of fines, leases, and lease and release ; the author can safely and truly assert, that these chapters have cost him more anxiety dad, actual labour, than the most abstruse subjects to be found in the former volume* For that volume he had an abundance of materials ready at hand ; while, for the present volume he has been under the necessity of searching very diligently for useful matter. And the chapter on lease and release has led to a more extensive investigation and research than he expected.

As might have been collected from die preface to the former volume, the chapter on deeds of uses has been written since the publication of that volume. This alone would not have greatly retarded the completion of the second volume. The principal difficulty has arisen with the chapter on lease and release* That chapter has been so much altered and so much enlarged, that it has required ten times more labour in the revision, than it did in its original formation*

The more* the author has considered the plan he has undertaken, the more he has been impressed with a sense of its import* ance; and, in justice to himself, and to the persons anxious to possess this volume th*

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could not* feel satisfied to send the work be* fore the public, without making it as vain* able as it was in bis power. The chapter on lease and releases has, in a particular manner.* and very deservedly, excited in the Profession a desire to possess the second volume. . Tim has been a great inducement to treat the subject more fully than was intended; that the Profession may not be disappointed, at least as far as such disappointment could be prevented by the author*.

Considering the lease and release,, from its general use, as the principal assurance . in modern practice; and for that reason most deserving of having its nature and parts thoroughly understood, the author has exerted himself most strenuously, - to make the principles on which it depends, and its application in practice, intelligible to > the meanest capacity ; and, while interesting the reader on this important subject, the author has endeavoured to elucidate the learning connected with this assurance, by those points which are incidentally brought under the notice of gentlemen, who prepare or consider the effect of . deeds of this kind. In particular, he has always availed himself of any fair opportunity of inculcating the

PREPACfi. ix

knowledge of the doctrine of uses, since without understanding . this branch of the law, no one can fully comprehend the operation of effect of one tenth part of the deeds which are prepared.

So much is to be found in approved books on the subject of ordinary leases, that to make the leading features, and great outlines, of this important and extensive head of the law, familiar to the student, and lay the foundation for his understanding the practical directions for preparing leases, and for avoiding those errors into which many fall, from a mistaken opinion, that any one can prepare a lease, has been the principal duty of the author. That no subject has afforded more discussion, or abounds with more nice distinctions, than the cases which have arisen between landlord and tenant, and between tenants and persons having an interest in impeaching .their leases, are facts which are incontrovertible, and prove how mistaken is the notion which has been entertained on this

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point.

As far as the author can judge, this volume will be found more useful than the former. This opinion may be erroneous. It is formed, however, on the acknowledged utility of the subjects, and the fullest conviction that the

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pains bestowed on these three chapters exceed all reasonable belief. This labour will, it is hoped, be ascribed to its proper motive ; a wish to put into the hands of the student a book, which, though by no means expected to be free from error, may, in its general principles, and its practical directions, contribute to assist the rising generation of the Profession, and render the knowledge of conveyancing more simple, more general, and more correct. By confining the attention of the reader to useful points, and teaching that which deserves his first and most early attention, great progress is made, within a v short; time, in laying the foundation of more \ extensive knowledge, and for the correct application of that knowledge. The principal difficulty in studying the law, is to select the parts which are useful ; and to distinguish out of the immense mass of contradictory decisions and opinions to be found in a lawyer's library, those points which are acknowledged to be sound law, from those which are over-ruled: or, from the qualifications added to them by subsequent decisions, stand in need of explanation. The students of the present day possess the incalculable advantage of having their difficulties, in this respect, materially relieved.

PREFACE. xi

and their labours abridged, by the system of bringing before the public, treatises on particular subjects, in a connected series of observations; tracing the law to its principles; showing the rules which govern the subject ; the cases which illustrate those rules ; and the exceptions of which they admit ; ahd J;he anomalies introduced by a departure from those rules and from those principles* Byjpieans of books of this sort, a student is enabled to become more familiar with the subject in* a few months, than he otherwise could have done in as many years. For one, the present author feels infinitely indebted to the exertions of those gentlemen, who have so materially abridged the labours, and aided the researches, , of - the student and the practitioner ; and laid the foundation for reducing the law into a system, which leads to sound and solid information ; at the same time, assisting and encouraging industry. Without the labours of a Piggot, a Fearne, a Butler, a Cruise, and a Watkins, how little would the important subjects of which these gentlemen have treated, have been understood, . compared with the knowledge now possessed even by very young men on these intricate subjects : and it is only by pursuing legal subjects through these and the many xii PREFACE.

other valuable treatises of modern date, that a student can expect to make himself master of any particular subject, within a reasonable period ; or to keep his knowledge, when acquired, within the reach of his memory, and applicable to practical purposes. ;

Truly happy will the author of this volume be, if his labours through a long Professional life, directed to promote the . same object, and assist in attaining these happy results ; results in which society at large as well as the Profession is interested ; have 'been successful : and highly gratified will he be, if this volume shall, from its reception by the Profession, afford him the satisfaction of reflecting that his sacrifices, to fulfil his engagements with the public, have not, in their estimation, been made in vain.:

. XIII

THE DEDICATION

TO THE

FIRST PART OF THIS VOLUME

WA» TO

LANCELOT SHABWELL, Esq.,

LATE OF LINCOLN VlNN, NOW DECEASED ;

In these Terms.

The great experience you have had, and the eminence you have deservedly attained, in the conveyancing department of the Profession, have made me anxious to place this volume of a work, so intimately connected with the subject of our pursuits, under your protection.

It was intended that the subjects which will be included in the third volume, should have possessed this advantage.

They had a better claim to this protection, from the circumstance of your having honoured them by a perusal, and kindly suggested some corrections ; of which I readily availed myself.

xiv DEDICATION.

But as the third volume cannot, with convenience, and consistently with other engagements, appear during the present year, I embrace the opportunity which the publication of this volume will afford me, of expressing the high sense I have always entertained of the kindness and liberality I have uniformly experienced in my professional intercourse with you, and of my admiration of the sound and extensive practical information you possess; the necessary fruits of a long and laborious employment of eminent talents, in the study and application of the rules of property ; and in the discharge of the arduous duties of your profession, equally to your honour, and the advantage and satisfaction of the Profession at large and the public,

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And with great respect,

I am, dear Sir, Your very faithful and obliged servant, .

RICHARD PRESTON.

Table Of Contents

TO VOL. II.

OF DEEDS TO LEAD AND DECLARE THE USES OF

FINES* RECOVERIES, &c.

Appendix

Forms of

I. Covenant to levy a fine ; the most shnpte form 491

II. Declaration of the uses of a fine : being for

the benefit of a purchaser - - - - 494

III. Declaration of the uses of a fine - ' - - 499

IV. Feoffment made to gain the freehold bjr disseisin - - - - ' - * * - 502

V. Feoffment and covenant to levy a fine - - 505

VI. Demise of a term of years by way of mortgage ; being an under-lease by a trustee of attendant term, and a confirmation and lease

by the reversioner - 508

VII. Confirmation of a lease to the- assignee thereof, and defeazance reviving condition - 518

VIII. Lease, or bargain and sale for a yfcttr * - 521

IX. Feoffment with covenant to levy * frig, and letter of attorney to receive, tiiiA letter of Attorney to give livery ... 523

X. Form of grant of several attendant terms

by way of underlease ----- 539

XXV

NAMES OF CASES

AND