PREFACE. IN writing this work, the Author has studied three essentials CONCISENESS, UTILITY, and SAFETY. He has endeavoured to avoid the paths of any of his contemporaries, and he trusts that in this he has succeeded. The Precedents will be found to be only such as are strictly applicable to the every-day practice of an attorney. They are all drafts of actual practice. To introduce any special forms of instruments (he submits) will be quite unnecessary; and there are two sufficient reasons for such an omission 1st, That an attorney, will not, in any case, take upon himself, the responsibility of preparing, any special instrument, without the aid of a conveyancer; 2dly, That every special instrument, depends upon its own peculiar features, and no general rule can consequently be laid down. The work will thus become concise and useful; and, as the law will be found written upon the subject-matter of every Precedent, the attorney, or his clerk, may work upon them with safety. The UNSETTLED STATE OF THE LAW, most materially affects instruments of every kind. There is scarcely a Precedent, in the whole work, which can be said to be founded upon any settled doctrine ; yet the conveyancer is blamed for drawing, what are termed, long prosy deeds, when, at the same time, it calls forth the full exertion of the abilities of the veteran in practice, to settle any deed that shall meet the unsettled state of the law. It is not many days since that the Vice-Chancellor, in Moores v. Choat, overruled his own previous decision made in Flight v. Bentley. The situation in which unmarried women are placed, in regard to trusts created for their separate use, and restraints upon alienation, is truly deplorable. Conveyancers never supposed that coverture or dis-coverture, at the time of the making or taking effect of the gift, was or was not a material circumstance for them to take into consideration in preparing trusts of such a nature; they only considered the time of disposition by the fême. Until now, no doctrine was considered more perfectly settled, than that, of the operation of trusts for separate estate, and restraint from anticipation; or that a gift of real or personal property in favour of a woman for life, for her separate use, free from the control of any husband, was effectual to secure it to her sole control; and if to that gift, was annexed a restraint upon anticipation, then, upon marriage, when the gift came into operation, to create separate estate, that restraint became also effectual. The Lord Chancellor, who found the restraint had been held to be bad, holds that the trust is also bad. The Master of the Rolls holds that both are good; and the Vice Chancellor holds that the trust is good, and the restraint bad. All this confusion has been occasioned by the recent cases of Newton v. Reid, and Massey v. Parker. It is well observed that, whatever may be the care which conveyancers bestow, deeds are constantly getting longer and more numerous; and the growing length of those which go before inevitably increases that of those which follow. Some of the axioms in the law of real property are extremely just, some arbitrary, and some either inconvenient or absurd. The inferences which by the law of real property are drawn from these axioms are of the same varied character. In some instances the inference is deduced from the premises with the strictest logical precision, while in others it is done with a degree of irregularity which sets every thing like reasoning at defiance. From this cause, and from the numberless decisions in adjudged cases which have been heaped upon one another, both in comparatively rude and recent times, the law of real property has at last assumed a shape infinitely more subtle and intricate than any system which has ever before been allowed to have a place in the practical business of mankind. Let a private gentleman of the best education and understanding peruse part of any treatise on conveyancing with the greatest patience and attention, and he will scarcely comprehend the drift o a single page of what he has been reading. A foreign jurist, though well acquainted with the English language, will find himself in the same condition. It is a branch of the law which is comparatively unknown to a large part of our own barristers, and is understood but imperfectly by many even of the Masters in Chancery and Judges of the realm, whose duty it frequently becomes to decide upon it. (a) One of the Real Property Commissioners (b) observes that "No title can be considered at present to be perfectly safe. After the evidence which can be obtained has been investigated with the greatest care, and every possible means of finding objections to it have been resorted to, there will still remain some possible causes of insecurity, which no vigilance or ingenuity can recover. The expense of proving and investigating titles is augmenting every day with the increasing length of abstracts. If a title be shown for sixty years, it will usually be found that the part of it which relates to the last twenty years exceeds in length the part which contains the title for the preceding forty years. The expense and delay attending the alienation of real property is a great and increasing grievance; and the acknowledged impossibility of ascertaining the safety of titles occasions great difficulty in settling and mortgaging estates, which diminishes their value. The trouble and difficulty of proving facts, and making searches, are increasing with the population of the country and the business of the courts; and if some means of diminishing the expense of producing, proving, and investigating titles, which are now very burdensome, be not afforded, they will become enormous." (c) These observations applied to the state of the law (a) See Miller on the present Unsettled Condition of the Law and its Administration, p. 49. (b) Mr. Tyrrell. (c) Suggestions on the Laws of Real Property, 168. 173. 183. |