AGREEMENTS.

Defect of Title.

No. XXVI.

* An Agreement not to take advantage of a Defect of Title arising by a Misnomer in a Deed, and to execute further Assurances.

Recital of misnomer, &c.

WITNESS. Declaration of intent of par

ties,

Indorsement.

in the year 18 BETWEEN (grantor) of, &c., part, and (grantee) of, &c., of the

part,

of the
and &c., (if any other person or necessary party) of, &c., of the
part. WHEREAS by indenture (1) &c., (recite the deed
in which the misnomer occurred, and the nature of the error, as
"that the hereditaments were expressed to be conveyed or assured to
the said F. G. (2) and his heirs instead of the said H. I., contrary to
the obvious and true intent and meaning of the parties thereto," or
that the said hereditaments were in the premises of the said inden-
ture, expressed to be conveyed and assured unto the said (R. M.) and
his heirs, but in the habendum thereof the same are expressed to be
had and holden unto and to the use of (W. W.), and his heirs or
otherwise, as the case was); AND whereas the name of the said
(F. G.) so used and inserted as aforesaid, was used and inserted
for and instead of the name of the said (H. I.), contrary to the true
intent and meaning of the said (grantor) and (grantee), as they and
each of them doth hereby acknowledge and declare. NOW THESE
PRESENTS WITNESS, that it is hereby declared and agreed by and
between the said (grantor) and (grantee) [and (if so) all and every
the said parties to these presents], that it was and is the true intent
and meaning of them, and of the said in part recited indenture, that
the grant, release, and assurance thereby expressed to be made of the

(1) If the agreement be intended to be indorsed on the deed, which if the agreement alone be considered sufficient to supply the defect, it may be, say, the "within written" indenture, &c. ; but if a further assurance is intended to be executed in pursuance of the agreement, it will be preferable that such assurance instead of the agreement be indorsed, if of a nature to admit of an indorsement, but if not, then a memorandum of its having been executed should be indorsed. See post. "CONFIRMATION."

(2) In this case F. G. should be a party.

AGREEMENTS.

Defect of Title.

And said Inden

ture shall enure

said hereditaments, to and to the use of the said (F. G.) and his heirs ought to have been, and was and were intended to have been made to and to the use of the said (H. I.) and his heirs (1). AND that the same indenture, grant, release and assurance, shall from the time of accordingly. the sealing and delivery thereof, and at all times thereafter, be and enure, and be deemed, construed, and taken to be operative, and enure unto the said (H. I.) and his heirs, to and for the use and behalf of him the said (H. I.), his heirs and assigns for ever, agreeably and in conformity to the true intent and meaning of the said parties, as hereinbefore expressed concerning the same, and in the same or like manner, to all intents and purposes, as if the name of the said (H. I.) had been used and inserted therein instead of the name of him the said (F. G.), any thing in the said indenture contained, or any rule of law or equity to the contrary in any wise notwithstanding. IN WITNESS, &c.

(1) Or to the said (H. I.) his executors, administrators, and assigns, according to the nature of the property.

AGREEMENTS.

Defect of Title.

No. XXVII.

* An Agreement by a Vendor to take a Reconveyance of Premises sold, subject to a Defect of Title, if same not cured within a given Time.

ARTICLES of agreement indented and entered upon the

of

day

in the year of our Lord 18 BETWEEN (the vendor) of, &c., of the one part, and (the purchaser) of, &c., of the other part. WHEREAS by indentures of lease and release, the lease bearing date the day next but one before the release, and the release bearing even date herewith, and made between, &c., the said (vendor) in consideration of the sum of £

to be paid by the said (purchaser), released and conveyed a certain messuage (or as the case was) situated at &c., (as the same is therein particularly described), with the appurtenances, unto and to the use of the said (purchaser), his heirs and assigns. AND WHEREAS the title of the said (vendor) to the said hereditaments was considered at the time of the said conveyance to be defective, inasmuch as that, &c. (here state the ambiguity, want of evidences, or other supposed defect in the title). But the said (purchaser) nevertheless agreed to accept of a conveyance thereof upon condition that the said (vendor) would agree to take a reconveyance thereof at the said sum of £ in case such defect could not or should not be cured within the space of then next, and enter into such agreements and covenants in that behalf, as hereinafter are contained. Now THESE PRESENTS WITNESS, and it is hereby agreed and declared, between and by the parties hereto, and in particular the said (vendor), for himself, his heirs, executors and administrators, doth hereby covenant, promise, and agree, with and to the said (purchaser), his heirs and assigns, THAT in case the defect, or apparent or supposed defect of title herein before stated or mentioned, shall not be cured or remedied to the reasonable satisfaction of the counsel in the law, (of the degree of a barrister) of the said (purchaser) or his heirs, within the term or space of to be computed from the date of the said in part recited indenture of release, and the said

(purchaser) or his heirs, shall upon or within the space of

AGREEMENTS.

calendar months next thereafter, be desirous of rejecting and recon- Defect of Title. veying the messuages, &c. comprised in the said indenture, and

and to repay the

purchase money.

of such his or their desire shall give unto the said (vendor), his heirs, executors or administrators, (six) calendar months previous notice in and notice being writing, by leaving the same at his or their then usual or last place given, of abode or residence, HE the said (vendor) and his heirs shall and will, at the expiration of the time in such notice to be limited, purchase and accept of a conveyance of the same messuages, &c., with the appurtenances from him the said (purchaser) or his heirs, at or for the aforesaid price or sum of £ and shall and will well and truly pay or cause to be paid the same, upon a good, valid, and proper deed of conveyance, to be prepared or approved by the counsel in the law of the said (vendor) or his heirs, of the same messuages, &c. with the appurtenances, being delivered or tendered to him or them, or at his or their then or their last place of abode, to the use of him the said (vendor) and his heirs, or as he or they shall direct or appoint, free from all incumbrances (save only leases for years at rack rent, and not exceeding a term of years) made, done or committed or occasioned by him the said (purchaser), and without any further or other covenant to be therein contained by or on the part of the said (purchaser) or his heirs or assigns, than as against such incumbrances, so nevertheless that the said messuages, &c., shall then and at the time of the tender of such conveyance, be in as good a state of repair in all respects as the same now are. PROVIDED ALWAYS (1), that these presents shall not operate or have the effect of making the said recited indentures of lease and release, by any rule of law or equity, be considered, deemed, or construed to be a mortgage of the hereditaments therein comprised, or as a security for repayment of the purchase or consideration money therein mentioned, to be paid by the said (purchaser) to the said (vendor), nor to give, or be construed to give, unto the said (vendor), his heirs, executors, or administrators, any right, title, or equity, to redeem the said hereditaments, upon payment of the said purchase money; but simply and solely as a conveyance to be defeated by the option and election only of the said (purchaser) and his heirs, upon and under the terms and conditions hereinbefore expressed, and not otherwise. PROVIDED ALSO, that in If defect cured, case the said defect of title shall be so cured or remedied as aforesaid,

The conveyance strued to be a

not to be con

mortgage.

or no notice.

(1) Without this proviso, some of the incidents of a mortgage might Mortgage. attach upon the conveyance.

AGREEMENTS.

within or at the expiration of the said term, or period of

calendar

Defect of Title. months, or before any such notice as aforesaid shall be given, or, in case no such notice shall be given, within the said term or period of then and in either of such cases, these presents and every thing herein contained, shall cease, determine, and be void in like manner as if the same had not been made. IN WITNESS, &c.

This agreement to be void.