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WITNESS

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Originally appearing in Volume V07, Page 52 of the 1911 Encyclopedia Britannica.
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WITNESS, &C. It will be observed that throughout the deed there are no stops, the commencement of the several parts being indicated by capital letters. The draft conveyance having been approved on behalf of the vendor, it is engrossed upon stout paper or parchment, and there remains only the completion of the sale, which usually takes place at the office of the vendor's solicitor. A purchaser is not entitled to require the vendor to attend personally and execute the conveyance in his presence or that of his solicitor. The practice is for the deed to be previously executed by the vendor and delivered to his solicitor, and for the solicitor to receive the purchase-money on his client's behalf, since a purchaser is, under the Conveyancing Act 1881, safe in paying the purchase-money to a solicitor producing a deed so executed, when it contains the usual acknowledgment by the vendor of the receipt of the money. Upon the completion, the documents of title are handed over except in the case above referred to, and any claims between the parties in respect of interest upon the purchase-money, apportioned outgoings, or otherwise, are Conveyances. settled. The conveyance is, of course, delivered to the purchaser, upon whom rests the obligation of affixing the proper stamp—which he may do without penalty within thirty days after execution (Stamp Act 1891). It may be added that, subject to any special bargain, which is rarely made, the costs of the execution by the vendor and other parties whose concurrence is necessary, and of any act required to be done by the vendor to carry out his contract, are borne by the vendor. Ordinary leases at rack-rents are not generally preceded by a formal agreement, such as is common on a sale of land, or by an Leases. investigation into the lessor's title. As a rule, the principal terms are arranged between the parties, and embodied with various ancillary provisions in a draft lease, which is prepared by the lessor's advisers and submitted to the lessee, the ultimate form and contents of the instrument being adjusted by negotiation. If an intending lessee desires to examine the title he must make an express bargain to that effect, for under a contract to grant a lease the intended lessee is not entitled, in the absence of such express stipulation, to call for the title to the freehold (Vendor and Purchaser Act 1874). By the Statute of Frauds all leases, except leases for a term not exceeding three years, and at not less than two-thirds of the rack-rent, were required to be in writing. And now by the Real Property Act 1845, leases required by law to be in writing are void at law unless made by deed. An instrument, void as a lease under the act, may, however, be valid as an agreement to take a lease; and since the Judicature Act 1873, under which equitable doctrines prevail in the High Court, a person holding under an agreement for a lease, of which specific performance would be granted, is treated in all branches of that court as if such a lease were already executed. Unless otherwise agreed, a lease is always prepared by a lessor's solicitor at the expense of the lessee; but the cost of the counterpart (i.e. the duplicate executed by the lessee) is usually borne by the lessor. Upon the sale and conveyance of a leasehold property sub- stantially the same procedure is observed as above indicated in the case of a freehold. A few additional points, .a8atga" . however, may be specially mentioned. Under an open meat of leaseholds. contract the vendor cannot be called upon to show the title to the freehold reversion (Vendor and Purchaser Act 1894; Conveyancing Act 1881). Accordingly, the abstract of title begins with the lease, however old; but the subsequent title need not be carried back for more than forty years before the sale. The purchaser, apart from stipulation, must assume, unless the contrary appears, that the lease was duly granted, and upon production of the receipt for the last payment due for rent before completion, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion. The appropriate word of conveyance is " assign," and a conveyance of leaseholds is generally called an assignment. The vendor's covenants for title implied by his assigning " as beneficial owner " include, in addition to the covenants implied by those words in a conveyance of freehold, a covenant limited in manner above mentioned, that the lease is valid, and that the rent and the provisions of the lease have been paid and observed up to the time of conveyance (Conveyancing Act 1881). Where the vendor, as is the common case, remains liable after the assignment for the rent and the performance of the covenants, the purchaser must covenant to pay the rent, and perform and observe the covenants and provisions of the lease, and keep the vendor indemnified in those respects. A mortgage is prepared by the solicitor of the mortgagee, and the mortgagor bears the whole expenses of the transaction. It is Mortgages. seldom that there is any preliminary agreement, because (1) a contract to lend money is not specifically enforceable; and (2) inasmuch as the primary object of a mortgagee is to have his money well secured, he is not, generally, willing to submit to restrictions as to title or evidence of title which might give rise to difficulty or expense in the event of a sale of the mortgaged property. An intending mortgagor is accordingly required to show a title easily marketable, and to verify it at his own cost. A mortgage follows the same general form as a conveyance on sale, the principal points of difference being that the conveyance of the property is preceded by a covenant for the payment of the mortgage money and interest, and followed by a proviso for reconveyance upon such payment, and by any special provisions necessary or proper in the circumstances, such as a covenant for insurance and repairs where the security comprises buildings. The covenants for title implied by a mortgagor conveying " as beneficial owner " are the same as in the case of a vendor, but they are absolute and not,qualified in the manner above pointed out. The beneficial operation of the Conveyancing Act 1881 in shortening conveyances is well illustrated by a modern mortgage. For, by virtue of the act, a mortgagee by deed executed after its commencement has, subject to any contrary provisions contained in the deed, the following powers to the like extent as if they had been conferred in terms: (I) a power of sale exercisable after the mortgage money has become due (a) if notice requiring payment has been served and not complied with for three months, (b) if any interest is in arrear for. two months, or (c) there has been a breach of some obligation under the deed or the act other than the covenant for payment of the mortgage money or interest; (2) a power to insure subject to certain restrictions; (3) a power, when entitled to sell, to appoint a receiver; and (4) a power while in possession to cut and sell timber. The act contains ancillary provisions enabling a mortgagee upon a sale to convey the property for such estate or interest as is the subject of the mortgage, and to give a valid receipt for the purchase-money, and the purchaser is amply protected against any irregularities of which he had no notice. There are also large powers of leasing conferred by the act upon mortgagor and mortgagee while respectively in possession, and a power for the mortgagor, whilst entitled to redeem, to inspect and take copies of title-deeds in the mortgagee's possession. The elaborate provisions for all these purposes which were formerly inserted in mortgage deeds are now omitted; but sometimes the operation of the act is modified in certain respects. The procedure upon a sale by a mortgagee is the same as in the case of any other vendor. He conveys, however, " as mortgagee," these words implying only a covenant by him against incumbrances arising from his own acts. The frame of a strict settlement of real estate, which is usually made either on marriage or by way of resettlement on a tenant in tail under an existing settlement attaining twenty-one, settle- has been much simplified; but such settlements still argots. remain the most technical and most complicated of legal instruments. By virtue of the Settled Land Acts 1882 to 189o, tenants for life and many other limited owners have extensive powers of sale, of leasing, and of doing numerous other acts required in a due course of management. These powers cannot be excluded or fettered by settlors. They are, as a rule, considered in practice to be sufficient, and the corresponding elaborate provisions formerly inserted in settlements are now omitted, the operation of the acts being merely supplemented, where desirable, by some extension of the statutory powers, in relation, e.g., to the investment and application of capital money. To complete the statutory machinery it is desirable that persons should be nominated by the settlement trustees for the purposes of the acts. Since the Conveyancing Act 1881, provisions for the protection of jointresses or persons entitled under settlements to rent charges or annual sums issuing out of the land are no longer required, as all such persons have now powers of distress and entry, and of limiting terms to secure their respective interests. Terms for raising portions must still, however, be expressly created. The Conveyancing Act 1881 also confers large powers of management during the minorities of infants beneficially entitled upon persons either appointed for the purpose by the instrument or being such trustees such as are mentioned in § 42. An estate in tail may now be limited by the use of the words " in tail" without the words "heirs of the body " formerly necessary. And a settlor generally conveys " as settlor," by which only a covenant for further assurance is implied under the Conveyancing Act 1881. Personal settlements are most often made upon marriage. The settled property is vested in trustees, either by the settlement itself, or in the case of cash, mortgage debts, stocks or shares, by previous delivery or transfer, upon trusts declared by the instrument. The normal trusts after the marriage are (I) for investment; (2) for payment of the income of the husband's property to him for life, and of the wife's property to her for life for her separate use without power of anticipation whilst under coverture; (3) for payment to the survivor for his or her life of the income of both properties; (4) after the death of the survivor, both as to capital and income, for the issue of the marriage as the husband and wife shall jointly by deed appoint, and in default of joint appointment as the survivor shall by deed or will appoint, and in default of such appointment for the children of the marriage who attain twenty-one, or being daughters marry, in equal shares, with the addition of a clause (called the hotchpot clause) precluding a child who or whose issue takes a part of the fund by appointment from sharing in the unappointed part without bringing the appointed share into account. Then follows a power for the trustees with the consent of the parents whilst respectively living to raise a part (usually a half) of the share of a child and apply it for his or her advancement or benefit. Power to apply income, after the death of the life tenants, for the maintenance and education of infants entitled in expectancy, is conferred upon trustees by the Conveyancing Act 1881. The ultimate' trusts in the event of there being no children who attain vested interests are (1) of the husband's property for him absolutely; and (2) of the wife's property for such persons as she shall when discovert by deed, or whether covert or discovert by will, appoint, and in default of appointment, for her absolutely if she survive the husband, but if ,not, then for her next of kin under the'Statute of Distributions, excluding the husband. For all ordinary purposes the trustees have now under various statutes sufficient powers and indemnities. They may, however, in some cases need special protection against liability. A power of appointing new trustees is supplied by the Trustee Act 1893. It is usually made exercisable by the husband and wife during their joint lives, and by the survivor during his or her life. The form and contents of wills are extremely diverse. A will of, perhaps, the commonest type (a) appoints executors and trustees; (b) makes a specific disposition of a freehold wills. or leasehold residence; (c) gives a few legacies or annuities; and (d) devises and bequeaths to the executors and trustees the residue of the real and personal estate upon trust to sell and convert, to invest the proceeds (after payment of debts and funeral and testamentary expenses) in a specified manner, to pay the income of the investments to the testator's widow for life or until another marriage, and subject to her interest, to hold the capital and income in trust for his children who attain twenty-one, or being daughters marry, in equal shares, with a power of advancement. Daughters' shares are frequently settled by testators upon them and their issue on the same lines and with the same statutory incidents as above mentioned in the observations upon settlements; and. some-times a will contains in like manner a strict settlement of real estate. It is a point often overlooked by testators desirous of benefiting remote descendants that future interests in property must, under what is known as the rule against perpetuities, be restricted within a life or lives in being and twenty-one years afterwards. In disposing of real estate " devise " is the appropriate word of conveyance, and of personal estate "bequeath." But neither word is at all necessary. " I leave all I have to A. B. and appoint him my executor" would make an effectual will for a testator who wished to give all his property, whether real or personal, after payment of his debts, to a single person. By virtue of the Land Transfer Act 1897, Part I., real estate of an owner dying after 1897 now vests for administrative purposes in his executors or administrators, notwithstanding any, testamentary disposition. It remains to mention that by the Land Transfer Act 1897 a system of compulsory registration of title, limited to the county of London, was established. (See LAND REGISTRATION.) Conveyancing counsel to the court (i.e. to the chancery division of the High Court) are certain counsel, in actual practice as conveyancers, of not less than ten years' standing, who are appointed by the lord chancellor, to the number of six, under s. 40 of the Master in Chancery Abolition Act 1852. They are appointed for the purpose of assisting the court in the investigation of the title to any estate, and upon their opinion the court or any judge thereof may act. Any party who objects to the opinion given by any conveyancing counsel may have the point in dispute disposed of by the judge at chambers or in court. Business to be referred to conveyancing counsel is distributed among them in rotation, and their fees are regulated by the taxing officers. United States.—American legislation favours the general policy of registering all documents in the contents of which the public have an interest, and its tendency has been steadily towards more and more full registration both of documents and statistics. From the early days of the colonial era it has beencustomary to record wills and conveyances of real estate in full in public books, suitably indexed, to which free access was given. During the last decade of the 19th century, three states—Illinois, Massachusetts, and Ohio-adopted the main features of the Torrens or Prussian system for registering title to land rather than conveyances under which title may be claimed. These are the ascertainment by public officers of the state of the title to some or all of the parcels of real estate which are the subject of individual property within the state; the description of each parcel (giving its proper boundaries and characteristics) on a separate page of a public register, and of the manner in which the title is vested; the issue of a certificate to the owner that he is the owner; the official notation on this register of each change of title thereafter; and a warranty by the government of the title to which it may have certified. To make the system complete it is further requisite that every landowner should be compelled to make use of it, and that it should be impossible to transfer a title effectually without the issue of such a government certificate in favour of the purchaser. Constitutional provisions have been found to prevent or embarrass legislation in these directions in some of the states, but it is believed that they are nowhere such as cannot be obeyed without any serious encroachment on the principles of the new system (People v. Chase, 165 Illinois Reports, 527; Stale v. Guilbert, 56 Ohio State Reports, 575; People v. Simon, 176 Illinois Reports, 165; Tyler v. Judges, 173 Massachusetts Reports; 55 North-Eastern Reporter, 812; Hamilton v. Brown, 161 United States Reports, 256). Conveyances which have been duly recorded become of comparatively little importance in the United States. The party claiming immediately under them, if forced to sue to vindicate his title, must produce them or account for their loss; but any one deriving title from him can procure a certified copy of the original conveyance from the recording officer and rely on that. Equitable mortgages by a deposit of title-deeds are unknown. The general prevalence of public registry systems has had an influence in the development of American jurisprudence in the direction of supporting provisions in wills and conveyancesy which, unless generally known, might tend to mislead and deceive, such as spendthrift trusts (Nichols v. Eaton, 91 United States Reports, 716). Conveyances of real estate are simple in form, and are often prepared by those who have had no professional training for the purpose. Printed blanks, sold at the law-stationers, are commonly employed. The lawyers in each state have devised forms for such blanks, sometimes peculiar in some points to the particular state, and sometimes copied verbatim from those in use elsewhere. Deeds intended to convey an absolute estate are generally either of the form known as warranty deed or of that known as release deed. The release deed is often used as a primary conveyance without warranty to one who has no prior interest in the land. Uniformity in deeds is rendered particularly desirable from the general prevalence of the system of recording all conveyances at length in a public office. Record books are printed for this purpose, containing printed pages corresponding to the printed blanks in use in the particular state, and the recording officer simply has to fill up each page as the deed of similar form was filled up. One set of books may thus be kept for recording warranty deeds, another for recording release deeds, another for recording mortgage deeds, another for leases, &c. AuTnoRrTIEs.—Davidson, Precedents and Forms in Conveyancing (London, 1877 and 1885) ; Key and Elphinstone, Compendium of Precedents in Conveyancing (London, 19o4); Elphinstone, Introduction to Conveyancing (London, 1900) ; Prideaux, Precedents in Conveyancing (1904) ; Pollock, The Land Laws (London, 1896). (S. WA.; S. E. B.)
End of Article: WITNESS
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JOHN WITHERSPOON (1723-1794)
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WITNESS (from O. Eng. witan, to know)

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