[1] A term is said to be "distributed" when it is taken universally:
in the proposition "men are mortal" (meaning "all men") the term
"men" is "distributed" while "mortal" is undistributed, because there
are mortal beings which are not men.
[2] Numerous instances, drawn from other religions besides
Christianity, are given in Professor William James's _The Varieties
of Religious Experience_ (1902).
CONVEX (Lat. _convexus_, carried round, rounded, from _con-_, with, and
_vehere_, to carry), a term for the exterior side of a curved or rounded
surface, as opposed to "concave" (Lat. _con-_, and _cavus_, hollow), the
inner surface.
CONVEYANCE, primarily the act or process of conveying anything. The verb
"to convey," now used in the senses of carrying, transporting,
transmitting, communicating or handing over, originally had the same
meaning as "convoy" (q.v.), i.e. to accompany, a meaning which still
survived in the 18th century. Like "convoy" it is ultimately derived
from the Late Lat. _conviare_ (not from _convehere_), but through the
old Norman French form _conveier_, which in central France passed into
the form _convoier_, mod. Fr. _convoyer_, whence "convoy." Apart from
the general sense given above the word conveyance is now used in three
special senses: (1) a carriage or other means of transport, (2) in law,
the transference of property by deed or writing between living persons,
and (3) the written instrument by which such transference is effected.
(See CONVEYANCING.)
CONVEYANCING, in English law, the art or science of conveying or
effecting the transfer of property, or modifying interests in relation
to property, by means of written documents.
History.
In early legal systems the main element in the transfer of property was
the change, generally accompanied by some public ceremony, in the actual
physical possession: the function of documents, where used, being merely
the preservation of evidence. Thus, in Great Britain in the feudal
period, the common mode of conveying an immediate freehold was by
_feoffment with livery of seisin_--a proceeding in which the transferee
was publicly invested with the feudal possession or _seisin_, usually
through the medium of some symbolic act performed in the presence of
witnesses upon the land itself. A deed or charter of feoffment was
commonly executed at the same time by way of record, but formed no
essential part of the conveyance. In the language of the old rule of the
common law, the immediate freehold in corporeal hereditaments lay in
livery, whereas reversions and remainders and all incorporeal
hereditaments lay in grant, i.e. passed by the delivery of the deed of
conveyance or grant without any further ceremony. The process by which
this distinction was broken down and the present uniform system of
private conveyancing by simple deed was established, constitutes a long
chapter in English legal history.
The land of a feudal owner was subject to the risk of forfeiture for
treason, and to military and other burdens. The common law did not
allow him to dispose of it by will. By the law of mortmain religious
houses were prohibited from acquiring it. The desire to escape from
these burdens and limitations gave rise to the practice of making
feoffments to the _use_ of, or upon trust for, persons other than
those to whom the seisin or legal possession was delivered. The common
law recognized only the legal tenant; but the _cestui que use_ or
beneficial owner gradually secured for his wishes and directions
concerning the profits of the land the strong protection of the
chancellors as exercising the equitable jurisdiction of the king. The
resulting loss to the crown and the great lords of the feudal dues and
privileges, coupled with the public disadvantages arising from
ownership of land which, in an increasing degree, was merely nominal,
brought about the passing in the year 1535 of the famous Statute of
Uses, the object of which was to destroy altogether the system of uses
and equitable estates. It enacted, in substance, that whoever should
have a use or trust in any hereditaments should be deemed to have the
legal seisin, estate and possession for the same interest that he had
in the use; in other words, that he should become in effect the feudal
tenant without actual delivery of possession to him by the actual
feoffee to uses or trustee: In its result the statute was a fiasco. It
was solemnly decided that the act transferred the legal possession to
the use once only, and that in the case of a conveyance to A to the
use of B to the use of or upon trust for C, it gave the legal estate
to B, and left C with an interest in the position of the use before
the statute. Thus was completed the foundation of the modern system of
trusts fastened upon legal estates and protected by the equitable
doctrines and practice of the judicature.
But the statute not only failed to abolish uses: it also opened the
way to the evasion of the public ceremony of livery of seisin, and the
avoidance of all notoriety in conveyances. Other ways, besides an
actual feoffment to uses, of creating a use had been in vogue before
the statute. If A bargained with B, in writing or not, for the sale of
land, and B paid the price, but A remained in legal possession, the
court of chancery enforced the use or equitable interest in favour of
B. The effect of a _bargain and sale_ (as such a transaction was
called) after the statute was to give B the legal interest without any
livery of seisin. This fresh danger was met in the very year of the
statute itself by an enactment that a bargain and sale of an estate of
inheritance or freehold should be made by deed publicly enrolled. But
the Statute of Enrolments was in terms limited to estates of freehold.
It was allowed that a bargain and sale for a term, say, of one year,
must transfer the seisin to the bargainee without enrolment. And since
what remained in the bargainer was merely a reversion which "lay in
grant," it was an easy matter to release this by deed the day after.
By this ingenious device was the publicity of feoffment or enrolment
avoided, and the _lease and release_, as the process was called,
remained the usual mode of conveying a freehold, in possession down to
the 19th century.
It was not until 1845 that the modern system of transfer by a single
deed was finally established. By the Real Property Act of that year it
was enacted that all corporeal hereditaments should, as regards the
immediate freehold, be deemed to lie in grant as well as in livery.
Since this act the ancient modes of conveyance, though not abolished by
it, have in practice become obsolete. Traces of the old learning
connected with them remain, however, embedded in the modern conveyance.
Many a purchase-deed recites that the vendor is _seised_ in fee-simple
of the property. It is the practice, moreover, to convey not only "to"
but also "to the use of" a purchaser. For before the Statute of Uses, a
conveyance made without any consideration or declaration of uses was
deemed to be made to the use of the party conveying. In view of the
operation of the statute upon the legal estate in such circumstances, it
is usual in all conveyances, whether for value or not, to declare a use
in favour of the party to whom the grant is made.
In its popular usage the word "conveyance" signifies the document
employed to carry out a purchase of land. But the term "conveyancing" is
of much wider import, and comprises the preparation and completion of
all kinds of legal instruments. A well-known branch of the conveyancer's
business is the investigation of title--an important function in the
case of purchases or mortgages of real estate. With personal estate
(other than leasehold) he has perhaps not so much concern. Chattels are
usually transferred by delivery, and stocks or shares by means of
printed instruments which can be bought at a law-stationer's. The common
settlements and wills, however, deal wholly or mainly with personal
property; and an interest in settled personalty is frequently the
subject of a mortgage. Of late years, also, there has been an enormous
increase in the volume of conveyancing business in connexion with
limited joint-stock companies.
In the preparation of legal documents the practitioner is much assisted
by the use of _precedents_. These are outlines or models of instruments
of all kinds, exhibiting in accepted legal phraseology their usual form
and contents with additions and variations adapted to particular
circumstances. Collections of them have been in use from early times,
certainly since printing became common. The modern precedent is, upon
the whole, concise and businesslike. The prolixity which formerly
characterized most legal documents has largely disappeared, mainly
through the operation of statutes which enable many clauses previously
inserted at great length to be, in some cases, e.g. covenants for title,
incorporated by the use of a few prescribed words, and in others safely
omitted altogether. The Solicitors' Remuneration Act 1881, has also
assisted the process of curtailment, for there is now little or no
connexion between the length of a deed and the cost of its preparation.
So long as the draftsman adheres to recognized legal phraseology and to
the well-settled methods of carrying out legal operations, there is no
reason why modern instruments should not be made as terse and
businesslike as possible.
Contracts for sale.
It is not usual for land to be sold without a formal agreement in
writing being entered into. This precaution is due, partly to the
Statute of Frauds (S 4), which renders a contract for the sale of land
unenforceable by action "unless the agreement upon which such action
shall be brought, or some memorandum or note thereof, shall be in
writing and signed by the party to be charged therewith or some other
person thereunto by him lawfully authorized," and partly to the fact
that there are few titles which can with prudence be exposed to all the
requisitions that a purchaser under an "open contract" is entitled by
law to make. Such a purchaser may, for example, require a forty years'
title (Vendor and Purchaser Act 1874). Under an open contract a vendor
is presumed to be selling the fee-simple in possession, free from any
incumbrance, or liability, or restriction as to user or otherwise; and
if he cannot deduce a title of the statutory length, or procure an
incumbrance or restriction to be removed, the purchaser may repudiate
the contract. The preparation of an agreement for sale involves
accordingly an examination of the vendor's title, and the exercise of
skill and judgment in deciding how the vendor may be protected against
trouble and expense without prejudice to the sale. Upon a sale by
auction the agreement is made up of (1) the particulars, which describe
the property; (2) the conditions of sale, which state the terms upon
which it is offered; and (3) the memorandum or formal contract at the
foot of the conditions, which incorporates by reference the particulars
and conditions, names or sufficiently refers to the vendor, and is
signed by the purchaser after the sale. The object of the agreement,
whether the sale is by private contract or by auction, is to define
accurately what is sold, to provide for the length of title and the
evidence in support of or in connexion with the title which is to be
required except so far as it is intended that the general law shall
regulate the rights of the parties, and to fix the times at which the
principal steps in the transaction are to be taken. It is also usual to
provide for the payment of interest at a prescribed rate upon the
purchase money if the completion shall be delayed beyond the day fixed
for any cause other than the vendor's wilful default, and also that the
vendor shall be at liberty to rescind the contract without paying costs
or compensation if the purchaser insists upon any requisition or
objection which the vendor is unable or, upon the ground of expense or
other reasonable ground, is unwilling to comply with or remove. Upon a
sale by auction it is the rule to require a deposit to be paid by way of
security to the vendor against default on the part of the purchaser.
Abstract of title.
Requisitions.
The signature of the agreement is followed by the delivery to the
purchaser or his solicitor of the abstract of title, which is an epitome
of the various instruments and events under and in consequence of which
the vendor derives his title. A purchaser is entitled to an abstract at
the vendor's expense unless otherwise stipulated. It begins with the
instrument fixed by the contract for the commencement of the title, or,
if there has been no agreement upon the subject, with an instrument of
such character and date as is prescribed by the law in the absence of
stipulation between the parties. From its commencement as so determined
the abstract, if properly prepared, shows the history of the title down
to the sale; every instrument, marriage, birth, death, or other fact or
event constituting a link in the chain of title, being sufficiently set
forth in its proper order. The next step is the verification of the
abstract on the purchaser's behalf by a comparison of it with the
originals of the deeds, the probates of the wills, and office copies of
the instruments of record through which the title is traced. The vendor
is bound to produce the original documents, except such as are of record
or have been lost or destroyed, but, unless otherwise stipulated, the
expense of producing those which are not in his possession falls upon
the purchaser (Conveyancing Act 1881). After being thus verified, the
abstract is perused by the purchaser's advisers with the object of
seeing whether a title to the property sold is deduced according to the
contract, and what evidence, information or objection, in respect of
matters appearing or arising upon the abstract, ought to be called for
or taken. For this purpose it is necessary to consider the legal effect
of the abstracted instruments, whether they have been properly
completed, whether incumbrances, adverse interests, defects, liabilities
in respect of duties, or any other burdens or restrictions disclosed by
the abstract, have been already got rid of or satisfied, or remain to be
dealt with before the completion of the sale. The result of the
consideration of these matters is embodied in "requisitions upon title,"
which are delivered to the vendor's solicitors within a time usually
fixed for the purpose by the contract. In making or insisting upon
requisitions regard is had, among other things, to any special
conditions in the contract dealing with points as to which evidence or
objection might otherwise have been required or taken, and to a variety
of provisions contained in the Vendor and Purchaser Act 1874, and the
Conveyancing Act 1881, which apply, except so far as otherwise agreed,
and of which the following are the most important: (1) Recitals,
statements and descriptions of facts, matters and parties contained in
instruments twenty years old at the date of the contract are, unless
proved inaccurate, to be taken as sufficient evidence of the truth of
such facts, matters and descriptions; (2) a purchaser cannot require the
production of, or make any requisition or objection in respect of, any
document dated before the commencement of the title; (3) the cost of
obtaining evidence and information not in the vendor's possession must
be borne by the purchaser. The possibility of the rescission clause now
commonly found in contracts for the sale of real estate being exercised
in order to avoid compliance with an onerous requisition, is also an
important factor in the situation. The requisitions are in due course
replied to, and further requisitions may arise out of the answers. A
summary method of obtaining a judicial determination of questions
connected with the contract, but not affecting its validity, is provided
by the Vendor and Purchaser Act 1874. Before completion it is usual for
the purchaser to cause searches to be made in various official registers
for matters required to be entered therein, such as judgments, land
charges, and pending actions, which may affect the vendor's title to
sell, or amount to an incumbrance upon the property.
Conveyances.
When the title has been approved, or so soon as it appears reasonably
certain that it will be accepted, the draft conveyance is prepared and
submitted to the vendor. This is commonly done by and at the expense of
the purchaser, who is entitled to determine the form of the conveyance,
provided that the vendor is not thereby prejudiced, or put to additional
expense. The common mode of conveying a freehold is now, as already
mentioned, by ordinary deed, called in this case an _indenture_, from
the old practice, where a deed was made between two or more parties, of
writing copies upon the same parchment and then dividing it by an
indented or toothed line. Indenting is, however, not necessary, and in
modern practice is disused. A deed derives its efficacy from its being
sealed and delivered. It is still a matter of doubt whether signing is
essential. It is not necessary that its execution should be attested
except in special circumstances, as, e.g. where made under a power
requiring the instrument exercising it to be attested. But in practice
conveyances are not only sealed, but also signed, and attested by one or
two witnesses. The details of a conveyance in any particular case depend
upon the subject-matter and terms of the sale, and the state of the
title as appearing by the abstract. The framework, however, of an
ordinary purchase-deed consists of (1) the date and parties, (2) the
recitals, (3) the testatum or witnessing-part, containing the statement
of the consideration for the sale, the words incorporating covenants for
title and the operative words, (4) the parcels or description of the
property, (5) the habendum, showing the estate or interest to be taken
by the purchaser, and (6) any provisos or covenants that may be
required. A few words will illustrate the object and effect of these
component parts.
(1) The parties are the persons from whom the property, or some estate
or interest in or in relation to it, is to pass to the purchaser, or
whose concurrence is rendered necessary by the state of the title in
order to give the purchaser the full benefit of his contract and to
complete it according to law. It is often necessary that other persons
besides the actual vendor should join in the conveyance, e.g. a
mortgagee who is to be paid off and convey his estate, a trustee of an
outstanding legal estate, a person entitled to some charge or
restriction who is to release it, or trustees who are to receive the
purchase-money where a limited owner is selling under a power (e.g. a
tenant for life under the power given by the Settled Land Act 1882).
Parties are described by their names, addresses and occupations or
titles, each person with a separate interest, or filling a distinct
character, being of a separate part. (2) The recitals explain the
circumstances of the title, the interests of the parties in relation to
the property, and the agreement or object intended to be carried into
effect by the conveyance. Where the sale is by an absolute owner there
is no need for recitals, and they are frequently dispensed with; but
where there are several parties occupying different positions, recitals
in chronological order of the instruments and facts giving rise to their
connexion with the property are generally necessary in order to make the
deed intelligible. (3) It is usual to mention the consideration. Where
it consists of money the statement of its payment is followed by an
acknowledgment, in a parenthesis, of its receipt, which, in deeds
executed since the Conveyancing Act 1881, dispenses with any endorsed or
further receipt. A vendor, who is the absolute beneficial owner, now
conveys expressly "as beneficial owner," which words, by virtue of the
Conveyancing Act 1881, imply covenants by him with the purchaser that he
has a right to convey, for quiet enjoyment, freedom from incumbrances,
and for further assurance--limited, however, to the acts and defaults of
the covenantor and those through whom he derives his title otherwise
than by purchase for value. A trustee or an incumbrancer joining in the
deed conveys "as trustee" or "as mortgagee," by which words covenants
are implied that the covenantor individually has not done or suffered
anything to incumber the property, or prevent him from conveying as
expressed. As to the operative words, any expression showing an
intention to pass the estate is effectual. Since the Conveyancing Act
1881, "convey" has become as common as "grant," which was formerly used.
(4) The property may be described either in the body of the deed or in a
schedule, or compendiously in the one and in detail in the other. In any
case it is usual to annex a plan. Different kinds of property have their
appropriate technical words of description. _Hereditaments_ is the most
comprehensive term, and is generally used either alone or in conjunction
with other words more specifically descriptive of the property conveyed.
(5) The habendum begins with the words "to hold," and the estate, on a
sale in fee-simple, is limited, as already mentioned, not only _to_, but
also _to the use of_, the purchaser. Before the Conveyancing Act 1881,
it was necessary to add, after the name of the purchaser, the words "and
his heirs," or "his heir and assigns," though the word "assigns" never
had any conveyancing force. But since that Act it is sufficient to add
"in fee-simple" without using the word "heirs." Unless, however, one or
other of these additions is made, the purchaser will even now get only
an estate for his life. If the property is to be held subject to a lease
or incumbrance, or is released by the deed from an incumbrance
previously existing, this is expressed after the words of limitation.
(6) Where any special covenants or provisions have been stipulated for,
or are required in the circumstances of the title, they are, as a rule,
inserted at the end of the conveyance. In simple cases none are needed.
Where, however, a vendor retains documents of title, which he is
entitled to do where he sells a part only of the estate to which they
relate, it is the practice for him by the conveyance to acknowledge the
right of the purchaser to production and delivery of copies of such of
them as are not instruments of record like wills or orders of court, and
to undertake for their safe custody. This acknowledgment and undertaking
supply the place of the lengthy covenants to the like effect which were
usual before the Conveyancing Act 1881. A trustee or mortgagee joining
gives an acknowledgment as to documents retained by him, but not an
undertaking. The foregoing outline of a conveyance will be illustrated
by the following specimen of a simple purchase-deed of part of an estate
belonging to an absolute owner in fee:--
THIS INDENTURE made the day of between A. B. of,
&c., of the one part and C. D. of, &c., of the other part WHEREAS the
said A. B. is seised (among other hereditaments) of the messuage
hereinafter described and hereby conveyed for an estate in fee simple
in possession free from incumbrances and has agreed to sell the same
to the said C. D. for L100 NOW THIS INDENTURE WITNESSETH that in
pursuance of the said agreement and in consideration of the sum of
L100 paid to the said A. B. by the said C. D. (the receipt whereof the
said A. B. doth hereby acknowledge) the said A. B. as beneficial owner
doth hereby convey unto the said C. D. ALL THAT messuage or tenement
situate &c., and known as, &c. TO HOLD the premises unto and to the
use of the said C. D. his heirs and assigns [_or_ in fee simple] And
the said A. B. doth hereby acknowledge the right of the said C. D. to
production and delivery of copies of the following documents of title
[_mentioning them_] and doth undertake for the safe custody thereof IN
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 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.
Leases.
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 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.
Assignment of leaseholds.
Upon the sale and conveyance of a leasehold property substantially the
same procedure is observed as above indicated in the case of a freehold.
A few additional points, however, may be specially mentioned. Under an
open contract the vendor cannot be called upon to show the title to the
freehold reversion (Vendor and Purchaser Act 1874; 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.
Mortgages.
A mortgage is prepared by the solicitor of the mortgagee, and the
mortgagor bears the whole expenses of the transaction. It is 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: (1) 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.
Settlements.
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, has been much simplified;
but such settlements still remain the most technical and most
complicated of legal instruments. By virtue of the Settled Land Acts
1882 to 1890, 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 S 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 (1) 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.
Wills.
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 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 sometimes 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 been customary 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; _State_ 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 conveyances, 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.
AUTHORITIES.--Davidson, _Precedents and Forms in Conveyancing_
(London, 1877 and 1885); Key and Elphinstone, _Compendium of
Precedents in Conveyancing_ (London, 1904); Elphinstone, _Introduction
to Conveyancing_ (London, 1900); Prideaux, _Precedents in
Conveyancing_ (1904); Pollock, _The Land Laws_ (London, 1896).
(S. WA.; S. E. B.)
CONVEYORS. "Conveyor" (for derivation see CONVEYANCE) is a term
generally applied to mechanical devices designed for the purpose of
moving material in a horizontal or slightly inclined direction; in this
article, however, are included a variety of appliances for moving
materials in horizontal, vertical and combined horizontal and vertical
directions. The material so handled may be conveyed in a practically
uninterrupted stream, as in the case of worms, bands and pushplate
conveyors, or elevators carrying grain or coal, &c.; or it may be
conveyed from one point to another, intermittently, that is to say in a
succession of separate loads, as happens with single bucket elevators,
furnace hoists, rope and chain haulage, and also in the case of ropeways
and aerial cableways. Some of these devices are of great antiquity,
others are of quite modern origin. The principles of their construction
are simple and easy of understanding, but by variations in the details
of their construction the engineer has adapted these few appliances to
the most varied work. At one end of the scale they may be used for such
light duties as conveying the goods purchased by a customer to the
packers and bringing them back made up into a parcel or for taking his
money to the cashier and returning the change. At the other they are
adopted for handling large quantities of heavy material at a minimum
expenditure of human labour. Coal, for instance, a more or less friable
substance, the value of which is seriously diminished by fracture, may
be mechanically handled with a minimum risk of breakage. The difficult
problem of handling the contents of gas retorts and coke ovens, and of
simultaneously quenching and conveying the glowing material, has been
solved. Perhaps an even more astonishing piece of work is the
manipulation of the iron from the blast furnace; for instance, liquid
metal is drawn from a furnace into pouring pots which in their turn
discharge it to and distribute it over a pig-iron casting machine, which
is practically a conveyor for liquid metal, consisting of a strand of
moving moulds from which the solidified pigs, after cooling in water,
are automatically removed after reaching the loading terminal over the
railway trucks. Certain types of conveyors may be made to combine
efficiently, with their primary work of transport, complex sorting,
sifting, drying and weighing operations.
_Worm Conveyors._--The worm conveyor, also known as the Archimedean
screw, is doubtless the most ancient form of conveyor. It consists of a
continuous or broken blade screw set on a spindle. This spindle is made
to revolve in a suitable trough, and as it revolves any material put in
is propelled by the screw from one end of the trough to the other. Such
conveyors have been used in flour-mills for centuries. The writer has
seen in an East Anglian mill which was over 250 years old disused screw
conveyors, probably as old as the mill, consisting of spindles of
octagonal shape, made of not too hard wood, around which a broken blade
screw was formed by the insertion at regular intervals of small blades
of hard wood (fig. 1). Modern worm conveyors usually consist of a
spindle formed of a length of wrought iron piping, to which is fitted
either a broken or continuous worm. In the former case (fig. 2) the worm
is composed of a series of blades or paddles arranged like a spiral
round the spindle; each blade is fixed, by means of its shank, in a
transverse hole in the spindle, and the shank is held in position by
being tapped and fitted with a nut. In this way is formed, out of
separate blades, a practically complete screw, technically known as a
"paddle worm." The lengths or sections of the worm run to about 8 ft.,
the various lengths being coupled by turned gudgeons, which also serve
as journals for the bearings. In the so-called continuous worm conveyors
the screw is formed of a continuous sheet-iron spiral (fig. 3).
Sometimes a narrow groove is cut in spiral form on the spindle, and in
this groove the sheet-iron spiral is secured.
[Illustration: FIG. 1.--Early Flour Mill Conveyor.[1]]
[Illustration: FIG. 2.--Paddle Worm Conveyor.]
[Illustration: FIG. 3.--Continuous Worm Conveyor.]
The _spiral_ or _anti-friction_ conveyor (fig. 4) was introduced about
1887. In this case a narrow spiral, which passes concentrically round
the spindle, with a space between both, is fixed to it at set intervals
by small blades, each of which is itself fixed by its shank and a nut to
the spindle. The spiral may be made of almost any section, from a round
bar about 1/2 in. in diameter to L or T section, but is preferably a flat
bar. Worms are fitted into wooden or iron troughs leaving a clearance of
1/8 to 1/4 in. The spindle must be supported at suitable intervals by
bearings, preferably of the bush type. A continuous worm, being more
rigid than a paddle worm, needs fewer supports. The lid of the worm
trough should be loose, not screwed on, because in case of an
accumulation of feed through a choke in a delivery spout the paddles of
a paddle worm would be broken, or a continuous worm stripped, unless the
material could throw off the lid and relieve the worm. The ratios of the
pitch of the worm to the diameter must be regulated by the nature of the
material to be conveyed, and will vary from one-third to a pitch equal
to, or even exceeding, the diameter. The greater the pitch the larger
the capacity, but also the greater the driving power required, at the
same speed. For handling materials of greater specific gravity, such as
cement, &c., it is advisable to use a smaller pitch than for substances
of lower specific gravity, such as grain. The capacity of a continuous
worm exceeds that of either a paddle or spiral conveyor of the same
diameter, pitch and speed. As regards the relative efficiency of paddle
and spiral conveyors a series of careful tests made by the writer
indicated that, run at a slow speed the paddle worm, but at a high speed
the spiral worm, has the greater efficiency. There is of course a speed
at which the efficiency of both types is about equal, and that is at 150
revolutions per minute for conveyors 4 to 6 in. in diameter.
[Illustration: FIG. 4.--Spiral or Anti-Friction Conveyor.]
The power necessary to drive worm conveyors under normal conditions is
very considerable; a continuous worm of 18 to 20 in. diameter running at
60 revolutions per minute will convey 50 tons of grain per hour over a
distance of a hundred feet at an expenditure of 18-1/2 to 19 H.P. A
material like cement would require rather more power because of the
greater friction of the cement against the blades and the trough.
Delivery from a worm conveyor can be effected at any desired point, all
that is necessary being to cut an outlet, which should preferably be as
wide as the diameter of the worm, because the worm delivers only on its
leading side, and is practically empty on the other side, so that a
smaller outlet might only give exit to a portion of the feed, unless it
was on the leading side.
A special form of worm conveyor is the _tubular_ (fig. 5), which
consists of an iron tube with a continuous spiral fitted to its inner
periphery, or of iron or wooden tubes of square sections fitted with
fixed baffle plates inside. In working it revolves bodily on suitable
rollers. This type is more costly than the ordinary worm conveyors, and
also requires more power. Its efficiency is, moreover, easily impaired
if run at too high a speed, because the centrifugal force asserts itself
and counteracts the propulsion, which in this case is effected by
gravity. Some experiments made in 1868 by George Fosbery Lyster,
engineer of the Liverpool docks, gave convincing results (see _Proc.
Inst. Mech. Eng._, August 1869). The tubular worm conveyor is suitable
where a granular material has to be moved over a comparatively short
distance, say from one building to another on the same level, and where
no bridge is available for the installation of any other kind of
conveyor. Conveyors of this type have, however, come into use for
conveying hard and cutting substances over considerable lengths.
Ordinary worm conveyors are practically debarred from use for such
substances on account of the short life of the intermediate bearings,
which are not necessary with externally supported tubular worms.
[Illustration: FIG. 5.--Tubular Worm Conveyor.]
To sum up, worm conveyors are of the simplest construction and of small
prime cost. The terminals again are much less expensive than those of
most other kinds of conveyors. When the distance to be traversed by the
material is short, the worm conveyor has this advantage, that it is
cheaper than other kinds of conveyors. If it be desired not only to
convey but also to mix two or more materials, such as cement and sand in
a dry state, or poultry food, this appliance is thoroughly well adapted
for the work. On the other hand, there is a grinding action exercised on
any material conveyed, and when hard or cutting substances are handled
the wear and tear on the conveyor blades, trough and bearings is very
great, and the power absorbed by a worm conveyor is a sensible item.
_Band Conveyors._--The inventor of band conveyors for the handling of
grain and minerals was G. F. Lyster, who, as already mentioned, in 1868
carried out exhaustive experiments at the Liverpool docks, where he
established the band conveyor as a grain-handler. For granaries the band
conveyor is an ideal appliance. Its capacity is great, and it can be run
at relatively high speeds with a moderate expenditure of power. The band
conveyor of to-day is an endless belt of canvas or more often
india-rubber with insertion, and when fitted with the usual receiving
and delivery appliances can be used to handle grain from or into
granaries and also to feed bins or sections of a warehouse. The endless
bands run over terminal pulleys, and are also supported on their way by
a series of guide rollers, which are in greater number on the loaded
than on the empty strand. The band is usually run quite flat, except
that at the point or points where the grain is fed on it is slightly
hollowed for a few feet, by means of two curving rolls which are set
obliquely so as to make it trough-shaped. The supporting or guide
rollers are 4 in. to 6 in. in diameter, and are sometimes made of wood,
but more often consist of steel tubes to which spindles with conical end
gudgeons are secured. The gudgeons generally run in suitable
bush-bearings, which should be well lubricated. Band conveyors should be
driven on the delivery and not the receiving terminal, as the tight side
of the band is the flattest. The guide rollers, for ordinary grain
conveyors, are fitted to the upper or working side of the band at
intervals of about 6 ft., and at distances of 12 ft. on the lower or
return strand. In cases where both strands of the band are used for
carrying grain, the lower strand must be supported by as many rollers as
the upper. Under such conditions, terminal pulleys must be of larger
diameter than usual, the object being to throw the two strands farther
apart, so as to give sufficient space between the two strands to spout
the feed in and out again at the other end. The two strands can be run
any distance apart by the use of two additional pulleys for the
terminals. This arrangement would be in place where it was desired, as
it might be, to run one strand of the band along the top floor of the
granary to distribute, while the other strand travelled along the
ground-floor or basement to withdraw, the grain.
[Illustration: FIG. 6.--Throw-off Carriage for Band Conveyor.]
Band conveyors are kept tight, when the band is not very long, by a
tightening gear, similar to that used on elevators, and consisting of
two screws which push or better pull the two pedestals of one terminal
pulley farther away from the other terminal. If the band is of such
length that an adjustment of 4 to 5 ft. on the tightening gear is not
sufficient, it is advisable to use in place of screws a tightening
pulley, over which the belt passes, but which is itself held in
tension by weights. The choice of the exact tightening gear will
depend on various considerations, the length of the belt, the type of
throw-off carriage used, and the quality of the belt all being factors
to be considered. The throw-off carriage (fig. 6), which serves to
withdraw material from the band at any desired point, is a simple but
ingenious appliance consisting essentially of guide pulleys which by
raising one part of the band and lowering the other have the effect of
causing the grain to quit the surface of the band at the point where
it is deflected upwards. The grain is thus cast clear of the band, and
into the air, being caught as it falls in a hopper and spouted in any
desired direction. Throw-off carriages differ in certain details, but
the principle is the same. For feeding a band conveyor it is important
to give the material a horizontal velocity, approaching that of the
band. The grain should therefore be fed through a spout rather less in
breadth than half of the width of the band, and set at an incline of
42-1/2 deg. to the horizontal. Band conveyors run at a speed of 400 to
600 ft. per minute, according to the nature of the material; oats, for
instance, would be liable to be blown off the band at a speed in
excess of 500, which would be suitable for wheat. Nuts, maize and the
heavier seeds could be carried at 600. The power consumption by a
grain-laden band compares favourably with any other form of conveyor.
An 18-in. band 100 ft. in length running 500 ft. per minute would
carry 50 tons per hour at an expenditure of only 4.5 H.P.
While the band conveyor is an ideal conveyor in warehouses and mills, it
is also capable of rendering good service in handling such heavy
materials as coal and minerals. Of course for such purposes the band and
its fittings must be of much more substantial construction. The central
portions of the band carrying the load, being subjected to great wear
and tear, are often made of solid india-rubber extending to nearly half
the thickness of the band in the middle, and tapering off towards the
edges, while the surface facing the guide rollers is of insertion coated
with india-rubber. Bands properly prepared and stretched will bear a
strain of 3 tons to the square inch. Balata bands may be used in place
of india-rubber, but though less expensive are not so lasting. Bands
that have to carry coal or minerals are usually curved along the entire
length of the upper or loaded strand into a trough shape by guide
rollers (fig. 7). Bands of woven wire are sometimes used with
coal-washing plants, but have the disadvantage of lack of durability.
They are more liable to stretch and are high in price. They may be run
as high as about 600 ft. per minute, but to ensure proper grip-driving
terminals must either be faced with leather or made of wood.
[Illustration: FIG. 7.]