Scope and Content
Opinion on Title by T.R.Colquhoun Dill of Lincolns Inn
"I have perused the several abstracts & accompanying documents & I am of opinion that the title of Mr.T.Sworder to the various properties shown on the particulars is sufficiently made out subject to the following observations: -
1. It appears to me that the properties may conveniently be grouped for the purposes of considering their titles under three main heads: -
I. Properties comprised in the Burr Mortgage (31 July 1860 abs. II p.1) & passing to the vendor under the Convce of 29 Jany 1878 No.1
II. Properties comprised in various prior docts but all included in the agreement for sale to Mr.T.Sworder of Hertford 14th Feby 1873 & all passing to the Vendor under the Convce of 29 Jany 1878 No.1
III. Properties not comprised in either of the convces of 1878 but otherwise acquired by the Vendor
I propose to deal with the titles under these three heads
2. The properties falling under the head of title are those numbered in the parlars 3, 6, 7, 8, 11, 13, 14, 15, 18, 19, 20, 21, 22, 23, 24, 25, 27, 30, 34, 40, 47, 48, 55, 58, 59, 60, 61 and 62. The root of title will be the Burr Mtges of 31 July 1860. The title to these properties remains separate & distinct from that of the other properties down to & including the reconvce by Anstee & Bennett to the Vendor of 4 July 1889: but I think the convce of 29 Jany 1878 No.2 should be abstracted in its place (after p.27 of Abstract II) the descriptions of property in the schedule being fully set out. Parts of this ppty are also affected by the agreement between the Vendor & Messrs Anstee, Cook & Bennett of 29 Jany 1878 the wills of J.Cook & Martha Tait & the Release to the Vendor of 4 Jany 1889. But the lease which (by the former of the two last mentd deeds) the Vendor agreed to grant was never granted (see recital on p.45 of abs I) & I do not regard these two deeds as an important part of the Vendor's title except so far s they affect the goodwill. I think however that they had better be abstracted & as the property mentioned in the 2nd schedule to the agreement is all (with the exception of the Antelope) property coming under the head of title the most convenient place for abstracting these two docts seems to me to be immediately after the mtge to Anstee & Bennett of 29 Jan 1878 & the reconvce of that mtge.
This abstract will also contain the subsisting mtge to Anstee for £14,000 (5 July 1889) which relates exclusively to a part of the ppty falling under head I: and also the deeds subsequent to 4 July 1889 which relate to other parts of that ppty & also to ppties of which the earlier title is distinct. That earlier title may I think more conveniently be given in the same abstract (as is the case now in Abs II) than in separate abstracts as I gather from the heading to Abstract II p.35 was originally intended. Thus the present Abstract II supplemented in the manner already indicated will form the main abstract of the whole ppty.
The properties last referred to the title to which although originally distinct becomes united with the title to ppties in head I are the Green Man (No.51 abs II p.35), the Antelope (No.26, Abs II p.48) & the Cross Keys (No.16 abs II p.60). The last mentioned house becomes separated again from the main ppty & joined with two earlier separate ppties the Railway Hotel (No.50 abs II p.81) & the Inkerman Arms (No.37 ib p.87). All these will therefore come into the main abstract: but as the prior titles to these five ppties properly fall under Heads II or III I have dealt with them under those heads below.
3. A part of this ppty was limited by deed of 29th March 1837 to Sikes & Gaitskell for a term of 500 years. The trusts of the term do not appear but probably they were for securing the portions of Mrs.Sikes & Mrs.Gaitskell which I understand have long since been paid I do not find that the term has ever been assigned to attend the inheritance. I have inserted a condition to cover this point.
4. The Vendor ought to be prepared to produce the receipts for the above portions, but at the Purchaser's expense.
5. Certificate of the death of the annuitant Charlotte Burr will have to be obtained. I call attention to this & other evidence of deaths, marriages, pedigrees & the like as forming part of the Vendor's title although such evidence if not in the Vendor's possession will be produced if called for, at the Purchaser's expense.
6. The decree for sale & subsequent proceedings in "Moss & Sworder" must be proved by the production of office copies.
7. Probate or office copies of the wills of Mr.T.Sworder of Hertford & Mrs.F.J.Sworder if in the Vendor's possession must be produced.
8. The agreements of 18 Nov 1876 & 6 Feb 1877 (recited in the convce of 29 Jany 1878) must be produced.
9. The purchaser may call for an abstract & production of the deed of 1st Oct 1862 recited in the agreement of 29 Jany 1878 but so far as I am aware there will be no objection to this. I do not think it need be abstracted in the first instance.
10. As to this agreement see the remarks under 2 above. It does not appear to what ppty the expired leases mentioned in Schedule I related: this might conveniently be added as a note to the abstract: but as no new lease was never granted it does not seem to me to signify whether the ppty is part of that now to be sold or not. The first item in the 2nd schedule is clearly the Maltings (No.3 in parlars); item 4 does not appear to be any part of the property to be sold.
11. Any questions on the mtges recited in the Release of 4 July 1889 will be dealt with in connection with the titles to the ppties to which they reply relate. They are all abstracted as pert of the title to these properties.
12. There remains to notice with regard to the several ppties included under this head a few points arising on their description in the parlars.
3. The Maltings The parcels set out in the schedule to the Burr mtge (abs II p.18) are very meagre but from the dimensions given in the convce of 29 Jany 1878 No.2 (copy p.10) there seems to be a frontage of 140 feet to Park Street & a depth of 310 feet from Park Street to the churchyard. The plan on the parlars seems to show a depth of about 330 feet. It seems to me sufficiently clear that the ppty coloured blue on the parlars is included in the convce of 1878 but to avoid difficulties I think it would be better to omit the dimensions marked on the plan. I presume that the Vendor proposes to grant a right of way over the yard from Park Street as mentioned in the parlars? The yard is I think included in the convce of 1878 & if it is still the ppty of the Vendor no further title will be required. If however he has sold the yard reserving to himself a right of way I think the convce with such reservations ought to be abstracted. The parlars are not quite clear as to the right of way. It is not I presume intended now to reserve a right of way to the Vendor? The parlars should be altered in accordance with the intention. I have not altered them being in some doubt as to the facts & the intention.
No.13 The Wheatsheaf. This ppty is subject to rights to use a well & a "coal place". These are not mentioned in the parlars & the same remark applies to similar rights (& in some cases liabilities to repair wells) affecting other ppties. I have inserted a general condition which is intended to obviate any objection on the ground of the existence of such rights & liabilities.
No.15 The Griffin. I think the Vendor should be prepared to show how the shop under a portion of the ppty has been separately dealt with. I presume that it stands upon part of the land conveyed by the deeds of 31 July 1860 (see abs II p.25) & 29 Jany 1878 No.2 (p.14 of my copy).
No.19 The Cock. A similar remark applies to the excepted shop in this case also.
No.55 Royal Oak (Seagrave). The right of pasturage appears for the first time in the mtge of 5 July 1889 (abs II at p.47). It does not appear to be worth while to make a separate root of title as regards this right: I have therefore altered the parlars in such a way as to prevent a title to the right being required. Probably the right is appurtenant to the tenement & no grant of it by the Vendor will be necessary.
No.59 Plough, Woodside. Is this house in process of reconstruction? Would it not be better to omit the statement that it will be rebuilt (apparently by the Vendor)? It seems to me that this statement might give rise to difficulty &c to the manner of rebuilding the money to be expended &c. The parlars might run "This house has been destroyed by fire but a temporary building as been erected for carrying on the business".
No.62 Red Lion, Kensworth. "Beds" in the parlars is an error for "Herts" which appears in the abstract & is correct.
II. 13. The ppties included under the head of title may conveniently be sub-divided into groups according to their titles prior to the agreement for sale to Mr.T.Sworder of Hertford 14 Feb 1873. They might perhaps be grouped together into one abstract which would commence with the titles to each ppty or group of ppties prior to that agreement. That agreement ought in my opinion to be abstracted & would be followed by the wills of Mr.T.Sworder of Hertford & Mrs.F.J.Sworder & the proceedings in Moss v.Sworder (all by reference to the main abstract) & then by the convce 29 Jany 1878 No.1. The body of this deed ought to be fully abstracted but in dealing with its schedules I think that only Sched. I part 2 and Sched. 4 need be given. None of the ppty in Sched. I part I is now to be sold: in fact it all appears to have been sold already. Scheds II & III contain some of the ppty now to be sold but relate only to some leasehold or yearly tenants' interests which do not now affect the title. I believe I have detected at least one mistake in Sched.II (as to the Royal Oak Windsor Street) & I think that to set out the Sched. is not only unnecessary but may give rise to some confusion & difficulty which had better be avoided.
The following lettered headings indicate what seem to me convenient groups for the sub-division of this head of title.
14. (a) Ppties in Mtges to Lettsom, 3 Feb 1852 & to T.Sworder of Hertford 27 July 1853. This group comprises Nos 43, 44, 50, 53.
I presume that the mtge to Lettsom describes the ppty specifically & not merely by reference to the two convces to Messrs T & R.Sworder of 18 March 1851 & 2 Feb 1852. On this assumption I propose to make this mtge the root of title to this group of ppties.
15. Some of the cottages at Houghton Regis conveyed by the deed of 2 Feb 1852 seem to have been converted unto stables & notwithstanding the reply to my preliminary queries (NO.1 23, 24) I have nor ventured to assert in the parlars that there are now cottages distinct from Railway Hotel premes. If there are distinct cottages they should be added.
16. Office copies of the wills of Lettsom & Mrs.Swannell if in the vendor's possession will have to be produced.
(b) Ppties in mtge to T.Sworder of Hertford 27 July 1853 but not in Lettsom's mtge. This group comprises part of No.1 & Nos.5-17.
17. The absence of an endorsed receipt in the convce of 3rd Oct 1843 is accounted for by the fact no money passed on the occasion of that convce the purchase money of £81 having been paid on the premises (last) release & the £700 mtge debt having been paid before the execution of the convce of 1843 as is recited.
18. The identity of the ppty conveyed by thee deeds of 3 Oct 843, 17 July 1844, 31 Dec 1849 & 9 Sep 1851 with the Brewery premes Crown & Anchor & Volunteer Canteen as shown in the parlars will be a little difficult to establish but in this case as in others the Vendor must rely on a general condition as to identity & I do not think that any serious objection on the ground of identity could successfully be taken. Long user consistent with the title shown could easily be proved.
19. I presume that the description of the premes 1stly & 2ndly conveyed by the mtge of 27 July 1853 are set out & met merely given by reference to the earlier deeds. On this assumption I propose to make this mtge the root of title to group (b).
As to (a) and (b)
20. The parcels in the mtge of 27 July 1853 should be set out in 3 divisions as in the deed, instead of 3 being turned into 3, 4, 6, 7, 8 as in the present abstract from which it would appear (contrary to the fact) that only the 1 rood 13 p at Houghton Regis was comprised in Lettsom's mtge.
21. The mtge of 27th July 1853 to T.Sworder of Hertford was according to the abstract subsisting at the date of the convce of 29 Jan 1878 No.1 by which the ppty comprised in it was conveyed by the mtgee's successor in title to the Vendor. The convce is not expressed to be either subject to the mtge or discharged from it, in fact the mtge is not mentioned. The effect however was in my opinion to vest the ppty in the Vendor free from the original mtge. then the sub-mtge of 20 Aug 1857 (after various mesne transfers) was transferred to the Vendor by deed of 16 May 1887. But as the ppty was immedly before the execution of that deed vested in the Vendor subject only to the sub-mtge I think that the effect of this transfer of 16 May 1887 was to vest the ppty in the Vendor free from inces. But the original mtge was for some reason (which is not clear to me) treated as still subsisting & vested in the Vendor. The deed of 5 July 1889 recites that all intt was paid on the £5,000 up to date & by the same deed the Vendor purports to transfer the original mtge debt & security to Messrs T.J.Sworder & Longmore.
Possibly there are documents affecting the title to the original mtge which are not before me which would explain these dealings with it which I confess I am at a loss to understand. But I think it is clear that the ppty is now vested in the Vendor subject to a mtge for £5,000 to Messrs T.J.Sworder & Longmore & whether this mtge is the original mtge or whether the deed of 5 July 1889 is to be treated as a new mtge is not very material. In any case there will be no difficulty in making a title.
(c) Ppties in the Smitheman Mtge of 1 Oct 1863.
This group comprises part of No.1 (garden & stonemason's yard) Nos 45, 46, 52 (except the cottages) & 56.
22. The ppty conveyed to Messrs T & R Sworder 7 Nov 1857 is I think conveyed the same as that marked "garden" & "stonemason's yard" on the plan to the parlars. The Foresters Arms, Chapel Walk was formerly the Cock, Hollow Wick Lane; the Unicorn was formerly the Nag's Head & the Red Lion Toddington was formerly the Waggon & Horses. In there as in other cases I have added the old names to the parlars to facilitate identification. The two cottages next to the Unicorn are not in the Smitheman mtge or earlier deeds & appear for the first time in the agreement for sale of 14 Feb 1873. With this exception the rest of title to this ppty will be the Smitheman mtge.
23. I presume that the debt of £230 to which the surrender by way of mtge of the Red Lion relates was included in the £5,655 owing at the date of the mtge of 10 Oct 1863.
24. The covenant as to delivery of deeds contained in the Smitheman mtge suggests a prior mtge to Mr.T.Sworder of Hertford: but as the ppty was all conveyed to the Vendor in 1878 by Mr.T.Sworder's successor in title I do not think any difficulty can arise as to this. There is evidently some error in the mtge, no debt to Mr.T.Sworder of Hertford having been mentioned.
25. The will of Smitheman should be more fully abstracted so as to show the interests taken thereunder by the four Sworders. The residue is said to be given "subject as therein mentioned"; this part of the will should be abstracted & if there were charges in the residue they must be shown to have been satisfied. The release of 13 April 1877 does not show that this was so. If the Vendor has an office copy of the will it must be produced.
26. This ppty is all conveyed by the convce of 29 Jany 1878 No.1 subject to the Smitheman mtge & to payment of the moneys then due thereunder, the release of 13 April 1877 being entirely ignored. The explanation probably is that at the date of the agreement of 14 Feb 1873 the ppty was actually subject to the mtge & Mr.T.Sworder's successor in title was advised to reconvey it subject to the inces subject to which it was agreed to be sold to Mr.T.Sworder of Hertford.
27. The enfranchisement deed of 14 Nov 1892 forms part of the title to the Red Lion (No.56). Of course enquiries as to the title to make the enfranchisement are barred by the Conveyancing Act 1881 S.3(2).
28. The Red Lion premes do not appear to be now subject to any right of way. But apparently the vendor proposes to reserve such a right for the benefit of other ppty - vide parlars.
(d) Ppty in the convce to Lawford 31st Dec 1863 abs XVII 1.
The Melson Arms No.12
29. The root of title will be the above convce to Lawford. The difficulty here is that although according to the abstract the Vendor had no intt in this ppty until the equity of redemption in it was conveyed to him on the 11th June 1879 yet it appears in the agreement for sale to T.Sworder of Hertford 14 Feb 1873 as a "freehold or long leasehold" & was reconveyed to the Vendor as a freehold by the convce of 29 Jany 1878 No.1. It may be that the vendor had some interest in the ppty in 1873 or it may be that the ppty was included in the agreement of that year by some error: in either case it seems to me that the abstracted docts show a good title to it & I do not see that the title is made defective by the other docts above referred to or that it is necessary to make any special condition regarding this double title. I suppose there is no error in the dates of the deeds as given in the abstract. If the convce of the equity were in 1871 or 1872 the difficulty would vanish.
30. I presume that no difficulty will be occasioned by this ppty appearing in the abstract as at the corner of Hitchin Road & John Street & in the parlars as at the corner of Church Street & John Street.
31. Office copies of the wills of J.Austin & C.Lawford if in the Vendor's posson must be produced.
32. Certificate of the death of S.Oliver (Lawford's exor) must be obtained.
(e) Ppty in mtge to Anstee, Cook & Bennett 19 Feb 1867
Antelope No.26
33. The root of title will be the convce to the vendor 18 Feb 1867.
34. I do not find the right of way to Chobham Street mentioned in the abstract & I think this had better be omitted from the parlars.
35. The Antelope is included in the 2nd Schedule to the Agreement with Anstee, Cook & Bennett of 29 Jany 1878 & also in the mtge to Longmore & Lawrence 5 July 1889 (abs II 53) & the abstract of title to this house should contain a reference to that agreement & mtge if they are placed in the main abstract as suggested.
(f) Ppty in mtge to Mrs.Mortlock 22 Feb 1858
"Globe" No.28 & Bedford Arms No.35
36. The root of title will be the above mtge.
37. Office copy will of Mrs.Mortlock to be produced if in Vendor's posson.
38. The recital in the transfer 24 July 1875 that £200 of the mtge debt was paid to Mrs.Mortlock in her life is sufficient evidence of that fact.
(g) Ppty in mtge to J.Cook 4 Dec 1867
"Woolpack" No.29, Waggon & Horses No.57
39. The root of title will be the above mtge.
40. The abstract does not show that the Woolpack premes are subject to any right of way and I assume that the way mentioned in the parlars is intended to be reserved by the Vendor for the benefit of other ppty.
41. "Barrow in the Clay" in the parlars of the Waggon & Horses is no doubt an error for "Barton in the Clay". If there are two cottages to be sold the parlars should be altered accordingly..
42. The £700 which was to be paid out of the proceeds of a sale under the power in Cook's mtge was no doubt to be paid to T.Sworder of Luton in priority to any sum paid to T.Sworder of Hertford but the words in the abstract "T.Sworder party thereto" are ambiguous.
43. I presume that the reference in the mtge to Jardine 1st Oct 1873 to an agreement of 15 Feby 1873 is an error for 14 Feb 1873 the agreement which comprises all the ppty under this head of title? If there is an agreement of 15 Feb it should be abstracted. If "15" is an error in the original deed I think it may be disregarded as an obvious error for "14".
44. The words on the same page "subject thereto the said charge of £700" surely should be "& subject also to the said charge of £700". This must be the meaning.
45. Office copy of the will of W.Jardine must be produced if in the vendor's posson.
46. I do not think that J.Jardine had power to act by attorney in the office of exor to his father & this point must be covered by a condition.
47. Certificate of the death of William Jardine the exor in the lifetime of his father should be obtained: but if there is any difficulty about this the probate ought to prove his death.
48. Office copy will of J.Cook if in Vendor's posson to be produced.
49. I presume that production of the disclaimer by J.W.Cook 30 May 1884 can be obtained
50. Office copy of the order of 2 Feb 1885 in Twidell v.Cook to be obtained. Both these last docts will be produced at the purchaser's expense if not in the vendor's posson.