Reference
R6/19/2/12
Title
Copy Opinion of Counsel
Date free text
1892
Production date
From: 1892 To: 1892
Scope and Content
Observation 1. I have perused the accompanying Abstract on behalf of the Duke of Bedford’s trustees the purchasers and subject to the following remarks I am of Opinion that a good title is shown in the Vendor the Revd Thomas Lingard Green to the freehold & Leasehold parts of the property on sale, which I presume includes all the property comprised in the Abstracted deeds being according to the Abstract only about 22a 1r 0p exclusive of the sites of the buildings but stated in the Succession Duty Account to be 27 a 3r 27p
Response 1. I gather that there is a clerical error in the Abstract to the extent of the words added to the Draft Conveyance fo. 9- the quantities now disclosed as will be seen by the figures in the margins of the Draft are 27a 3r 31p exclusive of the sites of the buildings. These are stated in a note in Mr Green’s handwriting found with the Deeds to measure 27 poles making the Total 28a 0r 18p
Comment by Thomas Key: The correction in the schedule of the Conveyance makes up the total quantity to about that it should be?
O2. What is the total quantity according to the Ordnance Survey? The quantity to which title is shown appears to be deficient by about 5 Acres.
R2. 28a 3r 17p
O3. The fact that part of the property is leasehold may be a material objection, as there is nothing to show what is the length of the term for which it is held, upon which its value depends and the absence of any specific reference in the deeds to the length of the term or its origin would seem to imply a doubt or want of knowledge on the subject.
R3. The property is sold as partly Leasehold. The vendor has no knowledge or evidence in his possession or control as to the actual terms upon which the Leaseholds are held but the Conveyance to Alfred Burton dated 28th September 1839 contains the following recital “Whereas the said James Smith being absolute owner in fee simple in possession of the hereditaments comprised or described in the first schedule hereto with the appurtenances and of such part or parts and so much as is or are freehold of those described and comprised in the second Schedule hereto with the appurtenances and absolutely entitled also to the reside therefor and to the hereditaments described or comprised in the third schedule hereto with the appurtenances respectively as Leasehold for the remainder of divers long terms of years being or computed at many hundred years yet to come but as to which hereditaments in the second Schedule such ownership in fee extends to all or nearly the entirety lately contracted &c”.
The Schedules are the same as those attached to the Conveyance to John S Tanqueray in 1854. The Deed is in the Vendor’s possession and will be handed over.
O4. No inference whatever as to the leasehold part being equal to freehold can be drawn from the mere fact that no rent has been paid for 50 years or any other lengthened period, since the term may have been originally free of rent (as in the common case of its having been a long mortgage term) and even if it were subject to a rent the non-payment of the rent would not bar the right of the reversioner to enter at the end of the term.
R4. The above recital “absolutely entitled” it is submitted is conclusively opposed to the suggestion that these are Mortgage terms - It is matter of common local knowledge that a great part of the land in Eversholt was some two Centuries ago (presumably for the purpose of facilitating Conveyance) converted into Leasehold and no doubt it was the case here.
Comment by Thomas Key: It would appear from the above Statement that the leaseholds are held for long terms still unexpired, but that they did not originate in Mortgage terms. Even if they did however, the Equity of Redemption being barred, the ownership would be absolute.
O5. Is not the Lease or instrument by which the term was created, or any evidence as to its origin or as to the length of the term forthcoming? Possibly it may have comprised other property and thus got into possession of other parties, but in that case the Vendor’s deeds ought to include a covenant for its production.
O6. At present the title to the leasehold part cannot be regarded as satisfactory
O7. If it can be shown that the Case comes within the enactments of the Conveyancing Acts as to the enlargement of long terms into freehold, it would be desirable to enlarge the term after the completion of the purchase.
Comment by Thomas Key: Until more certain information as to the time of the terms is forthcoming it would not be safe to assume that the case comes within the Conveyancing Act.
O8. Can the leasehold part be identified? This would be very desirable and mat possibly prove important
O9. The Leasehold part appears to comprise not only the 3½ Acres comprised in the 3rd Schedule to the Conveyance of 1854, but also some undefined part of the two Allotments comprised in the 2nd Schedule, which were allotted under the Eversholt Enclosure Award in 1808. It would be very desitable to have an Extract from this Award. Under what act was it made?
R9. The Vendors cannot supply any further identification of the Leaseholds beyond the description contained in the Conveyance to John S Tanqueray. It appears from the description given in that Deed that the 3½ Acres had been laid to and formed part of Dovehouse Close - the two Acres lying next the road and the one and a half acres at the other end next Walls Green.
The Inclosure Award was made in pursuance of the Act 46 George 3rd.
A Copy of an Extract from the Award of the two Allotments is sent herewith.
O10. It may turn out that the allotments were made in respect of land which was partly freehold and partly leasehold and if the tenure of the allotments follows that of the land in respect of which they were made, it may be impossible to say which part is freehold and which leasehold and if the term does not admit of being enlarged in freehold the result may be embarrassing.
R10. It appears from recitals in earlier Deeds in the vendor’s possession that the property comprised in the Settlement made on the marriage of John and Mary Gregory in 1865 [sic 1765] and of which she was tenant for life at the time of the Inclosure consisted of both Freeholds and Leaseholds and that portions of these Leaseholds as well as Freeholds were exchanged under the Award for inter alia the two allotments. The whole of the two allotments previous to the Award appear to have been of freehold tenure.
Comment by Thomas Key: It seems probable that there are recitals in the Award which may be material - and is there not also a map annexed to it. And the Inclosure act may also throw light on the question of the tenure of the allotments. It does not seem [unreadable word] however to pursue these questions further prior to completing the Inclosure as it seems sufficiently certain that the Leasehold parts of the property are held for long terms (whether convertible into freehold under the Conveyancing Acts or not) and the question of identifying the leasehold parts may also be postponed.
O11. In the will of John Green the property is described as at Upper Bury End instead of Higher Berry End according to the description in the deeds and as in the occupation of William Gower the Elder and his undertenant. Is the property known by both the above descriptions? A declaration should be furnished on this point, and also that the whole of it was at the date of the Will and the testator’s death occupied as there stated.
R11. The term “Upper” as distinguished from “Higher” Berry End is the one in common use now. There can be no difficulty in showing that they are synonymous and if a Declaration is considered necessary it shall be furnished at the purchaser’s expense.
Comment by Thomas Key: The declaration is mainly wanted as to the second point, namely that the occupation was according to the Will.
O12. The property is devised by the Will to the Vendor and his heirs. I do not think that the use of the word “heirs” gives rise to any doubt as to the leasehold part being intended to be included in the devise,, but it would be as well to shut out this question by making the Executors the Vendors as to that part under their common law power, the purchase money being apportioned and even if the opposite course were adopted they ought to join to evidence their assent to the request.
R12. I cannot consent to allow the Executors to join in the Conveyance as now drawn - they would be rendering themselves responsible for the purchase money apportioned to the Leaseholds and it is submitted that their being made parties is entirely unnecessary. The devise was sufficient under the 26th section of the Wills Act to pass the Leasehold to T L Green and this seems really to be Mr Key’s own opinion
Comment by Thomas Key: The reasons given for the executors not joining as vendors does not seem of much weight as they could hardly incur responsibility if the Sale were confirmed by Mr T L Green as devisee. But as I think there can be no doubt that the leasehold portion passed by the devise [unreadable phrase] I think the Conveyance may stand as altered provided the two Executors sign a separate assent to the bequest
O13. The interest of the tenant or tenants should be inquired into.
R13. The necessary information was supplied to Mr Hall some time back
O14. I presume all the deeds will be handed over.
R14. All the abstracted Deeds will be handed over.
O15. For the purpose of the Conveyance there should be a modern description by reference to the
Ordnance Survey and map. Failing this the property must be conveyed by reference to the description in the Abstracted deeds, assuming that it is all included but this would not be so satisfactory.
R15. A Copy of the Ordnance plan supplied from the Park Farm is sent herewith and I have added the names of the Closes.
Comment by Thomas Key: The Schedule to the Conveyance will contain the numbers and quantities of the closes according to the Ordnance Survey together with their names and descriptions, as arable or otherwise.
O16. The usual searches should be made against the Vendor.
O17. It may be mentioned that the power in the late Duke’s Will to purchase leaseholds is not subject to any restriction as to the length of the term
Comment by Thomas key: Subject as above and to some small alterations (in pencil) which I have made in the revised draft Conveyance I am of opinion that the title may be accepted and all the draft Conveyance as revised may also be approved.
Observations by Thomas Key of Lincoln’s Inn, 19 December 1892
Replies by Frederic Tanqueray, vendor’s solicitor, Woburn, 22 December 1892
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