Part 2

The gist of the action is in the unauthorized dealing, for however short a time and for however limited a purpose, with the personal property of another. Even refusal to deliver up to the owner is sufficient to prove conversion, though it is often made the ground of an action for detinue, if the plaintiff desires to have the property returned in specie. The knowledge, motive or good faith of the person wrongfully dealing with the property of another is for civil purposes immaterial, and the action is often brought to try the title of two claimants to the same goods; e.g. where a person who has innocently bought or taken in pledge goods stolen or illegally procured resists the claim of the original owner for the return of the goods. A warehouseman may render himself liable to the owner of goods deposited with him, through delivering the goods to a third person on a forged authority or without authority, or by issuing a warehouse receipt representing the goods to be in his possession or control when they have ceased to be so.

The exact measure of compensation due to a plaintiff whose goods have been wrongfully converted may be merely nominal if the wrong is technical and the defendant can return the goods; it may be limited to the actual damage where the goods can be returned, but the wrong is substantial; but in ordinary cases it is the full value to the owner of the goods of which he has been deprived.

Fraudulent conversion by any person to his own use (or that of persons other than the owner) of property entrusted to him is a crime in the case of custodians of property, factors, trustees under express trusts in writing (Larceny Act, 1861, ss. 77-85; Larceny Act, 1901).

The law of Ireland, of most British possessions, and of the United States, follows that of England as to the civil or criminal remedies for conversion.

The term "conversion" is also used in English law with reference to the rule of courts of equity which, in certain cases (following the maxim of treating as done what ought to have been done), treats as converted into personalty land which has been directed so to be converted by a will, contract or settlement, or as converted into land personalty which has been by such instrument directed to be applied for purchase of realty. The rule is also applied where a vendor of land dies between the making of the contract of sale and its completion by conveyance of the land. The importance of the rule lies in the different destination of realty and personalty under the laws relating to inheritance and succession.

See Bullen and Leake, _Precedents of Pleading_ (3rd ed., 1868, 6th ed. by Dodd and Chitty, 1905); F. Pollock, on _Torts_ (7th ed., 1904); Clerk and Lindsell, on _Torts_ (3rd ed., 1904); Lewin, on _Trusts_ (11th ed., 1904); Jarman, on _Wills_ (5th ed., 1893); Dart, _Vendors and Purchasers_ (11th ed., p. 301). (W. F. C.)

FOOTNOTES:

[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 (§ 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.