UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
CONCISE
Irccciicnts in C0ni)cji|ancinjg;
ADAPTED TO THE
ACT TO AMEND THE LAW OF REAL
PROPERTY,
8 & 9 VICT. Cat. 106;
WITH
lACTICAL NOTES, AND OBSERVATIONS ON THE ACT,
AND ON THE ACT FOR THE CESSER OF ATTENDANT TERMS.
BY
CHARLES DAVIDSON,
OF LINCOLN'S IKN, ESQ., BARBISTER AT LAW.
Mil) eiiiion.
LONDON:
ILLIAM MAXWELL, 32, BELL YARD, LINCOLN'S INN,
l,<ita) ISoobsrllrr j^ ^Sutiltsijrr.
HODGES, SMITH, & Co., GRAFTON STREET, DUBLIN.
1857.
T
LONDON:
FEINTED BY WILLIAM TYLER,
BOIT-COURT, PLEET-3TKEET.
ADVERTISEMENT
FIFTH EDITION.
This Edition has been carefully revised aud cor-
-icted throughout ; some improvement has been made
ii most of the Precedents ; and such alterations in the
iitroduction and notes as recently reported cases have
mdered necessary.
IV 00 8
CONTENTS.
I'AGK
lNTBODUC?riON 1
Letter from H. Bellenden Ker, Esq., to the Lord
Chancellor
Observations on the Act 8 & 9 Vict. c. 106
Observations on the Act 8 & 9 Vict. c. 112
Stat. 8 & 9 Vict. c. 106, (An Act to amend the Law
of Real Property)
Stat. 8 & 9 Vict. c. 112, (An Act to render the As
signment of Satisfied Terms unnecessary) .
10
50
73
82
88
Prccctimts.
AGREEMENTS.
Agreement for a Lease (Short Form) . . .91
Agreement for a Lease 92
CONVEYANCES.
Conveyance in Fee by a Vendor seised in Fee, his
Wife releasing her Dower 96
Conveyance by a Married Woman seised in Fee to
Uses to bar Dower ...... 99
VI CONTENTS.
PAGE
Conveyance by Appointment and Grant in Fee . 101
Conveyance by Appointment and Grant to Uses to
bar Dower .105
Conveyance by Mortgagor and Mortgagee . . 107
Conveyance by the Heir and Executors of a Mort-
gagee on a Sale under a Power of Sale . - 110
Conveyance under a Power of Sale in a Settlement . 112
Covenant to surrender Copyholds to a Purchaser . 116
Conveyance of a Contingent Estate in Copyholds . 118
Assignment of Leaseholds on a Sale .... 121
Conveyance of Freeholds, and Covenant to surrender
Copyholds to a Purchaser . . . . .125
Conveyance of Freeholds and Leaseholds to a Pui'-
chaser 129
Conveyance of Freeholds and Leaseholds, and Cove-
nant to surrender Copyholds to a Purchaser . 132
Assignment of a Policy of Assurance . . .137
Conveyance by a Dean and Cliapter, with the Appro-
val of the Church Estates Commissioners . . 139
MORTGAGES.
Mortgage in Fee, with Power of Sale to one Mortga-
144
Mortgage in Fee, with Power of Sale to several
Mortgagees 150
Mortgage of Copyholds ...... 156
Mortgage of Leaseholds, with a Covenant to insure . 157
Mortgage of Freeholds and Copyholds . . .164
Moi-tgage of Freeholds and Leaseholds . . . 167
Mortgage of Freeholds, Copyholds, and Leaseholds . 173
Mortgage of a Policy of Assurance for securing a
Sum already due, and future Advances . .178
Mortgage of a contingent Estate in Freeholds, and of
a Policy of Assurance ISo
CONTENTS. Vll
PAGE
Transfer of a Mortgage, the Mortgagor not being a
Party 188
Transfer of a Mortgage by the Executors and Devisees
of the Mortgagee, the Mortgagor receiving a fur-
ther Advance 191
Re-conveyance by Heir and Executors of a Mortgagee 194
Assignment of a Term to a Trustee for a Mortgagee 196
LEASES.
Lease of a House in a Town 200
Lease of a Fai-m ....... 203
Mining Lease 206
PARTITION 213
EXCHANGE 217
SETTLEMENTS.
Settlement, on Marriage, of a Sum of Stock . . 220
Settlement, on Marriage, of a Reversionary Interest
in Personalty, and of a Policy of Assurance on
the Husband's Life 226
Settlement, on Marriage, of a Sum of Stock for the
Hu.sbaud and Wife only, without Provision for
Children 232
Settlement, on Marriage, of Real Estate (Freehold
and Copyhold) upon the Husband and Wife suc-
cessively for Life, \N;ith Remainder to the Chil-
dren of the Marriage, as the Husband and Wife,
or the Survivor, shall appoint ; and in Default,
in equal Shares in Tail as Tenants in common,
with cross Remainders. Powers of Manage-
ment during Minorities, of Leasing, and of Sale
and Exchange ..... 234
VlU CONTENTS.
I'AGE
Conveyance, in contemplation of Marriage, of a Free-
hold Estate in Trust for Sale, with a Declara-
tion of Trust of the Purchase-money by refer-
ence to a Settlement of even Date . . 245
Settlement, on Marriage, of Money to arise from Real
Estate conveyed to Trustees by a Deed of even
Date in Trust for Sale . . . .248
Voluntary Settlement of Real and Personal Estate,
for the Benefit of the Settlor, his Wife, Children,
and Grandchildren. Power of Revocation . 251
WILLS.
Will of Real and Personal Estate, for the Benefit of
the Testator's Wife and Children . . 257
Codicil appointing a new Trustee . . . 265
Devise in Strict Settlement .... 266
APPOINTMENTS OF TRUSTEES.
Appointment of New Trustees of a Marriage Settle-
ment, (to be indorsed on the Settlement) . 276
Appointment of New Trustees of a Will of Real and
Personal Estate . . . . • 277
Re-assignment by the Provisional Trustee, (to be in-
dorsed on the preceding Deed) . . • 281
DISENTAILING DEEDS.
Deed by Tenant in Tail in Possession to bar the En-
tail of Freeholds, the Creation of the Entail not
being recited . . . • • 282
Deed by Tenant in Tail, with the Consent of the
Protector, to bar an Entail of Freeholds . 283
CONTENTS. IX
PAGE
ARTICLES OF COPARTNERSHIP . . 286
PRODUCTION OF DEEDS.
Covenant to produce Deeds .... 294
Agreement for the Deposit of Deeds relating to two
Estates moi-tgaged to dififerent Mortgagees . 297
Agreement for the Deposit of Deeds relating to an
Estate mortgaged to two Mortgagees succes-
sively ...••• 299
APPENDIX.
Stat. 8 & 9 Vict. c. 119 . ■ • • 305
Stat, 8 & 9 Vict. c. 124 . -314
TABLE OF CASES.
Abney, Bath (Earl) v. 81.
Ameiy, Doe v. 02.
Barclay, Burton v. 71.
Bartramv. Whiclicote, 241.
Bath (Earl) v. Abney, 81.
Bennett, Wilson v. 264.
Berkely v. Hardy, 67.
Bingham v. Woodgate, 81.
Brashicr v. Jackson, 61.
Burrell, Williams v. 66.
Buri'idge v. Row, 183.
Bin-ton V. Barclay, 71.
Burtt, Re, 264.
Chapman v. Towner, 61.
Collins, Grainger v. 66.
Cooke V. Crawford, 264.
Crawford, Cooke v. 264,
Curling v. Mills, 61.
Dacre (Lord), Wortham v.
264.
Darby, Tate r. 62.
Davis, Ex parte, 148.
Doe V. Amery, 62.
V. Jones. 77, 78.
V. Moulsdale, 76, 77.
V. Oliver, 68.
V. Powell, 62.
V. Price, 76, 77.
Drakeford, Hodges r. 63.
Evans, Lessenbury v. 66.
Fenner v. Hepburn, 62.
Floyd, Gore v. 62.
Freer v. Hesse, 79.
Fiy, Wilkins, v. 124.
Gore V. Floyd, 62.
Grainger v. Collins, 66.
Gray, Hinde r. 5, 66.
Greene v. Home, 67.
Gregory, Wootley v. 71.
Hardy, Berkely v. 67.
Harrison, Eooper v. 79.
Hepburn, Fenner v. 62.
Hesse, Freer r. 79.
Hinde v. Gray, 5, 66.
Hodges V. Drakeford, 63.
Hodgson, £x parte, 148.
V. Hodgson, 183.
Home, Greene v. 67.
Jackson, Brashier r. 61.
Jones, Doe v. 77, 78.
V. Reynolds, 61.
Kidgley, Salter v. 68.
King V. Smith, 264.
Lessenbury v. Evans, 66.
Macdonald v. Walker, 264.
Midland Counties Railway
Co.r.We8tcomb,264.
TABLE OF CASES.
Mills, Curling v. 61.
Moulsdale, Doe v. 76, 77.
Oliver, Doe v. 68,
Pettit, Stratton v. 62.
Powell, Doe v. 62.
Price, Doe r. 76, 77.
V. Williams, 95.
Reynolds, Jones v. 61.
Rooper v. Harrison, 79.
Row, Burridge v. 183.
Russell, Webb v. 71.
Salter v. Kidgley, 68.
Smith, King v. 264.
Stratton v. Pettit, 62.
Tate V. Darby, 62.
Thorn v. Woolcombe, 71.
Titley v. Wolstenholme, 264.
Towner, Chapman v. 61.
Walker, Macdonald v, 264.
Webb V. Russell, 71.
Westcomb, Midland Coun-
ties Railway Co. v. 264.
Whichcote, Bartram v. 241.
Wilkins v. Fry, 124.
Williams v. Burrell, 66.
Williams, Price v. 95.
Wilson V. Bennett, 264.
Wolstenholme, Titley v. 264.
Woodgate, Bingham v. 81.
Woolcombe, Thorn v. 71.
Wootley V. Gregory, 71.
Wortham v. Dacre (Lord),
264.
INTRODUCTION.
THE obiect of the First Edition of the pre- object of
-.TT 1 • '^'^ work.
sent Work was to take the opportunity, sug-
gested by the " Act to simplify the Transfer
of Property " (a), of submitting to the Profes-
sion some Precedents of Assurances, of more
concise form and language than those in or-
dinary use. Not that the Act necessitated
any considerable change in the forms of as-
surances, but because it seemed desirable to
follow up the proceeding of the Legislature
with such assistance as the Profession could
of itself afibrd ; and it appeared to the Au-
thor, that, as the compiler and editor of a
Collection of Precedents, which had been
marked by the approbation of the most emi-
nent conveyancing counsel, he might, without
impropriety, take upon himself the office of
endeavouring to simplify the forms hitherto
in use for the transfer of Property. The at-
tempt was very favourably received by the
(a) 7 & 8 Vict. c. 70., infi-a, p. 10, n.
INTRODUCTIOX.
Profession; but the Act to which the first
edition of the work had reference having been
repealed, and a new statute passed in lieu of
the repealed Act [a), it became necessary, in
the second edition, to remodel some of the
Precedents, and to make alterations in the
greater number of them ; and also to intro-
duce the new Act, with a few notes and ob-
servations upon its enactments. The sub-
sequent and present editions have been
revised throughout, and some remarks and
reported cases added, particularly on the Act
for the Cesser of Attendant Terms.
The work contains no experimental or
fanciful Precedents, and is confined wholly
to the object of simplifying the forms in com-
mon use, and retrenching their redundant
expressions. It is believed, that nearly every
Precedent in the book will (when the parcels
are of moderate length) be contained in a
single skin, and that hardly any will exceed
.two; but it must at the same time be borne
in mind, that (except in those cases in which
(a) The reasons for the repeal of the first, and for the
provisions of the second Act, will be found very cle.arly
and happily expressed in a letter, addressed by Mr. Bel-
lenden Ker to the Lord Chancellor, and which Mr. Ker
kindly allowed the Author to publish in the present
woi-k, see infra, p. 10. The reader will, no doubt, concur
with the Author in thanking Mr. Ker for the permission.
INTUODUCTIOX.
tlie Amendment Act has authorised an alter-
ation) the Precedents differ in no material
respect from those which have been long and
constantly used by the Profession (a).
The principal points in which the Prece- Dei-anure
L i- i- 111 from the
dents in this Collection differ from the old old Forms.
Forms are as follows: —
The Reference to a Lease for a Year, or to
the Statute dispensing with a Lease for a
Year, and the Limitations to Trustees to pre-
serve Contingent Remainders, are omitted.
These changes depend on the Amendment
Act, sects. 2 and 8 ; they are not compulsory,
but have, from their convenience, been gene-
rally adopted.
All Unnecessary Recitals have been dis-
pensed Vfith: thus, in a simple conveyance,
mortgage, or settlement by a person seised
in fee, the recitals of his seisin and of the
contract have been omitted, and the opera-
tive part immediately follows the parties.
The statement of a Nominal Consideration
has also been omitted. It was originally in-
(a) In the Appendix will be found two Acts which
were introduced by Lord Brougham, and passed into
laws, but have never been acted on. It is doubtful
whether the theoiy upon which these Acts are framed
can by any degree of skill be made available for prac-
tical purposes to any important extent.
b2
INTRODUCTION.
troduced to render a conveyance of freehold
estate capable of taking effect as a bargain
and sale, if it failed of its proper effect, and
was then absurdly aj)plied to every species
of assurance of every kind of property. It
never was of the slightest use, except in a
bargain and sale inroUed, and in the creation
of a term by the owner of a freehold estate,
since in no other case could the deed operate
as a bargain and sale for want of inrolment ;
and if it could have so operated, it would, in
many cases, have frustrated the intention, by
vesting the legal estate in the bargainee, and
converting the uses into trusts. The nominal
consideration has been of late generally dis-
used, and will, no doubt, be soon universally
discarded.
The Real Consideration is described sim-
ply as £ , without the idle addition of its
being lawful money of the United Kingdom,
or the hke.
The Operative Words are used in the pre-
sent tense only. The custom of giving them
in the past tense arose from the ancient mode
of conveyance by livery of seisin, with a
subsequent charter of feoffment to preserve
evidence of the livery. The charter wit-
nessed, that the feoffor " hath enfeoffed,
given, or granted,'' and generally added
"and by these presents hath confirmed,"
INTRODUCTION.
(West's Symbolography, edit. 1615, sect. 238
et seq. ; 2 Bl. Comm. App. No. 1), wliicli was
a true and reasonable form. In the modern
form, in which the conveyance is by the deed
itself, the insertion of the words in the past
tense is mere nonsense, and has of late been
commonly dispensed with. The word "re-
lease " has not been retained as the general
operative word of conveyance of freeliolds,
because its use arose from the lease and re-
lease being the ordinary mode of conveyance,
and is no longer applicable, now that the re-
ference to the lease for a year and to the sta-
tute dispensing with it are alike done away
with. The operative word ordinarily used
throughout the book for the conveyance of
freeholds is "gi-ant,'' with the addition of
"confirm" and "release" when really appro-
priate. "Grant " is used as being not only
the word of most ancient use in English con-
veyances, and in itself expressive and appro-
priate («), but also as being the most strictly
technical and appropriate word under the
(a) The old but unfounded notion of " gi-ant " imply-
ing a warranty or covenant, (1 Davidson's Precedents in
Conveyancing, 2ud edit. pp. 72, 104 ; Hinde v. Gray, 1 M.
& Q. 195), and being, therefore, an improper word for
trustees, mortgagees, or the like, to convey by, is of
course at an end. (See the Amendment Act, s. 4). ""
INTRODUCTION.
present Act (Sect. 2). For chattels real
and personal the word " assign '' is the only
operative word employed, except when cir-
cumstances render "comfirm" or "release" ap-
propriate. In appointments, of course, such
operative words are used as the powers re-
quire ; and, for married women, the statutory
expression (3 & 4 Will. 4, c. 74, s. 77) " dis-
pose of " is coupled with " grant," or any
other which appears ai3propriate to the case.
The Parcels in the Precedents are uni-
formly described by reference to a schedule
and map, that being much the clearest as well
as the shortest mode of description, and one
which the parochial maps and schedules made
for the commutation of tithes have rendered
the most common and very easily attainable.
In those cases, however, in which this mode
of description is not attainable, the parcels
can be introduced into the body of the deed
in the old form, without any other alteration
than omitting the reference in the Precedent
to the map and schedule.
The General Words have been very greatly
abridged, by omitting for the most part the
enumeration of particulars. It is much to
be desired that the Legislature may enable
conveyancers to dispense with them altoge-
ther, by enacting, in the language of the ge-
neral words themselves, that all the things
INXnODUCTION.
they specify, and all other rights, easements,
and appurtenances, whether strictly appur-
tenant, or appurtenant only by reputation or
enjoyment, shall pass by the conveyance of
the property itself. At present, indeed, there
is no question but that what is strictly appur-
tenant in law will so pass ; but there are so
many rights and easements which are not
strictly appurtenant in law, but are only ap-
purtenant by reputation and enjoyment, that
the general words in a modified shape must be
retained (a).
The clause called the "All the Estate"
clause has been retained (although in a very
abridged shajie), to meet those cases in whicli
the conveying party has a term of years, or
some other interest in the property distinct
from his estate which appears in the deed,
and which might be held not to pass except
by virtue of this clause. In ordinary cases,
however, the clause may be safely omitted.
The clause called " And the Reversion "
(a) In one of tho Acts mentioned (supra, p. 3, n.) to
have been introduced by Lord Brougham, (8 & 9 Vict.
c. 119), there is a clause (sect. 2) intended to supersede
general words in conveyances under that Act ; but the
provision does not meet the real defect as to things re-
puted to be, but not actually, appurtenant, and, being
confined to conveyances in pursuance of that Act, is not
of any general use.
INTRODUCTION.
&c., has been dispensed with : it was wholly
useless, and has of late been much disused
in practice.
The only words used in the Habendum are
" To hold ; " and in mortgages the old form,
" subject to the proviso for redemption here-
inafter contained,'' is omitted. The expres-
sion "hereinbefore granted [or "assigned"
or " demised "], or expressed and intended so
to be," and similar expressions, are omitted,
except where the omission might occasion am-
biguity. The expressions in question should
only be used where it is necessary to distin-
guish the property conveyed &c., from some
other property ; and even then the words " or
expressed and intended so to be " may, for
the most part, be safely omitted.
In limiting^ Powers no restriction has been
imposed on their exercise, except that it shall
be by deed. The restriction, formerly almost
universal, and still common, that it shall be
by deed, "sealed and delivered in the pre-
sence of, and attested by, two or more cre-
dible witnesses," is troublesome and useless,
and sometimes renders nugatory the intend-
ed execution of a power, by an omission to
comply with an unmeaning form. The re-
striction to the exercise by deed is proper to
preclude the power from being exercised by
a mere letter or note in writing, penned with-
IXTltODUCTlON.
out due consideration, and Avithout that ge-
neral form which tlie law considers necessary
for the conveyance of estates.
In framing Covenants, the word "cove-
nant " only is used ; and the covenants for
title have been most materially shortened.
The PoAver to appoint New Trustees and
the other powers have also been very much
shortened, without, it is believed, impairing
their efficiency; and, generally speaking, re-
dundancies of expression have been cut off.
It is, of course, to be borne in mind, that
so small a work as the present can offer but a
very limited variety of Precedents, and those
only of the simplest assurances ; but the
examination of these Forms will enable the
draftsman readily to shorten and simplify
other assurances, or those parts of them
which admit of being shortened and simpli-
fied.
The Author has much pleasure in repeat-
ing his thanks to his friend T. C. Wright,
Esq., of Lincoln's Inn, for his valuable and
efficient assistance in revising the Prece-
dents.
b3
10
LETTElt FROM H. BELLENDEN KER
Letter from H. Bellenden Ker, Esq., addressed
to the Lord Chancellor.
" My Lord,
" In compliance witli your Lordship's direction,
I liave, in conjunction with Mr. Hayes and Mr.
Christie, revised the Act passed in the last session
' For simplifying the Transfer of Property ' (a).
{a) 7 & 8 VICT. c. 76.
Ax Act to simplify the Tkaxsfeb of Propertt*.
\_Royal Assent, 6th August, 1844.]
Foe simplifying the assurance of property by deed, Be
it enacted by the Queen's most excellent Majesty, by and
with the advicfe and consent of the Lords spiritual and
temporal, and Commons, in this present Parliament as-
sembled, and by the authority of the same, as follows :
(that is to say),
DEFINITIONS.
I. That the words and expressions hereinafter men-
tioned, which in their ordinary signification have a more
confined or a different meaning, shall in this Act, except
where the nature of the provision or the context of the
Act shall exclude such construction, be interpreted as fol-
lows: (that is to say), the word "land" shall extend to
manors, advowsons, messuages, lands, tithes, tenements,
and hereditaments, whether corporeal or incorporeal, and
to any undivided share thereof, and to any estate or inter-
est therein, and to money subject to be invested in the
Freehold." purchase of land or any interest therein; the word " free-
hold" shall extend to customary freehold, or such custom-
ary land as Avill pass by deed, or deed and surrender, and
* The marginal notes huve been altered, as those in the printed
copies were not iu all respects correct.
Meaning nf
words de-
fined.
Laud,"
TO THE LORD ClIANX'ELLOR. 11
Though most of the various objects which that
Act embraces areof a pi-actical and beneficial char-
not by surrender alone; the word "conveyance" shall " Convey-
extend to a feofFincnt, grant, release, surrender, or other ^^^''■
assurance of freehold limd; the word "person" shall ex- "Person."
tend to a corporation as well as an individual; and every
word importing the singular number only shall extend Number
and be applied to several persons or things as well as to
one person or thing; and eveiy word importing the mas-
culine gender only shall extend and be applied to a female
as well as a male.
CONVEYANCE OF FREEHOLD LAND.
II. That every person may convey by any deed, with- Frceholrl
out livery of seisin, or inrolment, or a prior lea.se, all .suuh be cou-
freehold land as he might before the passing of this Act ^'^J'tci by
° I o deen, with-
liave conveyed by lease and release; and every such cou- out livery
veyance shall take effect as if it had been"'macle Ijy lease orinro"'
and release : Provided always, that every such deed shall nient. or a
be chargeable with the same stamp duty as would have
been ch;u'geable if such conveyance had been made by
lease and release.
PAKTITIONS, EXCHANGES, ETC.
III. That no partition, or exchange, or assignment of Partitions,
any freehold or leasehold land shall be valid at law, unless exchanges,
' ' and as-
the same shall be made by deed. sigiiments
to be by
deed.
LEASES AND SURUENDEKS.
IV. That no lease in writing of any freehold, copyhold. Leases and
/.ii surrenders
or leasehold land, or sun-ender in writing of any freehold in writii.g
or leiisehold land, shall be valid as a lease or surrender ^^.^j ^
unless the same shall be made by deed; but any agree-
ment in writing to let or to surrender any such laud shall
be valid, and take effect as an agi-eement to execute a lease
or surrender; and the person who sh.iU be in the posses-
12 LETTER FROM H. BELLENDEN KER
acter, and ought to be included in any compre-
hensive scheme for ameliorating the law of pro-
sion of the land, in pursuance of any agreement to let,
may, from payment of rent or other circumstances, be
construed to be a tenant from year to year.
EXECUTORY AND FUTURE INTERESTS.
Uoutiugent, V. That any person may convey, assign, or charge by
un(f future '^"y ^^^^ ^"^ ^"^'^ contingent or executory interest, right
interests of entry for condition broken, or other future estate or
conveyed interest as he shall be entitled to, or presumptively enti-
by decrl. ^j^^j ^^^ jjj g^jjy fi-eehold, or copyhold, or leasehold land, or
personal property, or any part of such interest, right, or
estate respectively ; and every person to whom any such
intei'est, right, or estate shall be conveyed or assigned,
liis heirs, executors, administrators, or assigns, according
to the nature of the intei-est, right, or estate, shall be en-
titled to stand in the place of the person by whom the
same shall be conveyed or assigned, his heirs, executors,
administrators, or assigns, and to have the same interest,
right, or estate, or such part thereof as shall be conveyed
or assigned to him, and the same actions, suits, and reme-
dies for the same, as the person originally entitled thereto,
his lieirs, executors, or administrators would have been
entitled to if no conveyance, assignment, or other dispo-
sition thereof had been made: Provided, that no person
shall be empowered by this Act to dispose of any expect-
ancy which he may have as heir, or heir of the body in-
heritable, or as next of kin, under the statutes for the
distribution of the estates of intestates of a living person,
nor any estate, right, or interest to which he may become
entitled under any deed thereafter to be executed, or un-
der the will of any living person, and no deed shall by
force of this Act bar or enlarge any estate tail : Provided
also, that no chose in action shall by this Act be made as-
signable at law.
TO THE LORD CHANCELLOR. 13
perty, yet the apparent inexpediency of some of
its proviiiions, except, perhaps, as pai'ts of sucli
WAURANTY OR COVENANT.
VI. That neither the word "grant" nor the word "ex- No implied
wurTiiuty
change," in any deed, shall have the effect of creating any (,r cove-
warranty or right of re-entry, nor shall either of such ^^^^^^^ ^°
words have the effect of creating any covenant by im- by "grant"
plication, except in cases where by any Act of Parliament change."
it is or shall be declared that the word " grant" shall have
such effect.
WRONGFUL CONVEYANCE.
VII. That no conveyance shall be voidable only when No wrong-
•' 1 u *^"' convey-
made by feoffment or other assurance, where the same ance to be
would be absolutely void if made by release or grant ; and ^^^'J^^
that no a-ssurance shall create any estate by wrong, or
have any other effect than the same would have if it were
to take effect as a release, surrender, grant, lease, bargain
and sale, or covenant to stand seised, (as the case may
be).
CONTINGENT REMAINDERS.
VIII. That, after the time at which this Act shall come Contin-
into operation, no estate in land shall be created by way maindera
of contingent remainder; but every estate which before ^^^^^^^[^
that time would have taken effect as a contingent remain- take effect
der shall take effect (if in a will or codicil) as an executory '^.^ry'de-"'
devise, and (if in a deed) as an executory estate of the vises or
' ^ . est:»tes,
same nature and having the same properties as an execu- ^nd exist-
tory devise; and contingent remainders existing under g"^j'^7e-"^'
deeds, wills, or instruments executed or made before the mainders
time when this Act shall come into operation, shall not ^y the '
fiiil. or be destroved or barred, merely by reason of the destruction
' •' ' ./ ^ • J o"" merger
destruction or merger of any preceding estate, or its de- of tlie pro-
termination by any other means than the natural eflauxiou ^ate."^ ^"
of the time of such preceding estate, or some event on
whicTi it was in its creation limited to determine.
u
LETTER FKOM H. BELLENDEN KER
a scheme, and the confessedly imperfect frame of
others, induce us to recommend, as the clearest
Executor
or adminis-
trator of
mortgagee
empowered,
oil payment
of the
mortgage
money, to
convey tlie
legal estate
vested iu
the heir
or devisee.
Receipts
of trustees,
and of the
survivor
or survi-
vors of two
or more
mortga-
gees, to be
effectual dis-
charges.
Indenting a
deed unne-
cessary.
EXECUTOB OR ADMINISTRATOR OF MORTGAGEE.
IX. That, when any person entitled to any freehold or
copyhold land by way of mortgage has or shall have de-
parted this life, and his executor or administrator is or
shall be entitled to the money secured by the mortgage,
and the legal estate iu such laud is or shall be vested in
the heir or devisee of such mortgagee, or the heir, devisee,
or other assign of such heir or devisee, and possession of
the laud shall not have been taken by virtue of the mort-
gage, nor any action or suit be depending, such executor
or administrator shall have power, upon payment of the
principal money and interest due to him on the said
mortgage, to convey by deed or surrender (as the case
may require) the legal estate which became vested in such
heir or devisee; and such conveyance shall be as effectual
as if the same had been made by any such heir or devisee,
his heirs or assigns.
RECEIPTS OF TRUSTEES AND MORTGAGEES.
X. That the bona fide payment to, and the receipt of,
any person to whom any money shall be payable upon
any express or implied trust, or for any limited purpose,
or of the survivors or survivor of two or more mortgagees
or holders, or the executors or administrators of such sur-
vivor, or their or his assigns, shall effectually discharge
the person paying the same fi-om seeing to the applica-
tion, or being answerable for the misapplication thereof,
unless the contrary shall be expressly declared by the in-
strument creating the trust or security.
INDENTING A DEED.
XI. That it shall not be necessary in any case to have
a deed indented; and that any person not being a party to
any deed may take an immediate benefit under it, in the
same manner as he might under a deed poll.
TO THE LOUD CHANCELIOR. 15
and safest coui-se, that tlie Act should be wholly
repealed, and the clauses of which the policy is
unexceptionable be re-enacted in a different foi-m.
" We are quite sensible of the difficulty and
danger attending any attempt at legislation on
RENT AND COVENANTS IN A LEASE.
XII. That, where the reversion of any land, expectant Tlie reme-
. ,, , ■■ ■ • 1 ii- dies for
on a lease, shall be merged in any remainder or other re- ^■^^Q rent
version or estate, the person entitled to the estate into '^"^,g°j^'
which such reversion shall have merged, his heirs, execu- a lease not
tors, administrators, successors, and assigns shall have and tinguished
eniov the like advantage, remedy, and benefit against the by the
•'•' ° '' ... J mercer of
lessee, his heirs, successors, executors, administrators, and the imme-
assigns, for non-payment of the rent, or for doing of waste ^^^^ rever-
or other forfeiture, or for not performing conditions, cove-
nant.^, or agreements contained and expressed in his lease,
demise, or grant, against the lessee, farmer, or grantee,
his heirs, successors, executors, administrators, and as-
signs, as the person who would, for the time being, have
been entitled to the mesne reversion which shall have
merged, would or might have had and enjoyed if such re-
version had not been merged.
COMMENCEMENT OF ACT.
XIII. That this Act shall commence and take effect Act to com-
from the thirty-first day of December, one thousand eight °g^°°^ j^"
hundred and forty-four, and shall not extend to any deed, existing
, , . , L c 1 contingent
act, or thing executed or done, or (except so tar as regards remaindei-s,
the provisions hereinbefore contained as to existing con- ^^^ ^l^st^
tingent remainders) to any estate, right, or interest cre-
ated before the first day of January, one thousand eight
hundred and forty-five.
EXTENSION OF ACT.
XIV. That this Act shall not extend to Scotland. Act not to
extend to
Scotland.
16 LETTER FROM II. BELLENDEN KER
detached points of a complicated system, especially
where the proposed changes tend to contradict
principles on which that system is based ; and we
have, therefore, approached the subject not with-
out considerable diffidence. The conviction, that
such partial remedies cannot be too cautiously
applied, has induced us to review the Act with
the intention, first, of confining it to points which
may safely admit of being thus separately treated,
and secondly, of legislating upon those points
with gi-eater accuracy and perspicuity. But, al-
though we have prepared the bill now submitted
to your Lordship, after the merits and defects of
the existing A.ct had been amply discussed by the
Profession, it is yet very possible that we may
have failed, either to select for omission the ob-
jectionable portions only, or to enhance, by alter-
ations in arrangement and expression, the practical
value of the rest. The result, indeed, of some
recent statutes has shewn that the most elaborate
enactments differ from the least accurate only in
the degree of help which they i-equire from ju-
dicial exposition,
" There are two sections of the Transfer Act
which it is proposed altogether to omit : —
" 1st. The ninth section, enabling the exe-
cutor or administrator of a mortgagee
to convey the legal estate outstanding
in his real representative,
" 2ndly. The tenth section, enabling tnistees
and others to give discharges for monies.
TO THE LORD CHANCELLOR. 17
" 1st. As regards the uintli section, which pro-
vides for the conveyance of a mortgaged estate by
the executor or administrator of the mortgagee,
the design is good ; but it is so imperfectly carried
out by tlie very limited teiTns of the enactment,
that practically the power is attended with very
little real advantage. It is necessary, for the pui--
poses of title, to ascertain that possession has not
been taken, that no action or suit is pending, and
that the legal estate is vested in the real repre-
sentative of the mortgagee ; for a mere negative
allegation of these facts in the deed of convey-
ance would not satisfy a purchaser. But it is
obvious that the necessity of proving these facts,
and particularly the fact of the legal estate being
vested in the real representative (the very diffi-
culty often being that the heir is unknown), de-
stroys, in a great measure, the utility of the enact-
ment. The clause, besides, authorises a convey-
ance only on actual payment to the executor or
administrator of the whole debt ; not extending
to a conveyance on part payment, or a convey-
ance under any arrangement for exonerating the
whole or part of the lands without payment, nor
to cases where the money has been paid in the
moi-tgagee's lifetime, or the executor has received
the money at a former period, or has assented to
a bequest of, or has assigned, the debt. And,
moreover, as the power — a bare statutoiy autho-
i-ity — is not conferred on the pro^ojig executor
alone, it might be considered (though not, we
18 LETTER FROM H. BELLENDEN KER
think, on a just view of the provision) necessary
to its clue execution, that an executor who had
not proved, or had even renounced the probate,
should join — a possible construction, which would
not only narrow still further the range of the
power, but probably implicate many titles depend-
ing on the contrary assumption. Another more
material objection arises from the want of a pre-
cise definition of what shall, for the purposes of
the Act, be considered as falling within the term
' mortgage,' — a term which, taken according to
its strict legal acceptation, would exclude a large
proportion of the transactions comprehended un-
der the popular meaning of that term, and clearly
within the mischief sought to be remedied by the
clause in question. Such a definition should, there-
fore, be given as would extend the benefit of the
enactment to all cases where, according to the
rules of a court of equity, a party is entitled to
call for a conveyance of any property, pledged or
charged as a security for money, on satisfaction of
the debt ; whether the security be in the form of
a mortgage, to which the right of foreclosure ia
incident, or of a conveyance to the ci'editor or his
trustee upon trust to sell, or in any other form
whatever. Some method, too, more satisfactory
than the use of such terms as ' his executor or
administrator,' should be devised for ascertaining
the person by whom, in every possible state of
circumstances, the act is to be performed; for it
is only by the expression of a rule of law in gene-
TO THE LORD CHANCELLOR. 19
ral and comi)relieusive temis, that tliere can be
any reasonable hope of attaining completeness or
certainty. Then, as regards the principle involved
in this section of the Act, if it be fit that a mort-
gagee's executor or administrator (who, after being
paid in full, has no further interest in the matter,
and -who, as he might, be it observed, have re-
covered the debt although unable to make or pro-
cure a re-conveyance of the estate, may refuse to
exercise the statutory power, vested in him as a
mere instrument for the convenience of others,)
should be enabled by his act to denude the heir
or devisee of the legal estate and vest it in the
mortgagor or his nominee, it must, a fortiori, be fit
that the unpaid executor or administrator shouhl
be enabled to command the legal estate ^/br the
purposes of the security and the better admini-
stj'ation of that portion of the assets of his tes-
tator or intestate. It can hardly be contended
that the equity of the executor or administrator
to have the full benefit of the unsatisfied and for-
feited mortgage is not as strong and as urgent, at
least, as the equity of the mortgagor to have the
full benefit of the redemption. In each case the
same pi-iuciple a^jplies ; and that principle, fairly
carried out, would require that every person en-
titled to call for the legal estate should be enabled
to obtain it with as little dilliculty and expense
as may be consistent with safety to the rights of
parties, and with the maintenance of the distinc-
tion between the jurisdictions of law and equity.
20 LETTER FROM H. BELLENDEN KER
In the actual state of the law, there are three
modes by which a party equitably entitled may
get in the legal estate : — 1st. By obtaining — often
at a great expense — often on imperfect evidence,
which leaves the title, open to question — a con-
veyance from the party in whom, the estate is
actually vested, if competent and willing to con-
vey it. 2ndly. In certain cases of incapacity, ab-
sence, or refusal, by the still more costly remedy
of an order of the Court of Chancery, made on a
summary application by petition, pursuant to the
Acts relating to infant trustees, &c. ; but which
application involves a reference to the Master,
with all its consequences. Srdli/. In cases not
within those Acts, (which are crippled by many
unnecessary exceptions), at a still greater expense,
by means of a suit in equity regularly instituted.
Now all the cases to which the above Acts extend
fall within the principle of the power in question
enabling the executor or administrator of a mort-
gagee to convey; and that principle once admit-
ted should be adopted to its fullest extent, unless
it can be shewn that its general adoption would
be productive of inconvenience. But if the gene-
ral power were so framed as to make its exercise
dependant on the fact of the right in equity to
call for the legal estate being really in the party
who makes the disposition, no undue advantage
would be obtained, while the title would be re-
lieved from the necessity which at present exists
of proving that the legal estate is vested in the
TO THE LORD CnANCELLOR. 21
party by whom (or by whose substitute) it is as-
sumed to be conveyed. Having arrived at the
conclusion that a free, yet well-considered appli-
cation of the principle already admitted by the
Legislature is of the very essence of a wise and
just amendment of the law of real property, no
attempt has been made to fit the existing clause
to the particular case at which it is aimed. If,
however, it should be deemed exjjedient to make
a jiartial apj)lication of the principle — to amend
the law by engrafting upon it an anomalous pro-
vision — the ninth section of the Transfer Act may
be so modified as to attain more perfectly the very
limited objects of its framers. Though these ob-
servations are applied to outstanding legal fees,
yet the mischief extends to outstanding terms
of years, whicli, notwithstanding all the remon-
strances of the Profession and the practical ex-
amples afforded by every Railway Act of the sum-
maiy abatement of those nuisances, remain to this
day a fertile source of expense, difficulty, and de-
lay, in the deduction of titles to real estate (a).
" Mildly. As regards the tenth section, which
enacts that the payment to, and the receipt of,
any person to whom any money shall be payable,
on any express or implied trust, shall be a dis-
charge, it is conceived that it never could have
been in the contemplation of the framers of the
Act to render in equity the receipt of the person
(o) See, however, now the Act 8 & 9 Vict. c. 112, infra,
p. 88.
22 LETTER FROM H. BELLEKDEN KER
entitled at law under every trust whatsoever
(whether merely implied or otherwise) an effec-
tual discharge to the party paying. The effect of
this new ride, if carried to its fullest extent, would
be to alter essentially one of the most important
px-inciples of a coui*t of equity. It is conceived
that the ride was intended to remedy an incon-
venience of a much narrower extent. In equity
the person beneficially entitled is the person to
concur in dix'ecting the payment to the trustee,
except where the cestui que trust is unascertained
' or incompetent, or where there is some trust shew-
ing that the trustee was to have the money at
his disposal for a particular purpose, (as that of
re-investment, &c.), or where there is an express
declaration absolving the pei-son paying from see-
ing to the disposition of the money. The rules
as to the liability of a party paying money to a
trustee, without the concurrence of the cestui que
trust, to see the money duly applied, have varied,
and are not yet precisely defined. To avoid any
question, it has been usual to accompany a trust
for sale, &c., with a declaration that the receipt
of the trustee shall be a sufficient discharge. This
occasionally is omitted, and thence a difficulty,
may arise, either iu ascertaining whether the party
paying is or is not bound to see to the ultimate
disposition of the money, or in procuring the con-
currence of the party entitled, who may be abroad,
&c. The evil goes to this extent only; but the
remedy is far more extensive, and is one which a
TO THE LORD CHANCELLOR. 23
very slight consideration will shew the danger of
adopting. There can be no question but that it
would be desirable to supply a fit remedy, by
carefully ascertaining the state of the law as re-
gards any discrepancies or uncertainties, and re-
moving them ; and so to extend the rule as to
obviate all practical inconvenience. Perhaps a
rule which, with some modifications, should give
every trustee having an express power to sell or
raise money an authority to give a I'eceipt for it,
would be advisable. And such a mle would be
consistent with the 30th Order in Chancery, which
renders it unnecessary to make the cestui que
trusts parties to a suit whex'e there are trustees
competent to sell and give receipts ; but if the
clause as it stands in the Act were to remain, it
would of necessity lead to an alteration of the prac-
tice ; and in all cases whei-e there was a trustee of
money, under any trust direct or im])lied, it would
become unnecessary to make the persons interested
parties. The remainder of the section refers to
the receipts of the survivors of mortgagees being
effectual discharges. Similar objections apply to
this branch of the clause. Trustees often lend
money on mortgage, and take the security to
themselves as joint tenants, not noticing the trusts
in the deed ; but generally there is inserted a
declaration that the receipt of the sxirvivor shall
be a discharge, thus negativing the equitable te-
nancy in common. When this declaration is
omitted, and a trustee dies, it becomes necessary
24 LETTER FROM H. BELLENDEN KER
to shew the trust of the money, and the power of
the surviving trustees to give a receipt for it ; and
this evidence becomes part of the mortgagor's
title. It was to remove this inconvenience that
the clause was framed; but it goes far beyond the
evil in question, by making the receipts of the
survivor of all mortgagees who are at law joint
tenants sufficient. Now in practice many persons,
not trustees, <fec., take securities in joint tenancy;
and it would seem very inexpedient thus to re-
peal generally the salutaiy equitable rule as re-
gards these securities, and to allow the survivor
to possess himself of the whole funds, without the
concurrence of the representatives of the other
equitable tenant in common. Supposing, however,
that this part of the clause is retained, the expres-
sion of the rule in the statute being inaccurate,
it would require considerable altei-ation.
" As these two sections involve great and ex-
tended alterations of the law, without supplying
any complete or careful expression of the rules,
it has been thought necessary to explain at length
the reasons for omitting them from the proposed
bill (a).
" In the preparation of this bill very little more
has been attempted than a re-enactment, in terms
more precise and apt, of the clauses of the existing
(a) The " proposed bill " referred to in thie letter is
now the Act 8 & 9 Vict. c. 106, infra, p. 82.
TO THE LORD CHANCELLOR. 25
Act. If it had not been considered expedient to
confine the present bill to a re-enactment of the
clauses of that Act, except as'above stated, and if
there had been sufficient time, it is conceived that
much advantage might have been derived from
enactments which would remove many of the in-
conveniences arising from tlie present state of the
law relating to the ti-ansfer of property. There
are many points in addition to those relating to
outstanding legal estates already adverted to, as
to which enactments might be framed calculated
to effect a great diminution of expense in tracing
titles. The whole law relating to judgments is
very confused and obscure ; and the law i-elating
to covenants might be altered with advantage. A
reference to the i-eports of the Real Property
Commissioners will fully prove that much yet re-
mains to be done towards simplifying the trans-
fer of and removing various difficulties relating
to the evidence of the title to real property. Z'
" It is now proposed to add some observations
on the remaining provisions of the Ti-ansfer Act,
and some explanation of the views with which the
provisions intended to be substituted by the pro-
posed bill have been framed.
" As to sect. 2 of the Transfer Act, and also
of the proposed bill. — An oversight, to which we
think undue importance has been attached, has
rendered this chiuse a nullity for practical pur-
■ poses. A doubt existed whether a lease or bargain
0(; LETTER FROM H. BELLENDEN KER
and sale foi- a year, on Avhicli a release is founded,
is chargeable with progressive stamp duty. The
better opinion probably is, that the duty is not
chargeable ; but it had become the general prac-
tice to pay the progressive stamp duty. By the
act of the fourth of Victoria, cap. 21, dispensing
with a lease for a year, it was provided that the
release should be chargeable with the lease-for-a
year stamp duty, (other than the progressive duty),
thus giving a kind of legislative sanction to the
practice which had obtained. By the second sec-
tion of the Act of last session, a deed, which, with-
out more, was thereby made to operate as a con-
veyance of the immediate freehold in land, was
charged 'with the same stamp duty as would have
been chargeable if such conveyance had been made
by lease and release.' It was suggested, but we
think erroneously, that this enactment required
that the progressive duty which would have been
chargeable on a lease for a year was chargeable
upon the deed deriving its validity from the Act;
and this having been generally adopted, while
there was no measure of the amoiintof such duty,
(which depended on the length of an instrument
which did not exist), it has become the general
practice to entirely abandon this clause of the Act,
and accordingly conveyances to which it would
have been applicable are now made under the
Lease and Eelease Act of the fourth of Victoi'ia.
This section has been the subject of much criti-
cism and discussion ; and it must be admitted, that
TO THE LORD CHANCELLOR. 27
it is not conceived or expressed with that atten-
tion to })rincii)le and that exactnesswhicli ought to
characterise an enactment on the subject to whicli
it relates. When it is said, that ' any person may
convey by any deed, without livery of si.'isin or
inrolment, or a prior lease,' it seems to be assumed
that there is in law some standard instrument by
which, with the addition of any of the above con-
comitants, the immediate freehold in lands may
be conveyed ; but there is, in fact, no such instru-
ment in law. There are (besides a covenant to
stand seised) three several assurances adapted to
convey it, viz. feoffment, bargain and sale im-olled,
and lease and release, all founded on different
principles, differing in their modus operandi, and
having an important difference in their effects.
If the deed of conveyance established by the
Transfer Act be a new statiitory assurance, which
is neither a feoffment, nor a bargain and sale, nor
a lease and i-elease, it is merely nugatory to pro-
vide that such assurance shall be effectual * with-
oiit livery of seisin, inrolment, or prior lease,' for
the forms or solemnities in question have not the
slightest significance Avith reference to such a con-
veyance : while if, on the other hand, it be con-
sidered that the framei-s did not intend to intro-
duce any new assurance, but only to exempt the
existing assurances from useless and troublesome
forms, the inattention to principle in the structure
of the section is equally apparent ; for it is not
clear that it Avould not be necessary to attribute
2S LETTER FROM H. BELLENDEN KER
to the assui'ance the character either of a feoff-
ment without livery, or a bai'gain and sale with-
oiit inrolment, or a release without a lease for a
year; and there seem to be no means of ascertain-
ing to which of the tliree kinds of assurance the
conveyance under the Act would belong. The
only point on which the Act can be pronounced
clear is, that the assurance, if a l^argain and sale,
shall operate by transmutation of possession, that
is, have the like effect in transferring the legal
seisin as a common-law assurance would have had,
contravening in this respect an established con-
struction of the Statiite of Uses, without any other
necessity than that which is imposed by the form
of the enactment. A further objection is, that it
seems to be assvimed that livery of seisin has the
same reference to a charter of feoffment which in-
rolment has to a bargain and sale, the fact being,
that livery of seisin is the essence of a feoffment
of which the charter is only the evidence, while
the bargain and sale is the assurance, to the efficacy
of which the foi'm of inrolment' was made neces-
sary by a subsequent statute. The general object
of sect. 2 of the proposed bill is the same with
that of the corresponding section of the Transfer
Act, namely, to give to all freehold lands in pos-
session the capacity of being transferred without
any of those forms or solemnities which occasion
expense and trouble, but have no essential con-
nexion with the act of transfer. A lai'gc class
of freehold hereditaments is, by the existing law,
TO TUE LORD CIIAKCELLOR. '^^
and has, from the remotest antiquity, been, invest-
ed witli this capacity to the extent of being trans-
ferable by the observance only of those forms or
solemnities which are included in the execution
of an ordinary deed. The hereditaments so cii--
cum^tanced are technically said to lie in grant,
while the hereditaments to which the law has
hitherto denied the capacity of being transferred
by deed are technically said to lie in livery. It
has never been pi-oposed that the class of property
with which this section deals should be made
transferable by any mode less formal than a deed.
We have therefore considei-ed that the most direct
and the most simple means of obtaining the object
proposed is, to impart to corporeal hereditaments,
that is, to hereditaments which lie in livery only,
the capacity of being transferred by deed, by pro-
viding, that, 'as regards the conveyance of the
immediate freehold thereof,' they ' shall be deemed
to lie iu grant as well as in livery.' The effect of
the clause will be to render a reference to the
Lease and Release Act of the 4 & 5 Yict. c. 21,
unnecessary in the case of corporeal hereditaments
in England, and to dispense with a reference to
or recital of a lease for a year iu the case of cor-
poi'eal hex'editaments in Ireland.
" As to sects. 3 and 4 of the Transfer Act, and
sect. 3 of the proposed bill. — The third section of
the bill consolidates the third and fourth sections
of the Act, and extends the requirement of a deed
to the case of a feoffment. It is appi-ehended, that
LETTER FROM II. BELLENDEN KER
when tl)o solenniity of a deed was required for the
transactions to which these sections apply, the
case of a feoffment was not advisedly omitted. An
exception is necessarily inti'oduced as to a custom-
ary feoffment by an infant As the cases of such
feoffment are local and rare, and the power of
making them at all of doubtful expediency, and
at variance with the policy of the general law, it
did not seem advisable to remove the personal in-
capacity of the infant so as to enable him to make
a deed. The power for an infant of a certain age
to make a feoffment exists only under the custom
of gavelkind ; and should any change be made in
the law on this subject, it would perhaps be bet-
ter to take away the power of making such feoff-
ments, than to attempt improvements in the mode
of making them.
" As to sects. G and 7 of the Ti-ansfer Act, and
sect. 4 of the proposed bill. — The fovirth section
of the bill consolidates the sixth and seventh sec-
tions of the Act. The omi&"sion from the Act of
the word ' give ' (which has the like effect in im-
plying a warranty or covenaut in law, or indeed
a surer effect for that purpose than the word
'grant') was probably an oversight. The like
observation applies to the omission of ' partition,'
which is, to a considerable extent, in the same
predicament, with respect to the implication of a
warranty or condition in law, as an exchange.
The doctrine is not so prominently called into
notice in the case of partition as in the case of
TO THE LOUD CHANCELLOR.
exchange, because in the great majority of in-
stances the undivided share which a co-tenant
gives up in one jiortion of the land is held under
the same title Avith the undivided share which he
retains in the portion which he takes in severalty ;
and thus, in dealing with pi'opei'ty taken in seve-
ralty on a partition, the investigation of the title
to the undivided share given up occasions no ad-
ditional expense or trouble, being in fact involved
in the investigation of the title to the undivided
share retained. But though the practical incon-
venience of the implied condition is less in the
case of partition than in the case of exchange, yet,
as the inconvenience is the same in kind, and
the principle identical, it would be absurd in a
legislative measure to provide for the one case
and to omit the other. It is perhaps unnecessary
to observe that the seventh section of the Act,
which declares ' that no assurance shall create any
estate by wi-ong, or have any other effect than
the same would have if it were to take effect as
a release, surrender, gi'ant, lease, bargain and sale,
or covenant to stand seised,' has been understood
by some persons to deny effect to an assurance
made by way of appointment, and consequently
that this construction has occasioned some alarm
to jiarties having powers of appointment equiva-
lent, in point of dominion, to the fee, bu£ having
no power of alienation otherwise than by an exer-
cise of their power.
" As to sect. 1 1 of the Transfer Act, and sect.
31
32 LETTER FROM U. BELLENDEN KER
5 of the propoiged bill. — The first branch of the
eleventh section of the Act, declaring ' that it shall
not be necessary in any case to have a deed in-
dented,' appears open to the objection of ambi-
guity ; as, fii'st, it may mean that the act or cere-
mony of indenting need not be performed on the
material on which the intended instrument is
written, &c., and this meaning is in accordance
with the marginal note ; but then stich note is not
part of the Act, and cannot be used to construe it :
or, secondly, it may be merely descriptive, and
mean that it shall not be necessary in any case
to have an indenture. The terms descriptive of
an indenture in the Statute of Inrolments (27
Henry 8, c. 1 G) are, ' a writing indented, sealed,
and ini-olled in ' &c. It must be borue in mind
that the mode of conveyance by bargain and sale
inrolled has not been expressly abolished. Now,
suppose the time construction of this enactment
to be the cotastniction first suggested, and so ta
render the act of indenting unnecessary, then the
bargain and sale will necessarily be a writing
sealed and inrolled according to the Statute of
Inrolments, also signed in those cases in which
signature has been rendered necessary, but not
subjected to the act or ceremony of indenting :
on the other hand, suppose the other constiiiction
of this enactment to be the correct one, viz. that
it shall not be necessary in any case to have an
indenture, then this enactment is virtually an
abolition of the mode of conveyance by bargain
TO THE LOED CIIAN'CELLOR. 33
and sale, for the enactment is negative, and the
form of a statutable bargain and sale of a free-
hold interest would be unascertained and un-
ascertainable. The second branch of the eleventh
section of the Act declares that any person not
being a party to any deed ['not party to any deed
whatsoever' is the literal expression, though ob-
viously not the real meaning] may take an imme-
diate benefit under it [there really is not any-
thing to which this pronoim it relates], in the
same manner as he might under a deed-poll. The
few words interposed and bracketed in the pre-
ceding statement indicate some terms and expres-
sions which are very open to critical objection,
though not unintelligible. But the real and strong
objection to this second branch of the eleventh
section is, that it has not been framed with suf-
ficient regard to the qualities of precision and
caution. The general rule intended to be thereby
varied may be stated thus : viz. ' that a person
cannot, under an indenture purporting to be be-
tween pai-ties, be immediate grantee or be a cove-
nantee, unless such person be expressly named
among the parties.' The defect intended to be
cured was the omission to name the immediate
grantee or the covenantee among the parties to
the indenture, and the most obvious and sure
mode was to enact that the deed should operate
in regard to him as if he had been named among
the parties; but the enactment in question gives
the indenture effect by reference to a deed-poll.
c3
;U LETTER FROM H. BELLEKDEN KER
Now the effect of the indenture, supposing that
every person intended to be immediate grantee or
to be covenantee had been properly named among
the parties, either would be the same as the effect
of a deed-poll, with respect to the immediate grant
or the covenant in question, or else would be dif-
ferent. If the same, then tliere is a useless cir-
cuity of language and thought ; but if diflerent in
any possible case, then there is error. It is suffi-
cient to mention the subject of estoppel as one in
which the effect of an indenture differs from the
effect of a deed-poll. We propose by the fifth
section of the bill to effect, in a manner which
we hope to be both clear and safe, only that which
we suppose to have been tlie real meaning of the
eleventh section of the Act.
"As to sect. 5 of the Transfer Act, and sect. G
of the pi'oposed bill. — The sixth section of the
bill differs (besides the differences in form) from
the fifth section of the Act in the following parti-
culars :— ^Personal chattels are omitted, because
contingent interests in such chattels, being almost
invariably equitable, are already assignable in the
only way in which, from the nature of the sub-
jects, they are susceptible of assignment. In fact,
there seems to be no subject upon which an enact-
ment giving a power to assign a legal contingent
interest in personal chattels could operate. Had
the case been otherwise, we should not have con-
sidered it consistent with exact or methodical le-
gislation to mix up a detached point as to personal
TO THE LORD CHANCELLOR.
chattels in an Act relating to the transfer of real
estates. With respect to married women the ex-
isting Act makes no distinct provision, and the
general enactment, that any person may convey,
&c. ' by deed,' could not have been intended to
enable married women to convey contingent in-
terests without an observance of the provisions
respecting conveyances by married women of the
Statute for the Abolition of Fines and Recoveries.
We consider that a question might arise, whether
married women are included under this section,
and if included, whether their conveyances would
not be effectual without a compliance with the
provisions of the above statute. We have there-
foi-e directed in express terms that dispositions
by married women under the sixth section of the
proposed bill should conform to those provisions.
As the proposed enactment would not upon any
reixsonable construction extend to tlie expectan-
cies of heirs apparent or next of kin, or hoped-for
advantages from imexecuted instruments or the
wills of living pei-sons, we have abstained from
making an express exception of these matters ;
the addition of the exception would necessarily
render obscure the meaning of the positive enact-
ment, while we think that no obscurity will exist
unless introduced by this needless addition. We
are not sure that we see the object of the provi-
sion in the fifth section of the Act, that no chose
in action shall be assignable at law. Such a quali-
fication is unnecessary in the enactment which we
35
35 LETTER FROM H. BELLENDEN KER
propose to substitute, and indeed would be wholly
irrelevant. As the twenty- second section of the
Statute (4 & 5 Will. 4, c. 92) for the Abolition of
Fines and Recoveries in Ireland has provided, in
terms somewhat different, for the conveyance of
contingent interests, Ave have deemed it advisable
to confine the sixth section of the proposed bill to
England. The terms of the enactment for Ireland
have not been pursued, because it appears to be
so framed as to enable the original taker of a con-
tingent interest to convey it, but not to confer on
his assignee a similar power. It is not, perhaps,
clear that the fifth section of the Transfer Act is
not open to the same objection.
" As to sect. 7 of the proposed bill. — This pro-
vision is new as regards lands in England, and
has been added to supply the omission, which is
understood to have been attended with some prac-
tical inconvenience, of the case of disclaimer from
the English Fines and Recoveries Act, and to
render uniform, in this respect, the laws of Eng-
land and Ireland.
"As to sect. 8 of the Transfer Act, and also of
the proposed bill. — The 8th sect, of the Act would
seem to have had three objects: — 1st. To pre-
clude the creation, after the 31st December, 1844,
of contingent limitations liable, under the doc-
trine relating to contingent remainders, to be de-
feated by the premature failure of the particular
estate ; 'indly. To enlai'ge the scope of such con-
tingent limitations, created after the 31stDecem-
TO THE LORD CHANCELLOR. 37
ber, lS-i4, as would be liable, under the doctrine
of contingent remaindei-s, to be defeated by the
failure, even at maturity, of the particular estate ;
Zrdly. To preserve contingent remainders, created
before the 1st January, 1845, from being defeated
by the premature failure of the particular estate.
Of these objects, the first and second are sought
to be eifected by enacting, in substance, that all
limitations created after the 31st December, 1844,
which, according to the pre-existing law, would
be contingent remainders, shall opei-ate as execu-
tory devises or uses, with all the properties of
such a devise or use.
" 1. As a contingent devise or use, thougli by
way of remainder, is necessarily unexecuted (while
an executory devise or use is not necessarily con-
tingent), the term ' executory' does not, in strict-
ness, ascertain the peculiar species of limitation
with which, by this enactment, all contingent re-
mainders, whether created at the common law or
by way of use or devise, are intended to be iden-
tified. The executory devise or estate to which
reference is intended to be made is, of course, a
contingent devise or use, so limited as to be in-
capable of taking effect as a remainder; and the
true ' interpretation, therefore, of the enactment
is, that ' a contingent limitation by way of re-
mainder, whether created at the common law, or
under the Statute of Uses, or by devise, shall take
effect in the very same manner as a contingent
use or devise not limited by way of remainder.'
38 LEITER FROM H. BELLENDEN KER
Xow, in order to satisfy the terms of this enact-
ment, it appears to be necessary that we should,
in the first place, apply the learning of contingent
remainders, for the purpose of ascertaining whe-
ther the given limitation would, under the old law,
have taken effect as a contingent remainder or
not; and, in the next place, apply the learning of
executory devises or uses, for the purpose of in-
venting an hypothesis adequate to give that limit-
ation all the effect of an executory devise or use.
And we must, if possible, so workout this process,
as that, while we attribute to the limitation (for
this the enactment expressly requires) all the pe-
culiar qualities of an executory devise or use, none
of the beneficial properties which the same limit-
ation, taking effect as a remainder, would have
possessed, may be sacrificed. But, having ascer-
tained that the given limitation would have been
valid as a contingent remaindei', then, as it is of
the very essence of an executory devise or use to
have (in contradistinction to a remainder) a sub-
stantive self-dependent existence, and to be inca-
pable of taking effect as a remainder, we are com-
pelled to disconnect the limitation, in construction
or supposition of law, from the particular estate.
If we take the common case of a settlement to the
use of A. for life, and from and after his death to
the use of his first and other sons successively in
tail, and suftpose the life estate to have been
created by one instrument, and the fee to have
been limited by another instrument (subject to the
TO TIIK LORD CHANCELLOR. 39
life estate) to tlic use of tlie first and otlier sons
of A, in tail, the limitation to the sons might take
effect, out of the reversion in fee, as an executory
use, and yet confer, on the birth of a son, and in
the lifetime of A., a vested estate tail ; so that, in
the case supposed, the limitation would, while in
suspense, be wholly independent of the life estate,
and of course unatTected by its premature deter-
mination, but yet be capable of conferring, on the
happening of the contingency, all the advantages
of a vested i-emainder. This hypothesis is, how-
ever, inadmissible, for, in the state of circum-
stances supposed (the limitations arising under
different instruments), the limitation to the sons
would not have taken effect as a contingent re-
mainder, nor consequently would it be within
the purview of the eighth section of the Transfer
Act. We are therefore reduced to the necessity
of taking the limitations of the settlement as
they stand expressed in one and the same instru-
ment ; first viewing then\ in the relation of par-
ticular estate and remainders, in order to raise
the case contemplated by the Act ; then detaching,
in construction, the limitation to the sons from
the limitation to A., and reading the limitation
to the sons as a substantive limitation ' from and
after the death of A., to the use of his first and
other sons successively' in tail. Now, assuming
this to be the only process by which a limitation,
required to have at once the distinctive character-
istics of a contingent remainder and all the essen-
40 LETTER FROM H. 13ELLEXDEX KER
tial qualities of an executory devise or use, can be
conceived to partake of such opposite natures, we
are met by the difficulty of shewing either that,
consistently with the doctrine of executory limit-
ations, the limitation to the sons, so construed, is
capable of conferring a vested estate on the birth
of a son living A. ; or that, if it be not so capable,
no practicable inconvenience can result from its
retaining, until the death of A., all the properties
of an executory devise or use. On the one hand,
it might be objected that the limitation, if con-
sidered as capable of vesting in the lifetime of A.,
would really take effect agreeably to the knoAvn
laws of a contingent remainder, and contrary to
the known laws of an executory devise or use, in
direct opposition, therefoi-e, to the express -enact-
ment of the statute ; on the other, that, unless the
limitation were considered as capable of vesting in
the lifetime of A., this method of protecting con-
tingent remaindei's would induce serious practical
evils. In support of the former objection, the
authority of an eminent text writer might be cited
to shew that a limitation, ' from and after the
death of A., to the use of his first and other sons,'
taking effect otherwise than as a remainder, Avould
not, until the death of A., give a vested estate,
but that a son of A. in esse would, living A.,
' have no estate ; the limitation would be execu-
tory, and confer on him and his heirs a certain
fixed right to an estate in possession at a future
period.' (Butl. Fearne, Cont. Kem. 1, n. (a) ).
TO THE LORD CTIAXCELLOR. 41
It may be contended, jicrbaps, that, as a limit-
ation, which is, in its inception, an executory
devise or use, may eventually take effect as a re-
mainder, so the limitation in question may, dtiring
the suspense of the contingency, be an executory
use, and, on the happening of the contingency,
vest as a remainder ; but the enactment is ex-
press, that the limitation shall take effect as an
executory devise or estate (i. e. use), and seems to
impose the necessity of discovering some mode in
which it may vest contrary to the common-law
doctrine of remainders. In support of the latter
objection, it might be argued, that, as a common
recovery could not have been suffered with effect
by the owner of an executory estate tail, (1 Prest.
Con. G), so, under the Statute for the Abolition of
Fines and Kecoveries, a disentailing assurance, the
substitute of a common recovery, cannot be exe-
cuted with effect by such an owner ; for the learned
writer last cited was of opinion that ' the new Act
(3 «fe 4 Will. 4, c. 74) has not given, in this re-
spect, more power of alienation than existed be-
foi'e the Act;' and it is understood that another
conveyancer, of Avhose great experience and skill
we have been i-ecentlydeimved, also felt difficulties
as to the applicability of the same statute to con-
tingent and executoiy interests. It is hardly
necessary to advert to the con.sequences of even a
resi^ectable doubt upon a jioint of this nature, —
to the importance of its heiug absohUeli/ clear that
a first son, on attaining his majority, may be in a
42 LETTER FROM H. BELLENDEN KER
position to concur with his father in making an
efi'ectual re-settlement of the family estates. N or,
if it were clear that the executory limitation in
tail might be enlarged into an executory limita-
tion in fee, would the objection be entirely dis-
posed of, unless it were considered, that, under
the fifth section of the Transfer Act, this execu-
tory fee would, for all the ordinary purposes of
conveyancing, be equivalent to a vested remainder
in fee. As the learned writer last cited denies
the applicability of the rule in Shelley's case to an
executory limitation, (Prest. Succinct View), it
may even be made a question whether the enact-
ment under consideration does not involve a
summary abrogation of that rule. Though it
is very possible that the questions to which this
enactment appears to be open might be so settled,
by judicial construction, as to render it effective,
yet, as that result might not be attained without
a long course of litigation, (giving occasion, per-
haps, to as many theories and fictions as the con-
struction of the Statute of Uses bred with refer-
ence to contingent uses), and as, in the interval,
titles afiected by the enactment would be in a
state far from satisfactoiy, it is submitted to your
Lordship, that so much, at least, of the eighth sec-
tion of the Transfer Act as attempts the assimila-
tion of contingent remainders to a class of limita-
tions to which they have been hitherto always
put in direct contradistinction, ought to be re-
pealed retrospectively; care being taken, of course.
TO THE LORD CHANCELLOR. 43
to afford protection to all limitations which, by
the effect of such repeal, would acquire ab initio
the legitimate character of contingent remainders.
This precaution being adopted, the retrospective
rei>eal cannot work any possible injury; while, to
leave in existence a set of anomalous limitations,
anomalous, not in their own. nature, and on the
face of the instrument, (for they would there ap-
pear in the legitimate fonn of remainders), but
because created under the brief influence of an
abrogated law, would tend only to embarrass titles,
and to mislead the practitioner.
" 2. But the enactment in question was framed
Avith a larger view than that of merely preventing
the technical destruction (as it may be termed) of
contingent remainders (created after the 31st De-
cember, 1844) by the premature determination of
the pai'ticular estate. The expedient of transmut-
ing contingent remainders into executory limita-
tions was not adopted without a reasonable object,
an object, indeed, wdiich on the fir.st impression
may seem to require the substitution of a provi-
sion at least equally comprehensive. As ordina-
rily a contingent remainder to unborn issue is
limited to the immediate issue of the particular
tenant for life, (ex. gr. to A. for life, remainder to
his unborn children in tail), so that the contin-
gency must happen, if it happen at all, in his life-
time, a statutory provision, though confined to
the protection of contingent remainders against
the acts of the particular tenant, would yet em-
44 LETTER FROM H. BELLENDEN KER
brace the great majority of cases. Still cases do
not unfrequeutly occur, (ex. gr. the case of a limit-
ation to A. for life, remainder to the unborn child-
ren of B. in tail), in which a stronger provision is
requisite, in order to prevent the natui'al expira-
tion of the particular estate from eventually dis.
appointing all or some of the objects of the con-
tingent remainder, (ex. gr. children of B. born
after the death of A.) This view of the subject
has engaged our attention, and it is not without
full discussion and mature consideration that we
have rejected the arguments which it supplies in fa-
vour of the existing enactment. The grounds of our
opinion against tlie expediency of attempting more,
at present, than simply to place contingent re-
mainders beyond the reach of accidents occurring
to the pax-ticular estate, are chiefly these : — 1.
That, admitting the law to be, as regards the cases
in question, defective, the mischief is not jDeculiar
to contingent remainders, but, in some degree at
least, affects generally future gifts to classes of jier-
sonal as well as of real estate. Thus, if personal
estate be limited to A. for life, and after his death
to the children of B., and if B. survive A., and
have children, some boni before, some after A.'s
death, the after-born children are excluded ; for,
though, if there be no child of B. born before A.'s
death, the gift will open from time to time to
let in all the after-born children ; yet, if there
be a child antecedently born, then, on A.'s death,
the gift finally closes. And the same rule ap-
TO THE LORD CHANCELLOR. 4o
plies to even an executory bequest, so that if
personal estate be bequeathed to A., with a be-
quest over, in the event of his death under twenty-
one, to the children of B., children born before
the happening of the contingency take in exclusion
of after-born children. Such, at least, is the effect
of the rules which govern the construction of gifts
to classes, as those rules are propounded by text
writei-s of authority. 2. That the question as to
the adequacy of an eqiiitable limitation, in the na-
ture of a contingent remainder, to embrace a
larger class than that which would be entitled to
take under a corresponding legal limitation, does
not appear to be perfectly settled, but ought not
to be disregarded in any legislative alteration of
this branch of the law. 3. That, in the above ex-
ample of a contingent remainder to the children
of B., the utmost effect of transmuting it (if that
were practicable) into an executory limitation
would be to let in the after-born children, in the
event, and only in the event, of the non-existence
of any other object entitled under the limitation ;
but to touch the general doctrine, which ascer-
tains the class with reference to the period of dis-
tribution, without rendering the gift capable of
embracing, in all events, all the intended objects,
would be to tamper with legal rules, without satis-
fying any moral principle. In short, we were ap-
prehensive, that, by extending our views beyond
the correction of a mischievous rule of tenure, to
the consequences, in any case, of the natural do-
46 • LETTER FROM H. BELLENDEX KER
termination of the particular estate, we should
open a very wide field, comprehending all gifts, of
all kinds of property, to unascertained classes, — a
field on whicli it would not he prudent to enter,
without more preparation and a more extensive
discretion than consisted with the i)articular duty
devolved upon us.
" 3. In favour of the remaining object of the
eighth section of the Transfer Act — that of pre-
serving contingent remainders from the conse-
quences, under the rules of tenure, of the prema-
tui'e failure of the particular estate — even the
most cautious of judges had long since pronounced
a strong opinion, and the removal of this reproach
upon the law had been contemplated at a former
period. Simple and obvious as the remedy may
a|>pear, yet there is, in truth, considerable diffi-
culty in framing an enactment which, without
changing the rules of tenure, seeks to exclude par-
ticular cases from the natural and necessaiy oper-
ation of those rules. We have deemed it advisable
not to rely on the simple negative of the Tranfer
Act, ('shall not fail,' «Stc.), but to indicate by an
affinnative declaration the mode in which the
limitation, deprived of its natural support — the
particular estate — shall take effect; and, with this
guide to the constniction of the clause, it must be
left to the judicature to work out the intention of
the Legislature. We have thought it better to
extend the proj)osed retrospective repeal to the
whole of the eighth section of the Transfer Act,
TO THE LORD CHANCELLOR. 47
and by the corresponding section of the bill to
piotect contingent remainders as from the 31st
December, 18i4. The language ('as from the
commencement and taking effect thereof) adopted
in that portion of the first section of the proposed
bill which relates to this retrospective repeal is
used in order to settle a question which has
arisen, whether the protection of the concluding
branch of sect. 8, construed with reference to sect.
1 3, extends over the interval between the passing
of the Act and the 1st of January, 1845,
" As to sect. 12 of the Transfer Act, and sect.
9 of the proposed bill. — This section of the Act is
even less perfectly expressed than any of the other
sections. The case (one of not unfrequent occur-
rence) of the merger of the i-eversion in a parti-
cular estate which is itself subsequently merged
is omitted. And while the benefit arising from
the obligations of the lessee are annexed to the
estate for the time being expectant on the lease,
notwithstanding the merger of the particular re-
version originally expectant thereon, there is no
corresponding annexation to the same estate of
the obligations of the lessor. These omissions
would have rendei'ed the repeal of this particular
section necessary, even had no other alteration in
the Act been required. The language of the sec-
tion seems to be taken, to a considerable extent,
from the Act of the 32 Hen. 8, c. 34 ; but a degree
■ of inaccuracy pervades the whole, for which it is
difficult to account. The section begins by speak-
48 LETTER FROM H. BELLENDEN KER
ing of ' a lease ; ' subsequently the same interest
is called ' his lease, demise, or grant,' being the
language of the Act of Henry VIIL It is pi'O-
vided, that the person entitled to the estate into
(in) which a reversion shall merge shall enjoy the
like advantage, &c., against the ' lessee, his heirs,
successors, executors, administrators, and assigns,'
for non-payment of rent, &c., contained 'in his
lease, demise, or grant, against the lessee, farmer,
or grantee, his heirs, successors, executors, adminis-
trators, and assigns,' the latter words, 'lessee,
fanner,' &c., (being again the language of the Act
of Henry VIII.), relating precisely to the same
subject before expressed by the single word 'lessee,'
and being moreover a repetition. But the words
are not merely a repetition, — a mere surplusage
in point of expression, — nor are they as innoxious,
as two wholly irrelevant lines inserted at random
would be ; for the omission of the words the 'les-
see, his heirs,' &c., would have made the words in
italics significant, if not correct, and the omission
of the words in italics would also have left the
clause comparatively right. But the insertion of
both, while one must be rejected before the clause
becomes even langixage, and the expression of each
in words wholly difiering, though manifestly in-
tended to relate to the same subject, and the ab-
sence of any guide to shew which is to be rejected,
produce a degree of embai-rassment which would
alone furnish a reasonable excuse for the repeal
of this section.
TO THE LOUD CHANCELLOR.
" As tosect. 13 of the Transfer Act. — It is not
clear what the effect would be of the pi-ovision
that the Act should not extend to 'any act or thing
executed or done before the 1st of January, one
thousand eight hundred and forty-five,' and there
is little doubt that these words would be the source
of much discussion ; but the provision that the Act
shall not extend to any ' estate, right, or interest
created before the 1 st of January, one thousand
eight hundred and forty-five,' has already received
a practical exposition in the generally adopted
opinion, that the Act has no application to any
estate tail, estate for life, or other particular es-
tate, or to any lease existing at the commencement
of the Act, or, so far as the power of alienation is
concerned, to any contingent or future interest
created before that date. This is wholly unrea-
sonable ; and an undistinguishing withdrawal from
the presumable benefits of the Act of a large class
of interests which have the first claim to be at-
tended to in any legislative measure, oould not
have been intended; and even had no other alter-
ation been required, yet in this particl^lar an
amendment of the Act would have been absolutely
necessai-y.
" I have the honour to remain
" Your Lordship's obedient Servant,
" H. BELLENDEN KER.
"Lincoln's Inn,
2^th April, 1845."
OBSERVATIONS
ON
THE ACT 8 & 9 VICT. Cap. 106(a).
It is a merit in this Act that it contains no
definitions extending the meaning of Avords be-
yond their ordinaiy acceptation. Such defini-
tions are useful when they shorten an Act, and
simplify its expressions; but they have been in-
troduced in many Acts not longer than this in
which they obviously lengthen and embarrass, in-
stead of shortening and simplifying. They are also
frequently misapplied, by declaring that one word
shall mean exactly what another already means, as
that "land" shall mean what "hereditaments"
means (b).
In the Act nowbefore us, "tenements and here-
ditaments" are used in their common and well-
known sense, viz. that of all property which can be
holdeu or is inheritable. The word "tenements"
(a)'"See the Act, infra, p. 82.
(b) See, for instance, the Act for Extinguishing Atten-
dant Terms, 8 & 9 Vict. c. 112, infra, p. 88, which exem-
plifies both these mistakes.
OBSERVATIONS, ETC. 51
is, however, superfluous, for every tenement is
necessarily a hereditament {a).
Section 1. — The effect of repealinc; ab initio nepeai of
' '^ the Act to
that part of the Act to simplify the Transfer of simplify
' . . , the Trans-
Property, which converted contingent remainders fer oc Pro-
into executory devises, or executory estates in the 8 vict. c. 7f>.
nature of executory devises, is to remove these
anomalous estates altogether from titles, and to
render unnecessary the investigation of their na-
ture and properties. The contingent remainders,
which, from their creation, after the 1st January,
1845, were executory devises or estates by force
of the Transfer Act, are made by the present Act
contingent remainders from the beginning, as they
would have been if that Act had never passed.
The provision, too, of the Transfer Act as to the
failure or destruction of contingent remainders is
repealed ab initio; but, by the 8th section of the
present Act, a contingent remainder created be-
fore the passing of the present Act, and existing
at any time after the 31st of December, 1844,
is protected from failing on account of the deter-
mination of any preceding estate of freehold, by
forfeiture, surrendei-, or merger; but that part of
the Transfer Act which protected contingent re-
mainders existing on the 31st of December, 1844,
from failing by reason of the determination of the
preceding estate by any other means than the
(a) Co. Litt. 6. a.; 2 Bl. Comm. 17.
D 2
52 OBSERVATIONS ON
natiiral effluxion of the time of such preceding
estate, oi' some event on which it was in its crea-
tion limited to determine, is not re-enacted.
It does not appear, however, that there are
any means by which a contingent remainder can
fail, except the forfeiture, surrender, or merger,
of the preceding estate, or its determination by
the natural effluxion of time, or some event on
which it was in its creation limited to determine ;
and, in the two latter cases, it is allowed, by both
the Ti'ansfer Act and the present Act, to fail ac-
cording to the ancient rule of law. See further
on this subject, Mr. Bellenden Ker's Letter, supra,
pp. 36 et seq., and infi-a, p. 70.
The remainder of the Transfer Act is repealed
only from the 1st of October, 1845 : so that, as
to instruments executed between the 1st of Jan-
uary and the 1st of October, 1845, that Act will
still have to be consulted. It is believed, how-
ever, that very few di'afts were framed on the
faith of it; and it will, probably, be little heard
of hereafter. The clause providing that the re-
ceipts of trustees and of the survivors of mort-
; gagees shall be discharges has, it is understood,
been occasionally omitted in reliance on the Trans-
fer Act ; and it may, therefore, be found needful,
in some cases, to see if that Act will make good the
omission. The defects of the clause were pointed
out in the first edition of tliis work, and are
stated in Mr. Bellenden Ker's Letter, supra, pp.
21 — 24. It is not probable that any conveyances
THE ACT 8 4 9 VICT. c. 106. '^'J
were taken from executors of mortgagees under
the Ti-ansfer Act; for the provisions on that
point (as pointed out in the first edition and in
Mr. Bellenden Ker's Lettei', supra, pp. 17 — 21)
•were so framed as to render it ahnost impossible.
The reasons for omitting in the present Act the
provisions as to the receipts of trustees and mort-
gagees, and as to conveyances from executors of
niortgageees, are mentioned in Mi\ Bellenden
Ker's Letter, supra, pp. 17 — 24.
With the exceptions above adverted to, the ob-
jects of the Transfer Act are those also of the i^re-
sent Act, but they are now efi"ected by enactments
wliich appear to be free from the numerous ob-
jections to which the Transfer Act was open.
Section 2. — According to the well-known rule a."^>«"5
of law, the immediate freehold of all corporeal t'etweeu
estates
hereditaments lay in livery, that is to say, passed lying in
•' *' , , . . livpry and
at common law by feoflfment, with livery of seisin in giant,
or corporal tradition, to which, from very eai'ly
times, a deed or charter of feoftuient was added
as evidence of the feoffment. In modern practice,
the deed of feoffment became the principal instru-
ment of the conveyance, and the livery of seisin
a ceremony needful to perfect it. Reversions and I
remainders in corporeal hereditaments, and all in- !
corpoi-eal hereditaments (a), whether in possession
or reversion, have always lain in grant, i. e. have
(«) The reversion or remaiuder of a corporeal heredita-
Oi OBSERVATIONS ON
passed by the delivery of the deed of conveyance
or grant without any further ceremony, except
that, as to seigniories and reversions and remain-
ders of corporeal liereditaments, the attornment
of the tenant was necessary till abolished by the
Conveyance stat. 4 &5 Anne, c. 16. The great inconvenience
reiiase" "'"^ of the Hvery of seisin required to perfect a feoff-
ment, and the difficulty in many cases of giving it
[)roperly, (4 Cru. Dig. by White, p. 47), intro-
duced various other modes, founded on the Statute
of Uses, of conveying the immediate freehold of
corporeal hereditaments, all of which, except one,
were very limited, and generally inconvenient in*
their application. The exception was the con-
veyance by lease and release, which long since
became, and till lately continued to be, the or-
dinary mode of conveying the immediate freehold
of corporeal hereditaments, and was, from abund-
ant caiition, also generally used for the convey-
ance of reversions and remainders, and even of
Conveyance equitable estates in cori)orual hereditaments. This
under tlie ^ ^
statute 4 & mode of conveyance was, in 1841, almost com-
Vice C. Zit
pletely superseded in England hy a conveyance
founded on the Act of the i&.5 Vict. c. 21, called
"An Act for rcndeiing a Release as effectual for
the Conveyance of Freehold Estates as a Lease
and Release by the same Parties," and which sub-
stituted a reference to the Act, coupled with the
ment is in truth an incorporeal hereditament, but the di.s-
tinction in tlie text is useful fur tlio i)re.sent purpose.
THE ACT 8 & 9 VICT. c. 100. M
imposition of an extra stamp, for a lease for a
year (a). It having, however, been considered
that a corporation coukl not stand seised to a
use, it followed that a corporation could not con-
vey hy a common lease and release, because the
lease was in fact a bargain and sale for a year
opei-ating under the Statute of Uses ; and the
above Act being so worded as inei-ely to imply
the execution of the lease for a year, and not the
actual entry, which was required to make good
the lease, if made by a corporation, corpoi'ations
coutiuued to convey by feoffment with livery of
seisin after the Act, as they did before. In Ire- Irish Lease
land, the recital in a release of a lease for a year Act, 9 G. 2,
was made full evidence thereof by the Irish statute,
9 Geo. 2, c. 5 ; and, since that time, the actual
execution of a lease for a year of Irish land has
been dispensed with (6).
The Act to simplify the Transfer of I'roperty The Act to
])rovided, (sect. 2), "that every person" (defined th'eTi'ans-
to include a corporation) " might convey by any pei°y.
deed, without livery of seisin or ini'olment or a
prior lease, all such freehold land as he might be-
(a) The imposition of this extra stamp was repealed by
the Act 13 & 14 Vict. c. 97, a. G.
(b) By the statute 5 & 6 Vict. c. 82, continued by the
8 & 9 Vic\ c. 2, and by the 11 & 12 Vict. c. 9, an Irisli
release reciting a lease for a year waa subjected to tlie
stamp duty (except progressive duty) payable for the lease
for a year, as in England; but this stamp duty was re-
pealed by the 13 & U Vict. c. 97, s. 4.
r>C> OBSERVATIONS ON
fore the passing of that Act have conveyed by-
lease and release; and that cA^ery such conveyance
shoiild take effect as if it had been made by lease
and release : Provided always, that every such
deed should be chargeable with the same stamp
duty as would have been chargeable if such con-
veyance had been made by lease and release."
Against this provision a good deal of unfounded
cavilling arose, but in practice it became a dead let-
ter, from the uncertainty whether (as was expressly
provided in the 4 & 5 Vict. c. 21) only the first
stamp on the lease for a year was chargeable, or
whether progressive duty was also payable. The
Author's opinion (see the first edition of this
Work) was, that progressive duty was not payable ;
but the consequence of the doubt was, that, up to
the passing of the present Act, conveyances con-
tinued to refer to the Lease and Release Act in
England, and in Ireland to the Lease-for-a-Year
Act, and coi'porations continued to convey by
feoffment with liveiy of seisin (a).
(joiiK^ey- The present Act put an end to the necessity of
thrpPiMoi'ir using any of the above modes of conveyance, either
in England or Ireland, by enacting that all cor-
poreal tenements and hereditaments should, as re-
garded the immediate freehold thereof, be deemed
to lie in grant as well as in livery ; that is to say,
should pass by the delivery of the deed of convey-
(a) See further on this subject, supra, pp. 25 et seq.
Act
THE ACT S & 9 VICT. c. ICO.
57
ance, as incorporeal hereditaments and the rever-
sions and remainders of corporeal hereditaments
theretofore had passed.
This enactment has admirably met the desi-
dei-atum of enabling corporeal hereditaments in
possession to be conveyed by a single deed ; for it
introduces no new form of conveyance, but simply
renders the estates hitherto conveyed by lease and
release, or feoffment with liveiy, capable of being
conveyed by "gi-ant;" a mode of assurance as old
as the law itself, and the nature and properties of
which are perfectly well known and settled. At
the same time, the effect which the word "grant"
has been sometimes supposed to have, of implying
a covenant in law, is taken away by the 4th sec-
tion, so that there can be no objection to any
person conveying by that word; and, from its
convenience and propriety, it is gi-adually be-
coming the universal and only operative word
employed in conveyances of real estate, though,
of course, any word expressive of the intention
to pass the estate is effectual (a).
(a) By the Act itself every deed which was to operate Stamp duty,
.•xs a graut by force only of this enactment wa.s required to
be stamped with an additional t<tamp of the same amount
as the first or only stamp which the lease for a year would
have borne, and which, in all cases, except conveyances
upon sales and mortgages for less than 150^., waslZ. 15s.;
but the imposition of the progressive stamp duty, which
the lease for a year would have borne, was expressly ne-
gatived; and the imposition of the lease-for-a-year stamp
d3
i)6
OBSERVATIONS ON
'IViialits iu
tail unci
inanied
women
i!)ay con-
vey nnilei-
this Ai't.
It is liiirdly necessary to say, that a conveyance
miller tlic present Act, if chily inrolled or acknow-
leilgetl, as the case may require, will bar an entail
or pass the estate of a married woman as effect-
ually as a conveyance by lease and I'clease. The
reason for referring to the subject is, some idle
doubts which were thrown out with respect to
the effect of releases executed in pursuance of
the Act 4 & 5 Vict. c. 21, to bar entails and pass
the estate of married women.
.Ancient The prcscnt Act does not abolish any of the
conveyance ancient modes of conveyance, but only extends
be ii.s<-.!. the power of conveying by grant to the imme-
diate freehold or corporeal hereditaments ; it is,
therefore, still open to convey by lease and re-
lease, or by a release referring to the statute
4- ife o Vict. c. 21, or Viy feoffment with livery of
Whftlicr
Corpora-
tions cuu
.;onvey
un'ler tliis
Act.
in this and all other cases was repealed by the Act 13 &
14 Vict. c. 97, s. 6.
A question was raised whether corporations conld con-
vey by grant operating under the present Act, by reason
that the Stamp Act (55 Geo. 3, c. 184) iu imposing the
duty on a "bargain and sale (or lease) for a year," from
subsequently employing the expression "bargainee" alone,
may liave contemplated only a bargain and sale, and not
a common-law lease; and that therefore the present Act,
in referring to a lease for a year bearing stamp duty as
such, must be taken to refer to a bargain and sale oidy,
and not to a common-law lease; and that, therefore, a
corporation could not convey under this Act. The doubt,
however, has not been countenanced in practice, or by
decision.
THE ACT S & 'J VICT. c. 100. .>i>
seisin oi- bargain and sale inrollcd. But tlie su-
perior convenience of conveying by gi'ant has in
practice thrown all other modes of conveyance
out of use.
The present Act ('unlike the^ransfer Act") does Customary
not interfere with customary irecholds, and sucli
freeholds continue to be conveyed by the cus-
tomary mode of conveyance. See 1 Cru. Dig. by
White, tit. X., eh. 1, sects. 9 et seq., p. 255.
Section 3. — A feoffment might, until the Sta- Fiomiient«.
tute of Frauds, have been made in most cases by
word, without any writing, (Shep. Touchst. 203);
and did not, up to the passing of the present Act,
require a dee d. The present Act provides that a
feoffment, made after the 1st day of October,
1845, (other than a feofiinent made under a cus-
tom by an infant), shall be void at law, unless
evidenced by deed. It does not seem necessary
that the feoff"ment should be accomi)anied con-
temporaneously by a deed : it will be sufficient
for the feoff'ment to be at any time afterwards
evidenced by a deed made by the parties compe-
tent. The propriety of putting an end to in-
formal conveyances cannot be doubted; but the
enactment is of no practical importance to con-
veyij.i)cers, as a feoff'ment not evidenced by deed
is quite unknown in modem practice. The ex-
ception as to a feoffment under a custom by an
infant, refei's to the custom of Kent, which allows
an infant who has attained fifteen to alien his
60 OBSERVATIONS ON
gavelkind lands by feoflment Avith personal livery
of seisin, and was made in order not to touch in
any way gavelkind customs (a).
Partition. At common law, coparceners might have made
partition of things lying either in livery or grant
by parol without deed ; and tenants in common
might have made partition of things lying in livery
by parol without deed, if they perfected the par-
tition by livery of seisin. (Litt. sect. 250 ; Co.
Litt. 169. a.) Also joint-tenants for yeai'S (but
not joint- tenants of freeholds) might have made
])artition by parol without deed. (Co. Litt. 1 87. a.
169. a.) After the Statute of Frauds, however,
a writing was in all cases necessary : but a deed
was required only ill cases in which it was neces-
sary before the statvite, although it was some-
times asserted, (2 Bl. Comm. 324- ; 4 Cru. Dig.
by White, 77), by mistake, that the statute had
rendered a deed in all cases necessary.
Exeikinge. At common law, an exchange of things lying
in grant could be made only by deed; but an ex-
change of corporeal hereditaments lying in the
same county could be made by parol perfected by
entry. (Litt. sects. 62 — 66). If the lands, how-
ever, to be exchanged lay in two counties, the
exchange could only be by deed indented. (Litt.
.sect. 63 ; Co. Litt. 50. a., 51. b.) After the Sta-
tute of Frauds, all exchanges were required to be
in writing; but a deed Avas necessaiy only Avhere
it was necessary before the statute.
(a) See supra, pp. 29, 30.
THE ACT 8 & 9 VICT. c. IOC.
By the present Act, eveiy partition and ex-
cliange made after the 1st day of October, 1845,
of hereditaments (not being copyhold) is void at
laio, uidess made by deed. The enactment is
very })ropor as a means of preventing the disputes
which might arise on i rregular and informal par-
titions and exchanges, but does not aft'ect the
practice of conveyancers, as no partition or ex-
change is ever madu at the present day without
a deed.
A lease for yeai"s is defined to be a contract Leases.
between lessor and lessee for the possession and
profits of lands or other hereditaments on tlie one
side, and for a recompense for rent or other income
on the other; (Bac. Abr. art. "Leases"); and
hence the rule, that any words which indicate
that one party is to give and the other to take pos-
session, prima facie constitute a lease. The Sta-
tute of Fi-auds merely required tliat a lease for a
])erio(l exceeding three years should be in writing;
and, therefore, on every informal agi-eement for
a lease, and veiy frequently on formal agi'eements,
the question arose, whether the instrument ope-
rated as an actual demise, or merely as an agi'ee-
ment to demise. In many cases the refei'ence to
a future lease has been held to make an agree-
ment executory, see particularly Clutpman v.
Toioner, (6 Mee. & W. 100), Brashier v. Jackson,
(6 Mee. & W. 549), Jones v. Reynolds, (1 Gale
k Dav. G2); but in Curling v. Mills, (6 M. &
Gr. 173) and other cases, the reference to a future
61
02 OBSERVATIONS ON
lease was held not to make the agreement execu-
tory. In the cases of Doe v. Fowell, (7 M. &.
Gr. 980), and Tate v. I)arbij, (15 Mee. & W.
GOl), there was no refei-ence to a future lease.
Note too, that, although an agreement amount
to a lease, a specific performance may be had for
a more formal instrument; [Fenner v. Hepburn,
2 Y. & Coll. N. C. C. 159 ; Gore v. Floyd, 12 Mee.
& W. 463); and that, where a person holds under
an agreement for a lease, he is bound by all the
covenants mentioned in the agreement which
are applicable to a tenancy from year to year.
{Doe V. Amery, 4 Perr. & D. 177). The present
Act, by requiring that all leases required by law
to be in writing shall, after the 1st of October,
1845, be by deed, closes up this abundant source
of litigation, and greatly lightens the task of the
conveyancer in preparing agreements for leases ;
for if the instrument be not ixnder seal, it will
operate only as an agreement for a lease, whatever
form or language be employed.
In the case of StrcMonv. Fettlt, 24 Law Jour.,
C. P., 182, the Judges seem erroneously to
have suj)posed, that an instrument void as a
lease under tlie Act, was not good as an agree-
ment, overlooking the fact, that the avoidance
of the instrument is by the Act expi-essly con-
fined to an avoidance " at laio .■" of course, such
an in.strument would be enforceable in equity.
The Act, in this instance, embraces heredita-
ments of every tenure, but does not affect leases
THE ACr 8 & 9 VICT. c. lOG.
not required by law to be iu writing, i. e. leases
for periods of less than three years, and does not
extend to leases of hereditaments in Ireland.
Previoiisly to the Statute of Frauds an assign- Ass'kh-
nient might liave l)een by parol only, but that
statute required that all assignments of leases or
terms of years should be by deed or note in writ-
ing duly signed. (See Uodyes v. Drakeford, 1 Bos.
e«e Pul., N. R., 270). Tlie present Act provides
that every assignment made after the 1st of Octo-
ber, 1845, of a chattel interest not being copy-
hold in any hereditaments, shall be void at law
unless }nade by deed : the enactment, it will be
seen, does not except common-law chattel interests
in copyholds, such as leases of copyholds made
under a license to demise. This provision, though
proper, for the reasons above mentioiied, with
respect to feoffments, partitions, and exchanges,
makes no change in the pi'actice of conveyancers,
as assignments have long been invariably made
by deed.
At common law, a surrender of corporeal here- smum.
ditaments might have been made by parol without
deed or livery ; but a surrender of incorporeal he-
reditaments coidd only have been by deed. The
Statute of Frauds required that eveiy surrender
shoiild be made by detnl or note in writing signed
by the p.irty so surrendering, or his agent. (4 Crii.
Dig. by Wliite, 8o). The present Act requires,
that every surrender in writing made after the
1st of October, 1840, of an interest in any here-
64 OBSERVATIONS ON
ditament, not being a copyhold interest, and not
being an intei-est whicli might by law have been
created without writing, shall be void at law, un-
less made by deed.
The Act does not apply to surrenders by oj^era-
tion of law, and, so f;ir as relates to a release or
surrender, does not extend to Ireland (a).
Feoffments
not to have
a tortious
operation.
Section 4. — A feoffment perfected by livery of
seisin was termed a tortious conveyance, and had
the effect of passing the fee, if it purported so to
do, notwithstanding the feoffor had a less estate
or interest in the property, or no estate at all but
possession. It also had the effect of destroying
contingent remainders and powers ajjpendant, and
of creating a forfeiture. Conveyances by grant,
bargain and sale, lease and release, or covenant
to stand seised, were termed innocent assurances,
and had }io effect excej)t to pass the estate of the
conveying party. Beyond this they were simply
void, neither passing a greater estate, nor creating
a forfeitui'e. (See Sanders on Uses, 5th edit,,
pp. 12 et seq.). By the operation of the present
statute, a feoffment has now no other effect than
an innocent assurance.
(a) The proviso as to Ireland was introduced in the
House of Commons without reference to the authors of
the bill: the word "release" i.s evidently a mistake for
" lease," and renders the effect of this proviso uncer-
tain.
THE ACT S & VICT. c. 106. G5
Tlie word " exchange " created a general war- Exchanges
rantv and riglit of re-entry, which rendered titles tion» uot
^ => •" . . to imply
under exchanges extremely inconvenient and em- a comiition
°, . . •' . ^ .in law.
barrassing. This inconvenience was got over m
modern ])ractice by means of mutual conveyances ;
but, as the above-mentioned ojicration of the word
" exchange" has been abolished both by the Trans-
fer Act and the present Act, a proper exchange
may hereafter in some cases be conveniently re-
soi-ted to. With regard to the effect of the word
"exchange," see Shep. Touch. 291; 4 Cru. Dig.
by White, p. 74 (a).
Every pai'tition also implied a special warranty
in law; (Shep. Touch. 185; Co. Litt. 384. a.):
in modern practice this is always prevented by
the insertion of the usual covenants for title, and
the abolition of the general warranty is practi-
cally unimportant (h).
The word " give" in a feoffment made a war- •'Give"an.i
ranty when an estate of frank tenement or inherit- no1,'to im-
ance passed by the deed, and was also made by nint iTi'iuw
statute an express warranty during the life of the
feoffor. (Shep. Touch. 184 ; Co. Litt. 384. a.,
and n. (1) ). The word " gi-ant" implied a general
covenant for quiet enjoyment or general warranty
in a lease for years, but not otherwise. Co. Litt.,
and note, ubi supra ; 1 Davidson's Precedents in
(a) See also supra, pp. 30, 31.
(6) See supra, pp. 30, 31.
00 OBSERVATIONS ON
Convey ancing, 72, 104 ; Hinde v. Gray, 1 M. &
Gr. 19o ; Granger v. Collins, G Mee. & W, 458;
Lessenhury v. Evans, 3 M. & Gr. 210 ; Williams
V. Burrell, 1 M., Gr., & Scott, 402). The present
Act declares that neither "give" nor "grant," in
a deed executed after the 1st of October, 1845,
shall imply any covenant in law in respect of any
hei-editament, except by force of any Act of Par-
liament. The exception in the statute probably
refers to the j)ro visions in Railway and other Acts
of that nature, in which it is provided, that the
word " grant " in conveyances to and by the
company shall imply all the usual covenants for
title ; Ijut, as the exceiDtion does not extend to a
warranty, it does not keep on foot the warranty
annexed by statute to the word " give," as above
mentioned. " Give," however, is altogether dis-
used as a word of conveyance (a).
Tlie word " demise," in a lease for years, ci-eates
a covenant for quiet enjoyment ; (see the refer-
ences above as to "grant"); and this implica-
tion is not taken away either by the Transfer
Act or the present Act.
Distiuctinn SECTION 5. — The Avell-kiiown distinction be-
deiituic tween a deed-poll and an indenture is, that a
pull. ' deed-poll is l)y one party only, and has its edge
polled, or even, while an indenture is between
(rt) See further, supra, p. 30.
THE ACT 8 &; 9 VICT. c. 106. y
two or more parties, and has its edge indented,
the indented edge being the symbol of a duplicate,
or supposed duplicate, in the custody of another
party. The actual indenting, however, has been
long disregarded, and, in nio<lern practice, the
deed-poll and indenture have been distinguished
in form only by tlieir -svoi'ds of commencement
and conclusion, and the commencement of their
operative jiarts. (Co. Litt. 143. b., 229. a. ; 2
Blac. Comm. 295 ; 4 Cru. Dig. by White, 8 ;
Burton's Heal Property, 140, 140, n., 439 ; 1
Davidson's Precedents in Conveyancing, 34).
A practical distinction, however, between an
indenture and a deed-poll is, that no person can
take an immediate estate or benefit under an in-
denture, unless he be named as a party to it ;
but any pei-son can take an immediate estate or
benefit under a deed-poll, inasmuch as it is ad-
dressed to all the world. (Co. Litt. 26. a., 231. a.;
Burton's Real Property, 442, 442, n. ; 2 Prest.
Conv. 394 et seq. It has, however, been ques-
tioned, whether a person not in esse at the time
of the execution of a deed-poll can take an im-
mediate benefit under it.
' Another jiractieal distinction between a deed-
poll and an indenture is, that a covenant entered
into by a deed-poll with any covenantee named
In the deed is valid; but a covenant in an inden-
ture entered into with a person not a i)arty can-
not be sued on by that jjcrson. (^Greene, v. Florne,
Salk. 197 ; Berkely v. Hardy, 5 B. it C. 353; see.
G7
(J8 OBSERVATIONS ON
too, 1 Davidson's Precedents in Conveyancing,
34). An action, however, may be maintained
by a party to an indenture against one who is not
a party, but has executed the deed. (Salter v.
Kidyley, Garth. 76. See further, 2 Prest. Conv.
396 etseq.)
These distinctions are abolished by this section
of the present Act so far only as relates to heredi-
taments ; and under an indenture executed after
the 1st October, 1845, an immediate estate or in-
terest in any hereditaments, and the benefit of a
covenant or of a condition respecting any heredi-
taments, may be taken by a person not a pai-ty.
Tlie enactment at the end of the section, that
a deed executed after 1st October, 1845, and pur-
porting to be an indenture, need not be actually
indented, merely expresses what has been long
understood to be law (a).
Conveyance SECTION 6. — Before the statute 3 & 4 W. 4,
gent and c. 74, (the Act for the Abolition of Fines and
interests. Recoveries), a contingent interest in real estate
could be conveyed by fine ; {Doe v. Oliver, 1 B.
&C. 181); but, after that statute, contingent in-
terests in real estate in England could not be con-
veyed at law, but merely in equity, as a matter
of contract : the Irish Act for the Abolition of
Fines and Recoveries, 4 & 5 Will. 4, c. 92,
authorised the conveyance of contingent interests
(a) See further supra, pp. 31 -34.
THE ACT 8 & 9 VICT. c. 106.
in hereditaments in Ireland. This state of the
law was attempted to be remedied by the 5 th
section of the Transfer Act (a) ; the attempt
succeeded very imperfectly ; but the present Act
seems to give a complete power to dispose of all
contingent and future interests in hereditaments
of any tenure, except that as to rights of entry
the enactment is confined to England (6). A
person taking a conveyance under this enactment
stands precisely in the place of the person from
whom he takes, and becomes entitled in possession
or absolutely, if the grantor would have become so
entitled, but not otherwise. With respect to copy-
holds, no surrender will be necessary in the case
of a disposition under the Act ; but the person to
whom the conveyance is made will, on its falling
into possession, be entitled to admittance in the
place of the person originally entitled.
Section 7. — This clause is intended to pre-
clude a question which has been made, whether a
(o) See supra, p. 12.
(6) This section, as it came from the framers, applied
to England only; but in Parliament the words "in Eng-
land" were struck out in the fii-st branch, and the refer-
ence to the Irish Recovery Act added. The words " in
England," in the second branch, were, it is supposed,
left in through inadvertence. The addition of the refer-
ence to the Irish Recovery Act introduces an apparent
ambiguity, in section 7, as to which of the Recovery
Acts is intended, though all real question is obviated by
the context.
69
70 OBSERVATIONS ON
married woman can disclaim by force of the Act
for the Abolition of Fines and Eecoveries, 3 &
4 Will. 4, c. 71^- The enactment is confined to
England alone ; but the Irish Act, 4 & 5 Will. 4,
c. 92, s. G8, expressly authorises a disclaimer by
a married woman (a).
Contingent SECTION 8. — With respect to this enactment
remainders. ^^^ ^^^ observations, supra, pp. 52, 53, and the
remarks in Mr. Bellenden Ker's Letter, (supra,
pp. 36 —47). It will be observed, that only such
of the contingent remainders created before the
passing of the Act are protected as have been
existing since the 31st of December, 1844, that
is, only such of the contingent remainders created
before the passing of the Act as had not failed or
been destroyed before the 31st of December, 1844 ;
and could not, by means of the 8th sect, of the
Transfer Act, have failed or been destroyed since
that day by the destruction or merger of the pre-
ceding estate. The practical benefit to convey-
ancing of this section is the same as that which
was derived from the corresponding section of the
Transfer Act, viz. the omission (which has now
become usual) of the limitations to tx'ustees to
preserve contingent remainders.
It should be borne in mind that no alteration
has been made in the rule, that a contingent re-
mainder cannot be limited without a particular
(a) See supra, p. 36; see, too, the preceding note.
THE ACT 8 & VICT. c. 106.
estate of freehold to support it ; or in the rule
that the remainder will fail if the particular es-
tate determine by effluxion of time, or by some
event on which it was, in its creation, limited to
determine, before the remainder becomes vested.
(See supra, pp. 43 et seq.)
Section 9. — The object of this section is to do
away with the rule, that the covenants of and re-
medies against a lessee, and the obligations on the
lessor, being incident to the immediate revereion,
cease as regards the land on the surrender or
merger of that reversion. ( Webb v. Russell, 3 T.
R. 678; Wootley v. Gregori/, 2 You. <fe J. 536 ;
Burton V. Barclay, 7 Bing. 745 ; Thorn v. Wool-
conibe, 3 B. & Adol. 586). The rule was alto-
gether technical, was productive of injustice when
it did opei'ate, and occasioned a good deal of ex-
pense and trouble in preventing its operation
when foreseen (a). The present enactment, how-
ever, does not remedy the similar evil, which
arises when the immediate reversion is extin-
guished otherwise than by surrender or merger.
This is a case which may happen when a lease
has been granted by the trustees of a term, which
is afterwards extinguished, either by virtue of a
proviso for cesser contained in the instrument
creating it, or of the Act of the 8 (fe 9 Vict. c.
112, infra, p. 88; or whei'e a lease, out of which
71
(a) See supra, pp. 47, 43.
72 OBSERVATIONS ETC.
underleases have been granted, has, on a piir-
chase of the fee by the lessee, been assigned to
attend the inheritance. It may, however, be
maintained, perhaps, that in these cases there is
no extinguishment, on the ground, that neither
a proviso for cesser, nor the Act referred to,
will extinguish a term or lease, so long as there
are rents and covenants legally incident thereto,
inasmuch as the trusts of the term are not fully
performed, or the term or lease become a satisfied
term so long as such rents and covenants are in-
cident thereto
OBSERVATIONS
ON
THE ACT 8 & 9 VICT. Cap. 112.
As this Act makes a great change in the law, it
may be interesting to the Profession to be ac-
quainted with its origin and history.
The first clause (except the preamble) and the Origin an<i
substance of the second clause were framed by the Uic Act.
Author of the present Work, and, after being sub-
mitted to the revision of a learned friend of great
eminence as a conveyancer, were, in the spring of
1844, given to Lord Brougham to be proposed for
insertion, if his Lordship should think fit, in the
bill then before the House of Lords for simplifying
the transfer of property. That bill, in a very
abridged form, ultimately passed into the Act
to simplify the Transfer of Property (a); but the
clauses referred to wei-e not introduced, and were
afterwards })rinted, with a note explaining their
origin and intended purpose, in the first edition
of this Work, In the session of the eighth and
(a) 7 & 8 Vict. c. 76, supra, p. 10.
E
/ 4 OBSEKVATIOXS ON
ninth years of her present Majesty, these clauses,
with some alteration in the second, and with the
addition of a title, a preamble, the interpretation
clause in the third section, and the limitation iix
the foui'th section, were brought forward by Lord
Brougham as an independent bill, and passed into
the Act 8 & 9 Vict. c. 112.
The clauses, as oi-iginally framed, and the Act
are open to a good deal of obsei-vation; and though
the benefit of the abolition of attendant terms is
great and obvious (a), it is to be regretted that a
hasty production, as the two clauses were, should
have been passed into a law, without having been
first submitted (as it was intended they should
have been) to the Profession at large, and re-
ceived the additions and emendations which they
require.
Inaccuracy The title of the Act is incorrect, for the pur-
of the title ^
and pre-
amble.
(a) There can be no question that the saving of expense,
which this Act has occasioned to the purchasers and
mortgagors of land, is very great; most properties, how-
ever small, were incumbered with at least one term, and
many with several, and every such term was assigned,
and most commonly by a separate deed, and the title to
it investigated on every dealing witli the property. Nei-
ther the advocates nor the opponents of the "landed in-
terest" seem to be aware, that the (practical) abolition
of leases for a year and of the assignment of attendant
terms has i-elieved the "landed interest" from a burden
which cannot be estimated, on the most moderate calcu-
lation, at less than 250,000^. a year.
THE ACT 8 & VICT. c. 112.
75
pose of it is, not to render the assignment of
satisfied terms unnecessary, but to extinguish the
terms themselves, and so render their assign-
ment impossible. The assignment of attendant
terms never was necessary ; it was only a matter
of caution. The preamble also is inaccurate ;
the assignment of satisfied terms was a very easy
and expeditious operation — the delay and diffi-
culty arose in making out the title : expense, in-
deed, was incurred in assigning terms, as well as
in deducing the title to them, but much more on
the latter than on the former account.
In the first section the words " inheritance " C'^nstmc-
tion of the
and "reversion" are put in the disjunctive; so fi'st section.
that the Act applies to satisfied terms attendant
upon the immediate reversion, though such re-
version be not the inheritance. The word " land "
is used in one place in this section evidently by
mistake for " lands " (a); and as the interpreta-
tion clause gives only to " lands " the extended
meaning of " hereditaments," and does not give
to the plural number the eflect of the singular,
it might be maintained that the provision in the
first section does not extend to hereditaments
other than " lands" in the strict technical sense.
This construction, however, would be very nar-
row, and has been disregarded in practice. Sub-
ject to this question, the first section luxs been
(a) This -was not so in the print of the clause in the
firat edition of this Work.
£2
OBSERVATIONS ON
treated by tlie Profession and by tlie Courts
{Doe V. Price, 16 Mee. & W. 603; Doe v. Mouls-
dale, Id. 689 ; and Sugden on the New Statutes,
pp. 288, 289, and 290,) as liaving made all satis-
fied terms, which were attendant on the 31st
Dec. 1845, cease and determine on that day; and
so far as conveyancers are concerned, the only
points to be determined ai-e, whether the term
was, on the 31st of Dec. 1855, "satisfied," and
was also, on the same day, " attendant upon the
inheritance or reversion." The expression
" satisfied term " is an expression in common
use, and is generally understood to mean a term,
the trusts, purposes, or objects of which have
been performed or fulfilled, or have become in-
capable of taking efiect. Thus, a term limited
in trust to raise a sum of money is " satisfied "
when the money is raised; a mortgage term is
" satisfied " when the mortgage is paid ofiF; a
term to raise portions is satisfied, either when
the portions are raised, or when it has become
cei'tain that there can be no persons entitled,
and so on. But it is probable that cases will
occur in which there must be a dovibt whether a
term is or is not a " satisfied term " (a). Ques-
(a) It was originally intended to introduce into the Act
a definition of "a satisfied term," but it was found diffi-
cult to give the definition in precise language, and there-
fore the expression was left to its ordinary meaning, as
established by the practice of conveyancers and judicial
THE ACT 8 & 9 VICT. c. 112.
tions will also occur as to when a temi is " at-
teiidaut upon the inheritance or reversion;"
rarely, indeed, when it is so attendant by express
declaration, but more frequently when it is at-
tendant only by construction of equity.
In two of the cases which have been decided
under the Act {Doe v. Price, 1 6 Mee. & W. 603,
and Doe v. Moulsdale, Id. G89), the Court of
Exchequer held that a satisfied term attendant
by express declaration on the 31st of December,
1845, ceased on that day; but that the party,
interpretation. It has been suggested tbat no term is
"satisfied" wliich is assigned upon tlie ordinary trusts to
attend the inheritance, because the trust is to assign the
term as the purchaser or mortgagee, or other owner, his
heirs and assigns, shall direct, and in the meantime to
allow it to attend the inheritance, and protect from all
me.sne incumbrance.?. But a term so assigned has always
been held to be, and is, "a satisfied term," according to
the general practice and understanding of the Profession,
When, however, upon a mortgage the term is assigned,
a.s is sometimes the case, in trust for the mortgagee, his
executors, administrators, and assigns, to further secure
the payment to him and them of the mortgage-debt, and
subject thereto in trust for the mortgagor or mortgagee,
his heirs and assigns, and to attend the inheritance (see
infra, Prec. 30), the Act perhaps does not operate during
the continuance of the mortgage; because during that
time the term is not simply a satisfied term attendant
upon the inheritance. See Doev. Jones, 13 Jur. 824; 18
L. J., Q. P., 260. And the result is of course the same
whenever any trust is declared of the term prior to the
trust making it attendant upon the inheritance.
7t< OBSEKVATIONS OK
\v]io, according to the Act, would have been en-
titled to the j^rotoction of the tei'ixi, did not re-
quire such protection, and that, therefore, it was
unnecessary to decide in what way that protec-
tion should be afforded.
In the former of those cases the party against
whom the protection of the term might have
been used, if required, was allowed by a Judge's
order to lay a demise in the name of the trustee
of the term, which seems to have been unques-
tionably wrong; but the Court intimated, that,
if necessary, such demise might have been
ordered to be struck out of the declaration.
The question will pi-obably henceforth suggest
itself in a different way, in consequence of the
recent alterations in common-law procedure.
In the case of Doe v. Jones, (13 Jur. 824, 18
Law Journ., Q. B., 2 GO), the Court of Queen's
Bench held, that a mortgage term, the money
due on which was paid off in 1847 on the sale
of part of the estate to a railway company, was
a subsisting term, a]i})arently on the ground that
the whole purchase money having been received
by persons svho conceived themselves to be, but
were not, the owners of the fee, and they having
jjaid off the mortgage, the term belonged to
them and was not attendant on the inheritance.
It is submitted, however, that in truth the
mortgage was paid ofi' out of the produce of the
estate, and that, on sixch payment, the term
ceased by virtue of the Act. (See the observa-
THE ACTS &9 VICT, c 112. 79
tions on these cases in Sugden on tlie New Sta-
tutes, pp. 288 — 294 j and see farther on the
subject, Freer v. Ilesse, 3 De G. Macn. & Gor,
495 J S.C, 17 Jur. 177; 22 Law Jour. (Chanc)
597; Hooper v. Harrison, 2 Kay <fe Johns. 8G.
It appears (IG Mee. & W, 690) that the Eccle-
siastical Court will not grant limited adminis-
tration of a term which has ceased under the
Act.
It is still necessary to abstract the titles to
satisfied terms, in order that the counsel of the
purchaser or mortgagee may see that they ai'e
.satisfied and attendant upon the inheritance, .so
as to come within the operation of the Act; but
it is not necessary to require or furnish the legal
title, further than such title is shewn in making
out that the terms have fallen under the opera-
tion of the Act. The saving of expense and
trouble by this consec^uence of the Act is ob-
viously very great.
The 2nd section aiiplies to terms becoming Coiisti-uc-
satisfied and attendant after the 31st December, 2nd section.
1845, and determines them immediately upon
their becoming so attendant. Neither of the
sections includes terms (if such there can be)
which, being satisfied l,)efore the 31st of Decem-
ber, 1845, become attendant afterwards. This
arises from the alteration made in the original
clause, but is probably not material, as a satis-
fied term is necessarily attendant in equity.
The proposed 2nd section ran thus : — " That every
80 OBSERVATIONS ON
satisfied term of years now subsisting, or here-
after to be created, and wliicli, either by express
declaration or by construction of law, shall,
after the said day of , become attend-
ant upon the reversion or inheritance of any
land, shall, immediately upon the same becoming
so attendant, absolutely cease and determine as
to the land upon the inheritance or reversion
whereof such term shall become attendant as
aforesaid." The same mistake as to the use of
the word " land " in the singular number occui's
in this section also, and gives rise to the same
doubt as that suggested on the first section.
The same questions will also be raised as to
whether a term is " satisfied " and is " attendant
upon the inheritance or reversion."
The interpretation clause in the 3rd section is
Cunstiuc- likely to impede the operation of the Aqt ; and
tion of tlie , . . ,
interpre- this IS the more to be regretted, because, by a
clause. slight change in some of the words and expres-
sions of the first two sections, the necessity for
the interpretation clause contained in the third
section would have been altogether avoided.
The reason for restricting the operation of the
Act to freehold hereditaments and customary
land, passing by deed, or deed and admittance, is
not obvious. The proper course would seem to
have been, to have included hereditaments of
any tenure; for satisfied attendant terms are as
great an evil to lands of one tenure as of an-
other. It is very true, that satisfied terms in
THE ACT S & 9 VICT. c. 112.
copyholds are of veiy rare occurrence, but they
are not incompatible with the tenure, and may
occasionally exist; (see Earl of Bath w Ahney,
1 Burr. 206; Burton's Comp. art. 1314); and
lands passing by deed, and surrender and admit-
tance, which seem to be customary freehold, (see
Bingham v. Woodgate, 1 Russ. & My. 32, 750),
and are therefore liable, it is pi'esumed, to be in-
fested with attendant terms, are apparently ex-
cluded from the benefit of the Act. So, too, it
would seem, are customary hereditaments (if such
there be) which are not land, and which pass by
deed, or deed and admittance.
81
82
8 Ji 9 VICT. Cap. 106.
AN ACT TO AMEND THE LAW OF REAL PROPERTY.
\_Royal Assent, ith August, 1845.]
Be it enacted by the Queen's most excellent
Majesty, by and with the advice and consent of
the Lords spiritual and temporal, and Commons
in this present Parliament assembled, and by
the authority of the same, as follows; (that is
to say),
REPEAL OF THE ACT 7 & 8 VICT. C. 70.
Rci.eul of so I. That SO much of an Act passed in the last
Tnuch ot7 . n -r, T
&. 8 Vict. c. session of Parliament, intituled " An Act to sim-
70, as abo T/.im f p -n ts
lishescon- pliiy the Transfer of Property, as enacted, that,
tingent re- „ ^ . t • ^ ^
maiufJers, alter the time at which that Act should come into
commence- operation, no estate in land should be created by
way of contingent remainder ; but that every
estate, wliich, before tliat time, would have taken
effect as a contingent remainder, should take effect
(if in a will or codicil) as an executory devise,
and (if in a deed) as an executory estate of the
same nature, and having tlie same properties,
as an executory devise ; and tliat contingent re-
mainders existing under deeds, wills, or instru-
ments, executed or made before the time when
tliat Act should come into operation, should not
Ml cut.
8 &: 9 VICT. c. IOC. ^'i
fail, or be destroyed or barred, merely by reason
of the destruction or merger of any preceding
estate, or its determination by any other means
than the natural effluxion of the time of such pre-
ceding estate, or some event on which it was in
its creation limited to determine, shall be and is
hereby repealed, as from the time of the com-
mencement and taking effect thereof ; and that And the
the residue of the said Act shall be and is hereby from ist
repealed, as from the first day of October, one '^ ' * '
thousand eight hundred and forty-five.
CORPOREAL HEREDITAMENTS TO LIE IN GRANT.
II. That, after the said fir.st day of October, one The immo-
dilute free*
thousand eight hundred and forty -five, all corpo- hold of
real tenements and hereditaments shall, as regards tenements
the conveyance of the immediate freehold thereof, grant as
be deemed to lie in grant as well as in livery; uvery.
and that every deed which, by force only of this stamp duty
enactment, shall be effectual as a grant, shall be thereof.^'*
chargeable with the stamp duty with which the
same deed would have been chargeable in case the
same had been a release, founded on a lease or
bargain and sale for a year, and also with the same
stamp duty (exclusive of progressive duty) with
which such lease or bargain and sale for a year
would have been charceable.
FEOFFMENTS, ETC., TO BE BY DEED.
III. That a feoffment, made after the said fii-st Feoflments,
day of October, one thousand eight hundred and exchanged.
84
S S.- 9 VICT. c. 106.
leases, as- tbrtv-five, otlier than a feoffment made viiider a
signnicuts, . ,. 1 11 1 • 1 _L 1 1
aud sur- custom by an miant, shall be void at law, unless
required evidenced by deed ; and that a partition, and an
certain ex- exchange, of any tenements or hereditaments, not
to'be'by being copyhold, and a lease, required by law to
be in writing, of any tenements or hereditaments,
and an assignment of a chattel interest, not being
copyhold, in any tenements or hereditaments, and
a surrender in writing of an interest in any tene-
ments or hereditaments, not being a copyhold in-
terest, and not being an interest which might by
law have been created without writing, made after
the said first day of October, one thousand eight
hundred and forty-five, shall also be void at law,
unless made by deed : Provided always, that the
said enactment, so far as the same relates to a re-
lease or a surrender, shall not extend to Ireland.
Kooffments
not to ope-
rate by
wrong', nor
exchanges
or parti-
titions to
imply any
c jndition,
or "give"
and " grant"
any cove-
nant.
FEOFFMENTS, ETC., NOT TO OPERATE BY WRONG,
AND THE IMPLIED EFFECT OF CERTAIN WORDS
ABOLISHED.
IV. That a feoffment, made after the said first
day of October, one thousand eight hundred and
foi'ty-five, shall not have any tortious operation ;
and that an exchange, or a partition, of any tene-
ments or hereditaments, made by deed, executed
after the said first day of October, one thousand
eight hundred and forty-five, shall not imply any
condition in law; and that the word "give" or
the word "grant," in a deed, executed after the
same day, shall not imply any covenant in law, in
8 <fe 9 VICT. c. 106.
85
respect of any tenements oi" hereditaments, except
so far as the word " give " or the word " grant "
may, by force of any Act of Parliament, imply a
covenant.
INDENTURES.
V. That, under an indenture, executed after the strangers
tirst day of October, one thousand eight hundred immeAiatoly
and forty -five, an immediate estate or interest in denture;
any tenements or hereditaments, and the benefit purpurting
J. ,.,. , ,. , to be an iii-
oi a condition or covenant respecting any tene- denture
raenta or hereditaments, may be taken, although effuct us ^
the taker thereof be not named a party to the ^"'^'''
same indenture ; also, that a deed, executed after
the said first day of October, one thousand eight
hundred and forty-five, purporting to be an in-
denture, shall have the efiect of an indenture,
although not actually indented.
CONVEYANCE OF CONTINGENT INTERESTS.
VI. That, after the first day of October, one Contingent
thousand eight hundred and forty-five, a contiu- iiUeinter-
, , ij?j.'j.ii ests, also
gent, an executory, and a future interest, and a rights of
possibility coupled with an interest, in any tene- ^uei^bi'e *
nients or hei'editameuts, of any tenure, whether saving '
the object of the gift or limitation of such in- ?;Uh*L^i'd,
terest or possibility be or be not ascertained, also man-fed*^^
a ritrlit of entry, whether immediate or future, ?^':'".^^"-
° '' ' ' lujoining
and whether vested or contingent, into or upon conformity
° '■ to 3 & 4 W,
anv tenements or hereditaments in Enirland, of ■*• ^- '^*' '""^^
4 & 5 w. 4,
any tenure, may be disposed of by deed; but that c. 92.
no such disposition shall, by force only of this
86
S <fe 9 VICT. c. IOC.
4 & 5 W. 4.
c. 92.
Act, defeat or enlarge an estate tail ; and that
every sucli disposition by a married woman shall
be made conformably to the provisions, relative
to dispositions by married women, of an Act passed
in the third and fourth years of the reign of his
late Majesty King William the Fourth, intituled
" An Act for the Abolition of Fines and Reco-
veries, and for the Substitution of more simple
Modes of Assurance," or, in Ireland, of an Act
passed in the fourth and fifth years of the reign
of his said late Majesty, intituled " An Act for
the Abolition of Fines and Recoveries, and for
the Substitution of more simple Modes of Assur-
ance, in Ireland."
Capncity of
married
women to
disclaim
estate.^ or
interests
by deed ex-
tended to
England.
DISCAIMER BY MARRIED WOMEN.
VII. That, after the first day of October, ono
thousand eight hundred and forty-five, an estate
or interest in any tenements or hereditaments in
England, of any tenure, may be disclaimed by a
married woman by deed ; and that every such dis-
claimer shall be made conformably to the said
provisions of the said Act for the Abolition of
Fines and Recoveries, and for the Substitution of
more .simple Modes of Assurance.
PROTECTION OF CONTINGENT REMAINDERS.
Contingent VIII. That a Contingent remainder, existing
pro'tected, at any time after the thirty-first day of Decem-
Dec'.''i844,^ ber, one thousand eight hundred and forty-four,
premature^ •'^hall be, and, if created before the passing of this
8 & 9 VICT. c. 100. 87
Act, shall be deemed to have been, capable of tak- failure ota
, • i- t preceding
ing effect, notwithstanding the determination, by esute.
forfeiture, surrender, or merger, of any preceding
estate of freehold, in the same manner, in all re-
spects, as if such determination had not happened.
REVERSIONS OP LEASES.
IX. That, when the reversion expectant on a when the
lease, made either before or after the passing of a. leiise is
this Act, of any tenements or hereditaments, of ^gxt'es-
aiiy tenure, shall, after the said first day of Octo- fite^med the
ber, one thousand eight hundred and forty-five, '"'^''•"•'"^'"•
be surrendered or merge, the estate which shall
for the time being confer as against the tenant
under the same lease the next vested right to the
same tenements or hereditaments, shall, to the
extent and for the purpose of preserving such in-
cidents to, and obligations on, the same reversion,
as, but for the surrender or merger thereof,
would have subsisted, be deemed the reversion
expectant on the same lease.
SCOTLAND.
X. That this Act shall not extend to Scotland. Act not to
extend to
St'Ollaiid.
88
8 & 9 VICT. Cap. 112.
AN ACT TO RENDER THE ASSIGNMENT OF SATISFIED
TERMS UNNECESSARY («).
[Royal Assent, 8th August, 1845.]
CESSER OF TERMS ALREADY ATTENDANT.
Whereas tlie assignment of satisfied terms has
been found to be attended with great difficulty,
delay, and expense, and to operate in many cases
to the prejudice of the persons justly entitled to
the lands to which they relate : Be it therefore
enacted by the Queen's most excellent Majesty, by
and with the advice and consent of the Lords spi-
ritual and temporal, and Commons, in this present
Parliament assembled, and by the authority of the
On 3i8t Dec. same, That every satisfied term of years which,
fied terms either by exjn-ess declaration or by construction
theu^at- of law, sliall, upon the thirty-first day of Decem-
theluherit- ber, ouc thousand eight hundred and forty-fiive, be
version To attendant upon the inheritance or reversion of
trcontiuue a^J lands, shall on that day absolutely cease and
tccu^on'to°a determine as to the land upon the inheritance or
teu^"' ^^' reversion whereof such term shall be attendant as
aforesaid, except that every such term of years
which shall be so attendant as afoi'esaid by ex-
(a) The marginal notes have been altered, as they were
not accurate.
8&9VICT. c. 112.
89
press declaration, altliougli hereby made to cease
and determine, shall afford to every person the
same protection against every incumbrance,
charge, estate, right, action, suit, claim, and de-
mand as it would have afforded to him if it had
continued to subsist, but had not been assigned
or dealt with, after the said thirty-first day of
December, one thousand eight hundred and forty-
five, and shall, for the purpose of such protection,
be considered in every court of law and of equity
to be a subsisting term.
CESSER OP TEKMS HEllEAFTEK BECOMING
ATTENDANT.
II. And be it enacted, that eveiy term of years Satisfied
terms bere-
now subsisting or hereafter to be created, becom- after be-
cominsf
ing satisfied after the said thirty-first day of De- attendant,
1 1 1 1 1 /• i £ *° cease oa
cember, one thousand eight hundred and lorty-nve, becoming
and which, either by express declaration or by '
construction of law, shall after that day become
attendant upon the inheritance or reversion of any
lands, shall, immediately upon the same becoming
so attendant, absolutely cease and determine as to
the land upon the inheritance or reversion where-
of such term shall become attendant as aforesaid.
INTERPRETATION CLAUSE.
TIT. And be it enacted, that, in the construe- interpreta-
tion clause,
tion and for the ] )urposcs of this Act, unless there
be something in the subject or context repugnant
to such construction, the word " lands" shall ex-
90 8 & 9 VICT. c. 112.
tend to all freehold tenements and hereditaments,
whether corporeal or incorporeal, and to all such
customary land as will pass by deed, or deed and
admittance, and not by surrender, or any undi-
vided part or share thereof respectively; and every
word importing the singular number only shall
extend and be applied to several persons or things
as well as one person or thing; and every word
importing the masculine gender only, shall extend
and be applied to a female as well as a male.
SCOTLAND.
Not to ex- IV. And be it enacted, that this Act shall not
land, extend to Scotland,
PRECEDENTS.
^gitemcnts!*
I.
Agreement for a Lease (a).
JjE IT REMEMBERED, that A. B., of (fec. [intended Agreement
for a lease.
lessoi"], hereby agrees to let, and C. D., of arc. [m-
tendedlessee\, to take, all that &c. [^parcels], and
the rights, easements, and appurtenances there-
with held, used, or enjoyed, for years from
the day of , at the yearly rent of £ ,
clear of all existing and future taxes, rates, and
outgoings, and to be payable by equal half-yearly
payments on the day of , and the
day of , in every year, the first of such pay-
ments to be made on the day of next.
And that the said C. D. shall keep the said pre-
(a) As agreements are uot formal instruments, and do
not admit of much abridgment from their usual shape,
the present collection contains Precedents only of agree-
ments for leases, the law as to which has been most ma-
terially altered by the late Act. (See snpra, p. 61). It
will, of course, be borne in mind that these agreements
must be signed only, not scaled and delivered; for other,
wise they would operate as leases. (Supra, p. 62,)
92 AGREEMENTS.
mises, and at the end of tlie term give tliem up,
in tlie same order and repair as they now are in,
and shall keep them insured against loss by fire
in a sum not less than £ , and, when required,
produce the policy of such insurance, and the re-
ceipts for the premiums («). In witness &c.
Parties.
certain
term at a
certain rent
II.
Agreement for a Lease.
Articles of agreement made and entered
into, this day of , between A. B., of
&c. \intended lessor\ of the one part, and C. D.,
of &c. \intendQd lessee], of the other part, as fol-
Agreenient lows : That the said A. B. shall let, and the said
leairfor a ~C- D- shall take, ALL THAT &c. \^j)arcels\ with the
fixtures now in, upon, or belonging to the same,
and the rights, easements, and appurtenances
therewith held, used, or enjoyed, for the term of
years from the day of , at the
yearly rent, clear of all existing and future taxes,
rates, and outgoings, of £, , to be payable by
four equal payments, on the day of , the
(a) Any stipulations which are intended may be in-
serted here. It will be understood that this form should
only be adopted in very simple cases, and in which the
saving of expense is a great object; for ordinary purposes
the next Precedent should be used.
AGREEMENTS. 03
day of , the day of , and the
day of in every year; tlie fii'st of such
payments to be made on the day of
next. That the said A. B., his heirs or assigns, That the
/-) T\ 1 • lease shall
will, on the request of the said C. D., his execu- contain
. . . certain
tors, administrators, or assigns, execute a proper coveuants.
lease of the said premises to the said C. D., his
executoi'S, administratoi's, or assigns, for the
term and at the rent aforesaid, to be payable as
aforesaid. That the said lease shall contain co-
venants on the part of the said C. D., his execu-
tors, administratoi's, and assigns, for payment of
the said net yearly rent of £ on the days and
in manner aforesaid ; and for payment of all ex-
isting and future taxes, rates, and outgoings; and
to keep the said premises in good and sufficient
condition and repair ; and in such good and suffi-
cient condition and repair to deliver up the same,
with all new fixtures and other additions, to the
said A. B., his heirs or assigns, at the expiration,
or other sooner determination, of the said term;
AND to keep the said messuage and buildings in-
sured against loss by fire in a sum not less than
£ ; AND at all times, when required, to pro-
duce the policy or policies of such insiu'ance, and
the receipts for the premiums in respect of the
same, to the said A. B., his heirs or assigns;
AND ALSO, not to assign or underlet the said pre-
mises without license in writing from the said
A. B., his heirs or assigns; and not to carry on,
or permit to be carried on, on the said premises,
94 AGREEMENTS.
any noisome or offensive trade, business, or occu-
That the pation. That the said lease shall also contain a
lease shall . • a -n •
contain a proviso for re-entrv by the said A. B., Lis heirs
proviso for . " /< i • i i
re-entry. or assigns, on non-payment oi the said yearly rent
of £ , or any part thereof, for twenty-one days
next after any of the said days on which the same,
or any part thereof, shall become due, and whether
the same shall have been legally demanded or not,
or on the non-observance or non-performance of
any of the covenants in the said lease to be con-
tained, and on the part of the said C. D., his exe-
cutors, administrators, or assigns, to be observed
And a cove- or performed. That the said lease shall contain
nant lor • i » t-> i • i •
quiet en- a covcnaut, on the part oi the said A. .d., his heirs,
or assigns, that the said C. D., his executors, ad-
ministratoi's, and assigns, may, on due payment by
him and them of the said yearly rent to be reserved
as aforesaid, and on the observance and perform-
ance of the covenants in the said lease to be con-
tained, and on his and their part to be observed
and performed, quietly enjoy the premises to be
demised, without eviction or disturbance by the
said A. B., his heirs or assigns, or any person
lawfully claiming through or in trust for him or
That lessee them. That the said C. D., his executors, ad-
cnte a coiin- ministrators, or assigns, shall duly execute and
^^'^^ ' deliver to the said A. B., his heirs or assigns, a
That lease counterpart of the said lease. That the said
part shall Icasc and counterpart shall be prepared by the
by the^ks- Solicitor of the said A. B., his heirs or assigns,
citor, and and that the expenses of preparing and executing
AGREEMENTS. 9-">
this agreement and the said lease and counter- the expense
]>art, and all other incidental expenses, shall bo dividefi.
paid by the said A. B., his heirs or assigns, and
the said C. D., his executoi-s, administrators, or
assigns, in equal shares (a). Lastly, that, until
the execution of the said lease, the said premises
shall be held by the said C. D., his executors, ad-
ministi'ators, and assigns, at the rent aforesaid,
and subject to the covenants and conditions to be
contained in the said lease as aforesaid, so far as
the rules of law will permit. In witness &c. (F).
(a) In the absence of special stipulation, a lease is al-
ways prepared by the solicitor of the lessor, and at the
expense of the lessee. Where, in an agreement for a
lease, it was provided that the lease should be drawn,
prepared, and executed at the sole expense of the lessor,
it was held, that, in an action by the lessee on the agree-
ment, it was not necessary to aver that a lease was ten-
dered to the lessor for execution. {Price v. Williams,
1 Mee. & W. 6).
{h) It will be observed, that all the covenants and con-
ditions to be contained in the lease are specified in the
agreement, because an agi-eement that the lease shall con-
tain all usual covenants and conditions generally leads to
disputes as to what are usual covenants and conditions.
The method in the text is not free from risk ; for, as the
nature of each covenant and condition is only mentioned
generally, disputes may arise as to its extent and form.
The only safe way is to insert in the agreement all the
covenants and conditions literallj- as they are to stand in
the lease; but this makes the agreement so much longer,
that it will be generally objected to. The method in the
text is the next best.
96
CONVEYANCES.
Cmibepancesf*
HI.
Conveyance in Fee &?/ a Vendor seised in Fee,
his Wife releasing her Dower.
This indenture, made the day of
, between a. B., of S:c, \yendor'\, and D. B.
his wife, of the one part, and C. D., of &c. \jmr-
Witnesseth. chaser^ a bachelor («), of the other part, witness-
Cousidera- ETH, that, in consideration of the sum of £ to
"'"■ the said A. B. this day paid by the said C. D. for tlie
purchase of the fee simple of the hereditaments in-
tended to be hereby granted, (the receipt whereof
the said A. B. doth hereby acknowledge), he the
said A. B. doth hereby grant, and she the said
D. B., for the purpose of releasing her right of
dower, and with the concurrence of the said A. B.,
doth hereby release, unto the said C. D., his heirs
and assigns, all those and hereditaments
situate in the parish of , in the county of
Receipt.
Operative
words.
Parcels.
(a) To avoid future questions on the title, as to whe-
ther a purchaser was or was not married before the 1st of
January, 1834, to a woman living at the time of his pur-
chase, it is well to state the fact in the purchase-deed, by
describing him as a bachelor or widower, or stating that
he has been married since the 1st of January, 1834.
CONVEYANCES. V t
, delineated in the plan in the margin of
these presents, and specified in the schedule here-
under written, together with all commons, ways, General
lights, sewers, watercourses, rights, privileges,
easements, advantages, and appurtenances what-
soever, to the said hereditaments or any part
thereof appertaining, or with the same or any
part thereof held, used, or enjoyed, or reputed as
part thereof or appurtenant thereto («), and all
the estate and interest of the said A. B. and D. B.
in the said premises, to hold the said premises Habendum.
UNTO the said C. D., his heirs and a.ssigns, to the
USE of the said C. D., his heirs and assigns (6).
X And the said A. B. doth hereby, for himself, his Covenants
heirs, executors, and administrators, covenant for right to
with the said C. D., his heirs and assigns, that, free from
notwithstanding any thing by the said A. B., or br
any of his ancestors, done, or knowingly suffered,
tliey the said A. B. and D. B. now have power
to grant and release all and singular the said
(a) These general words should be varied by leaving
out "commons," "lights," &c., or the like, which may
not be appropriate to the property conveyed, and adding
other word.s (if any) which may be required.
(6) It has been usual to insert a declaration that no
widow of the purchaser shall be entitled to dower ; but
the practice is wrong, because, if the purchaser does not
dispose of the property in his lifetime, and dies intestate,
there is no reason why the widow's dower should be de-
feated in favour of the heir-at-law, even if a child, and
certainly not if a more distant relative.
F
iDcum-
inccs ;
98 CONVEYANCES. ^
' • 'v.
pi'emises unto and to the use of the said C. D.,
his heirs and assigns, free from incumbrances (a);
AND THAT all the said jiremises may be quietly-
entered into, held, and enjoyed by the said C D./piv/'
his heii's, and assigns, without any interruption
by the said Av-£. or any person lawfully or
equitably claiming through or in trust for him or
aud for fur- any of his ancestors ; and that he the said A. B. • *
therassur- i i • i • i i r- ^^
ance. and his heirs, and every person lawiully or
equitably claiming through or in trust for him or
any of his ancestors, will, at all times, at the cost
of the said C. D., his heirs or assigns, execute
and do all such assurances and things for further
or better assuring all or any of the said premises
to the use of the said C D., his heirs and assigns,
as by him or them shall be reasonably required. i
In witness &c. (6).
THE SCHEDULE to which the above-wi-it-
ten Indenture refers.
(a) The words "free frem incumbrances" are governed
by the restriction in the beginning of the covenant as to
tKe acts and deeds of A. B. and his ancestors, so that it is
unnecessary further to qualify them.
(b) This deed will have to be acknowledged by the
Vendor's wife.
CONVEYANCES. 09
IV.
Conveyance by a jNIahried Woman seised in
Fee to Uses to bar Dower.
This indenture, made &C., BETWEEN A. Parties.
B., of &c., and D. B. his wife [vendors'], of the first
part, C. D., of (fee. [purchaser], of the second
part, and E. F., of (fee. [trustee], of the third part,
WITNESSETH, that, ill Consideration of the sum of Witnesseth.
.£ to the said A. B. and D. B. this day paid Cousidera-
by the said C. D. for tlie purchase of the fee-sim-
ple of the hereditaments intended to be hereby
granted, (the receipt whereof the said A. B. and Receipt.
D. B. do hereby acknowledge), she the said D. B.,
with the concurrence of the said A. B., doth here- Operative
by grant and dispose of, and he the said A. B. doth
hereby grant and confirm unto the said C. D. and
his heirs [jxircels — general words, supra, 2}p. 96-7],
TO HOLD the said premises unto the said C. D. Habendum.
and his heirs, to such uses, for such estates, and To such uses
1 .iz-s-r^iiii it'''® purchaser
m such manner as the said C. D. shall by deed shall ap-
apponit ; and in default of and until any such i^ default,
appointment, and so far as no such appointment foHife?^^^'^'^
sliall extend, to the use of the said C. D. and
his assigns during his life, without impeachment
of waste ; and after the determination of that Limitation
f2
1 00 CONVEYANCES.
to tiustco estate by any means in bis lifetime, to the use
©"purchaser of the said E. F. and his heirs during the life of
him. the said C. D., in trust for him and his assigns ;
Remainder AND AFTER the determination of that estate, to
to purchaser ■ -, ^ -w-^ , , •
in fee. THE USE of the Said C. D., his heirs and assigns,
Covenants for ever. And the said A. B. doth hereby, for
for right to liimself, his heirs, executors, and administrators
free from Covenant with the said C. D., his heirs and
ces; assigns, that, notwithstanding anything by the
said D. B., or any of her ancestors, or the said
A. B., done, or knowingly suffered, they the said
D. B. and A. B. now have power to grant and
dispose of all and singular the said premises, to
the uses and in manner aforesaid, free from in-
cumbrances; and that all the said j)remises
may be quietly entered into, held, and enjoyed
l)y the said 0. D., his heirs, appointees, or as-
signs without any interruption by the said A. B.
and D. B. or either of them, or any person law-
fully or equitably claiming through or in trust
and for ftir- for the Said T>. B. or any of her ancestors ; and
Burauce, THAT shc the said D. B. and her heirs, and the
said A. B., and every other person lawfully or
equitably claiming through or in trust for the
said D. B. or any of her ancestors, or the said
A. B., will, at all times, at the cost of the said
C. D., his heirs, appointees, or assigns, execute
and do all such assurances and things for further
or better assuring all or any of the said premises
to the uses and in manner aforesaid, as by the
CONVEYANCES. 101
said C. D., his lieii-s, appointees, or assigns, shall
be reasonably required. In witness ifec. (a).
THE SCHEDULE to which the above-writ-
ten Indenture refers.
Conveyance by Appointment, and Grant in
Fee.
This indenture, made &c., between a. Parties.
B., of &c. [ve/ic^or], of the one part, and C. D., of
&c. \^urchaser\ of the other pai-t, WITNESSETH, Witnessetii
that, in consideration of the sum of £ to the Considera-
tion,
said A. B. this day paid by the said C. D., for the
purchase of the fee-simple of the hereditaments
intended to be hereby appointed and granted,
(the receipt whereof the said A. B. doth hereby Receipt.
acknowledcreY he the said A. B. , in exercise of a Appoint-
power given him by an indentui'e dated the
day of (6), and expressed to be made between
(a) This deed will have to be acknowledged by the
married woman, the vendor.
{b) It is usual to specify the mode of assurance more
particularly; thus, "by an indenture of release grounded
on a lease for a year;" or, "by an indenture of release
102 CONVEYANCES.
[pay'ties], and of every other poAver enabling him
in this behalf, doth hereby direct, limit, and ap-
point (a), and by virtue of his estate and interest
doth hereby grant and confii-m, unto the said C.
Graut. D., his heirs and assigns, [^>arce/s — general words,
Habendum supro, pp. 96-7], TO HOLD the Said premises unto
infeer '**''' the said C. D., his heirs and assigns, TO the use
Ooveuants of the said C. D., his heirs and assigns (6).^ And
inade in pursuance of the Act for rendering a release as
effectual for the conveyance of freehold estates as a lease
and release by the same parties;" or, "by an indenture
of feoffment perfected by liveiy of seisin;" or, "by an in-
denture of bargain and sale perfected by inrolment, and
by a recovery suffered in pursuance of the same inden-
ture," or the like. But the expression in the text is suffi-
cient. The phrase "expressed to be" may be omitted
when it is known that the instrument was executed by
all the parties.
(a) In exercising a power, it is best to take the opera-
tive words given in the power. The power supposed in
the text requires no formalities; but, in exercising a
power which does require formalities, it is unnecessary
to follow the usual course of making the witnessing part
describe the intended mode of execution. Nothing ig
gained by it, for, if the attestation is wrong, the right
description in the deed will not rectify the mistake. The
directions as to the execution of the deed maybe written
as a marginal note.
(6) Unless there be any reason (as there very seldom is)
to suppose that the power has been extinguished, the
conveyance may be by appointment alone. There is,
however, no great advantage in this course, and there
may be an objection to it when the power is not recent
CONVEYANCES. 103
THE SAID A. B. doth hereby, for himself, his by ven.iur,
. . fur rij^'lit
heirs, executors, and administrators covenant to appoint
with the said C. D., his heirs and assigns, that, free from
notwithstanding anything by the said A. B. done ccs ;
or knowingly suffered, he the said A. B. now
hath power to appoint and gi'ant all and singular
the said premises to the use of the said C. D.,
his heirs and assigns, free from incumbrances;
AND JiiAT all the said premises shall be quietly
entered into, held, and enjoyed by the said C D.^
his heirs and assigns, without any interruption
by the said -At B., or any person lawfully or
equitably claiming through or in trust for him ;
in its creation; for, if the appointor has made a lease
which has taken efifect out of his estate, the reversion
taken by the appointee is not the reversion immediately
expectant on the lease to which the rent and covenants
are incident. There is no substantial objection, when
the property is limited to uses to bar dower in favour of
the vendor, to taking the conveyance from hira, as in
Precedent III., (omitting the wife), either reciting or not
reciting his title ; for the conveyance of his estates will
extinguish the power, or preclude him from exercising it.
The usual objection to this method is, that it leaves un-
touched the estate of the trustee; but this estate cannot
be considered of more importance than that of trustees
to preserve contingent remainders, and the latter is never
got in. The advantages of omitting the appointment are,
that the reference to any anterior title is avoided, and the
question as to the rent and covenants of a lease granted
out of the vendor's estate is got rid of The first objec-
tion, however, may be diminished by appointing with
only a general reference to every power in the appointor.
104 CONVEYANCES.
—for fur- AND THAT he the Said A. B. and his heirs, send-
auoe. every other person lawfully or equitably claim-
ing through or in trust for him, will, at all times
at the cost of the said C. D., his heirs or assigns,
execute and do all such assurances and things for
further or better assuring all or any of the said
I)remises to the use of the said C D., his heirs
and assigns, as by him or them shall be reason-
ably required. In witness &c.
THE SCHEDULE to which the above-writ-
ten Indenture refers.
CONVEYANCES. 1U5
VI.
Conveyance by Appointment and Giiant to
Uses to bar Dower.
This indenture, made&c, between A. B., Parties.
of &c. \yendor\ of the first part, C. D., of &c.
[ purchaser], of the second part, and E. F., of &c.
[trustee], of the third pai-t, WITNESSETH, that, iu Witnesseth.
consideration of the sum of £ to the said Considera-
tion.
A. B. this day paid by the said C. D. for the
purchase of the fee-simple of the hereditaments in-
tended to be hereby appointed and granted, (the
receipt whereof the said A. B. doth hereby ac- Receipt,
knowledge), he the said A. B., in exercise of a
power given him by an indenture dated the
day of , and expressed to be made between
[pa/rties], and of every other power enabling him
inthisbehalf, doth hereby direct, limit, and appoint
that ALL THOSE the and hereditaments here- Appoint-
inafter described, and intended to be hereby grant-
ed, with the appurtenances, as hereinafter mention-
ed, shall henceforth go and remain to the uses here-
inafter limited. And this indenture also wit- witnessetu
NESSETH, that, for the consideration aforesaid, he
the said A. B. doth hereby grant unto the said ^^';2^^-
C. D. and his heirs [parcels — general toords,
supra, pp. 96-7], to hold the said premises unto Habendum.
the said C. D. and his heirs, TO the uses here-
106 CONVEYANCES.
i.iinitation iuaftei' limited. And it is hereby agreed and
;i8 purchaser DECLARED, that the direction, limitation, and ap-
i>o?nt^'' pointment, and the gi'ant hereinbefore contained,
shall respectively operate and enure to such
USES, for such estates, and in such manner as the
said C. D. shall by deed appoint ; and in de-
iii denuiit, FAULT of and until any such appointment, and
to purchaser . i ti i
for life; SO far as no such appointment shall extend, to
THE USE of the said C. D. and his assigns during
to trustees ^lis life, without impeachment of waste ; and
of pur- '''^^ AFTER the determination of that estate by any
trust for° means in his lifetime, to the use of the said E. F.
*'™ ' and his heirs during the life of tlie said C D., in
to purchaser trust for him and his assigns : and after the
in fee. ° '
determination of that estate, TO the use of the
Covenants said C. D., liis heirs and assigns, for ever. And
for title :
THE SAID A. B. doth hereby, for himself, his
lieirs, executors, and administrators, covenant
with the said C. D., liis heirs and assigns, that,
notwithstanding anything by the said A. B. done,
or knowingly suffered, he the said A. B. now
hath power to appoint and grant all and singular
the said premises to the uses and in manner
aforesaid, free from incumbrances ; AND that
all the said premises shall be quietly entered into,
held, and enjoyed by the said C. D., his heirs,
ajjpointees, or assigns, without any interruption
by the said A. B. or any person lawfully or equit-
-for further ably claiming through or in trust for him ; and
THAT the said A. B. and his heirs, and every
other person lawfully or equitably claiming
assurance.
CONVEVANX'ES. 1 07
through or in trust for liim, will, at all times at
the cost of the said C. D., his heirs, appointees,
or assigns, execute and do all such assurances
and things for further or better assuring all or
any of the said premises to the uses and in man-
ner aforesaid, as by the said C. D., his heirs, ap-
pointees, or assigns, shall be reasonably required.
In witness &c.
THE SCHEDULE to which the above-writ-
ten Indenture refers.
YII.
Con\t:yance hj Mortgagor and Mortgagee.
This indenture, made &c., between A. Parties.
B., of &c. [mortgagee], of the first part, C. D., of
itc. [mortgagor and vendor], a widower (a), of the
second part, and E. F., of &c., a bachelor (6)
[purchaser], of the third part. Whereas, by an
(a) If the vendor be a widower or bachelor, or has
been married since the 1st of January, 1834, the fact
may properly be stated, to avoid the question being raised
on a subsequent investigation of the title. In the case
in the text, the right of dower, if it had existed at all,
must of course liave existed before the date of the mort-
gage which placed the legal estate in the mortgagee.
{b) See supra, p. 9C, n.(a). If it is desired to convey
to uses to bar dower, tliis Precedent may be varied by a
reference to Precedent lY. supra, p. 99.
108 CONVEYANCES.
Ricitalof indenture dated tlie day of (a), and
mortgage. g^pj.gggg(j ^g ^^g made between the said C, D., of
the one part, and the said A. B., of the other part,
in consideration of the sum of £ by the said
A. B. paid to the said CD., the said C. D. did
grant unto the said A. B., his heirs and assigns,
the hereditaments intended to be hereby gi-anted,
To hold the same unto and to the use of the said
A. B., his heirs and assigns, sui)joct to a pi'oviso
in the indenture now in recital contained for re-
demption of the same premises on payment by
the said C. D., his heirs, execTitors, administrators,
or assigns, unto the said A. B., his executoi's
administrators, or assigns, of the sum of £ ,
with interest for the same after the rate and at
Contract for the time therein mentioned. And whereas the
said C D. has agreed with the said E. F. for
the sale to him of the said hereditaments, in
fee-simple in possession, free fi'om incum-
Tiuit Tuort- brances, for the sum of £ . And whereas
is still due, the Said sum of £ is now owing to
paid'nff out the said A. B., but all interest for the same has
moi" ^'^'''*'^' been paid up to the date of these presents, and it
has been agreed that the said sum of £
shall be paid off out of the said purchase-money,
and tliat the said A. B. shall join in these pre-
Witnesseth. sents in manner hereinafter appearing. Now
THIS indenture WITNESSETH, that, in pursuance
considera- ^^ ^^^ ^^^^ agreements, and in consideration of
*'°"- the sum of £ to the said A. B. this day paid
(a) See supra, p. 101, n. b.
CONVEYANCES. 109
by the said E. F. at the request of the said C. D.,
(the receipt wliereof tlie said A. B. doth hereby Receipt.
acknowledge), and of the sum of £ to the
said C. D. this day paid by the said E. F., (the
payment and receipt respectively of which said
sums of £ and £ , making together the
said purchase-money of £ , the said C. D. doth
hereby acknowledge), he the said A. B., by the Operative
direction of the said C. D., doth hei'cby grant, and
he the said C. D. doth hereby grant and confirm
unto the said E. F. and his heirs, [parcels — general
ioords,su]yra,pp. 9G-7], to hold the said premises Hiibi-iniMiii.
UNTO the said E. F., his heirs and assigns, To the
USE of the said E, F., his heirs and assigns, dis-
charged from the said sum of £ , and all in-
terest for the same, and all claims under or by
virtue of the said indenture jof the day of
. And the said A. B. doth hereby, for coveiwut
himself, his heirs, executors, and administrators gee against
covenant with the said E. F., his heirs and as- bnulcca.
signs, that he the said A. B. hath not done, or
knowingly suffered or been party or privy to any
thing whereby the said premises, or any part
thereof, are, is, or can be impeached, incumbered,
or aflected in title or otherwise. [Mortgar/oi''s
coverumts /or right to convey, and for further as-
surance, as in Precedent III. (supra, 2>P- 97-8),
except that tlie first covenant will be, " that they
the said A. B. and C. D. now have power to
grant," ttc] In witness &c.
THE SCHEDULE to which the above-writ-
ten Indenture refers.
110 CONVEYANCES.
VIII.
Conveyance hy tloe Heir and Executors of
a Mortgagee on a Sale under a Power of
Sale.
Parties. ThIS INDENTURE, made &c., between &c.
\lieir-at-laio of mortgagee], of the first part, C D.,
of (fee, ami E. F., of &c. [executors of mortgagee
and vendors], of the second part, and G. H., of
Recital of ^q \ purchaser], of the third part. Whereas
mortgage. L/ J' r
&c., [recital of the mortgage, ut supra, p. 108.
Recite, also, the power to sell, the proviso that the
receipt of the mortgagee should be a discharge,
and the claicse exempting the purclMser from see-
ing to the events having happened on which the
power arises, literally, or proceed thus : — " And
it was by the said indenture provided, that it
should be hiwful for the said [mortgagee], his
executors, administrators, or assigns, in certain
events, to sell and dispose of tlie said heredita-
ments, and that, on a sale by the executors or
admiuistrators of the said [rrtortgagee], the heirs
of the said [mortgagee] should convey the legal
estate as the said executors or administrators
should direct, and that the receipt of the said
[mor^(7a^ee], his executors oi' administrators, should
be a sufficient discharge to the purchaser, and
that the sale should be good as to a purchaser
whether the events had or had not happened on
which the power of sale was to arise, and not-
CONVEYANCES.
in
withstanding any impvopiiety or irregularity in
the sale."] And whereas the said [inorUjayee] -or vim
duly made and executed his last will, dated the of moii-
day of , and thereby appointed the said ^'^^'^'^'
C. D. and E, F. executors thereof, but did not
thereby devise the legal estate in the said hei-e-
ditaments, and died leaving the said A. B. his
heir-at-law, and without having revoked or al-
tered his said will, and the same was proved
by the said C. D. and E. F. in the Court
of , on the day of . And whereas _of con-
the said C. D. and E. F., in exercise of the said ^^l^ '""■
power of sale, have agreed with the said G. H. for
the sale to him of the said hereditaments, in fee-
simple in possession, free from incumbrances, for the
sum of £ . Now this indenture WITNESSETH, Wituesseth.
that, for effectuating the said sale, and in con-
sideration of the sum of £ to the said C. D.
and E. F. this day paid by the said G. H., (the Receipt,
receipt whereof the said C. D. and E. F. do here-
Ijy acknowledge), he the said A. B., by the di-
rection of the said C. D. and E. F., doth hereby
grant, and they the said C. D. and E. F. do here-
by release unto the said G. H. and his heirs, [par-
cels — general tvords, siqyra, jrp- OG-7], to hold nubeuamn.
the said premises unto the said G. H., his heii-s
and assigns, TO the use of the said G. H., his
heirs and assigns, dischai-ged from the said sum
of £ , and all interest for the same, and all
equity of redemption, and claims under or by
virtue of the said indenture of the day of
112
CONVEYANCES.
Covenant
aK;iiiist in-
— . And each of them tlie said A. B., C. D.,
cui'X4uce3. and E. F., so ftxr as relates to liis own acts,
dotli hereby, for himself, his heirs, executors, and
administrators covenant with the said G. H.,
liis heirs and assigns, that they the said A. B.,
C. D., and E. F., respectively, have not done, or
knowingly suffered, or been party or privy to
any thing whereby the said premises, or any part
thereof, are, is, or can be impeached, incumbered,
or affected in title or otherwise. In witness «fec.
THE SCHEDULE to which the above-writ-
ten Indenture refers.
Parties.
Uccital of
the settle-
ment ;
fX.
Conveyance under a Power of Sale in a
Settlement.
This indenture, made &c., BETWEEN A. B.,
of &c., and C. D., of &c. \yendors, donees of the
power of sale], of the first part, E. F., of &c.
[tenant for life, whose consent is required to the
exercise of the j^ower of sale], of the second part,
and G. H., of &c. [purchaser], of the third part.
Whereas, by an indenture dated the day
of , and expressed to be made between [pa?--
tles], (being a settlement made in consideration
of the marriage shortly afterwards solemnised be-
tween the said and ), divers heredita-
CONVEYANCES. 113
ments, including the hereditaments intended to
be hereby apj)oiuted, were limited to cci-tain uses ;
and by tlie said indenture it was provided, that,
[recite literally the power to sell, to revoke the old
and appoint neto uses, and to give receijJts to pur-
chasers ; or proceed thus, vjith variations according
to circumstances .] it should be lawful for the said
A. B. and C. D., with the consent of the said
E. F., to be testified by a writing under his hand
and seal, to sell the said hereditaments thereby
limited, or any of them, and, for the purpose of
effectuating such sale, with the consent aforesaid,
to revoke the uses thereby declared of the here-
ditaments so sold, and to appoint the same to the
purchasers, or as they should direct ; and it was
thereby also declared, that the receipts of the said
A. B. and C. D. for the pui-chase-money should
be sufficient discharges to purchasers (a). And — o' the
1 • 1 A T^ coutract
WHEREAS the said A. B. and C. D., in exercise of for sale,
the said power of sale, and with the consent of
the said E. F. (6), have agreed with the said G. H.
for the sale to him of the said hereditaments in-
tended to be hereby appointed, in fee-simple in pos-
session, free from incumbrances, for the sum of
£ . Now THIS INUENTUUE WITNESSETH, that, Witiiessetb.
(a) Of course, this recital will be varied according to
the terms of the power ; or the deed may be framed
without recitals, like Precedent V. supra, p. 101.
{b) It is usual to express the manner of testifying con-
sent; but, aa thia ia of no real use, it is omitted.
114 CONVEYANCES.
for effectuating the said sale, and in consideration
of the sum of £ to the said A. B. and C. D. this
Receipt. day paid by the said G. H. (the receipt whereof the
said A. B. and C. D. do hereby acknowledge), and
in exercise of the said power given them by the
hereinbefore-recited indenture, and of every other
power enabling them in this behalf, they the
said A. B. and CD., with the consent of the
Revocation said E. F., do hereby revoke all the uses by
and appoint- the hereiubefore-rccited indenture limitedj so far
Siaser.°^ * as relates to the hei'editaments intended to be
hereby appointed, and do hereby direct, limit, and
appoint (a) that [^j^arcels — general words, supra,
PI). 2^-1 , omitting the estate clause\ shall henceforth
go, remain, and be to the use of the said G. H.,
by'do'iiels^of ^"^ ^^^^^ ^^^ assigns (6). And each of them the
the power g^^^j ^ jg ^^^| Q j) ^^ fg^j. ^^ relates to his own
against in- '
cumbrances; ^cts, doth hereby, for himself, his heirs, executors,
and administrators, covenant with the said G. H,,
his heirs and assigns, that they the said A. B. and
0. D. respectively have not done, or knowingly
suffered, or been party or privy to any thing
whereby they are prevented from exercising in
manner hereinbefore appearing the power here-
inbefore' expi^essed to be exercised, or whereby
{a) The words of the power are, <as far as possible, to
be used; if no words are prescribed, (as where the power
to revoke and appoint is implied only from the power to
sell), the word "ajipoint" alone is the proper word.
{h) If the conveyance is to be to uses to bar dower, see
the form, supra, p. 99 ; and alter the covenants to corre-
spond. (See supra, p. 100).
CONVEYANCES. 115
the said premises hereinbefore expressed to be ap-
pointed, or any part thereof, are, is, or can be im-
peached, incumbered, or affected in title or other-
wise. And the said E. F. doth hercliy, for him- covenants
self, his heirs, executors, and administrators, co- (Jruutlov
venant with the said G. H., his heirs and assigns, "o^Jvey •
that, notwithstanding any thing by him the said
E. F., or any of his ancestors, done, or knowingly
suffered, the said A. B. and C. D. now have full
power, with the consent of tho said E. F., to ap-
point all and singular the saitl jircmises to the
use of the said G. H., his lieii's and assigns, free
from incumbrances ; and that all the said pre-
mises may be quietly entered into, held, and en-
joyed by the said G. H., his heirs and assigns,
without any interruption by the said E. F., or
any person lawfully or equitably claiming through
or in trust for him or any of his ancestors; and and for
THAT be the said E. F., and every other person assurance.
lawfully or equitably claiming through or in trust
for him or any of his ancestors, will, at all times,
execute and do all such assurances and things for
fui-ther or better assuring all or any of the said
premises to the use of the said G. II., his heirs
and assigns, as by him or them shall be reason-
ably required (a). In witness (fee.
THE SCHEDULE to which the above-written
Indenture refers.
(a) As to the qualification of covenants for title by a
tenant for life, see Dart, Vend, and Purchaser, 3rd edit,
pp. 353, 354.
116
CONVEYANCES.
X.
Receipt.
Covenant.
Covenant to surrender Copyholds to a
Purchaser.
Parties. ThIS INDENTURE, made &c., between A. B.,
of kc. \yendvr\ of the one part, and C. D., of &c.
Witnesseth [^purc]iaser\ of the other part, WITNESSETH, that,
Considera- in consideration of the sum of £> to the said
A. B. this day paid by the said C. D., for the pur-
chase of the hereditaments hereinafter covenanted
to be surrendered (the receipt whereof the said
A. B. doth hereby acknowledge), he the said A. B.
doth hereby, for himself, his heirs, executors, and
administrators, covenant with the said C. D. and
his heirs, that he the said A. B. or his heirs,
and all other necessary parties (if any), will forth-
with (a) effectually surrender into the hands of the
lord of the manor of , in the county of ,
Parcels. according to the custom thereof, all those the
and hereditaments situate in the parish of
, in the county of; , delineated in the plan
in the margin of these presents, and specified in
the schedule hereunder written, (all which
and hereditaments are in the court rolls of the said
manor described as follows : (that is to say), [de-
scription from the rolls(b) — general words, supra,
(a) The surrender is in practice made out of court im-
mediately after the deed of covenant is executed.
(b) It is hardly necessary to observe, that the descrip
CONVEYANCES. 117
]i. 97, omitting the estate clause^), TO the use
of the said C. D., his heirs and assigns, accord-
ing to the custom of the said manor, and by
and under the accustomed rents, fines, heriots,
suits, and services. And the said A. B. doth o.venant
hereby, for himself, his heirs, executors, and ad- fo^r r?gh °to
ministrators, covenant with the said G. D., his fr'!m*^mcum-
heirs and assigns, that, notwithstanding any thing '^''*'^°'=®^ ;
by the said A. B., or any of his ancestors, done,
or knowingly suffered, he the said A. B. now hath
power to surrender all and singular the said pre-
mises to the use of the said C. D., his heirs and
assigns, in manner aforesaid, free from incum-
brances ; AND THAT all the said premises may be
quietly entered into, held, and enjoyed by the
said C. D., his heirs and assigns, without any in-
terruption by the said A. B. or any person law-
fully or equitably claiming through or in trust
for him; and that he the said A. B. and his heirs, ^„(i f^r fur-
andeveryother person lawfully orequitablyclaim- ance.*^^""^
ing through or in trust for him or any of his an-
cestors, will, at all times, at the cost of the said
C. D., his heirs or assigns, execute and do all such
assurances and things for further or better assur-
ing all or any of the said premises to the use of
the said C D., his heirs and assigns, as by him or
them shall be reasonably requii-ed. In witness &c.
THE SCHEDULE to which the above-writ-
ten Indenture refers.
tion on the roils is frequently incorrect; and that, there-
fore, in the deed of covenant, it is often requisite to give
both the true and the manorial description.
118
CONVEYANCES.
XL
Parties.
R;cital of
estate.
tract for
sale.
Conveyance of a Contingent Estate (a) in
Copyholds.
This indenture, made &c., between A. B.,
of &c. [vendor], of the one part, and C. D., of &c.
[jni/rchaser], of the other part. Wheeeas [recite
the instrument by which the estate was created and
the subsequent events formally , or proceed in this
manner, with variations according to circum-
stances;] tinder the will, dated the day of
— _, of , deceased, and of several subsequent
events, the said A. B., as one of the children
of , his mother, is now presumptively en-
titled in reversion immediately expectant on the
death of the said , and, in the event of his
surviving her, to the inheritance, according to the
custom of the manor of , in the county of
, of one share of the copyhold heredita-
ments hereinafter mentioned, and will, in the event
aforesaid, on the death of any one, or more, or all
of his brothers and sisters in the lifetime of the said
, become entitled to the absolute inheritance,
according to the custom of the said manor, of a
further share or shares, or of the entirety of the
same hereditaments. And whereas the said
A. B. has agreed with the said C. D. for the sale
(a) See supra, p. 68.
CONVEYANCES. 1 1 9
to him of the said share, shares, or entirety, to
which he the said A. B. is, or will be in the
event or events aforesaid, entitled, and the in-
heritance thereof according to the custom of the
said manor, free from incumbrances, except the
accustomed rents, tines, heriots, suits, and ser-
vices, but subject to the estate for life therein of
the said , and to the contingency of the es-
tate and interest of the said A. B. in the same
hereditaments being defeated by his death in the
lifetime of the said . Now this indenture witnesseth,
WITNESSETH, that, ill pursuance of the said agi*ee-
ment, and in consideration of the sum of £ Considera-
to the said A. B. this day paid by the said C. D. *^'''"'
(the receipt whereof the said A. B. doth hereby Receipt,
acknowledge), he the said A. B. doth hereby operative
grant and dispose of (a) unto the said C. D., his '"°'^ ^'
heirs and assigns all that the share, and parcels
all and every other the shares, share, or entirety
to which the said A. B. is, or will be in the event
of his surviving the said , entitled of, [parcels
— general ivords, supra pp. 96-7], and all the
estate and interest of the said A. B. in the said
premises, TO hold the said premises unto and Habendum.
TO THE USE of the said C. D., his heirs and assigns,
subject to the estate for life therein of the said
, and to the contingency of the estate and
interest of the said A. B. in the said heredita-
ments being defeated by his death in the lifetime
of the said , and according to the custom of
(a) See the words of sect. 6 of the statute, supra, p. 85.
1 20 CONVEYANCES.
the said manor, and by and undei' tlie accustomed
Covenants rents, fines, lieriots, suits, and services. And the
by vendor '
for righL to SAID A. B. doth hereby, for himself, his heirs, ex-
convey, free
from incum- ecutors, and administrators covenant with the
brances;
said C D., his lieirs and assigns, that, notwith-
standing anything by the said A. B., or the
said [testator'\, or any of his ancestors done, or
knowingly suffered, he the said A. B. now hath
power to grant and dispose of all and singular the
said premises unto and to the use of the said
C. D., his heirs and assigns, subject as and in
manner aforesaid, but free from incumbrances;
AND THAT, Subject to the estate for life and contin-
gency aforesaid, all the said premises may be quiet-
ly entered into, held, and enjoyed without any
interruption by the said A. B. or the said [testator^,
or any person lawfully or equitably claiming
and fur throujch him or anv of his ancestors ; and that
further *= , , . . ,
assurance, he the Said A. B. and his heirs, and every other
l)erson lawfully or equitably claiming through or
in trust for him, or the said [testator], or any of
his ancestors, will, at all times at the cost of the
said C. D., liLs heirs or assigns, execute and do
all such assurances and things, for further or bet-
ter assuring all or any of the said premises unto
and to the use of the said C. D., his heirs and as-
signs, subject as and in manner aforesaid, as by
him or them shall be reasonably required. In
WITNESS, &c.
THE SCHEDULE to which the above-written
Indenture refers.
CONVEYAXCES.
121
XII.
AssiGNJrENT q/" Leaseholds on a Sale.
This indenture, made &C., BETWEEN A. Parties.
B., of &c. \yend(y)'], of the one part, and C. D.,of
(fee. [purchasei-], of the other part. Whereas, by Recital of
an indenture of lease, dated the day of , ^ '
and expressed to be made between [^parties], all
that &c. \^x)arcels from the lease], with the ap-
purtenances, were demised to the said G.H., his ex-
ecutors, administrators, and assigns, for the term
of yeai-s from the day of , at the
yearly rent by the same indentui'e reserved, and
subject to certain covenants and conditions there-
in contained, and by the lessee, his executors, ad-
ministrators, and assigns to be observed and per-
formed (a). And whereas the said premises are —of its
now vested in the said A. B. for the residue of come vesica
„ /-TK A in vendor ;
the said term of years (6). And whereas _^(^^^^
the said A. B. hath agreed with the said C. D. for «^^;^^^act
the sale to him, for the sum of £ , of the pre-
mises aforesaid, for the residue of the said term,
and subject to the rent, covenants, and conditions
(a) In assigning leaseholds, the lease is usually recited
and the parcels set out in the recital ; and in stating the
parcels, the exceptions (if any) should either be set out or
mentioned, so as to shew what was actually demised.
(6) It is usual particularly to refer to the last assign-
ment, viz. that to the vendor; but, as nothing is gained
by this reference, it has been omitted.
Ci
122
CONVEYANCES.
aforesaid, but free from otlier incumbrances.
Witncsecth. NoW THIS INDENTURE WITNESSETH, tbat, in pur-
Cousidera- suance of tliB said agi-eement, and in consideration
"°"' of the sum of £ to the said A. B. this day
Receipt. paid by the said C D., (the receipt whereof the
Assignment. Said A. B. doth hereby acknowledge), he the said
A. B. doth hereby assign unto the said C. D., his
Parcels. executors, administratoi-s, and assigns, all and
SINGULAR the said , hereditaments, and pre-
mises by the said indenture of the day of
[^ease] expressed to be demised (a), with
their rights, easements, and appurtenances, and
ALL the estate and interest of the said A. B. in
Habendum the said premises, TO hold the said premises unto
the said C. D., his executors, administrators, and
assigns, for the residue of the said term of
years, at the rent and subject to the covenants
(a) If houses, or other buildings, have been erected
since the date of the lease, so as to vary the description
of the property, they should be mentioned thus : —
" together with all those messuages and
buildingswhich have been built on the said ground
since the date of the said lease,"
or in some similar way. If the houses are numerous,
they may be placed in a schedule, and referred to accord-
ingly: this is pai'ticularly convenient when it is desired
to shew the tenancy and rental. Sometimes, common
general words, as in conveyances of freehold, are added,
especially when the lease is of long standing, so that ap-
purtenances may have been acquired by user since its
creation.
CONVEYANCES. 123
and conditions in the said lease reserved and con-
tained, and lienceforth by the lessee, his executors,
administrators, and assigns to be paid, performed,
and observed. And the said A. B. doth here- Covenant
by vcndov,
bv, for himself, his heirs, executors, and adminis- tuat rent
•' ' ' ' ' and uove-
trators, covenant with the said C. D., his execu- nuutshave
been paid
tors, administrators, and assigns, that, notwith- *"^^.^".
standing anything by the said A. B. done, omit-
ted, or knowingly suilered(a), the rent, covenants,
and conditions in the said lease reserved and con-
tained, and by the lessee, his executors, adminis-
trators, and assigns to be paid, performed, and
observed, have been paid, performed, and ob-
served up to the date of these presents : and that, — fov ligin
notwithstanding any such thing as aforesaid(o), fieofion
he the said A. B. now hatJi power to assign all brances;
and singular the said premises unto the said C.
D., his executors, administrators, and assigns, for
the term, and subject as and in manner afore-
said, free from incumbrances ; and that all the and for
• . -1 1 • J further
said premises may be quietly entered into and assurance,
during the said term held and enjoyed without
any interruption by the said A. B., his executors
or administrators, or any person lawfully or equit-
ably claiming through him; and that he the
(rt) As to the shape of this covenant see Dart, Vend.
& Purch., 3rd edit. p. 354.
(6) It is usual to insert a covenant that the lease i.s
valid ; but this seems implied by the covenant for right
to assign, and is, therefore, omitted.
G 2
124 CONVEYANCES.
said A. B., his executors and administrators, and
eveiy other person lawfully or equitably claiming
through or in trust for him, will, at all times, at
the cost of the said C. D., his executors, adminis-
tratoi"S, or assigns, execute and do all such assur-
ances and things for further or better assuring all
or any of the said premises unto the said C. D.,
his executors, administrators, and assigns, for the
then residue of the said term, subject as and in
manner aforesaid, as by the said C. D., his execu-
tors, administrators, or assigns shall be reason-
Covenant by ably required. And the said C. D. doth hereby,
purchaser j i
to pay rent for himself, his heirs, executors, and admini.sti-a-
anrl observe
covenants, tors, covenant with the said A. B., his .executors
and administrators, that he the said C. D., his ex-
ecutors, administrators, or assigns will henceforth
pay the said rent by the said lease reserved,
and perform and observe all the covenants and
conditions therein contained, and Vjy the lessee,
his executors, administrators, or assigns hence-
and indem- forth to be performed and observed, and will keep
Tn respect"'^ the said A. B., his heirs, executors, and adminis-
trators indemnified against all actions, suits, ex-
penses, and claims on account of the non-payment
of the said rent or any part thereof, or the breach,
or non-performance or non-observance of the said
covenants and conditions, or any of them (a). In
WITNESS &c.
(a) Every vendoi' of a lease, except the assignees of a
bankrupt, Wilkins v. Fry, 1 Mer. 244, is entitled to this
covenant. (See 1 Davidson's Precedents in Conveyancing,
477).
CONVEYANCES. 125
XIII.
Conveyance of Freeholds, and Covenant
to surrender Copyholds to a Pur-
chaser.
This indenture, made &c., between A. B., Parties,
•of &c. \yendor\ a widower (rt), of the one part, and
C. D., of &c. \jpurchaser\, a bachelor (6), of the
other part, witnesseth, that, in consideration of Witneaseth.
the sum of £ to the said A. B. this day paid
by the said C. D., for the purchase of the here-
ditaments intended to be hei'eby gi'anted (the re- Receipt,
ceipt whereof the said A. B. doth hereby acknow-
ledge), he the said A. B. doth hereby grant unto Conveyance
the said C. D., his heii's and assigns, all those parcels
and hereditaments situate in the parish of
, in the county of , delineated in the
plan in the margin of these presents, and therein
coloured , and specified in the first part of
the schedule hereunder written (c), \(jen€,ral words,
(a) See supra, p. 107, n. (a), (b) See supra, p. 96, n. (a).
(c) If, as is often the case, the freeholds and copyholds
cannot be distiuguished, the freehold parcels may run
thus: —
" ALL SUCH parts of the and hereditaments
situate in the parish of , in the county of
, delineated in the plan in the magin of these
presents, and specified in the schedule hereuiider
126 CONVEYANCES.
iiLibeiidum. supra, p. 97], TO HOLD the said premises unto the
said C. D., his heirs and assigns, to the use of the
said CD., his heirs and assigns. And this in-
Witn&sseth DENTURE ALSO WITNESSETH, that, in consideration
of the sum of £ to the said A. B. this day
paid by the said CD., for the purchase of the
hereditaments hereinafter covenanted to be sur-
R«ceipt. rendered (the receipt whereof the said A. B. doth
hereby acknowledge), he the said A. B. doth here-
Covenaut to by, for himself, his heirs, executors, and adminis-
copyhoids. trators covenant with the said C D. and his heirs,
that he the said A. B. or his heirs, and all other
necessary parties (if any), will forthwith effectu-
ally surrender into the hands of the lord of the
manor of , in the county of , according
Parcels. to the custom thereof, all those and here-
ditaments, situate in the parish aforesaid, deli-
neated in the plan aforesaid, and therein coloured
, and specified in the second part of the said
schedule hereunder written (all which said
and Iiereditaments are in the court-rolls of the
said manor described as follows (a); (that is to
written, as are of freehold tenure (all which parts,
so far as the same are known, are distinguished in
the said plan by the colour , and are indi-
cated in the said schedule)."
(a) When the freeholds and copyholds cannot be dis-
tinguished, the copyhold parcels may run thus : —
" all such parts of the said and heredita-
CONVEYANCES. 127
say), [description from the rolls — general words,
supra, p. 97, without the estate clause]^, to the To the use
USE of the said C. T>., his heirs and assigns, ac- chaser.
conling to the custom of the said manor, and by
antl under the accustomed rents, fines, heriots,
suits, and sei-vices. And it is hereby declared, Declaration
' , / that the
that the aforesaid freehold and coiiyhold heredi- price is ap-
portioned
tamcnts were contracted to be sold by the said forthepur-
poses of the
A. B. to the said C. D. at the sum of £ (the stamp Acts.
aggi-egate of the aforesaid sums of £ and
£ ), as an entire price for the whole, and
that the aforesaid division and apportionment
thereof are made only for the purposes of the Act
imposing an ad-valorem stamp duty upon con-
veyances upon sales. And the said A. B. doth Covenant
hereby, for himself, his heirs, executors, and ad- for right to
• -1 .11 • 1 /-I T^ 1 • convey, free
miiustrators, covenant with the said U. D., bis from incum-
heirs and assigns, that, notwithstanding anything
by the said A. B. or any of his ancestors done, or
knowingly suffered, he the said A. B. now hath
power to grant all and singular the said premises
liereinbefore expressed to be hereby granted, and
ments delineated in the plan aforesaid, and speci-
fied in the schedule aforesaid, as are of copyhold
tenure (all which parts, so far as the same are
known, are distinguished in the said \Aa.n by the
colour and are indicated in the said schedule,
and in the court-rolls of the said manor are de-
scribed as follows; (that is to say) ),"
138 CONVEYANCES.
to surrender all and singular tlie said premises
hereinbefore covenanted to be sun'endered to the
use of the said C. D,, his heirs and assigns, in
— for further nianner aforesaid, free from incumbi-ances ; and
.issui.mce. ^jj^rp ^^i the several premises aforesaid may be
quietly entered into, held, and enjoyed by the
said C. D., his heirs and assigns, without any in-
terruption by the said A. B. or any person lawfully
or equitably claiming through or in trust for him
or any of his ancestors; and that he the said A.
B. and his heirs, and every other person lawfully
or equitably claiming through or in trust for him
or any of his ancestors, will, at all times, at the
cost of the said C D., his heirs or assigns, execute
and do all such assurances and things for further
or better assuring all or any of the said premises
respectively to the use of the said C D., his heirs
and assigns, as by him or them shall be reason-
ably required. In witness &c.
THE SCHEDULE to which the above-written
Indenture refers.
Part I. Part II.
CONVEYANCES.
xrv.
129
Conveyance o/* Freeholds and Leaseholds to a
Purchaser.
This indenture, made &c., between A. Parties.
B., of &c. [vendor], who has been married since
the 1st day of January, 1834: (a), of the one
part, and C. D., of tfec. [purc/uiser], a bachelor (6),
of the other ])art, [recital of the lease, and of its
being vested in tite vendor, supra, p. 121]. And contract
WHEREAS the said A. B, has agreed with the said
C. D. for the sale to him, for the sum of
£ , of the hereditaments intended to be
hereby gi-anted, in fee-simple in possession,
free from incumbrances, and also of the said
leasehold premises for the residue of the said
term, and subject to the rents, covenants,
and conditions aforesaid, but free from other
incumbrances. Now this indenture wit- wituesseth,
NESSETii, that, in pursuance of the said agree-
pient, and in consideration of the sum of £
to the said A. B. this day paid by the said C. D.,
(the receipt whereof the said A. B. doth hereby Receipt.
acknowledge), he the said A. B, doth hereby conveyance
gi-aut unto the said C. D., his heirs and assigns, °
[freehold jJarcels, and general ivords, supra, pp.
96, 97, with the addition o/tJie reference to a dis-
(a) See Bupra, p. 107, n. (a), (b) See supra, p. 96, n. (a).
3
130
CONVEYANCES.
Habendum.
Witnosseth
secondly.
Assignment
of lease-
holde..
tinguishing colour on the plan, see supra, p. 12G],
TO HOLD the said pi-emises unto the said C. D.,
his heirs and assigns, TO the use of the said C.
D., his heirs and assigns. And this indenture
ALSO WITNESSETH, that, in further pursuance of
the said agreement, and for the consideration
aforesaid, he the said A. B. doth hereby assign
unto the said C. D., his executors, administra-
tors, and assigns, all and singular the said
, hereditaments, and premises by the said
indenture of the day of \lease\ ex-
pressed to be demised [a), and which are deline-
ated in the said plan in the margin of these pre-
sents, and therein coloured , with their
rights, easements, and appurtenances, and all
the estate and interest of the said A. B. in the
Habendum, said premises, TO HOLD the said premises unto
the said C. D., his executors, administrators, and
assigns, for the residue of the said term of
years, at the rents and subject to the covenants
and conditions in the said lease reserved and
contained, and henceforth by the lessee, his ex-
ecutors, administrators, and assigns to be paid, per-
formed, and observed. And the said A. B. doth
hereby, for himself, his heirs, executors, and ad-
ministrators, covenant with the said C. D., his
heirs, executors, administrators, and assigns re-
spectively, that, notwithstanding anything by the
said A. B. done, omitted, or knowingly suffer-
Covenant
by vendor,
that rents
and cove-
nants have
been paid
and per-
formed ;
(a) See supra, p. 122, n. (a).
COXVEYAXCES. 131
etl, the rents, covenants, and conditions in the
said lease reserved and contained, and by the
lessee, his executors, administrators, and assigns
to be paid, performed, and observed, have been,
paid, performed, and observed up to tlie date of
these presents ; and that, notwithstanding —for right
to convey
anything by the said A. B. or any of liis ances- free from'
tors done, or knowingly suffered, he the said A. branccs ;
B. now hath power to grant all and singular the
said premises hereinbefore expressed to be hei'e-
by granted to the use of the said C. D., his heirs
and assigns, in manner aforesaid, free from in-
cumbrances, and to assign all and singular the
said premises hereinbefore expressed to be here-
by assigned unto the said C. D., his executors,
administrators, and assigns, for the term, and
subject as and in manner aforesaid, free from in-
cumbrances; AND THAT all the several premises —for further
aforesaid may be quietly entered into, held, and '
enjoyed by the said C. D., his heirs, executors,
administrators, and assigns respectively, without
any interruption by the said A. B., or any per-
son lawfully or equitably claiming through or in
trust for him or any of his ancestors; and that
he the said A. B., his heirs, executors, and ad-
ministrators, and eveiy other person lawfully or
equitably claiming through or in trust for him
or any of his ancestors, will, at all times, at the
cost of the said C. D., his heirs, executors, ad-
ministrators, or assigns, execute and do all such
assurances and things for further or better as-
132 CONVEYANCES.
suring all or any of the said premises hereinbe-
fore expressed to be hereby granted to the use
of the said C. D., his heirs and assigns, and all
or any of the said premises hereinbefore ex-
pressed to be hereby assigned unto the said C.
D., his executors, administrators, and assigns,
for the then residue of the said term of
years, subject as and in manner aforesaid, as by
the said C. D., his heirs, executors, administra-
tors, or assigns, respectively, shall be reasonably
required. [Covenant hy purchaser to jKty rents,
and observe covenants, and indemnify vendor in
respect thereof, supra, p. 124.] In witness &c.
THE SCHEDULE to which the above-
written Indenture refers.
XV.
Conveyance of Freeholds and Leaseholds,
and Covenant to surrender Copyholds to a
Purchaser.
ParUc8. This indenture, made &c., BETWEEN A.
B., of &c. [vendor], a widower (a), of the one
part, and C. D., of &c. [j)urchaser], a bachelor (b),
of the other part. Whereas [recital of the lease
and of its being vested in the vendor, supra, p.
(a) See supra, p. 107, d. (a), (l) See supra, p. 96, n. (c).
CONVEYANCES.
133
121]. And wheueas the said A. B. has agreed J^^^^^J.^^'L
with the said C. D. for the sale to him, for the ^^^''■'
sum of £ , of the freehold hereditaments in-
tended to be hereby granted, in fee-simple in pos-
session, free from incumbrances, and of the copy-
hold hereditaments hereinafter covenanted to be
surrendered, and the inheritance thereof in pos-
session, according to the custom of the manor of
which the same are holden, free from incum-
brances, except th e accustomed rents, fines, heriots,
suits, and services, and of the said leasehold pre-
mises for the residue of the aforesaid term, and
subject to the rents, covenants, and conditions
aforesaid, but free from other in cumbrances. And
WHEREAS, for the purposes of the Act imposing an ~°^^P|^^'f
advalorem stamp duty on conveyances on sales, purchase-^
£ has been apportioned as the price of the the stamp
said freehold and leasehold hereditaments, and
£ as the price of the said copyhold heredita-
ments (a). Now THIS INDENTURE WITNESSETH,
that, in pursuance of the said agreement, and in witnessetii.
(a) It will be seen, that in this Precedent the appor-
tionment for the purposes of the stamp duty is managed
differently from the apportionment in Precedent XIII ,
supra, p. 127- If the purchase-money is to be paid to
more than one hand, as to a mortgagor and his mortgagee,
or by more than one hand, as by a purchaser and his
mortgagee, it is inconvenient to do more than state the
apportionment in a recital, nor is more i-equired.
134 CONVEYANCES.
Considera- considei'ation of the sura of £ [the whole pur-
"*'"■ chase-money] to the said A. B. this day paid by
Receipt. the said C. D., (the receipt whereof the said A.
Conveyance B. doth hereby acknowledge), he the said A. B.
of freeholds, ^^^j^ hereby grant unto the said C. D., his heirs
and assigns, [freehold parcels, and general words,
Habendum, supra, jJ- 125], TO HOLD the Said premises unto
the said C. D., his heirs and assigns, to the use
of the said C. D., his heirs and assigns. And
Witnef3seth THIS INDENTURE ALSO WITNESSETH, that, in fur-
secondiy. ^-^^^ pursuance of the said agreement, and for
Covenant to the consideration aforesaid, he the said A. B.
coK-hoWs doth hereby, for himself, his heirs, executors,
and administrators, covenant with the said C. D.
and his heirs, that ho the said A. B. and his
heirs, and all other necessary parties (if any),
will forthwith effectually surrender into the
hands of the lord of the manor of , in the
county of , according to the custom thereof,
tothcuaeof \ parcels — general words, supra, p. 126], to the
purchaser, i-/ -^ ■' ^
USE of the said C. D., his heirs and assigns, ac-
cording to the custom of the said manor, and by
and under the accustomed rents, fines, heriots,
Witnesseth suits, and services. And this indenture also
^' WITNESSETH, that, in further pursuance of the
Assignment Said agreement, and for the consideration afore-
hoids*^' said, he the said A. B. doth hereby assign unto
the said C. D., his executors, administrators, and
asiigns, all and singular the said , here-
ditaments, and premises by the said indenture of
CONVEYANCES.
135
the day of [lease] expi-essed to be de-
mised (a), with tlieir rights, easements, and ap-
purtenances, AND ALL the estate and interest of
the said A. B. in the said premises, TO hold the Habendum.
said premises unto the said C. D., his executoi"S,
administrators, and assigns, for the residue of the
said term of years, at the rents and subject
to the covenants and conditions in the said lease
reserved and contained, and henceforth by the
lessee, his executors, administratox's, and assigns,
to be paid, performed, and observed. And the covenant
SAID A. B. doth liereby, for himself, his heirs, that rents'
executors, and administrators, covenant ■with the nants have
said C. D., his heirs, executors, administrators, and"pcv-
and assigns respectively, that, notwithstanding °^^^ '
anything by the said A. B. done, omitted, or
knowingly sixffered, all and singular the rents,
covenants, and conditions in the said lease re-
served and contained, and by the lessee, liis ex-
ecutors, administrators, and assigns to be paid,
pcrfoi-med, and observed, have been paid, per-
formed and observed, up to the date of these
presents ; and that, notwithstanding any- _fyj. ^ight
thing by the said A. B. or any of his ancestoi-s freolvJm in-
done or knowingly suffered, he the said A. B. cumbrances;
now hath power to grant all and singular the
said premises hereinbefore expressed to be here-
by granted, and to surrender all and singular the
said premises hereinbefore covenanted to be sur-
(a) See supra, p. 122, n. (a)
assurance.
136 CONVEYANCES.
rendered, to the use of tlie said C. D., his heirs
and assigns, in manner aforesaid, free from in-
cumbrances, and to assign all and singular the
said premises hereinbefore expressed to be here-
by assigned unto the said C. D., his executors,
administrators, and assigns, for the term, and
subject as and in manner aforesaid, free fi'om in-
cumbrances; AND THAT all the several premises
aforesaid shall be quietly entered into, held, and
enjoyed by the said C. D., his heirs, executors,
administrators, and assigns respectively, without
any interruption by the said A. B., or any per-
son claiming through or in trust for him or any
— for^further of his ancestors ; and that he the said A. B.,
his heirs, executors, and administrators, and
every other person lawfully or equitably claim-
ing thi'ough or in trust for him or any of his
ancestors, will, at all times, at the cost of the
said C. D., his heirs, executors, administrators,
or assigns, execute and do all such assurances
and things for further or better assuring all or
any of the said premises hereinbefore expressed
to be hereby gi'anted, and hex'einbefore cove-
nanted to be surrendered respectively to the use
of the said C. D., his heirs and assigns, and all
or any of the said premises hereinbefore ex-
I)ressed to be hereby assigned unto the said C.
D., his executors, administrators, and assigns, for
the then residue of the said term of years,
subject as and in manner aforesaid, as by the
said C. D., his heirs, executors, administrators,
or assigns, respectively, shall be reasonably re-
CONVEYANCES. 137
quired. [Covenants by jnirchaser to pay rents,
and observe covenants, and indemnify vendor in
resjiect thereof, supra, p. 124]. In witness &c.
THE SCHEDULE to which the above-
written Indenture refers.
Part I. Part II.
XVI.
Assignment of a Policy o/' Assurance.
This indenture, made &C., BETWEEN A.B., Parties.
of &c. [vendor'], of the one part, and C. D., of »fec.
[purchaser'], of the other part, WITNESSETH, that, wjtnesseth.
in consideration of the sum of £ , to the said Considera-
tion.
A. B. this day paid by the said C. D., (the re- Receipt,
ceipt whereof he tlie said A. B. doth hei'eby ac-
knowledge), he the said A. B. doth hereby assign Assignmeut.
unto the said C. D., his executors, administrators,
and assigns, all that policy of assurance on the Parcels.
life of him the said A. B. granted by the
Assiu-ance Society, dated the day of ,
numbered , for the sum of £ , and under
the annual premium of ; and all monies
assured or to become payable by or under the
said policy, and the full benefit thereof, and all
the estate and interest of the said A. B. in the
138
CONVEYANCES.
Habendum:
Covenant
that the
policy is
valid.
— for right
to assign.
—not to
avoid the
policy ;
— and pay
additional
premiums,
if incurred;
— for further
assurance.
said premises, TO hold the said premises unto the
said C D., his executors, administrators, and as-
signs. And the said A. B. doth hereby, for him-
self, his heirs, executors, and administrators,
covenant with the said 0. D., his executors, ad-
ministrators, and assigns, that, notwithstanding
anything by him the said A. B. done or omitted,
or knowingly suffered, the aforesaid policy is now
valid, and in full force, for the said sum of £ ,
and for all bonuses and additions (if any) which
have been added or made thereto, and that, not-
withstanding any such thing as aforesaid, he the
said A. B. now hath power to assign the said pre-
mises unto the said C. D., his executors, adminis-
trators, and assigns, in manner aforesaid, and free
from incumbrances ; and that he the said A. B.
will not do, or omit, or knowingly suffer anything
whereby the said policy may be vitiated or ren-
dered void or voidable, or the said C. D., his ex-
ecutors, administrators, or assigns may be pre-
vented from receiving the said sum of £ , or
any bonuses or additions thereto, or any part
thereof, respectively ; and that, if the said A. B.
shall do or suffer anything, whereby any addi-
tional premium or payment shall become payable
for keeping the said policy in force, then he the
said A. B. will, from time to time, and at all
times, duly and punctually pay such additional
premium or payment, so as to keep the said policy
in force ; and that he the said A, B., his execu-
tors and administrators, and every person law-
COXVEYANCES.
fully or equitably claiming through or in trust for
the said A. B., his executors or administrators,
will, at all times, at the cost of the said C. D.. his
executors, administrators, or assigns, execute and
do such assurances and things, for moi-e efTectually
assuring the said premises unto the said C. D., his
executors, administrators, and assigns, in manner
afoi'csaid, or for enabling him or them to recover
and receive payment of the same respectively, as
by him or them shall be reasonably required. In
WITNESS &c. («).
139
XVII.
Conveyance hy a Dean and Chapter, with the
Ap2)roval of the Church Estates Commission-
ers.
TiTIS INDENTURE, made &c., between The Partie
Right Worshipful A. B., clerk &c.. Dean of the
Cathedral Church of , and the Chapter of
the same Church [vendois], of the first part, C. D.,
of &c., E. F., of tfec, and G. H., of ckc, (the Church
Estates Commissioners constituted and appointed
under or by virtue of an Act passed in the Ses-
(rt) Notice of the assignment of the policy must bo
given to the ofRce by which it is granted.
140
CONVEYANCES.
Recital of
lease ;
—of the
agreement
for salt.
sion of Parliament of the 13th and 14th years of
the reign of her present Majesty, intituled " An
Act to amend the Laws relating to the Ecclesias-
tical Commissioners for England," and made par-
ties to and joining in these presents under and
by virtue of the provisions of an Act passed in
the .Session of the 14th and 15th years of the
reign of her present Majesty, intituled " An Act
to facilitate the Management and Improvement
of Episcopal and Capitular Estates in England,"
as continued and amended by two several Acts
passed in the Sessions of the 17th and 18th and
19th and 20th years of the same I'eign, of the
second part ; and I. K., of &c. [jmrchaser], of the
third part. Whereas, by an indenture of lease
dated the day of , and expressed to be
made between the said Dean and Chapter, of
the one part, and the said I. K., of the other
part, the said Dean and Chapter did demise unto
the said I. K., his executors, administrators, and
assigns, all that &c. [parcels from the lease], to
hold the same unto the said I. K., his executors,
administrators, and assigns, from the day of
then last, for the term of years, at
the yearly rent by the same indenture reserved,
and under and subject to the covenants and con-
ditions therein contained, and on the part of
the said lessee, his executors, administrators, and
assigns to be performed and observed. And
WUEREAS the said Dean and Chapter, with the
approval of the said Church Estates Commission-
COX\'EYANCES. 141
ers (testified by their being parties to and exe-
cuting these presents), lately agreed with the said
I. K. for the sale to him of the reversion, estate,
and interest of them the said Dean and Chapter
(being the inheritance iu fee simple in reversion
expectant upon the said term gi-anted by the
hereinl)efore-recitcd indenture of lease,) in the
said piece of land comprised in the same in-
denture, for. the sum of £ . And whereas -of thepay-
. . . , mcnt of the
the said Church Estate Commissioners appointed purchase-
^ p money into
that tlic said purchase-money or sum oi .t , tiie Bank of
should be paid into the Bank of England, to the "^ '""^ '
account of the said Church Estates Commission-
ers, and the said I. K. has accordingly paid the
said purchase-money or sum of <£ into the
Bank of England, to the account so appointed.
And whereas the said Church Estates Commis- -that the
, 1 J.1 Commis-
sioners have directed that the conveyance by the sionershavc
said Dean and Chapter upon the sale aforesaid conveyance
shall be made by these presents, in form and ° '^^^ ^■
manner hereinafter appearing. Now this in- ^itnesseth.
denture WITNESSETH, that, for effectuating the
said sale, and in consideration of the said sum consiciera-
of £ so paid by the said I. K. into the Bank "''"■
of England as aforesaid, (the payment of which Receipt.
same sum, in manner aforesaid, is testified by the
memorandum of receipt hereupon indorsed, and
signed by the said Church Estates Commissioners),
they the said Dean and Chapter do, by these pre- Couvcyancc.
sents, grant and convey, and they tlie said Church
Estates Commissioners do, by these presents, con-
142
CONVEYANCES.
General
words.
Parcels. fi^^ unto the Said I. K., his heirs and assigns, all
THAT the revei'sion and inheritance in fee simple,
expectant vipon the expiration or sooner deter-
mination of the said term granted by the herein-
before recited indenture of lease, of and in the
said piece of land, described and comprised in the
same indenture, and expressed to be thereby de-
mised as aforesaid, and which same premises are
delineated in the plan drawn in the margin of
these presents, and therein coloured , and of
and in all hedges, ditches, fences, ways, waters,
watercourses, liberties, privileges, easements, ad-
vantages, and appurtenances whatsoever, to the
said piece of land appertaining, or with the same
now or heretofore demised, occupied, or enjoyed,
or reputed or known as part or parcel thereof or
appurtenant thereto, and all the estate, interest,
right, title, property, claim, and demand whatso-
ever of them the said Dean and Chapter in, to,
Habendum, and out of the Same premises, to have and to
HOLD the said reversion, estate, interest, and pre-
mises, hereinbefore expressed to be hereby grant-
ed and conveyed unto the said I. K., his heirs
and assigns, to the use of the said I. K., his heirs
and assigns, for ever. And the said Dean and
Chapter do hereby, for themselves and their suc-
cessors, covenant with the said I. K., his heirs and
assigns, that they the said Dean and Chapter, and
their successors, and every other person having, or
lawfully or equitably claiming, any estate, right,
title, interest, property, claim, or demand, in, to,
Covenant
by vendors
for further
CONVEYANCES.
or out of the said premises hereiubefoi-e expressed
to be hereby granted, or any pai-t thereof, by,
from, under, or in trust for them the said Dean
and Chapter, or their successors, shall and will,
from time to time, and at all times hereaftei",
upon the request and at the cost of the said I. K.,
his heirs or assigns, execute and do all such as-
surances and things for further or better assuring
the said premises, and every or any part thereof,
to the use of the said I. K., his heirs and assigns,
in manner aforesaid, as by him or them shall be
reasonably required, (a) In witness &c.
(a) In practice the Church Estates Commissioners
sometimes object to this covenant, and insert instead a
common covenant by the Ecclesiastical Corporation
against incumbrances.
143
144
MORTGAGES.
iHortgagesf.
XVIII.
Mortgage m Fee, loith Power of Sale to One
Mortgagee.
Parties. ThIS IKDJENTURE, made &c., between A. B.,
of &c, \_mortyagor'\, of the one part, and C. D., of
witnesseth. &c. [mortgagee], of tlie other part, WITNESSETH,
Considcra- that, in Consideration of the sum of ,£ this
day paid to the said A. B. by the said C. D., (the
Receipt. I'eceipt whereof the said A. B. doth hereby ac-
Covenant knowledge^)f he the said A" B. doth hereby, for
ment o?^' himself, his heirs, executors, and administrators,
money^^with Covenant with the said G. D;, his executors and
tbe^end'of*^ administrators, that he the said A. B., his heirs,
SIX months, gxocutors, or administrators, will pay to the said
C D., his executors, administrators, or assigns,
the sum of £ [the p7'mcipar\, with interest
for the same in the meantime at th^. rate of
Witnesseth
secondly.
^ — per cent, per annum, on the ', ■ day of
Y^^ — next (a), without any deduction. And this
INDENTURE ALSO WITNESSETH, that, for the COn-
Convcjancc. sideration aforesaid, he the said A. B. doth here-*^
by grant, unto the said ^S. D., his heirs and as- a
(a) Six calendar months frona the date of the mortgage.
MORTGAGES.
Uu
sigus, [2)arcels — general wcyt'ds, snpra, pp. 9G-7]^
TO HOLD the said premises unto the said \. 1)., his Habendum. >
heirs and assigns, to the use of the said (S, IX, ^
his heirs and assigns. Provided always, that, if proviso for
the said ^ B., his heirs, exe<;utors, admiuistra- * e™i> lo"^-
tors, or assigns, shall pay unto the said S, I^., hLs ^
executors, administrators, or assigns, the said
sum oi £-^ — [the ^>/-iHcj)x<./], with interest for
the same in the meantime at the rate of £-^ per
cent, per annum, on the said -^— day of -i^ ''"'^
next, without any deduction, then the said 6> B», J ' -"^
his heirs or assigns, will, at any time thereafter,
upon the request and at the cost of the said :^. B.,
his heirs, executors, administrators, or assigns, re-
convey the said premises unto the said A B., his
heirs and assigns, or as he or they shall direct.
And the said Av 'B. doth hereby, for himself, his Covenant
. . firpaymeut
heirs, executors, and adnnnistriitoi"s, covenant oi interest ;
with the said ^'D., his executors and administra- ^ a,
tors, that, if the said sum oi £ '^ ' ' [the 2}rincipal],
or any [»art thereof, shall f-emain unpaid after
the said — — day of —^ — next, he the said
A^B., his heirs, executors, or administrators will,
so long as the same sum or any part thereof shall _^
remain unpaid, pay to the saidH^. "C, his exe- ,
cutors, administrators, or assigns, interest for the
said sum of £ — , or for so much thereof as
shall for the time being remain unpaid, at the rate
of £-^ per cent, per annum, by equal half-yearly
payments, on the ' '' day of - — — and the ^
h
H6
Power of
day of
. MORTGAGES.
-, witliout any deduction (a).
On sale
made by
persoual
rcpi'eseuta-
tives, per-
sons having
legal estate
to joiu.
I'owPr not
to be exei'-
cised till
certain
events shall
happen
AXD IT
IS HEREBY DECLARED, that the ssid G^ D.TiftS es»-
acaitors, admiBistrators, or assigns may, at any
time or times after the said -^^^ day of -i^"^'
next (b), without any further consent on the part
of the said>^": B., his heirs or assigns, sell the said
premises, or any part thereof, either together or
in parcels, and either by public auction or private
contract, and may buy in or rescind any contract
for sale and re-sell, without being responsible for
loss occasioned thereby ; and may execute and do
all such assurances and things for effectuating any
such sale as he or they shall think fit ; jfc»»ailA5^
jupoa a-sale-by'-asy person or persons who ma^^
not be seised of the legal estate, the person in
whom the legal estate shall be vested shall exe-
cute and do such assura^ices and things for carry-
ing the sale into effect, As the person or persons
bv whom the sale shall be made shall direct : Pro-
vided NEVERTHELESS, that the Said €if-.-S^is-ex-
,. ecutors, administi-ators, or assigns, shall not exe-
cute the power of sale hereinbefore contained,
until he or they shall have given to the said A. B. ,
his heii^, executors, administrators, or assigns, oi
left on the said premises, a notice in writing to
(a) A proviso for quiet enjoyment by the mortgagor
until default was formerly inserted in mortgages; but it
is of no real use unless the money is to remain for a term,
and is therefore generally omitted.
[1) The day for payment of the principal sum.
MORTGAGES. 147
pay off the monies for the time being owing on
the security of these presents, and default .shall ,
have been made in such payment for she, calendar ^
months after giving or leaving such notice, or until
the whole or part of some half-yearly payment of
interest shall have become in aiTcar for three
calendar months («) : Provided also, that, upon purchasers
any sale purporting to be made in pursuance of bound to
the afoi'esaid ])ower, no purchaser shall be bound ^J'icii events
to inquire whether either of the cases mentioned |]gyed|^'"
in the clause lastly hereinbefore contained has
happened, nor whether any money remains upon
the security of these presents, nor as to the pro-
priety or regularity of such sale ; and notwith-
standing any impi'opriety or irregularity whatso-
ever in any such sale, the same shall, as regards
the purchaser or purchasers, be deemed to be with-
in the aforesaid power, and be valid accordingly.
And it is hereby deglakep, that the receipt of Mortgagee's
/. ' ■-' ,.. receipt to
the said ^,S)., hia_ executors, admuustrators, or bendis-
assigns, for the purchase-monies of the premises purchasers
sold, or any part thereof, shall effectually discharge
the purchaser or purchasers therefrom and from
being concerned to see to the application thereof;
AND that the said €1, D., his £xecators, admi- Trusts of
tl^
(a) This proviso is, in most cases, of little practical
value, aud may be omitted ; for a mortgagee is uot dis-
posed to sell the property, if he cau get his money by
demanding it. If this clause be left out, the words in
the next clause referring to it should be omitted.
h2
148 MORTGAGES.
purciiase- ttwivafcey s, and assigns, shall, out of the monies
"^"^"^^ arising from any sale in pursuance of the afore-
said power, in the first place, pay the expenses
incurred on such sale or otherwise in relation to
the premises; And, in the next place, apply such
monies in or towards satisfaction of the monies
for the time being owing on the security of these
presents ; And then pay the surplus (if any) of
*; the monies arising from such sale to the said
Power to be A. B., his heirs or assigns; and that the afore-
auy person said power of Sale and other powers may be
entitled to -it p l^^ ,■
receive exercisecl by any person or persons tor the time
money. being entitled to receive and give a discharge
for the monies then owing on the security of
Mortjragee's these presents. Provided always, that the said
daBSfc"**^^ "Gf*©:, his-.eiefcutors, administrators, or assigns,
' sihall not be answerable for any involuntary
losses which may happen in the exercise of the
aforesaid power and trusts, or any of them (a).
(a) It is uaual to provide, that the i-ight of foi'eclosure
shall not be affected by the power of sale ; but the pre-
caution is not necessary, for a mortgagee, under a pro-
perly drawn mortgage, loses none of his rights aa a
mortgagee, by arming himself, in addition, with a power
of sale. In the case of bankruptcy, it has been expressly
decided, that a mortgagee may waive his power of sale,
and have the estate sold under an order in bank-
ruptcy in the usual way. {Ex parte Hocltjton, 1 Glyn
& Jam. 12 ; Ex parte Davis, 1 Mont. & Ayr. 89;
S. C, 3 Dea. & Chit. 504). Such is now a matter of ordi-
nary practice in all cases. The notion of the power of
MORTGAGES. 149
And the said '^. B. doth hereby, for himself, Covenant
1 • 1 • . 1 1 • • , , i '<"■ "t'lit to
Jus lieirs, executors, and aduiiiustrators, covenant convey, free
■with the said 0^1).., his heirs and assigns, tliat brancos; '(\i^
he the said Y^B. now hath i)ower to grant all ''
and singular the said premises unto and to the
use of the said 'C^ I)., his-l»«irs and assigns, in C M^
manner aforesaid, ajid frre from incumhranooa - ;
■VM n ■ Tff A T -tUl- the said 1 premises may be quietly
entered into, held, amd enjoyed by the said
"A SI. D., his heii's and kssigns, without any in-
jbefiHU^^B— by-- a ny poWo n : and that he the and for </ /
J • , A -r» , , • 1 • 1 1 further / ,/^t
"^ said j^. B. and his heu-s, and every person law- Assunno^ y ^ 1,
fully or equitably claiming any estate or interest ^
in the premises, will, at all times, at the cost, un- y /
til sale or foreclosure, of the said !^. B., his heii-s, ^ y//-* ' '
executors, or administrators, and afterwards of r
the person or persons requiring the same, execute
and do all such assurances and things, for fur-
ther or better assuring all or any of the said yj:P
premises to the use of the said ^. D., his-ireJTs / /^
arid assigns, in manner aforesaid, as by him or ^'
them shall be reasonably required. In wit-
ness &c.
THE SCHEDULE to which the above-
written Indenture refei-s.
sale affecting the right of foreclosure probably arose from
the circumstance that there is no right to foreclose under
a security made by a trust for sale, because there is, in
that case, no proper mortgage at all.
y
150 MORTGAGES.
XIX.
SIoRTGAGE in Fee, mth Power o/'Sale to several
Mortgagees.
Parties. This indenture, made &c., between A. B.,
of &c. [mortgarjo}-], of the one part, and C. D., of
&c., E, F., of &c., and Gr. H., of &c. [rnortc/agees],
Witnessetii. of the Other part, WITNESSETH, that, in considera-
tion, tion of the sum of £ this day paid to the said
Receipt, A. B, by the said C. D., K F., and G. H., (the
receipt whereof the said A. B. doth hereby acknow-
ledge), he the said A. B. doth hereby, for himself,
Covena)it his heirs, executors, and administrators, covenant
ment of*^" Avith the Said C. D., E. F., and G. H„ their exe-
moneyli^ith cutors and administrators, that he the said A. B.,
the^end 'of ^is heirs, executors, or administrators, will pay un-
six months. ^^ ^^^ g^- j q_ jy ^ -^ ^^ ^^^ q jj_^ ^^ ^^^^ g^^^.^.,
vors or survivor of them, or the executors or ad-
ministrators of such survivor, their or his assigns,
the sum of .£ [the prhicijxil], with interest for
the same in the meantime at the rate of£ — per
cent, per annum, on the day of next (a),
Witnesseth without any deduction. And this indenture
secondly. ^^^^ WITNESSETH, that, for the Consideration afore-
Couveyance. g^id, he the said A. B. doth hereby gi-ant unto the
said C. D., E. F., and G. H., their heirs and as-
signs, [parcels — general words, supra, pp. 96-7],
(a) Six calendar months from the date of the moi'tgage.
MORTGAGES. 1 •'3 1
TO HOLD the said premises UXTO the said C D., UaboiKium.
E. F., aud G. H., their heirs and assigns, to the
USE of the said C. D., K F., and G. H., their heirs
and assigns : Provided always, that, if the said proviso r..r
A. B., his heirs, executors, administrators, or as- " •'"'i'^"" •
signs, shall pay unto the saidC. D.,E. F.,andG.H.,
or the survivors or survivor of them, or the exe-
cutors or administrators of such survivor, their
or his assigns, the sum of £ [the priaci-
jml], Avitli interest for the same in the mean-
time at the rate of £ — per cent, per annum, on
the said day of next, witliout any de-
duction, then they the said C. D., E. F., and G.H.,
or the survivors or survivor of them, or the heirs
of such survivor, their or his assigns, will, at any
time thereafter, upon the request and at the cost
of the said A. B., his heirs, executors, administra-
tors, or assigns, re-convey the said premises unto
the said A. B., his heirs and assigns, or as he or
they shall direct. AkdtuesaidA. B. doth hereby, Covenant
for himself, his heii's, executors, and administra- of interest.'
tors, covenant with the said C D., E. F., and G-
H., their executors, administrators, and assigns,
that, if the said sum of £ [the 2>rinc)pal\, or
any jiart thereof, shall remain unpaid after the
said day of next, he the said A. B.,
his heirs, executors, or administrators, will, so
long as the same sum, or any part thereof, shall
remain unpaid, pay to the said C. D., E. F., and
G. H., or the survivors or survivor of them, or tlie
executors or adnxiuLstrators of such survivor, their
152
MORTGAGES.
Declaration
that the
money be-
lonj^s to
moi'tgagees
on a joint
account.
Power of
sale.
On sale
or his assigns, interest for the said sum of £ ,
or for so much thereof as shall for the time being
remain unpaid, at the rate of £ — per cent, per
annum, by equal half-yearly payments, on the
day of and the day of , without
any deduction. And it is hereby declared,
that the said sum ot £ , advanced by the said
C D., E. F., and G. H., belongs to them on a
joint account, in equity as well as at law; and,
accordingly, that the receipt of the survivors or
survivor of them, or of the executors or adminis-
tratoi-s of such survivor, shall be an effectual
discharge for the princij>al monies and interest
intended to be hereby secured. And it is here-
by DECLARED, that the said C. D., E. F., and
G. H., or the survivors or survivor of them, or
the executors or administrators of such survivor,
their or his assigns, may at any time or times after
the said day of next (a), without any
further consent on the part of the said A. B., his
heirs or assigns, sell the said premises, or any part
thereof, either together or in parcels, and either
by public auction or private contract, and may
buy in or rescind any contract for sale and re-sell,
without being responsible for loss occasioned
thereby ; and may execute and do all such assur-
ances and things for effectuating any such sale
as they or he shall think fit; and that, upon a
(a) The day for payment of the principal sum.
MORTGAGES.
1-03
sale by any person or persons who may not be |j^j^^de^by
seised of the legal estate, the person in whom the ^j'r'J^^^;;^;^;:^-
legal estate shall be vested shall execute and do »j;^«^^';/"8
such assurances and acts for carrying the sale in- estate to
to effect, as the person or persons by whom the
sale shall be made shall direct : Provided never- P^wer not
to he txer-
TIIELES3, that the said C. D., E. F., and G. H., or cisci tin
' certain
the survivors or survivor of them, or the execu- events giiali
,1 • happen.
tors or administrators of such survivor, their or
his assigns, shall not execute the power of sale
hereinbefore contained, until they or he shall have
given to the said A. B., his heirs, executors, ad-
ministrators, or assigns, or left on the said pre-
mises, a notice in writing to pay off the monies
for the time being owing on the security of these
presents, and default shall have been made in
such payment for six calendar months after giving
or lea\'ing such notice, or until the whole or part
of some half-yearly payment of interest shall have
become in arrear for three calendar months (a):
Provided also, that, upon any sale purporting Purchasers
to be made in pursuance of the aforesaid power, bound to
no purchaser shall be bound to inquii'e whether such events
either of the cases mentioned in the clause lastly peucd. ^^'
hereinbefore contained has happened, nor whether
any money remains upon the security of these
presents, nor as to the propriety or regularity of
such sale ; and, notwithstanding any impropriety
(a) Sec supra, p. 147, u. (a),
h3
154 MORTGAGES.
or irregularity whatsoever in any sucli sale, the
same shall, as regards a purchaser, be deemed to
be within the aforesaid power, and be valid ac-
Mortgagees" cordingly. And it is hereby declared, that the
be'dfc'^ '" receipt of the said C. D., E. F., and G. H., or the
purchasers, snrvivors or survivor of them, or the executors
or administrators of such survivor, their or his
assigns, for the purchase-monies of the premises
sold, or any part thereof, shall effectually dis-
charge the purchaser or purchasers therefrom,
and from being concerned to see to the application
Trusts of thereof; and that the said C. D., E. ¥., and G.
money.^^' H., and the survivors and survivor of them, and
the executors or administrators of such survivor,
their or his assigns, shall, out of the monies arising
from any sale in pursuance of the aforesaid j>ower,
in the first place, thereout pay the expenses in-
curred on such sale or otherwise in relation to the
premises; And, in the next place, apply such
monies in or towards satisfaction of the monies
for the time being owing on the security of these
presents, and then pay the surplus (if any) of the
monies to arise from such sale unto the said A.
Power to be B., his heirs and assigns; and that the aforesaid
any'^pers'^on^ powcr of salc and Other powers may be exercised
?eceilemort- by any person or persons for the time being en-
gage money, ^^^jgd ^q receive and give a discharge for the
monies then owing on the security of these pre-
Mortgngeea' Sents. PROVIDED ALWAYS, that the Said C. D.,
dauT"^ E. F., and G. H., or any of them, their or any of
their executors, administrators, or assigns, shall
MORTGAGES.
155
not be answerable for any involuntary losses which
may happen in the exercise of the aforesaid power
antl trusts, or any of them. And the said A. Co'e'iAut
B. doth liereby, for himself, his heirs, executors convey;
and administrators, covenant with the said C. D.,
F. F., and G. H., their heirs and assigns, that he
the said A. B. now hath power to grant all and
singular the said premises to the use of the said
CD., R F., and G. H., their heirs and assigns,
in manner aforesaid, and free from incumbrances ;
AND THAT all the said premises may be (piietly
entered into, held, and enjoyed by the said C. D.,
E. F., and G. H., their heirs and assigns, \vith-
out any interruption by any person ; and that ^^^^^^^^^
he the said A. B. and his heirs, and every other assurance,
person lawfully or equitably claiming any estate
or interest in the premises, will, at all times,
at the cost, until sale or foreclosure, of the said
A. B., his heirs, executors, or administratoi-s,
and afterwards of the person or persons requu'ing
the same, execute and do all such assurances and
things for further or better assuring all or any of
the said premises to the use of the said C. D., E.
F., and G. H., their heii-s and assigns, in man-
ner aforesaid, as by them shall be reasonably re-
quired. In witness ifec,
THE SCHEDULE to which the above-m-itten
Indentuue refers.
156
MORTGAGES.
XX.
Parties.
Witnesseth.
Considera-
tion.
Receipt.
Witnesseth
secondly.
Covenant to
surrender
copyholds,
to the use
of the mort-
gagee ;
subject to
a condition
for making
void the
surrender.
Mortgage q/ Copyholds.
This INDENTUEE, made &c., BETWEEN
A. B., of &c. [7nori(ja(jor'], of the one part, and
C. D., of &c. [?/iortc/agee], of the other part, WIT-
NESSETH, that, in consideration of the sum of
£ , this day paid to the said A. B. by the
said G. D., (the receipt whereof the said A. B.
doth hereby acknowledge), he the said A. B. doth
hereby, for himself, his heirs, executors, and ad-
ministrators, covenant with the said C. D., his
executors and administrators, [covenant J'or re-
payment of mortgage-money with interest, supra,
p. 144. And this indenture also witnesseth,
that, for the consideration aforesaid, he the said
A. B. doth hereby, for himself, his heirs, execu-
tors, and administrators, covenant with the said
C. D., his executors and administrators, \cove-
nant to surrender copyliolds, supra, p. 116], to
THE USE of the said C. D., his heirs and assigns,
according to the custom of the said manor, by
and under the accustomed rents, fines, heriots,
suits, and services, and subject to a condition
for making void the said surrender, if the said
A. B., his heirs, exec\itors, administrators, or as-
signs, shall pay unto the said C. D., his executors,
administrators, or assigns, the said sum of £
MORTGAGES. 157
[t/te principal], with interest for the same in the
meantime at the rate of £ per cent, per an-
num, on the said day of next, without
any deduction. \Covenant for fayment of inter-
est; power of sale ; aiid covenants for title, as in
mortijage of freeholds, si(2Jra, 2)p. 145 — HO, only
changing "grant" into "surrender."]
THE SCHEDULE to which the above-writ-
ten Indenture refers.
XXI.
Mortgage of Leaseholds («), with a Covenant
to Insure.
This ITSTDENTURE, made &c., between A. B., Parties. .
of &-C. [inortgagoi-], of the one part, and C. D., of
&c. \inortgagee\ of the other part. Whereas &c., Recital of
[recite tlie lease, and its having become vested in
the moi-tgagor, ut su2yi'a, p. 121.] And whereas -of agree-
the said C. D. has agreed to lend the said A. B. moi-tg;ige.
the sum of £ , upon having the repayment
thereof, with interest, as hereinafter mentioned,
secured in manner hereinafter appearing. Now witnesseth.
(a) A mortgage of leaseholds is ueually made by demise,
to avoid subjecting the mortgagee to the I'ent aud cove-
nauts, if they are burdensome.
158 AIOKTGAGES.
THIS INDENTURE WITNESSETH, that, in pursuance
of the said agreement, and in consideration of the
sum of £ to the said A.. B. this day paid by
Covenant the Said C. D., &c. [receipt, and covenant for pay-
oTmortgrge- rtieut of mortgafje-nioney with interest, supra, p.
iatorlst!"^^ 144]. And this ENDENTURE also WITNESSETH,
Witaeaseth. Hmt, in further pursuance of the said agreement,
Demise. and for the consideration aforesaid, he the said
A. B. doth hereby demise unto the said C. D.,
Parcels. his executors, administrators, and assigns, all
THAT the said hereditaments and premises
by the said indenture of the day of
expressed to be demised (a), with their rights,
Habendum, easements, and appurtenances, to hold the said
premises unto the said C. D., his executors, ad-
ministrators, and assigns, for the residue of the
said term of years, except the last days
Proviso for thereof: Provided always, that if the said
redemption, j^ ^^ ^^^ j^^.^^^ executors, administrators, or as-
signs shall pay to the said C. D., his executors,
administrators, or assigns, the said sum of £
[the principal], with interest for the same in
the meantime at the rate of £ — per cent, per
annum, on the said day of next, with-
out any deduction, then the said C. D., his execu-
tors, administrators, or assigns will, at any time
thereafter, upon the request and at the cost of
the said A. B., his executors, administrators, or
as.signs, surrender the said premises unto the said
(a) Vide supra, p. 122, u. (a).
MORTGAGES. 159
A. B., his executors, admiuistrators, or assigns.
[Covenant for payment of interest, supra, p. 145 J,
And the said A. B. doth hereby, for himself, covenant to
his heirs, executors, and administrators, covenant prumisea
with the said C. D., his executors, administra- "ga^^t fire ;
toi's, and assigns, that he the said A. B., his ex-
ecutors, administrators, or assigns, will, so long
as any money shall remain on this present secu-
rity, keep all the said messuages and buildings
insured against loss or damage by fire in the sum
of £ at the least, and will pay all premiums
and sums of money necessary for such purpose
on the first day on which the same respectively
ought to be paid, and will, on demand, produce
to the said C. D., his executors, administrators,
and assigns, the policy or policies of such insur-
ance, and the receipt for every such payment ;
AND ALSO, that, if default shall be made in keep — that, on
iug the said premises so insured, it shall be law- mortgagor,
ful for the said C. D., his executors, admiuistra- Sayfus^i^ro
tors, and assigns, out of his or their own monies,
to insure, and keep insured, the said premises in
any sum not exceeding £ , and that the said
A. B., his executors, administrators, or assigns,
will repay to the said C. D., his executors, admi-
nistrators, or assigns, all moneys expended for
that purpose by him or them, with interest there-
on at the rate aforesaid, from the time of the
same respectively having been advanced or paid,
and that, until such repayment, the same shall
be a charge upon the said premises hereinbefore
1 60 MORTGAGES.
Power of expressed to be hereby demised. And it is
Bale. '■ "^
HEREBY DECLARED, that the Said C. D., his exe-
cutors, administrators, or assigns, may at any
time or times after the said day of
next (a), "without any further consent on the part
of the said A. B., his executors, administrators,
or assigns, sell the said premises, or any part
thereof, either together or in parcels, and either
by public auction or private contract, and may
buy in or rescind any contract for sale and re-
sell, without being responsible for loss occasioned
thereby ; aistd may execute and do all such assur-
ances and things for eifectuating any such sale
Afterni3aie, as he or they shall think fit: and that, after
mortgagor ■'
to iioiri the any such sale, the said A. B., his executors, ad-
reversion in •' 1 • 1 1 1
tnistfor ministrators, and assigns shall stand possessed
purchaser.
of the said last days oi the said term oi
years in the premises sold, upon trust for
Power not the purchaser thereof: Provided always, and it
ciser] till is hereby declared, that the said C. D., his execu-
eveuts shall tors, administrators, or assigns, shall not execvite
appeu ^j^^ power of sale hereinbefore contained, until he
or they shall have previously given or left on the
said premises a notice in writing to the said A. B.,
his executors or adminisirators, to pay off the
monies for the time being owing on the security
of these presents, and default shall have been
made in such payment for six calendar months
(a) The day for payment of the principal sum.
MORTGAGES.
161
after giving or leaving such notice, or until the
whole or part of some half-yearly payment of in-
terest shall have become in arrear for three calen-
dar months («) : PkOVIDED also, that, upon any Purchasers
. _ , not to be
sale purportmg to be made in pursuance oi the bound to
aforesaid power, no purchaser shall be bound to such events
inquire whether either of the cases mentioned in pcnca '
the clause lastly hereinbefore contained has hap-
pened, nor whether any money remains upon the
security of these presents, nor as to the propriety
or regularity of such sale ; and notwithstanding
any impropriety or irregularity whatsoever in
any such sale, the same shall, as regards a pur-
chaser, be deemed to be within the aforesaid
power, and be valid accordingly. And it is Mortgagee's
HEREBY DECLARED, that the receipt of the said be dis-
C. D., his executors, administrators, or assigns, purchasers.
for the purchase-monies of the premises sold, or
any part thereof, shall eflfectually discharge the
purchaser or purchasers therefrom, and from being
concerned to see to the api)lication thereof; and Trusts of
^'^ ' tliepur-
that the said C. J)., his executors, admiuistra- chase
tors, and assigns shall, out of the monies arising
from any sale in pursuance of the aforesaid power,
in the first place, pay the expenses incurred on
such sale, or otherwise in relation to the pre-
mises; And, in the next place, apply such monies
in or towards satisfaction of the monies for the
(o) See supra, p. 147, n. («).
162
MORTGAGES.
Power to be
exercised by
any person
entitled to
receive
morttrage
moaey.
Mortgapree's
indemnity
clause.
Covenant
by mortga-
g' >r tliat
rents and
co%'eu.ints
have been
paiii and
l>t;rformed ;
■^— for right
to demise :
— for further
a-ssurauce ;
time being owing ou tlie security of these pre-
sents ; A.nd tlien pay the surplus (if any) of the
monies to arise from such sale to the said A. B.,
his executors, administrators, or assigns ; and
tliat the afores:ud power of sale and other powers
may be exercised by any person or persons for
the time being entitled to receive and give a
discharge for the monies then owing on the secu-
rity of these presents. Provided always, that
the said C. D., his executors, administratoi's, or
assigns shall not be answerable for any involun-
tary losses which may happen in the exercise of
the aforesaid power and trusts, or any of them.
And the said A. B. doth hereby, for himself, his
heirs, executors, and administrators, covenant
with the said C. D., his executors, administra-
toi's, and assigns, that the rents, covenants, and
conditions in the hereinbefore-recited lease re-
served and contained, and by the lessee, his exe-
cutors, administrators, or assigns, to be paid, per-
formed, or observed, have been paid, performed,
and obsei-ved up to the date of these presents;
AND THAT he the said A. B. now hath power to
demise all and singular the said premises unto
the said C. D., his executors, administrators, and
assigns, for the term and in manner aforesaid,
and free from incumbrances ; and that all the
said premises may be quietly entered into, held,
and enjoyed by the said G. D., his executors, ad-
ministrators, and assigns, without any interrup-
tion by any jierson; and that he the said A. B.,
ilORTGAGES. 103
his executors and administrators, and eveiy other
person lawfully or equitably claiming any estate
or interest in the premises, will at all times,
at the cost until sale or foreclosure of the said
A. B., his executors or administrators, and after-
wards of the person or persons requiring the
same, execute and do all such assurances and
things for further or better assuring all or any
of the said premises unto the said C, D., his
executors, administrators, and assigns, for the
residue then to come of the said term herc-
inbefoi-e expressed to be hereby granted, as by
him or them shall be reasonably required; asd
THAT he the said A. B., his executors, adrai- and that,
nistratoi-s, or assigns, will, so long as any [ riuci- secumy, tha
pal money or interest shall remain on these pre- covcuanta
sents, pay, perform, and observe the rents, cove- p.^^^ and
nants, and conditions in the hereinbefore- recited i'<^'''^°'^™® >
lease reserved and contained, and by the lessee,
liis executora, administrators, and assigns to be
paid, performed, or observed ; And will at all and the
1 1 • 1 r^ ~r\ ^ • T • i mortgagee
times keep the said C D., liis heirs, executors, indemnified,
administrators, and assigns indemnified against
all actions, suits, expenses, and claims on account
of the non-payment of the said rents, or any of
them, or any part thei'cof, respectively, or the
breach or non-performance or non-observance of
the said covenants and conditions, or any of them.
In witness &c.
1G4
MORTGAGES.
XXII.
Mortgage 0/ Freeholds and Copyholds.
Parties. ThIS INDENT URE, made &c., between A. B.,
of &c. [piortgagor'], of the one part, aud C. D., of
Witnesseth. &c. \r)iortgayee\, of the other part, WITNESSETH,
that, in consideration of the sum of £ this
day paid to the said A. B. by the said C. D., &c.,
[receipt; and covenant for repayment of mortgage
money with interest, supra, f. 144]. And this
INDENTURE ALSO WITNESSETH, that, for the Con-
sideration aforesaid, he the said A. B. doth hereby
grant unto the said C. D. his heirs and assigns,
[^freehold parcels, general words, supra, p. 125].
TO HOLD the said premises unto the said C. D.,
his heirs and assigns, TO the use of the said C. D.,
his heirs and assigns : Provided always, that if
the said A. B., his heirs, executors, administrators,
or assigns shall pay unto the said CD., his exe-
cutors, administrators, or assigns, the said sum of
£, \the principal^ together with interest for
the same in the meantime at the rate of £ —
per cent, per annum, on the said day of
next, without any deduction, then the said C. D.,
his heirs or assigns, will, at any time thereafter,
upon the request and at the cost of the said A. B.,
his heirs, executors, administrators, or assigns,
reconvey the said premises unto the said A. B.,
his heirs or assigns, or as he or they shall direct.
Covenant
to pay prin-
cipal aud
interest.
Witnesseth.
Convey-
ance of
freeholds.
Habendum.
Proviso for
redemption.
MORTGAGES. ' 1 65
And this indenture also WITNESSETH, that, for Witnesseth.
the consideration aforesaid, he the said A. B. doth
hereby, for himself, his heirs, executors, and ad-
ministrators, covenant with the said C. D., his Covenant to
surrcnfitr
executors and administi-ators, that he the said copyholds,
A. B., or his heirs, and all other necessary parties,
(if any), will forthwith effectually surrender into
the hands of the lord of the manor of , in
the county of , according to the custom
thereof ("^xxr-ce/s, yeneral words, sujyra, p. 12G],
TO THE USE of the Said C. D., his heirs and assigns, to the we
^ of the njort-
according to the custom of the said manor, by gagee ;
and under the accustomed rentn, fines, hcriots,
suits, and services, and subject to a condition for subject to
' a condition
makinfi void the said surrender, corresponding fur mokiug
. „ void the
with the proviso for redemption hereinbeiore sunendur.
contaiiied. [Covenant for pa/i/riient of interest,
and power of sale, as in mortgage of freeholds,
supra, pp. 145 — 1481. And the said A. B. doth Covenant
' ' -^ ' -■ _ for right to
hereby, for him.self, his heirs, executoi*s, and ad- convty, free
. • /- -r-v 1 • f'"oni iucuni-
ministrators, covenant with the said C. D., his biauces ;
heirs and assigns, that he the said A. E. now
hath power to gi-ant all and singular the said
premises hereinbefore expressed to be hereby
granted, and to surrender all and singular the
said premises hereinbefore covenanted to be sur-
rendered to the use of the said C. D., his heirs
aiul a.ssigns, in manner aforesaid, and free from
incumbrances ; and that all the said premises
may be quietly entered into, held, and enjoyed
by the said C. D., his heii's and assigns, without
assurance.
16G MORTGAGES.
—for further any interruption by any person; AND that lie
the said A. B., and liis lieirs, and eveiy otlier
person lawfully or equitably claiming any estate
or interest in the premises, will, at all times, at
the cost, until sale or foreclosure, of the said A.
B., his heirs, executors, or administrators, and
afterwards of the person or persons recpiiring the
same, execute and do all such assurances and
things for further or better assuring all or any of
the said premises to the use of the said C. D., his
heirs and assigns, in manner aforesaid, as by him
or them shall be reasonably required. In wit-
ness &c.
THE SCHEDULE to which the above-writ-
ten Indenture refers.
Part I. Part II.
MORTGAGES.
XXIII.
1G7
Mortgage of Freeholds and Leaseholds.
This indenture, made etc., betav'eenA.B., Partie?.
of &c., \)aort(j(ujor\ of the one part, and C. D., of
&c. \7ix(yrtgafjee\, of the other part. Whereas «fec.
\recite the lease, and its being vested in the moo-t-
aaoor, iit siipra, p. 1211. AxD whereas tlie said Recital of
C. D. has ajn-eed to lend the said A. B. the sum for mort-
of £ , upon having the re-payment thereol,
■with interest, as hereinafter mentioned, secured in
manner hereinafter appearing. Now this index- Witnesseth.
TURE AVITXESSETH, that, in pursuance of the said
agreement, and in consideration of the sum of
£ to the said A. B. this day paid by the said
C. D., &c. {receipt; and covenant for repayment Covenant
of mortgage-money, vnth i^iterest, supra, p. 144J. cipai and
And THIS INDENTURE ALSO AVITNESSETH, that, in ^r^^gggg^jj
further pursuance of the said agreement, and for ^i^coudiy.
the consideration aforesaid, he the said A. B. doth
hcrel)y oviwxi unto the said C. D., his heirs and as- convevauce
r ^ , 7 , 1 1 7 "i flXcholds.
signs [freehold 2xircels, general words, svpra, j).
125], TO HOLD the said premises unto the said C. Habendum.
D., his heirs and assigns, to the use of the said
C D., his heirs and assigns. And this indenture Witnesseth
thirdly.
ALSO WITNESSETH, that, in further pui-suance of
the said agi'eement, and for the consideration afore- Demise of
said, he the said A. B, doth hereby demise unto the
168 MORTGAGES.
said C. D., his executors, administrators, and as-
signs ALL THOSE hereditaments and premises
by the said indenture of the day of ex-
pressed to be demised, and which are delineated in
the said plan in the margin of these pi-esents, and
therein coloured (a), with the rights, ease-
Habendum. ments, and appurtenances, TO hold the said pre-
mises UNTO the said C. D., his execvitors, adminis-
trators, and assigns, for the residue of the said term
of years, except the last days thereof:
Proviso for Prq viDED ALWAYS, that, if the Said A. B. , his heii-s,
redemption, ' ' ' '
executors, administrators, or assigns, shall pay un-
to the said C. D., his executors, administrators,
or assigns, the said sum of £ [the jyvincijiaV],
with interest for the same in the meantime at the
rate of £ — per cent, per annum, on the said
day of next, without any deduction,
then he the said C. D., his heii's. executors, admin-
istrators, or assigns, will, at any time thereaftei-,
upon the request and at the cost of the said A. B.,
his heirs, executors, administrators, or assigns, re-
convey the premises hereinbefore exprt ?sed to be
granted to the use of the said A. B., his heirs and
assigns, or as he or they shall direct, and surren-
der the said premises, hereinbefore expressed to
be demised, unto the said A. B., his executors,
administi'ators or assigns. [Covenant for imyment
fal^*^*^"^ q/" m^eres^, supra, p. 145]. And it is hereby
DECLARED, that the said C. D., his executors, ad-
(a) See supra, p. 122, n. (a).
MORTGAGES, 1 G9
ministrators, oi' assigns, may at any time or times
after the said day of (a), without any
further consent on the pax't of the said A. B., his
lieirs, executors, administrators, or assigns, sell
the said premises, either together or in parcels,
and either by public auction or private contract,
and may buy in, or rescind any contract for sale,
and resell, without being responsible for any loss
which may be occasioned thereby; and may eX'
ecute and do all such assurances and things for
effectuating any such sale, as he or they shall
thiiik fit ; AND THAT, upon a sale of all or any of On sale by
the said premises hereinbefore expz*essed to be npresenta-
hereby granted by any person or persons who may sons having
not be seised of the legal estate, the pei-son in esute^to
whom the legal estate shall be vested shall exe- •''""•
cute and do all such assurances and things for
carrying the sale into effect, as the person or per-
sons by whom the sale shall be made shall direct;
AND THAT, after a sale of all or any of the said —after a
premises hereinbefore exi)ressed to be hereby de- g-if^or to
mised, the said A. B., his executors, administra- version in
tors, and assigns, shall stand possessed of the last purchaser.
days of the said term of years in the pre-
mises sold, upon trust for the purchaser thereof:
Provided also, and it is hereby declared, that Power not
the said C. D., liis executors, administrators, or cised till
assigns, shall not execute the power of sale here- events shall
inbefore contained, until he or they shall have pre- "'^f ^"■
(a) The day for payment of the principal sum.
I
170" MORTGAGES.
viously given or left on some of the said premises
a notice in writing to the said A. B., his heirs,
executors, or administrators, to pay off the monies
for the time being owing on the security of these
presents, and default shall have been made in such
payment for six calendar months after giving or
leaving such notice, or until the whole or part of
some half-yearly payment of interest shall have
become in arrear for three calendar months (a) :
Purchasers PROVIDED ALSO, that. Upon any Sale purporting
bound to to be made in pursuance of the aforesaid power,
snch events no purchaser shall be bound to inquire whether
p(3*ned.'''''' either of the cases mentioned in the clause lastly
hereinbefore contained has happened, nor whether
any money remains upon the security of these
pi-esents, nor as to the propriety or regularity of
such sale; and, notwithstanding any impropriety
or irregularity whatsoever in any such sale, the
same shall, as regards a purchaser, be deemed to
be within the aforesaid power, and be valid ac-
Mortgagee's cordingly. And it is hereby declared, that
TdUcharge the receipt of the said C. D., his executors, ad-
^o^purc as j^^j^jg^^.^^^Qj-g^ qj. assigns, for the purchase-monies
of the premises sold, or any part thereof, shall
effectually discharge the purchaser or purchasers
therefrom, and from being concerned to see to the
Trusts of application thereof; and that the said 0. D., his
chas^"*' executox'S, administrators, and assigns shall, out
of the monies arising from any sale in pursuance
(a) See supra, p. 147, n. {a).
money.
MORTGAGES. 1 7 1
of the aforesaid power, in the first place, pay tlic
expenses incurred on such sale, or otho'wise in
relation to the premises; and, in the next place,
apply such monies in or towards satisfaction of
the monies for the time being owing on the secu-
rity of these presents ; and then pay the surplus
(if any) of the monies to arise from such sale to
the said A. B., his executors, administrators, or
assigns, as personal estate, whether the same shall
have arisen from the sale of the said freehold or
leasehold premises ; AND that the aforesaid power Power to be
of sale and other powers may be exercised by any aiiy pei son
person or persons for the tinie being entitle dto ,eceive
receive and give a discharge for the monies then moufcy!^*^
owiufT on the security of these presents. Pko- Moitgngees
^ . . iudi'innity
viDED ALWAYS, that the said C. D., his executors, clause.
administrators, or assigns, shall not be answerable
for any involuntary losses which may happen in
the exercise of the aforesaid power and trasts, or
any of them. And the said A. B. doth hereby, covenant by
for himself, his heirs, executors, and administra- that fent"s^'
tors, covenant with the said C. D., his heirs, ex- "„"nts"have
ecutors, administrators, and assigns respectively, ami'Ver-'
that the rents, covenants, and conditions in the '<>''"<'^;
hereinbefore-recited lease reserved and contained,
and by the lessee, his executors, administrators,
or assigns to be paid, performed, or observed,
have been paid, performed, and observed up to
the date of these presents; and that he the said -'"^J.J^yJ
A. B. now hath power to grant all and singular [[^'^';,[^"^"'
the said premises hereinbefore expressed to be bmuces;
i2
1 72 MORTGAGES.
hereby granted to the use of the said C. D., his
heirs and assigns, and to demise all and singular
the said premises hereinbefore exjjressed to be
hei'eby demised unto the said C. D., his executors,
administrators, and assigns, for the term and in
manner aforesaid, and free from incumbrances;
AND THAT all the several premises aforesaid may
be quietly entered into, held, and enjoyed accord-
ingly, by the said C. D., his heirs, executors, ad-
ministrators, and assigns respectively, without
—for further any interruption by any person; and that he
the said A. B., his heirs, executors, and adminis-
trators, and every other person lawfully or equit-
ably claiming any estate or interest in the pre-
mises, will, at all times, at the request of the said
C. D., his heirs, execvitors, administrators, or as-
signs respectively, but at the cost, until sale or fore-
closure, of the said A. B., his heirs, executors, and
administrators, and afterwards of the person or
persons requiring the same, execute and do all
such assurances and things, for further or better
assuring all or any of the said premises herein-
before expressed to be hereby granted to the use
of the said C D., his heirs and assigns, and all or
any of the said premises hereinbefore expressed
to be hereby demised unto the said C. D., his ex-
ecutors, administrators, and assigns, for the then
residue of the said term expressed to be hereby
granted, as by the said C. D., his heirs, executors,
administrators, or assigns, shall be reasonably re-
aad that quired; and that he the said A. B., his execu-
MORTGAGES. 173
toi"s, administrators, or assigns, will, so long as iiminf,' the
, . , , 1 11 • Kcc-viritv, till-
any priucipai money or interest shall renuiiu on rents aiici
these presents, pay, perform, and observe all the sbau i"' "
rents, covenants, and conditions in the said lease {l^ri.ju.'ci.
reserved and contained, and by the lessee, his ex-
ecutors, administrators, and assigns to \)e paid,
performed, and observed ; And will at all times iuid tiie
keep the said C. D., his heirs, executors, adminis- mdennifiMl.
trators, and assigns, indemnified against all ac-
tions, suits, expenses, and claims, on account of
the non-payment of the said rents, or any of them,
or any ])art thereof respectively, or the breach, or
non-performance, or non-observance of the said
covenants and conditions, or any of them. In
WITNESS <te.
THE SCHEDULE to which the above- written
Indenture refers.
XX I Y.
Mortgage ^/'Freeholds, Govyhouds, and Lease-
holds.
This indenture, made &C., BETWEEN A. Parties.
B., of &.C. [)}iorttfago7'], of the one part, and C. D.,
of &c. [mortgcu/ee^, of the other part. Whereas iJecitai "
•fee. [recite the lease, and its heiiuj vested in the
morlgagor, ut supra, p. 121]. And whereas the -of agu
174
MORTGAGES.
ment for said C. D. lias agreed to lend the said A. B. the
sum of £ , upon having the repayment there-
of, with intei'est, as hereinafter mentioned, secured
Witiiesseth. in manner hereinafter appearing. Now this
INDENTURE WITNESSETH, that, in pursuance of the
said agreement, and in consideration of the sum
of £ to the said A. B. this day paid by the
said C. D., &c. [receipt; and covenant for repay'
ment of princi2xd with irderest, supra, p. 144],
And THIS INDENTURE ALSO WITNESSETH, that, in
further pursuance of the said agi*eement, and for
the consideration aforesaid, he the said A, B.
doth hereby grant unto the said C. D., his heirs
and assigns [freehold parcels, general words,
supra, p. 125], to hold the said premises unto
the said G. D., his heirs and assigns, to the use
of the said C. D., liis heirs and assigns. And
THIS indenture also WITNESSETH, that, in further
pursuance of the said ageemeut, and for the con-
sidei-ation aforesaid, he the said A. B. doth here-
by demise unto the said C. D., his executors,
administrators, and assigns, all those
hereditaments and premises by tlie said inden-
ture of the day of expressed to be
demised, and which are delineated in the said
l>lari in the margin of these presents, and therein
coloured {a), with the rights, easements,
and apjjurtenances, TO hold the said premises
Covenant to
pay prin-
cipal aiid
iiiturest.
Witnesseth
secondly.
Conveyance
of freeholds.
Haljendum.
Witnesseth
thirdly.
Demise of
leaseholde.
Ilaljendum.
(a) See supra, p. 122, n. (a.)
MORTGAGES.
175
UNTO tlie said C. D., his executors, administi-a-
tors, and assigns, for the residue of the said teiiu
of years, except the last days thereof:
PltOVIDED ALWAYS, that, if the said A.B., his heirs, Proviso Icr
. . . in redemptiou.
executors, administrators, or assigns, shall pay
unto the said C. D., his executors, administra-
tors, or assigns, the said sum of <£ \tlie
2)rincipar\, with interest for the same in the mean-
time at the rate of £ — per cent, per annum, on
the said day of next, without any de-
duction, then the said C. D., his heirs, executors,
administrators, or assigns, will, at any time
thereafter, upon the request and at the cost of
the said A. B., his heirs, executoi-s, administra-
tors, or assigns,- re-convey the said piemises here-
inbefore expressed to be hereby granted to the
use of the said A. B., his heirs and assigns, or as
he or they shall direct, and surrender the said
premises hereinbefore expressed to be hereby
demised unto the said A. B., his executors, ad-
ministrators, and assigns. And this ixdenturk witnesseth
ALSO WITNESSETH, that, in further pursuance of """^^ ^'
the said agreement, and for the consideration coven.int to
aforesaid, he the said A. B. doth hereby, for copyholds,
hi)nself, his heirs, executors, and admiuisti'ators,
covenant with the said C. D., his executoi-s and
administrators, that he the said A. B., or his heirs,
and all other neceasary parties (if any), ^vill
forthwith etfectually surrender into the hands of
the lord of the manor of , in the county of
, according to the custom thereof \_parcds,
176
MORTGAGES.
to tVio nse of
morfg.^ee ;
subject to a
Condition for
making void
the surreu-
iler.
Covennit by
morttiagor
that rents
and cove-
nants have
been paid
and per-
formed ;
— for right
to convey ;
general loords, supra, p. 126], to the use of the
said C. D., his heirs and assigns, according to the
custom of the said manor, by and under the
accustomed rents, fines, heriots, suits, and ser-
vices, and subject to a condition for making void
the said surrender, corresponding with the pro-
viso for redemption hereinbefore contained.
\Govenant for -paynient of ivAerest, supra, p. 145.
Poiver of sale, <L'c., svjyo-a, pp. 168 — 171]. And
THE SAID A. B. doth hereby, for himself, his
heirs, executors, and administrators, covenant
with the said C. D., his heirs, executors, ad-
ministrators, and assigns respectively, that the
rents, covenants, and conditions in the herein-
before-i-ecited lease reserved and contained, and
by the lessee, his executors, administrators, or
assigns to be paid, performed, or observed, have
been paid, performed, and observed up to the
date of these presents ; and that he the said
A. B. now hath power to gi-ant all and singular
the said premises hereinbefore expi'essed to be
herel)y granted, and to surrender all and singular
the said premises hereinbefore covenanted to be
surrendered to the use of the said C D., his heirs
and assigns, and free from incumbrances ; and to
demise all and singular the said premises herein-
before expressed to be hereby demised unto the
said C. D., his executors, administrators, and
assigns, for the term and in manner aforesaid,
and free from incumbrances ; and that all the
several premises aforesaid shall be quietly entered
MOKTOAGES.
177
into, held, and enjoyed accordingly by the said
C. D., his heirs, executors, administrators, and
assigns, without any iiiterniption by any per-
son : AND THAT he tl)e said A. B., his heirs, — forfurtiiei
assunmct ;
executors, and administrators, and every other
person lawfully or equitably claiming any estate
or interest in the premises, will, at all times, at
the request of the said C. D., his heirs, executors,
administratoi-s,or assigns, but at the cost, until sale
or foreclosure, of the said A. B., his heire, exe-
cutors, or administrators, and afterwards of the
person or persons requiring the same, execute
and do all such assurances and things for further
or better assuring all or any of the said premises
hereinbefore expressed to be hereby granted, and
hereinbefore covenanted to be surrendered, re-
spectively, to the use of the said C. D., his heirs
and assigns, and all or any of the said premises
hei'einbefore expressed to be hereby demised unto
■the said C. D., his executors, administrators, and
assigns for the then residue of the said term of
yeai-s expressed to be hereby granted, as by the
said C. D., his heirs, executors, administrators, or
assigns shall be reasonablv required ; and that and tbaf,
' ... (IuHf g the
he the said A. B., his heirs, executors, adminis- stcimty.
.,, , . . , Vents unci
trators, or assigns will, so long as any prinoipal coveu.ints
monies or interest shall remain on these presents, a/.i per-'
pay, perform, and observe all the I'ents, covenants,
and conditions in the said lease reserved and
contained, and by the lessee, his executors, ad-
miuistratoz's, and assigns to be paid, performed,
i3
178
MORTGAGES.
or observed ; And will at all times keep the said
C. D., his heirs, executors, administrators, and
assigns, indemnified against all actions, suits,
expenses, and claims, on account of the non-
payment of the said rents or any of them, or any
part thei'eof, respectively, or the breach, or non-
performance, or non-observance of the said
covenants and conditions, or any of them. In
WITXESS &c.
THE SCHEDULE to which the above-writ-
ten Indenture refers.
Part. I.
Part II.
XXV.
Mortgage of a Policy q/AssuRANCE/or-
securing a Sum already due, and
Future Advances.
This indenture, made &c., between A.
B., of &c. [rnortgago)-], of the one pai't, and C. D.,
of &c. [mortgagee], of the other part. Whereas
the said A. B. is indeVjted to the said C. D. in the
sum of £ , and may become further indebted
Witnessstb. to the said C. D. : Now this indenture WITNESS-
ETH, that, in consideration of the premises, he the
Covenant to gaij A. B. doth hereby, for himself, his heii-s,
pay i)nnci- •" ' '
Parties.
Recital of
iijortgagor's
being in-
debted to
mortgagee.
MORTGAGES. I I J
executors, and administrators, covenant with the i^i and
. interest.
said C. D., his executors and administrators, tliat
he the said A. B., his heirs, executors, or admi-
nistrators, will pay unto the said C. D,, his ex-
ecutors, administrators, or assigns, the sum of
£ [tJte sum already oioimj], together with
interest for the same in the meantime, at the
rate of £ — per cent, per annum, on the day
of next, witliout any deduction, and will
also, within calendar months from the time
or times of the same respectively being advanced
or becoming due, ]»ay to him or them such other
monies (if any) as may be advanced by him or
them to or on account of, or may become due to
him or them by the said A. B., his executors or
administrators, with interest thereon, at the rate
aforesaid, from the time or times of the same re-
spectively being advanced or becoming due, with-
out any deduction. And this indenture also Witncsstth
, . • T • f 1 • secondly.
WITNESSETH, that, in consideration oi the premises,
the said A. B. doth hereby assign unto the said Assifrnment
'' o Oi policy.
C. D., his executoi'S, administrators, and assigns,
ALL THAT policy of assuraucc on the life of the
said A. B., gi-anted by the Assurance So-
ciety, dated the day of , numbered
, for the sum of £ , and under tlie annual
premium of £ , and all monies assured or to
become payable by or under the said policy, and
the full benefit thoreof, and all the estate and
interest of the said A. B. in the said premises, TO H^ibeuduiu.
hold the said premises unto the said C. D., his
180
MORTGAGES,
redemption sxectitors, administrators, and assigns : Provided
ALWAYS, tliat, if the said A. B., his heirs, ex-
ecutors, administrators, or assigns shall pay to
the said C. D., his executors, arlministratoi'S, or
assigns the said sum of £ [the sum already/
owinff], with interest for the same in the mean-
time at the rate of £ — per cent, per annum,
on the said day of next, without any
deduction, and shall also, within calendar
months from the time or times of the same
respectively being advanced or becoming due, pay
to him or them such other monies as may be
advanced by him or them to or on account of, or
may become due to him or them by the said
A. B., his executors or administrators, with in-
terest thereon, at the rate aforesaid, from the
time or times of the same respectively being ad-
vanced or becoming due, without any deduction,
then the said 0. D., his executors, administrators,
or assigns will, at any time thereafter, upon the
request and at the cost of the said A. B., his
executors, administrators, or assigns, assign the
said policy and premises to the said A. B., his
executors, administrators, or assigns, or as he or
Trusts oi they shall direct. And it is hereby declared,
tlie policy. •' . , . .
that, if, before the said policy shall have been
assigned as last afoi-csaid, any monies shall be-
come payable under the same, the said C. D., his
executors, administrators, or assigns may receive
the same, and shall thereout, in the first place,
pay the expenses incurred in recovering the same.
XrOUTOAGES. 181
or otherwise, in relation to the premises; And, in
the next place, shall apply such monies in or
towards satisfaction of the monies for the time
being owing on the security of these presents ;
and then shall pay the surplus (if any) of the
said monies to become payable under the said
policy to the said A. B., his executors, adminis-
trators, or assigns. And it is hereby declared. Mortgagee's
that the receipt of the said C. D., his executors, ^''discharge
1 . . , , . /. • 1 1 to the As-
administrators, or assigns, tor any monies payable surance So-
under the said policy, shall effectually discharge "^"^'^
the said Assurance Society, and all other persons,
from being concerned to see to the a|>plication
thereof. And the said A. B. doth hereby, for Covenant
i/i-i-i- 1 ^ • ■ J. by nmrtga-
himself, his heirs, executors, and administra- pnr that po-
tors, covenant with the said C. D., his execu- and not to '
tors, administrators, and assigns, that the afore- same;
said policy is now valid and iu full force for
the said sum of £ , and that he the said
A. B. will not do or suffer anything, whereby
the said policy may become void or voidable, or
the said C. D., his executors, administrators, oi-
assigns be hindered from receiving all or any of
the monies assui'ed or to become payable under
the same; and that, if the said policy shall be — if vitiated,
t<* cftGCt. new
come void, the said A. B. will immediately effect poUu^ ;
a new policy or policies on his life, in the name
or names of the said C D., his executors, admi-
nistrators, or assigns, for a sum or sums not less
in the whole than the sum of £ ; and that
every such new policy, and the monies to become
182 MORTGAGES.
payable under the same, sliall be subject to the
proviso for redemption hereinbefore contained,
and the trusts hereby declared concerning the
said existing policy of assurance, and the monies
—to pay to become payable under the same (a) ; and
iniums, THAT he the Said A. B. will, from time to time,
witii'mfe^'- P^y the said premium of £ , and any other
nion?es ex- premiums or sums for the time being necessary
nuMtgagee ^^^^' keeping on foot the said existing policy, or,
minjot po- ^"y^ policy to be effected as aforesaid, on the first
^'^y'' day on which the same respectively ought to be
paid, and forthwith deliver the receipt for the
same to the said C. D., his executors, adminis-
trators, or assigns; and that the said A. B., his
executors or administratoi-s, will, on demand,
pay to the said C. T>., his executors, administra-
tors, or assigns, all monies (if any) which shall
be expended by him or them in keeping on foot
the said existing policy, or effecting or keeping
on foot any new policy in lieu thereof, with in-
terest thereon, at the rate aforesaid, from the
time or resi:)ective times of the same having been
—that, till expended ; and that, until such monies shall be
npuj'inent, ., .,. ,,i ■ ^ • l- t i
tiie same repaid With niterest, the said existiug policy, and
charge on auy new policy to be effected as aforesaid, and
(a) These covenants — not to vitiate the policy, and to
effect a new policy — may be dispensed with, if the mort-
gagee chooses to rely wholly on the existing policy.
Otherwise it is desirable to have a specific engagement by
the mortgagor to keep an assurance subsisting.
MORTGAGES. 183
the monies to become prtN'ablc under the same tho pi-e-
niises ;
1-espectively, sliall be charged witli the payment
thereof (a); and that he the said A. B. now —for right
hatli power to assign tho said premises unto the
said C D., his executors, administrators, and
assigns, in manner aforesaid, and free from in-
cumbrances ; AKD THAT he the said A.. B., his and for
' further
executors and administrators, and every other assurauco.
pei-son lawfully or equitably claiming any estate
or interest in the premises, will, at all times, at
his or their own cost, execute and do all such
assurances and things for further or better as-
suring the said premises xxnto the said C. D., his
executors, administrators, and assigns, in manner
aforesaid, and for enabling him and them to re-
cover and receive the monies assured or to
become payable under the said policy or policies,
as by him or them shall be reasonably required.
And it is hereby declared, that the said C. D., Power of
* , . . . , sa'e.
his executors, administrators, or assigns may, at
any time or times after the said day of
next, "without any furtiier consent on the
l)art of the -said A. B., sell the said policy and
(a) The two preceding covenants (except the engage-
ment by the mortgagor to jiay the premiums) may be dis-
pensed with, if it is wished to shorten the deed, as they
do little more than particidarise the rules of equity.
See Hodgson v. Jlud'j.^on, 2 Keen, 70i; Burridye v. How,
lYou. &C0II. N. C. 183.
18 i
MORTGAGES.
Power not
to be exer-
ci8;d till
cerLain
events hap-
pen.
premises hereinbefore expressed to be hereby
assigned, or any new policy to be effected as
aforesaid, either by way of surrendering the same
to the office by which the same respectively has
been or may be granted, or otherwise, and either
by public auction or private contract, and may
buy in, or rescind any contract for sale, and re-
sell, without being responsible for loss occasioned
thereby, and may execute and do all such as-
surances and things for effectuating any such
sale, as he or they shall think fit : Provided
ALWAYS, and it is hereby declared, that the said
C D., his executors, administrators, or assigns,
shall not execute the power of sale hereinbefore
contained, until he or they shall have given to
the said A. B., or left at his usual or last known
place of abode, a notice in writing to pay off the
monies for the time being owing on the security
of these presents, and default shall have been
made in such payment for —. calendar naonths
after giving or leaving such notice, or until there
shall be more than seven calendar months'
interest due upon some principal money for the
time being owing on the security of these pre-
sents. [Purchasers not to he hound to see that
such events have happened. Mortgagees receipt to
be a discharge to purchasers. Trusts of the pur-
chase-money. Fower may be exercised by any
person entitled to give a receipt for the mortgage-
money. Mortgagees indemnity clause : supra,
MORTGAGES.
185
pp.lGl, lG-2]. Providep lastly, that the total ]^i^;X
amouDt of money hereby secured, or to be xilti- l;^^^^^'^''-
mately recoverable hereupon, shall not exceed
the sum of £ (a). I>' witness etc.
XXVI.
Mortgage of a Contingent Estate in Free-
holds, a7id of a Policy 0/ Assurance.
This indenture, made &c., between A. Parties.
B., of &c. [mortgagor], of the one part, and C. D.,
of (kc. [mortgagee], of the other part. Whereas Recital of
nr.t/.T • /•? • i creation of
&c. [recital 0/ the creation oj the contingent estate, estate;
see recital, supra, p. 1181. And whereas the — ofagree-
' ■' ' •' J ment for
said C. D. has agreed to lend the said A. B. the njortgage ;
sum of £ , upon having the repayment of the
(a) The exemptions in the Stamp Act, 13 & 14 Viet. c.
97, tit. Mortgage, of monies advanced for the insurance
of any life or lives, applies only to cases in which an
estate or interest, held upon such life or lives, is granted,
assigned, or assured, or an annuity is granted or secured
for such life or lives, and not to the case where a policy
of assurance only is made the security. Tiie proviso
in the text, however, is not necessary, as the deed will be
a good security for whatever amoinit the ad valorem
stamp will carry, and (if the proviso be omitted) the
amount may be extended by incretfing the stamp.
Notice of the assignment of a policy of assurance must
be given to the ufQce by which it is granted.
■^"" MORTGAGES.
same, witli interest, as hereinafter mentioned,
—of a policy secured in manner liereinafter appearing. And
of assurance n ^ • i •
havintriieeu WHEREAS, as part 01 the Said intended security,
effected. , • i » -r-i i i /v. i • -,
the said A. ±>. hath enected an assurance, m the
name of tlie said C. D., with the Assurance
Society, by a policy numbered , dated ,
under the annual premium of £ , and for the
sum of £ to become payable if the said A. B.
Witnessetb shall die in the lifetime of the said . Now
THIS INDENTURE WITNESSETH, that &C. [ ^?a?/Wie/l^
Covenant of and receipt for consideration ; and covenant to
to pay. -^ -f •',
2)ay the princijyal and interest, sujyra, j^. 144.]
Witnesseth AnD THIS INDENTURE ALSO WITNESSETH, that, in
fuithercon- - , /> i • t ^ c
veyaiiceof further pursuance of the said agreement, and for
the consideration aforesaid, he the said A. B.
doth hereby grant and dispose of («), unto the
said C. D. and his heirs, all that &c. [see the
description of the parcels and general words, and
Habendum, the estate clause, supra, p. 1 19], to hold the said
premises unto the said C D., his heirs and
assigns, to the use of the said C. D., his heirs
and as.signs, subject to the estate for life therein
of the said , and to the event of the estate
and interest therein of the said A. B. being
defeated Ijy his death in the lifetime of
Prnviso for the Said : Provided always, that, if the
redemption. . , , -r. i • i • i • •
said A. B., his heirs, executors, administrators,
or assigns shall pay to the said CD., his exe-
(a) See the words of sect. 6 of the statute, supra,
p. 86.
MORTGAGES. 1 87
cutors, administrators, or assigns the said sum
of £ , with interest for the same in the
meantime, at the rate of £ — per cent, per
annum, on the said day of next,
without any deduction, then the said C. D., liis
heirs, execxxtors, administrators, or a.ssigns will
at any time thereafter, i;pon the request and at
the cost of the said A. B., his heirs, executors,
administrators, or assigns, re-convey the said
premises (suhject as aforesaid) unto the said A. B.,
liis heirs and assigns, and assign the aforesaid
policy of assurance, and the monies assured or to
become payable under tlie same, unto the said
A. B., his executors, administrators, or assigns,
or as he or they shall respectively direct. \^Trusts Tmsts and
of the policy, supra, p. 180; covenant to pay
interest if the principal remain impaid after tJie
day apj)ointed, supra, p. 145 ; cove7iants as to the
policy, supra, pp. 181 — 183]. And it is hereby Power of
DECLARED, that the said C. D., his executors, ad- ''*'^'
ministrators, or assigns may, at any time or
times after the said day of next, with-
out any further consent of the said A. B., his
heirs, executors, administrators, or assigns, sell
the said premises hereinbefore expressed to be
hereby granted and disposed of, and the said
existing policy, or any new policy to be effected
as aforesaid, either together or sejiaratcly, and as
to the said premises hereinbefore expressed to be
hei'cby granted and disposed of, cither during the
life of the said or after her death, and either
with or witliout the concurrence of any other
188 MORTGAGES.
person or pei'sons interested in the aforesaid here-
ditaments, and as to any such policy, either by
way of suiTender to the office by which the same
has been or may be granted, or otherwise, and as
to all the said premises, either by public auction
&c. [supra, jjj). 169 — 171, omitting clause, p. 169,
tJiat, after a sale, mortgagor shall hold the rever-
sion in trust for purchaser {a); covenants for right
to convey the land, and for further assurance of the
land and policy, see sujjra, pp. 120 and 183.] In
WITNESS &c.
XXVII.
Parties.
Recital of
old mort-
— :hat prin-
Tkansfer of a Mortgage, the Mortgagor not
being a Party (6).
This IITDENTURE, made kc, BETWEEN A.
B., of &c. [mortgagee'], of the one part, and C. D.,
of &c. [transferee], of the other part. Whereas
&c. [recital of tlve mortgage, supra, p). 108]. And
whereas the said sum of S. , with £ for
(a) As the property is partly real and partly personal,
the ultimate trust of the surplus had better be for the
mortgagor, his executors, administrators, and assigns, as
personal estate. See supra, p. 171.
(i) If the transfer be by indorsement, the recital of
the mortgage will be omitted, and the mortgage debts,
&c., be referred to aa " withiu-named," " within-men-
tioned, " &c.
MORTGAGES. 1 89
interest thereon from the day of last, '^^P''' /^'"i
•' certain m-
is now owing to the said A. B. on the said secu- terost is
~ uow owiug ;
rity. And whereas the said C. D. has agreed
to pay the said A. B. the said sums of £ and — of ajiree-
'■ •' merit for
£ , making together the sum of , transfer.
upon having such transfer of the said mort-
gage debt, and of the securities of the same,
as is hereinafter contained. Now this inden- witnesseth,
TURE WITNESSETH, that, in pursuance of the said
agreement, and in consideration of the sum of Considera-
~ _ tion.
£ this day paid to the said A. B. by the said
C. D. (the receipt whereof the said A. B. doth Receipt,
hereby acknowledge), he the said A. B. doth Assignmeut
•' . . of debt.
hereby assign unto the said C. D., his executors,
administrators, and assigns, all that the said
gum of £ [the princijial] now owing to the
said A. B. on the security aforesaid, and all
interest due and to accrue due for the same, and
the full benefit of the covenants entered into by
the said [nwrtyagor^ in the said indenture of the
day of ythe mortgage^, and of all other
securities for the same premises, and all the
estate and interest of the said A. B. in the pre-
mises, TO(iETaER WITH power for the said C D., rower of
his executoi-s, administrators, and assigns, to sue
and give receipts for the said sum of X , and all
interest due and to accrue due for the same, in the
name or names of the said A. B., his executors or
administrators, TO hold the said premises unto Habendum,
the said C D., his executors, administratoi-s,
and assigns, absolutely. And this indenture witnessoth
secondly.
190
MORTGAGEP.
ALSO WITNESSETH, tliat, ill further pursuance of
the said agreement, and for the consideration
Conveyance, aforesaid, the said A. B. doth hereby grant unto
Parcels. the said C. D., his heirs and assigns, \j)arcels, p.
96], and all and singular other the hereditaments
by the said indenture of the day of
expressed to be granted [or released or appointed,
or appointed and granted c&c, as the case 'iiiay he
— general words, estate clause, p. 97], to hold the
Habendum, said premises UNTO the said C. D., his heirs and
assigns, to the use of the said C. D., his heirs
and assigns, subject to the equity of redemption
subsisting therein under the said indenture of
the day of [the mortgage!^, and with
the benefit of the power of sale therein contained.
And the said A. B. doth hereby, for himself, hi.s
heirs, executors, and administrators, covenant
with the said 0. D., his heirs, executors, admi-
nistrators, and assigns respectively, that the said
sum of <£ , with interest thereon from the
said day of , is now owing to him the
said A, B. on the aforesaid security, and that he
the said A. B. hath not done, or knowingly suf-
fered, or been party or privy to any thing where-
by the said monies, hereditaments, and premises,
or any part thereof respectively, are or can be
impeached, incumbered, or affected in anywise
howsoever. In witness &c.
Covenant
against
inciim-
brauces.
THE SCHEDULE to which the above-writ-
ten Indenture refers.
MORTGAGES. 1 9 1
XXVIII.
Transfer of a Mortgage hy the Execu-
tors and Devisees of the Mortgagee,
the IMortgagor receiving a further
Advance.
This indenture, made (fee, between A. B., Parties.
of &c., and C. D., of «fec. \execxdors and devisees of
mortgagee], of the first part, E. F., of &c. [mort-
gagor], of the second part, and G. H., of &.c.
[transferee], of the third part. Whereas ttc. Recital of
[^recital bf the mortgage, ut supra, ]). 108]. And !!!.',',[• uie'^ '
whereas the said [mortgagee] duly made and exe- mortgaBee*';
cuted his last will, dated the day of ,
and thereby devised estates vested in him upon
mortgage to the said A. B. and C. D., their lieirs
and assigns, and appointed the said A. B, and C.
D. executors of his said will ; and avhereas the —of his
said [^mortgagee] died without having revoked or probattfof
altered his said will, and the same was proved by '"' ^^' '
the said A. B. and C. D. in the Court of ,
on the day of . And whereas the said —that mort-
sum of £ is now owing to the said A. B. and is stiii'due;
C. D. on the said security, but all interest there-
on has been paid up to the date of these presents.
And whereas the said G. H. has agreed to pay — ofagree-
thc said A. B. and C. D. the said sum of £ , trausfer'
192
MORTGAGES.
and further
adviiuce.
Witneesetb.
Considera-
tion.
Receipt.
Transfer of
mortgage-
debt.
Habendum.
Witnessetli
secondly.
Covenant
for repay-
ment of
and to lend the said E. F. tlic fiirtlier sum of
£ , npon having such transfer of the said
mort£rao;e debt and interest, and of the securities
for the same, as is hereinafter contained, and upon
having the repayment of the said sums of £
and £ , with interest, as hereinafter men-
tioned, secured in manner hereinafter appearing.
Now THIS INDENTURE WITNESSETH, that, in pur-
suance of the said agreement, and in considera-
tion of the sum of £ [original debt] to the
said A. B. and C. D. this day paid by the said
G. H. (the receipt wliereof the said A. B. and
C. D. do hereby acknowledge), and of the sum of
£ to the said E. F. this day paid by the said
G. H. (the paymept and recei2)t respectively of
which sums of £ and £ , madcing to-
gether the sum of £ , the said A, B. doth
hereby acknowledge), they the said A. B. and C.
D. do hereby assign unto the said G. H., his exe-
cutors, administrators, and assigns, all that the
said sum of £ [the original debt] now owing
to the said A. B. and C. D. on the security
aforesaid, and all interest to accrue due for the
same, and all the estate and interest of the said
A. B. and C. D. in the premises, to hold the said
premises unto the said G. H., his executors, ad-
ministrators, and assigns, absolutely. And this
INDENTURE ALSO WITNESSETH, that, in further pur-
suance of the said agreement, and for the con-
siderations aforesaid, he the said E. F. doth here-
by, for himself, his heirs, executors, and adminis-
MORTGAGES. 193
trators, covenant witli the said G. H,, his exe- principal,
with iiiter-
cutors and administrators, that he the said E. F., est. at the
eiia of six
his heirs, executors, or administrators, will pay to months.
the said G, H., his executors, administrators, or
assigns, the sitm of £ [the total amount^,
with iutei-est thereon in the meantime, at
the rate of £ — per cent, per annum, on the
day of next, without any deduction.
And this indenture also WITNESSETH, that, in Witnesscth
furtlier pursuance of the said agi-eement, and for
the considerations aforesaid, they the said A. B. Conveyance.
and C. D., by the direction of the said E. F., do
hei'eby grant, and he the said E. F. dotli hereby
grant and confii'm, unto the said G. H., his heirs
and assigns, \jJaixels — general woi'ds, supra, pp.
9G-7], AND all the estate and interest of the said
A. B., C. D., and E. F., and every of them, in the
said premises, TO hold the said premises xtsto Habendum,
the said G. H., his heirs and assigns, TO the use
of the said G. H., his heirs and assigns, discharged
from all equity of redemption under the said in-
denture of the day of [the original
mortgage]. [Proviso for redemption, supra, p.
145, distinguishing the property as that " herein-
before expressed to be hereby granted." Cove-
nant by mortgagor for payment of interest, supra,
V. 1451. And each of them the said A. B. and co enant
C. D., SO far as relates to his own acts and deeds, tors against
iiicmn-
doth hereby, for himself, his heirs, executors, and brauces.
administrators, covenant with the said G. H., his
heii-s, executors, administrators, and assigns, i-es-
K
1 1)4 MORTGAGEa
pectively, that they the said A, B. and C. D., res-
pectively, have not done or knowingly suffered, or
been party or privy to anything whereby the said
hereditaments, monies, and premises, or any part
thereof, respectively, are or can be impeached,
incumbered, or affected in anywise howsoever,
or whereby they respectively are prevented from
granting and assigning the same premises, or any
part thereof, respectively, in manner aforesaid.
iPower of sale, and covetiants for title, as in m'i-
ginal mortgage, sujjra j^P- 140 — 149.] In wit-
ness &c.
THE SCHEDULE to which the above-writ-
ten Indenture refers.
XXIX.
Ee-conveyance hy Heir and Executors of a
Mortgagee (a).
Parties. This indenture, made &c., BETWEEN A. B.,
of &c. \heir-at-law o/ mortgagee], of the first part,
C. D., of &c., and E. F., of &c. [executors], of the
second part, and G. H., of &c. [moi'tgagor], of the
(«) If the reconveyance were by mortgagee himself,
and by indorsement, all the recitals might be omitted.
MORTGAGES. 195
tliinl part. Whfukas etc. [recital o/ the mor^ Recital of
1 r-T 1 1 ■ ^ niortgnge ;
f/rtY/e, supra, ;>. 10/ J. And wheueas the said _„f^^i„
[mortgmjee] duly made and executed his la.stwill, ![[;'} partial
dated the day of , and thereby appoint- J;'J:rSee!'^
ed the said C. D. and E. F. executors thereof, Imt ^f 'i/s w'iif ■''
did not thereby devise the legal estate in the said
hereditaments, and died leaving the said A. B. his
heii'-at-law, and without having revoked or altered
his said will, and the same was proved by the said
C . D. and E. F. in the Coui-t of , on the
day of . And whereas the said sum — ofmort-
of £ is now owing to the said C. D. and blinfrdue,
E. F. on the said security, but all interest thereon gayoi's de-
lias been paid up to the date of these presents, uoff.*^ '"
and the said G. H. is desirous of paying off the
said sum of £ , and of having such reconvey-
ance as is hereinafter contained. Now this in- witnesseth.
DENTURE WITNESSETH, that, in Consideration of all Considera-
interest on tlie said sum of .£ having been
paid as aforesaid, and of the sum of £ to the
said C. D. and E, F. this day paid by the said
G. H., (the receipt whereof the said C. D. and Receipt.
E. F. do hereby acknowledge), he the said A.. B.,
by the direction of the said C. D. and E. F., doth
hereby grant, and they the said C. D. and E. F. do
hereby release, unto the said G. H., his heii"s and
assigns, ]j)arcels — general words, and estate clause,
supra, p. 190], to hold the said premises unto Hibendnm
the said G. H., his heirs and assigns, to the use
of the said G. H., his heii'S and assigns, dis-
charged from the said mortgage-debt of £ ,
t- 9
19G ■ MORTGAGES,
and all interest for the same, and from all claims
under the said indenture of the day of
[tJie mortgage]. [Covenant hy the heir and execu-
tors against incv/mhrancea, supra, p. 193.]. In
"WITNESS &C.
THE SCHEDULE to which the above-written
Indenture refers.
XXX.
Assignment of a Term to a Trustee for a
Mortgagee (a).
Parties. ThIS INDENTURE, made «fec., between A. B.,
of &c. \trustee of the terni], of the first part, C. D.,
of <kc. [existing mortgagee], of the second part,
E. F., of &c. [rtioi'tgagoi-], of the third part, G. H.,
of &c. [new mortgagee], of the fourth part, and
T. K., of &c. [neiv trustee], of the fifth part.
Recital of Whereas, by an indenture dated the day of
the creation . ^
of tiie term ; , and expressed to be made between [parties \,
ALL those &c. [parcels, verbatim, from the deed],
with the appurtenances, were demised unto the
said , his executors, administrators, and as-
(a) As to the cases in which a term may perhaps be
still assigned, and to which this Precedent is intended to
apply, see supra, p. 80.
MORTGAGKS. 107
signs, for the term of years from the date
thereof. And whereas, after divers mesne as- —of the
siu'auces and acts in the law, by an indentm-c of the free-
dated the day of , and expressed to l)e lastassign-
11, r ^ • T ii • J • ment of the
made between \_parties \, the reversion and in-te,,„j
heritance expectant on the said terra in the said
premises were conveyed to the use of the said
C. D., his heirs and assigns, s\ibject to a proviso
for redemption tliereof on payment by the said
E. F., his heii"s, executors, administratoi"s, or as-
signs, unto the said C. D., his executoi's, adminis-
trators, or assigns, of the sum of £ , with in-
terest for the same after the rate and at the time
therein mentioned. And whereas, after divers —of the last
assignment
mesne assignments and acts in the law, by an in- of the term;
denture, dated the day of , and expressed
to be made between [jmrties], the said premises
comprised in the said term were assigned to X.
Y., his executore, administi-ators, and assigns, for
the then residue of the said term, in trust for the
said C. D., his executors, administrators, and as-
signs, for better securing to him and them the
payment of the said sum of £ and interest,
and, subject thereto, in trust for the said E. F.,
Lis heii-s and assigns, and to attend tlie inherit-
ance. And whereas, by an indenture bearing —of the
deed of even
even date with, but executed before, these pre- date;,
sents, and expressed to be made between the said
C. D., of the first pai-t, the said E. F.. of the fleeoiul
part, and the said G. H., of the third part, in con-
sideration of the sum of £ paid by the said
198 MORTGAGES.
G. H. to the said C D. at tlie request of the said
E. F., the said C. D. hath assigned unto the said
G. H., his executors, administrators, and assigns,
the said mortgage-debt and intex'est, and hath con-
veyed unto the said G. H., his heirs and assigns,
the said premises comprised in the said term, to
hold the same unto and to the use of the said
G. H., his heii-s and assigns, subject to a proviso
in the indenture now in recital contained for re-
— of the de- demption, &c. ut supra. \Recite the devolution of
volution of ^ ' "-
the term; the term from X. Y. to A. ^.] And whereas
sTre that it" the said G. H. is desirous that the said premises
^gned^ ^^' comprised in the said term shall be assigned by
the said A. B. to the said I. K., his executors, ad-
ministrators, and assigns, upon the trusts herein-
Witnesseth. after declai'ed. Now this indenture witness-
ETH, that, for effectuating the said desire, and in
Assignment, considei'ation of the premises, he the said A. B.,
by the direction of the said C. D., and with the
approbation of the said E. F. and upon the nomi-
nation of the said G. H., doth hereby assign unto
the said I. K., his executors, administi'ators, and
Parcels. assigns, ALL SUCH of the said premises by the said
deed of even date lierewith expressed to be con-
veyed, as by the said indenture of the day
of \the last assignment of the terni\ were as-
signed unto the said X. Y., his executors, admin-
istrators, and assigns, with their appui'tenances,
AND all the estate and interest of the said A. B.
Habendum, in the said premises, to hold the said premises
UNTO the said I. K., his executors, administi-ators,
MORTGAGES.
199
and assigns, for the i-esidue of the said term of
years, upon trust for the said G. H., his execu- 1" tn'st for
J ' ^ _ the mort-
tors, admiuistrators, and assigns, and to assign the gagce t« at-
same as he or they shall direct, for better secur-
ing to him and them the ]>ayment of the said sum
of £ and interest, and, subject thereto, in
trust for the said K F., his heirs and assigns, and
to permit the same to attend the reversion and
inheritance of the premises therein comprised.
{Trustee's covenant against incumbrances, see su-
pra, p. 109]. In witness &c.
200
ij:ases.
^tti^t^.
XXXI.
Parties.
Witnesseth.
Demise.
Parcels.
Lease of a House in a Town.
This indenture, made &c., between A.
B., of &c. [lessor'], of the one part, and C. D.,
of &c. [lessee], of the other part, witnesseth, that
the said A. B. doth hereby demise unto the said
C D., his executors, administrators, and assigns,
ALL THAT dvrelling-house, numbered , in
street, in the parish of , in the town of ,
with the yards, out-buildings, and ground held
therewith, as the site thereof is delineated in the
plan in the margin of these presents, and therein
coloured , togethek with all ways, lights,
sewei-s, watercourses, rights, privileges, easements,
advantages, and appurtenances thereto belonging,
or usually held or enjoyed therewith, except, ne-
vertheless, out of this demise, all &c. [insert any
reservation of a right of watercourse from adjoin-
ing liouses, or the like], to hold the said premises,
except as aforesaid, unto the said C. D., his ex-
ecutors, administrators, and assigns, for the term
of years from the date of these presents ;
Reddcudum. RENDEuiNG therefore, during the said term, the
General
words.
Exception.
Habendum.
LEASES. ■ :2'"» 1
yeai'ly rent of £ , clear of all present and fu-
ture rates, taxes, and deductions, by equal pay-
ments, on the day of and the
day of in every year, the first of such
payments to be made on the day of
next. And the said C D. doth hereby, for him- covenant
self, his heii*s, executors, and administrators, co- lessee, to
veuant with the said A. B., his heirs and assigns, reut
that he the said C. D., his executors, adminis-
trators, or assigns, during the said term, will
pay the yearly rent hereinbefore reserved, on the
days and in manner aforesaid ; and will bear and and taxes,
pay all rates, taxes, and outgoings, now payable
or hereafter to become payable, whether by tlie
landlord or tenant, in respect of the said premi-
ses : AND will keep the said premises insured and keep
. • 1 /v 1 ^^^ prenii-
against loss or damage by fire in svich ofiice as the ses insured,
said A. B., his heirs or assigns, shall approve, and
will, when required, produce the policy of such in-
surance, and the current year's receipt for the
premium thereon, to the said A. B., his heirs or
assigns ; and will keep the said premises in good ^ud iu re-
condition and complete repair, and without any P*"'
alteration, except such as the said A. B., his heirs
or assigns, shall approve of; and, at the expil'a- and yiei.i
tion or sooner determination of the said term, so end oi the
yield up the same unto the said A. B., his heirs ^'^°^'
or assigns ; and that the said A. B., his heirs a„d tiiat
and assigns, and his and their agents, surveyors, may^entcr
and workmen, may, at all reasonable times duruig '■'^ »i«i'e<'t ;
the said term, enter upoix the said premises to in-
202 LEASES,
and that the spect the saiue ; AND THAT 110 offensive business
bc"useVas a or occupation or nuisance shall be can-ied on or
h^uie only; Committed on the said premises, and that the
same shall be used as a private dwelling-house
aud shall oiilj ; AND THAT the Said C. D., his executors,
signed or' administrators, or assigns, will not assign or un-
uudcrlet. (Jei-igt the said premises without the consent in
writing of the said A. B., his heirs or assigns ;
Proviso for PROVIDED ALWAYS, that, Oil ailV breach or non-
re-entry. 1 • 1 i?
observance of any of the covenants herembeiore
contained, the said A. B., his heirs or assigns,
may re-enter upon the said premises, and re-pos-
sess and hold the same as if this demise had not
Covenant by been made. And the said A. B. doth hereby,
for quiet en- for liimsclf, liis hcirs, executors, administrators,
joymcu . ^^^ assigns, covenant with the said C. D., his ex-
ecutors, administrators, and assigns, that he and
they, performing and observing all the covenants
hereinbefore contained, may hold and enjoy the
said premises during the said term, without any
interruption by the said A. B., his heirs or as-
signs, or any person lawfully claiming under him
or them. In witness &c.
LEASES. 203
XXXII.
Lease of a Farm.
This indenture, made &C., BETWEEN A. Parties.
B., of &c. \lessor\ of the one pai-t, and C. D., of
&c. [fes«ee], of the other part, WITNESSETH, that Witnesscth.
the said A. B. doth hereby demise unto the said Demise.
C D., his executors, administrators, and assigns,
all that farm and lands, in the pai-ish of , Parcei-s.
in the county of , called farm, with
the farm-house and other buildings thereon, the
particulars whereof are specified in the schedule
hereunder written, together with all commons, cenerai
v/ords.
ways, watercourses, rights, privileges, easements,
commodities and appurtenances whatsoever, to
the said hereditaments or any part thereof be-
longing, or usually held or enjoyed therewith,
except and reserved, nevertheless, out of this Exception.
demise, all timber and other trees, and the right
to enter and cut and remove the same, to hold HabeucUim.
the said premises, except as aforesaid, unto the
said C. D., liis executors, administrators, and
assigns, for the term of years from the
date of these presents; rendering therefor, pc<Men-
during the said t^rm, the yearly rent of k , ' "'""
clear of all present and future rates, taxes, and
deductions, by equal payments, on the day
204 LEASES.
of and the day of in every year,
the first of such payments to be made on the
Covenant by day of next. And the said C. D.
paytur^' ° doth hereby, for himself, his heirs, executors,
and administrators, covenant with the said A.
B., his heirs and assigns, that he the said C. D.,
his executors, administrators, or assigns, during
the said term, will pay the yearly rent hereinbe-
fore reserved on the days and in manner afore-
and taxes, said ; AND WILL bear and pay all rates, taxes, and
outgoings, now payable or hereafter to become
payable, whether by the landlord or tenant, in
and keep the respect of the said premises; and will keep the
surSi°^^ '^" said farm-house and buildings insured against
loss or damage by fire, in such ofiice as the said
A. B., his heirs or assigns, shall approve, and
will, when required, produce the policy of such
insurance, and the current year's receipt for the
premium thereon, to the said A. B., his heirs or
and in good assigns; AND WILL keep the said farm-house and
coudition, ^j^j^jjjj^gj,^ aj^(j all things in and about the same,
and all fences, ditches, drains, watercourses,
gates, fixtures, and things upon or about the said
farm and lands, in good condition and complete
repair, and without any alteration, except such as
the said A. B., his heirs or assigns, shall approve
and vroper- of ; AND WILL cultivate, manure, and manage the
ly cuitivat- g^j^ ^^^j^^ ^^^j j^^jg -^^ g^ f^^^ ^^^ proper manner,
according to the most approved course of hus-
bandry, and will not convert into arable land
any land now in pasture, without the consent of
LEASES. 205
the said A. B., bis heira or assigns ; and will, at and yield up
• • 1 i • J.- /• J.L at the uiid
the expu'aiion or sooner determination oi tne of iLc term ;
said term, yield up the said premises in such
good condition and repaii", and in fair and pro-
per order, as aforesaid, unto the said A. B.,
his heirs or assi<i;ns: and that the ^aid A. B., and that
» ^ _ . landlord
his heu'S and assigns, and his and their a;:ents, inay enter to
surveyors, and workmen, may, at all reasonable
times during the said term, enter upon the said
premises to inspect the same, and to cut and re-
move timber and other trees : and that the said and that the
premises
C. D., his executors, administrators, or assigns, shall noi bo
assifjned or
will not assign or underlet the said premises, or m.dcr-iet
„ . , . . . without con-
any part thereof, without the consent in writing sent.
of the said A. B., his heirs or assigns : Pkovided proviso for
ALWAYS, that, on any breach or non-observance
of any of the covenants hereinbefore contained,
the said A. B., his heirs or assigns, may re-enter
upon the said premises, and re-possess and hold
the same as if this demise had not been made.
And the said A. B. doth hereby, for himself, covenant by
1.,. , T • • 1 i_ 1- tlielessiir tiir
nis heirs, executors, administrators, and assigns, quiet enjoy-
covcnant with the said C. D., his executors, ad- "''" '
ministrators, and assigns, that he and they, per-
forming and observing all the covenants herein-
before contained, may hold and enjoy the said
premises during the said term, without any in-
terruption by the said A. B., his heirs or assigns,
or any person lawfully claiming under him or
them. In witness etc.
THE SCHEDULE to which the above-writ-
ten Indentuue refei-s.
206
LEASES.
Parties.
Demise.
Parcels.
XXXIII.
Mining Lease,
This indenture, made &G., BETWEEN A.
B., of &c. [^S6'o?-], of the one part, and C. D., of
n'itaessetii. jfeg [^^es^ggj^ of the other part, witnesseth, that
the said A. B. doth herebjr demise vinto the said
C. D., his executors, administrators, and assigns,
ALL metallic mines and minerals, open and hid-
den, which belong to the said A. B., in the parish
of , in the covmty of , within the limits
following, [description of limits], within which
limits a certain mine called is now working
[or " has been worked "], and all liberties which
the said A, B. has power to grant, of searching
^ for, getting, making merchantable, and removing
Exception, the said mines and metallic minerals, except
and reserved unto the said A. B., his heirs and
assigns, all mines and ores of , and unre-
stricted liberty for him and them, and his and
their agents, servants, and workmen, to search
for, get, make merchantable, and remove all
mines and ores of , and all clay-stone, earth,
and minerals, not hereby demised, and to com-
municate from and to any adit or working with-
in the limits aforesaid to and from any adit or
working beyond the same limits, and to examine
and take plans of all workings under this de-
mise ; and in such seax'ching for, communicating,
LEASES. 1^07
examiuing, and taking plans, to use the adits,
shafts, machinery, and tackle in or about the
mines hereby demised, making reasonable com-
pensation for making use of the said machinery
and tackle, except in examining and taking
plans, TO HOLD the said premises hereby demist'd Habend\im.
unto the said C. D., his executors, administratoi'S,
and assigns, henceforth, for the term of
years; rendeuing therefor a money -rent eq\ial RcrMen-
to one-fifteenth of the monies for which the mine-
rals sold shall be sold, except the minei'als a
share whereof shall have been previously ren-
dered, AND RENDERING, SO often and to such ex-
tent as shall be required by notice (the same to
be determinable by notice), as a mineral-rent,
cue-fifteenth of all minerals which for the time
being shall have been gotten and not sold, the
said minerals to be made merchantable before
sale or render of a share thereof; and the said
money and mineral rents to be clear of all pre-
sent and future taxes, rates, and assessments,
and all other charges and deductions whatsoever,
and to be paid or delivered as hereinafter men-
tioned. And the said G. D. dotli hereby, for oovenaut by
himself, his heirs, executors, and administrators, '^^^'^'
covenant with the said A. B., his heirs and as-
signs, that the said C. D., his executors, admin-
istrators, and assigns, will work the .said mines
upon the cost-book and not the scrij) system,
and will, without delay, make merchantable all
minerals gotten ; and, within reasonable periods
208 LEASES.
during tlie said term, sell on the said lands, the
mines and minerals under which are hereinbe-
fore demised, by private ticketings, and not else-
where nor otherwise (unless with consent), all
the said minerals, except those in respect where-
of a mineral-rent shall previously have been ren-
dered ; AND WILL give ten days' notice of the day,
hour, and place of every such sale, and of the
minerals to be offered for sale ; and will, within
ten days after every such sale, give a return of the
minerals sold thereat, with their prices and pur-
chasers : AND WILL, immediately after every svich
sale, and before the removal of the minerals sold,
pay the money-rent thereby ascertained; and
WILL, without intermission, lay out on the sur-
face of the aforesaid lands all minerals in re-
spect whereof a mineral-rent shall be the required
render, and divide the same into fifteen shares
of equal value, and give ten daj'-s' notice of the
day, hour, and place of every division, and, im-
mediately after every division, render the min-
eral-rent thereby ascertained; and will pay all
present and future taxes, rates, and assessments,
and all other charges and deductions whatsoever,
upon or iu respect of the premises hereby de-
mised, or the aforesaid minerals or sale-monies,
or the aforesaid money or mineral-rents, or any
part thereof, respectively : and will throughout
the said term, with not less than able-
bodied miners, in the best and most approved
manner, and without intermission, except while
LEASES. 209
prevented by inevitiible accident or rcpaii's, tiy
the lands, the mines and minerals under which
are hereby demised, and eftectually drain and
work the mines hereby demised, and tor the
time being open or found, and make, erect, and
maintain all shafts, adits, buildings, engines,
machineiy, and apparatus, necessary for those
purposes; and will not, unless with consent,
drive any adit within fathoms of the ex-
tremity of any of the said lands, and will sub-
stantially sustain and maintain all the workings
of the said mines, and all engines, machinery,
aj^paratus, buildings, and fixtures, in a proper
coui-se of working and repair, and, at the end or
other determination of the said term, deliver up
the said mines, workings, and buildings, in good
condition and perfect working order, unto the
said A. B., his heii-s or assigns; and, at the end
of the said term, if required by notice one calen-
dar month or upwards previously thereto, or
upon the sooner determination of the said term,
if required by notice, deliver up the said engines,
machinery, and apparatus, and all fixtures be-
longing to the said C. D., his executors, admin-
istrators, or assigns, or the parts thereof specified
in such notice, to the said A. B., his heirs or as-
si<nis, at a valuation to be agi'ced on or to be de-
termined by two ai-bitrators, or their umpire, in
the usual way; and will throughout the said
term keep proper books of account of tlio work-
ings of the said mines, and of the disposjil of the
minerals obtciiued, and will keep the said books
210 LEASES.
and the cost-book or cost-books, and any plans
which may be made of the working of the said
mines, on the lands aforesaid, and will give
copies of and extracts from the same books and
plans as shall be required ; akd will also permit
the said books and plans to be inspected and
copied by the person or persons named in that
behalf in any notice ; and avill make good, or
make compensation for, all damage done by him
the said G. D., his executors, administrators, or
assigns, which the said A. B., his heirs or assigns,
or the said C. D., his executors, administrators
or assigns, is, are, or may be com pellable to make
good or make compensation for, and shall indem-
nify the said A. B., his heirs or assigns, there-
from, and from all expenses in relation thereto;
AND THAT the preuiises hereby demised, or any
part thereof, shall not be assigned or underlet
Declaration without Consent. And it is hereby declared,
as to notices i • i ^
and con- that every notice and consent herein before men-
tioned means, except where otherwise hereinbefore
expressed, notice or consent on behalf of the said
A. B., his heirs or assigns, in wi-iting, to be given
and signed by him or them, or some person author-
ised by him or them, and, in case of notice, fixed
within the limits aforesaid ; and every such no-
tice shall be notice to the said C. D., his execu-
tors, administrators, and assigns; and every no-
tice, return, copy, extract, and plan, hereinbe-
fore covenanted to be given by the said C. D.,
his executors, administrators, or assigns, shall be
made and given at his or their own expense, and
LEASES. - 1 1
be signed by him or one of them, or the captain
of the said mines, and sliall be given to the said
A. B., his heirs or assigns, or some person au-
thorised by him or them to receive the same :
Provided always, that, on faihire by the said p,^^ve^s of
C. D., hjs executors, administrators, or assigns, eutry.
to perform or observe any of the covenants here-
inbefore contained, the said xV. B., his heirs or
assigns, may stop, seize, and distrain all minerals,
engines, machinery, apparatus, fixtures, goods,
chattels, and effects, in and about tlie mines
hereby demised, or within the limits aforesaid,
and every distress there made take away and re-
tain to his or their use; and, if any money-rent
shall be due, may sell the said distress, as in
common cases of distress for rent, and, out of the
monies arising thereby, retain such money-rent,
and any further money-rent which may become
due, and the costs of making, keeping, and sell-
ing such distresses ; and, on every such failure as
aforesaid, or if the premises hereby demised
shall be assigned or assignable by means of the
bankruptcy or insolvency of the said C. D., his
executors, administrators, or assigns, the said A.
B., his heii-s or assigns, may re-enter and enjoy
the premises hereby demised, as if these presents
had not been executed ; but, until any such fail-
ure, or imtil the said premises shall be assigned
or assignable as aforesaid, the said C. D., his ex-
ecutors, administratox's, and assigns, may enjoy
the said premises without eviction or (except as
hereinbefore excepted and reserved) interruption
212 LEASES.
Agreement by the Said A. B., liis lieii-s or assigns. And it
f .r granting .
:i rntiive IS HEREBY AGREED AND DECLARED, that, II the
said C. D., his executors, administrators, or as-
signs, shall, throughout the said term, per-
form and observe all the covenants and condi-
tions hereinbefore contained, and shall, not less
than calendar months before the end of
the said term, deliver to the said A. B., his heirs
or assigns, an agreement in writing by three re-
sponsible persons to join as co-lessees, and such
persons shall be approved of by the said A. B.,
his heirs or assigns, then and in such case the
said C. D., his executors, administrators, and
assigns, together with such intended co-lessees,
shall be entitled to a lease from the said A. B.,
his heirs or assigns, of the premises hereby de-
mised, for the term not exceeding years
from the date of these presents, at the rents
hereinbefore reserveel, and under and subject to
such covenants, conditions, and agreements, as
to the said A. B., his heirs or assigns, shall seem
reasonable, but so that the persons to whom
such further lease shall be granted shall pay all
costs of such lease, and also (if required) of a
survey or plan upon such scale as the said A.
B., his heii-s or assigns, shall require of the pre-
mises to be demised (a). In witness (fee,
(«) This clause was framed for insertion in leases
granted for short terms for the purpose of searching for
luiiierals; it is, of course, not a necessary part of the pre-
cedent in the text.
PARTITION. 2 1 3
^Jartitioin
XXXIV.
Partition.
This indenture, made &.C., BETWEEN A. Parties.
B., of &c., of tlie first part, C. D., of <fec.,
and E. D., bis wife, of the second part, and
F. G., of &c. [rfrantee to uses], of the third
part. Whereas, by an indenture, dated the Recital of '
1 /. 1 1 J. 1 11 title to ono
day or , and expressed to be made be- undivided
tween [parties], one undivided moiety of the {he^propcr-
hei'editaraents intended to be hereby conveyed '^ '
was limited to siicli uses, for such estates, and in
such manner as the said A. B. should by deed
appoint, and in default of, and until and subject .
to, such appointment, to the use of the said A.
B., and his assigns, for his life, with remainder
to the use of the said X. Y., and his heirs, dur-
ing the life of the said A. B., in trust for him
and his assigns, with remainder to the use of the
said A. B., his heirs and assigns. And whereas —of title to
the said C. T). is seised of the other undivided undivided
moiety of the same hereditaments for an estate
in fee simple in possession, free from incum-
brances. And whereas the said A. B. and C —of.igree-
D. have agreed to make partition of the said paniu'ou.
2 1 4 PARTITION.
liereditaments in the shares and manner herein-
after appearing, and the said E. D. hath agreed
to release her right of dower in the said undi-
vided moiety of the said C. D. of the said here-
Wituesseth. ditaments. Now this indenture witnesseth,
that, in pursuance of the said agreement, and in
. consideration of the premises, he the said A. B.
Appoint- ! doth hereby appoint, that the said undivided
moiety, comprised in the said indenture of the
day of , of the said hereditaments
meut.
shall henceforth go and remain to tlie uses here-
Witjiesseth inafter limited. And this indenture also
y WITNESSETH, that, in further pursuance of the
said agreement, and in consideration of the pre-
mises, he the said A. B., as to tlie undivided
moiety, conipi-ised in the said indenture of the
Conveyance. day of , of the Said hereditaments, doth
hereby grant, and he the said C. D., as to his un-
divided moiety of the said hereditaments, doth
hereby grant, and she the said E. D., as to the
same undivided moiety, and with the concur-
rence of the said C, D., doth hereby release, unto
Parcels. the said F. G. and his heirs, all and singular
the and hereditaments, situate in the
parish of , in the county of , specified
in the two scliedules hereunder written, and de-
lineated in the map drawn in the margin of
these presents, and therein coloured and
respectively, [general words, supra, p. 97],
and all the estate and interest of the said A. B.,
C. D., and E. D., respectively, in the said pre-
PARTITION'.
215
luises, TO HOLD the said premisca UXTO tlie said Habendum.
F. Ct. and his heirs, to the uses hereinafter
limited. And it is hereby declared, that Declaration
of uses.
the appointment and grant and release hereinbe- ^
fore contaiud shall enure, as to the heredita-
ments comprised in the first schedule hereunder
•written, and in the said map coloured ,
with their appurtenances as aforesaid, to such
USES &,c. \_ii3es to bar dower in favour of A. B.,
supra, }). 99]; and as to the hereditaments
comprised in the second schedule hereunder
written, and in the said map coloured , with
their appurtenances as aforesaid, to such uses
&c. \uses to bar dower in. favour of C. D., ib."]
And each of them the said A. B. and C. D., so covenants
far as relates to the one undivided moiety, to tics, for
which he claims to be entitled as aforesaid, of "(1.' free*^""^
the said i)remises, doth hereby, for himself, his bnincc^'^^
heirs, executoi's, and administi-atoi-s, covenant
with the said F. G. and his heirs, that, notwith-
standing anything by them the said A. B. and
C. D. respectively, or any of the ancestors of
the said C D., done or knowingly suffered,
they the said A. B., and the said C. D. and E. D.
respectively, now have power to assure the said
premises to the uses and in maimer aforesaid, and
free from incumbrances; and that all the several
premises aforesaid shall be quietly entered into,
held, and enjoyed according to the uses hereinbe-
fore limited thereof respectively, without any in-
terruption by the said A. B. and C. D. and E. D.,
216 PAKTITION.
■ or any of them, oi- by any person claiming tliroiigh
them or any of them, or through the ancestors
—fni- further of the said C. D. ; and that they the said A. B,
afi:.ui;iiice. ^^^^ ^ jy respectively, and their respective
heirs, and every other person lawfully or equit-
ably claiming through or, in trust for them re-
spectively, or the ancestors of the said C. D.,
will, at all times, at the cost of the party requir-
ing the same, execute and do all such assurances
and acts, for further or better assuring all or
any of the said premises to the uses hei-einbefore
declared of the same I'espectively, as by the said
A. B. and C. D. respectively, or their respective
heirs, appointees, or assigns, shall be reasonably
required. In witness &c. (a),
THE FIRST SCHEDULE to which the
above-written Indenture refers.
THE SECOND SCHEDULE to which the
above-written Indenture refers.
(a) This deed must be acknowledged by the married
TV'oman.
EXCHANGE. 217
XXXV.
EXCHA>GE.
This indenture, made <tc., BETWEEN A. Parties.
B., of (kc, a bachelor, of the one part, and C. D.,
of (fee., and E. D., his wife, of the other part.
Whereas the said A. B. is seised of the here- Recital of
1 /» 1111 estates in
ditaments comprised in the first schedule here- the proper-
under written for an estate in fee simple in pos-
session, free from incumbrances ; and the said
C. D. is seised of the hereditaments compi-ised
in the second schedule hereunder written, for an
estate in fee simple in possession, free from in-
cumbrances. And whereas the said A. B. and —of agree-
ment for ex-
C D. have agreed to make an exchange, in man- change.
ner hereinafter appearing, of the said heredita-
ments comprised in the said first and second
schedules hereto respectively; and the said E.
D. hath agi-eed to release her right of dower in
the said hereditaments comprised in the said
second schedule. Now this indenture wit- wimcssttb.
nesseth, that, in pursuance of the said agree- conveyance
meut, and in consideration of the hereditaments party'
L
218 EXCHANGE.
intended to be hereinafter conveyed in exchange
by tiie said C. D. and E. D., he tlie said A. B.
doth hereby grant unto the said C. D. and his
Parcels. hcii's, ALL THOSE tlie and hereditaments,
situate in the parish of in the county of
, specified in the said first schedule here-
under written, and delineated in the map in the
margin of these presents, and therein coloured
, [^general words and estate clause, supra,
Habendum, p. 97], TO HOLD the said premises unto the said
C, D. and his heirs, IN exchange for the said
hereditaments intended to be hereinafter con-
veyed in exchange by the said C. D. and E. D.,
AND to such uses &c. [uses to bar dower rn favour
witnesseth of C. D., supra, p. 99.] And this Indenture
y. ^j^gQ WITNESSETH, that, in further pursuance of
Conveyance the Said agreement, and in consideration of the
party! "'^ ^^ hereditaments hereinbefore conveyed in ex-
change by the said A. B., he the said C. D. doth
hereby grant, and she the said E. D., with the
concurrence of the said C. D., doth hereby re-
lease, unto the said A. B., his heirs and assigns.
Parcels. ALL THOSE the and hereditaments situate
in the parish of in the county of ,
specified in the said second schedule hereunder
written, and delineated in the map in the margin
of these presents, and therein coloured ,
\jjeneral tvords and estate clause, supra, p. 97],
Habendum. TO HOLD the Said premises UNTO the said A. B.,
his heirs and assigns, to the use of the said A.
B., his Ixeirs and assigns, in exchange for the
EXCHANGE. 219
said hereditaments hereinbefore conveyed in
exchange by the said A. B. And it is hereby Dccbuation
declared, that no widow of the said A. B. shall dower.
be entitled to dower out of the said last-men-
tioned premises. [Covenants for title — A. B. with
C. D.,/or right t(T convey, and furtlier assurance
of tlie " pi-emises firstly hereinbefore gi-anted,'"
supra, ]). 97; and C. D. loith A. B., similar
covenant as to " the premises lastly hereinbefore
granted."] In witness (fee. (a).
THE FIRST SCHEDULE to which the
above-written Indenture refers.
THE SECOND SCHEDULE to which the
above-written Indenture refers.
(a) This deed must be acknowledged by the married
woman.
l2
220
SETTLEMENTS.
^ettIement£J»
XXXVI.
Parties.
Witnesseth.
Declaration
of trust ;
— for the
wife till the
marriage.
Power to
vary invcst-
meuts.
Settlement, on Marriage, of a Sum of Stock.
This indenture, made &c., BETWEEN A.
B., of &c. [intended hushand~\, of the fii'st part,
C. D ., of &c. [intended wife'], of the second part,
and E. P., of &c., G. H., of &c., and I. K., of &c.
[trustees], of the third part, witnesseth, that,
in consideration of a marriage intended to be
shortly solemnised between the said A. B. and
C. D., IT IS hereby agreed and declared, that
the said E. F., G. H., and I. K., and the survi-
vors and survivor of them, and the executors
or administrators of such survivor (hereinafter
called the trustees or trvistee), shall hold the sum
of £ , — I. per cent. Bank Annuities,
belonging to the said C. D., and lately transfer-
red by her into the hands of the said E. F., G.
H., and I. K., in trust for the said C. D. until
the said intended marriage; and, after the
solemnisation thereof, shall either permit the
said sum of Bank Annuities, or any part thereof,
to remain unaltered, or shall, with the consent
SETTLKMENTS. 221
in writing of the said A. B. and C. D. during
their joint lives, and of the survivor of them
during his or her life, and, after the death of
such survivor, at the discretion of them or him
the said trustees or trustee, sell the same or any
part thereof, and lay out the monies produced by
such sale in their or his names or name in any of
the public stocks or funds or Government securi-
ties of Great Britain, or upon freehold, coi)yhold,
leasehold, or chattel real securities in England,
Wales, or Ireland, [or in or upon the shares, stocks,
or securities of any Company or Corporation, whe-
ther commercial, municipal, or otherwise, carry-
ing on business or constituted for any purpose in
Great Britain, Ireland, or India, or any colony
or dependency of Great Britain,] and may, with
such consent or at such discretion as aforesaid,
vary the said investments, if and as they or he
shall think fit, and shall pay the income of the Trust for
said Bank Annuities, monies, stocks, funds, aVe^useTfo/
shares, and securities, during the joint lives ofii^.g^*^"^
the said A. B. and G. D., to the said C. D., for
her separate use, independently of the said A.
B., and her receipts alone shall be sufficient dis-
charges, and she shall not have power to deprive
herself thereof in anticipation ; and, after the —for sur-
deathof either of them the said A. B. and C. D., HfI7""^
to the survivor of them during his or her life ;
AND, after the death of such survivor, shall hold —for cini-
the said premises, and the income thereof, in marruige, as
TRUST for the child, or for all or any such one or wifesimu"
222
SETTLEMENTS,
jointly ap
point ;
in default
as survivi
shall ap-
point ;
in default
efnuiliy.
more of the children of the said intended mar-
riage, in such manner and form in every respect
as the said A. B. and C. D. shall by deed jointly
appoint ; and, in default of any such appoint-
ment, and so far as no such appointment shall
extend, as the survivor of the said A. B. and
C. D, shall by deed, or by will or codicil, appoint ;
AND, in default of any such appointment, and so
far as no such appointment shall extend, in
TRUST for all the children or any the child of
the said intended marriage, who being sons or a
son shall attain the age of twenty-one years, or
being daughters or a daughter shall attain that
age or marry, and if more than one in equal
shares : Provided always, that no child taking
any part of the said premises under any such
appointment as aforesaid shall, in default of ap-
pointment to the contrary, be entitled to any
share of that part of which no such appointment
shall have been made of the said premises, with-
out Vjringing his or her appointed share into
Power of ad- hotchpot : PROVIDED ALWAYS, that the said trus-
vaucemeut. ^^^^ ^^^ trustee may, after the decease of the sur-
vivor of the said A. B. and C. D., or in the life-
time of them or the survivor of them, if they,
he, or she shall so direct in writing, raise any
part or parts, not exceeding in the whole one-
half part of the then expectant, presumptive, or
vested share or fortune of any child under the
trusts hereinbefore declared, and apply the
same for his or lier advancement or benefit.
Hotchpot
clause.
SETTLEMENTS.
223
And it is hereby declared, that the said Maintcnauc
anfl educa-
trustees or trustee shall, after the decease tioD.
of the survivor of the said A. B. and CD.,
apply the whole, or such pai-t as the said
trustees or trustee shall tlxink fit, of the aiiuual
income of the share or fortune to which any
child shall for the time being be entitled in ex-
pectancy under the trusts hereinbefore declared,
for or towards the maintenance or education of
such child, either directly or to his or her guard-
ians or guardian, without seeing to the applica-
tion thereof, or requiring any account of the
same ; and shall, during such suspense of abso- Accumuia-
lute vesting, accumulate the residue (if any)
• thereof in the way of compound interest, by in-
vesting the same, and the resulting income there-
of, in or upon any such stocks, funds, shares, or
securities as are hereinbefore mentioned, for the
benefit of the person or persons who, under the
trusts herein contained, shall become entitled to
the principal fund from which the same respect-
ively shall have jiroceeded, with poAver for the
said trustees or trustee to resort to the accumu-
lations of any preceding year or years, and apply
the same for or towards the maintenance or edu-
cation of the child for the time being presump-
tively entitled to the same respectively. And Disnositiou
IT IS HEREBY DECLARED, that, if there shall be chiidmi en-
no child of the said intended marriage, who the^prec'e'i-'
being a son shall attain the age of twenty-one '"^ '™'"^
years, or being a daugliter shall attain that age
224 SETTLEMENTS.
or marry, then (without prejiidice to the tnists
hereinbefore declared) the said trustees or trustee
shall hold the said trust premises, and the annual
income thereof, or so much thereof respectively as
shall not have become vested or been applied
under any of the trusts or powers hei-ein con-
tained, upon the trusts following : (that is to
say), if the said C D. shall survive the said
A. B., then, after his death and such default or
failure of children as aforesaid, in trust for the
said C. D. ; but if the said A. B. shall survive
the said C. D., then, after his death and such
default or failure of children as aforesaid, upon
such trusts and for such persons as the said C. J).
shall, notwithstanding coverture, by will or codi-
cil appoint; and, in default of any such appoint-
ment, and so far as no such appointment shall
extend, in trust for such person or persons as,
under the statutes for the distribution of the
effects of intestates, would have become entitled
thereto at the decease of the C. D., had she died
possessed thei-eof intestate, and without having
been married, such persons, if more than one, to
take as tenants in common in the shares in which
they would have been entitled under the same
Trustees' re- statutes. AkD IT IS HEREBY DECLARED, that the
'-^'P ^ ■ receipt in writing of the said trustees or trustee
for any monies, stocks, funds, shares, or securities
paid or transferred to them or him in pursuance
of these i)resents, or of the trusts thereof, shall
effectually discharge the person or persons paying
SETTLEMENTS.
'225
or transferring the same therefrom, and froni
being concerned to see to the application thereof.
And it is hereby declared, that, if the said Powertoap-
, x> AU point new
trustees liereby appointed, or any ot them, or trustees.
any trustee or trustees to be appointed as here-
inafter is mentioned, shall die, or desire to be
discharged, or refuse or become incapable to act,
then and so often the said A. B. and C. D., or
the survivor of them, or (after the death of such
survivor) the surviving or continuing trustees or
trustee for the time being, (and for this purpose
every retiring or refusing trustee shall, if willing
to act in the execution of this power, be con-
sidered a continuing trustee), may appoint a new
trustee or new trustees in the stead of the trus-
tee or trustees so dying, or desiring to be dis-
charged, or refusing or becoming incapable to
act ; AND, upon every such appointment, the said
trust premises shall be so transferred that the
same may become vested in the new trustee or
trustees jointly with the survi^^ng or continuing
trustees or tiiistee, or solely, as the case may re-
quii'e ; and every such new trustee shall (as well
before as after the said trust premises shall have
become so vested), have the same powers, autho-
rities, and discretion, as if he had been hereby
orisrinallv appointed a trustee. And it is here- Trustees' in-
, ^ 1 • 1 ■ (lemnity
BY DECL.\RED, that the trustees for the time being clause.
of these ])iTseiitt' shall be respectively chargeable
only with such monies as they respectively shall
actually receive, and shall not be answerable for
L 3
226
SETTLEMENTS.
each otlier, nor for any banker, broker, or other
person in whose hands any of the trust monies
shall be placed, nor for the insufficiency or de-
ficiency of any stocks, funds, shares, or securities,
nor otherwise for involuntary losses; and that
the said trustees for the time being may respect-
ively reimburse themselves out of the trust pre-
mises all expenses incurred in or about the exe-
cution of the aforesaid trusts and powers. In
WITNESS &c.
XXXVII.
Settlement, on Marriage, of a Rever-
sionary Interest in Personalty, and
a Policy of Assurance on the Hus-
hand's Life.
This indenture, made &c., BETWEEN A.
B., of &c. \intended husband], of the first part,
C. D., of &c. [Intended wife], of the second part,
and E. F., of Ac, G. H., of <kc., and I. K., of &c.
\trvMees\, of the third part. Whereas, under
an indenture dated the day of , and ex-
pressed to be made between [i)arties\, (being a
interest in a settlement made in consideration of a marriage
sum of "
stock ;
Parties.
Recital of
the wife's
being en-
titled to a
reversionary
shortly after solemnised between the said
and , the father and mother of the said C.
D.), and of an appointment made in exercise of a
power in the said settlement, by a deed-poll dated
SETTLEMENTS. 227
tlie day of this instant month of" , and
under the hands and seals of tlie said and
, the saitl C D. is entitled in reversion ex-
jjectant on tlie death of the survivor of the said
and , and, subject to their life interests
therein, absolutely to a share, and contin-
gently to other shares or another share in the
sum of £, , — I. per Cent. Bank An-
nuities, now standing in the names of , as
trustees of the said settlement. And whereas —of a mar-
a marriage is intended to be shortly solemnised h^na.^veed
between the said A. B. and C. D. ; and \ipon the ""'
treaty for the said intended marriage, it was agi-eed
that the said absolute and contingent share and
shares of the said C D. in the said Bank Annui-
ties should be settled upon the trusts hereinafter
declared of the same. And whereas, in pursu — that the
, . h\isbandhaB
ance oi a lurther agreement entei'ed into on the insured hie
treaty for the said intended marriage, the said A. tnisiees'
B. hath efiected an insurance on his life, in the
names of the said E. F., G. H., and I. K., with
the Assurance Office, by a policy lunnbered
, in the sum of £ , and under the annual
premium of £ , to the intent that the same
may be settled upon the trusts hereinafter de-
clared of the same. Now this indenture wit- M'itneseetlj.
NESSETH, that, in pursvumce of the said agreement Assigumcut
in this behalf, and in consideration of the said to the b-'iK-
iutended marriage, she the said C. D., with the revorsion-
assent of the said A. B., dijth hereby assign unto thcMim'of'^
the said E. F., G. IT., and I. K., their executoi-s, ''"^^-
228
SETTLEMENTS.
administrators, and assigns, all and singular
the said absolute and contingent share and shares
of the said C. D. in the said sum of <£ ,
— I. per Cent. Bank Annuities, and all
the estate and interest of the said C. D. in the
Habendum, premises, TO HOLD the said premises unto the
said F. F., G. H., and I. K., their executors, ad-
ministrators, and assigns, subject to the estates
In trust. for life therein of the said and , upon
trust, that the said E. F., G. H., and I. K., or
the survivors or survivor of them, (hereinafter
called the trustees or trustee), shall, as soon as
circumstances will perinit, call in and obtain a
transfer or payment to themselves or himself, of
the said share or shares hereinbefore assigned in
the said sum of Bank Annuities, or of the monies
to be produced by the sale thereof or of any part
thereof, or of the stocks, funds, shares, or securi-
ties in which the same may be then invested, and
shall either permit the same Bank Annuities,
monies, stocks, funds, or securities, or any part
thereof, to remain unaltered, &c. \j>ower to vary,
with the addition of " call in," or other appropriate
words; trust for wifes separate use; for the swr-
vivor for life : for the children of the viarriage ;
hotchpot clause ; powers of advancement, main-
tenance and edvxation ; acciimulation clause ;
trusts in default or failure of children, sv^pra, pp.
Covenant by 220 et seg.] And THE SAID C. D. dotli hei'eby,
right to as- for herself, her heirs, executors, and administra-
ftom iiicura- tors, covenant with the said E. F., G. H., and
brauces ;
SETTLEMENTS. 229
I. K., their executors and administrators, that,
notwithstanding anything by her done or know-
ingly snftered, she the said C. D. now hath power
to assign all and singular the said premises unto
the said E. F., G. H., and I. K., their executors,
administrators, and assigns, subject as and in
manner aforesaid, and free from incumbrances;
AND THAT she the said C. D., her executors and and for fur-
ther assur-
adnimistrators, and every person lawfully or auce.
equitably claiming through or in trust for her,
will, at all times, at the request of the said
trustees or trustee, or of any person or persons
interested in the premises, and at the cost of the
said trust premises, execute and do all such as-
surances and things for further or better assuring
all or any of the said premises unto the said
E. F., G. H., and I. K., their executors^ admi-
nistrators, and assigns, in manner and subject as
aforesaid, and upon the trusts hereinbefore de-
clared, as shall be reasonably required. And it Trusts of the
.,__,-__,__ policy of as-
IS HEREBY DECLARED, that the Said E. Jb., G. H., surauceon
and I. K., their executors, administrators, and b.ind's life,
assigns, shall hold the said sum of £. [</te sum refeience to
assured hy the polici/^, and other the monies (if ing trusts;
any) to become payable under the said policy of
assurance, and the stocks, funds, shares, oi; securi-
ties in or upon which the same may be invested, —and the in-
UPON the trusts and subject to the powers here- of.
inbefore declared concerning the monies to arise
by the sale or calling in of the said share or shares
hereinbefore assigned of the said sum of Bunk
230 SETTLEMENTS.
Annuities, and the stocks, funds, shares, or secu-
rities in which the same may be invested, and
the income thereof, or as near thereto as circum-
with a varia- stances will permit ; save and except, that, in
tion iu case t • i • i i
of no child of case there shall be no child of the said nitended
the marriage it- in • J_^
becoming marriage, who being a son shall attain the age oi
twenty-one years, or being a daughter shall attain
that age or marry, then (without prejudice to the
other trusts hereinbefore declared thereof by refer-
ence) and from and after the death of the said
C D., and such defavilt or failure of children as
aforesaid, the said trustees or trustee shall hold
the said last-mentioned trust monies, stocks,
funds, shares, or securities, and the annual in-
come thereof, or so much thereof respectively as
shall not have become vested or been applied
under any of the trusts or powers herein con-
tained, in trust for the said A. B., his executors,
Covenant by administrators, and assigns. And the said A.B.
to kS' "u"^ dot^i hereby, for himself, his heirs, executors, and
[?y of assm-- administrators, covenant with the said E. F.,
G. H., and I. K., their executors and administra-
tors, that, in case the said intended marriage
shall take effect, he the said A. B. will at all
times pay the said annual premium of £ , and
such other monies (if any) as may become payable
for keepiuy on foot the said jjolicy, on the first day
on wliich the same respectively ought to be paid,
and will not do or omit, or knowingly suffer, any
thing whereby the said policy may become void
or voidable, or the said trustees oi- trustee be
ance.
SETTLEMENTS.
231
hindered from i-ecciving any of the monies assured,
or which might become payable under the same :
Provided always, that the said trustees or trus- power for
tee may, if they or he shall think Ht, apply any paypre-
part of the annual income, or, if that be insuffi- outoitiiein-
cient, then any part of the capital of the said ^"^i oUhu
trust premises, in payment of the said annual
premium or other the monies (if any) which
may become payable for keeping on foot the said
policy : Provided nevertheless, that any neglect Trustees not
bv the said trustees or trustee so to apply any able with a
J _ ' " " breach ot
pai-t of the said annual income or capital, or to trust if ihc
•I . policy be not
enforce the covenants hereinbefore contained on kept on foot.
the part of the said A. B., shall not be considered
a breach of trust, arid that the said trustees or
trustee shall not be in anywise responsible for
sueh neglect, nor for the said policy becoming
void bv any means whatsoever. And it is Trustees' re-
J •/ ... ceipt clause.
HEREBY declared, that the receipt in wi-itmg
of the said trustees or trustee, for any monies,
stocks, funds, shares, or securities which may be
paid or transferred to them or him in pursuance
of these presents or the trusts thereof, shall
effectually dischai'ge the person or persons paying
or transferring the same therefrom, and from be-
ing concerned to see to the application thereof (a).
(a) If the policy is not effected iu the names of the
trustees, but is assigned to them, the receipt clause should
e-xpi'essly point to the monies assured by the policy and
the Assurance Company. See supra, p. 181.
232 SETTLEMENTS.
Power for AnD IT IS HEREBY DECLARED, that the Said tlllS-
compromise tees Or trustee may, without being responsible
arrange. ^^^ j^^^ occasioned thereby, compromise or refer
to arbitration any action, suit, dispiite, or demand,
and may arrange any question of law or equity,
and abandon or submit to any claim, and may
settle and approve all accounts, and decide whe-
ther any monies shall be considered income or
capital for the purposes of these presents, and
generally may act in relation to the said trust
premises as absolutely as if they or he were or
was the absolute owners or owner thereof, with-
out being responsible for loss occasioned thereby.
[Trustee clauses, sujira, pp. 225, 226.] In wit-
ness (fee.
XXXYIII.
Settlement, oh Marriage, of a Sum of
Stock for the Husband and Wife
only, without Provision for Children.
P.irtie9. This indenture, made kc, BETWEEN A. B.,
of (fee. \intended husband^, of the one part, C. D.,
of (fee. [intended wife], of the second part, and E. F.,
of (fee, G. H., of cfec, and I. K., of ikc. [trustees'],
Witnesseth. of the third part, WITNESSETH, &c. [declaration of
trust for the wife till marriage ; pov}er to vary
investments ; trust for the v/ifes separate use for
SETTLEMENTS.
233
tite joint lii-es, as in Precedent XX XVI., supra,
pp. 220, 221]. And it is hereby declared, Declaration
that, if the said A. B. shall die in the lifetime of th/death of
the said C. D., then, after his death, the said husbuudor
trustees or trustee shall hold the said trust pre- ^* *"
mises, and the income thereof, in trust for the
said C. D. ; but if the said C. D. shall die in the
lifetime of the said A. B., then, during his life,
shall pay the income of the said trust premises
to the said A. B. and his assigns, and, after his
death, shall hold the said trust premises, and the
income thereof, upon such tmsts and for such per-
sons as the said C. D. shall, notwithstanding her
coverture, by •will or codicil appoint ; and, in de-
fault of any such appointment, and so far as no
such appointment shall extend, in trust for such
persons or person as, under the statutes for the
distribution of the effects of intestates, would
have become entitled thereto at the death of the
said C. D., if the said A. B. were then dead,
and she had died possessed thereof intestate (a),
such persons, if more than one, to take as tenants
(rt) The expression in a settlement containing previous
provisions for children is " intestate and unmarried ;"
but, in a settlement which contains no provisions for
children, the word "unmarried" would exclude the chil-
dren, and give the property to other relations. Hence,
in this case, the fund is given to those who would be en-
titled if she survived her husband and died intestate, i. e.
the children, if any, and then the other relations.
231
SETTLEMENTS.
in common, in tlie shares in whicli they would
have been entitled under the same statutes.
[ Usual trustees' receipt clause, and trustee clauses,
sujyra, pp. 224, 225.] In witness &c.
XXXIX.
Settlement, on Marriage, of Real Es-
tate (Freehold and Copyhold) upon
the Husband and Wife successively for
Life, with Remainder to the Children
of the Marriage, as the Husband and
Wife, or the Survivor, shall appoint;
and, in Default, in equal Shares in
Tail as Tenants in common, with
CROSS Remainders. Powers of Ma-
nagement during Minorities, o/'Leas-
iNG, and o/Sale and Exchange (a).
Parties. ThIS INDENTURE, made &c., between A. B.,
of &c. [intended husband^ of the first pai-t, C. D.,
of &c. [intended wife], of the second pai-t, and
(a) When real estate is desired to be settled upon the
children as the parents shall appoint, and, in default,
equally, the best way is to convey the estate to the trus-
tee.'i, upon trust to sell and hold the money produced
upon trusts to be declared by a settlement of even date.
See tlie next two Precedents, infra, pp. 215, 2-18). For
SETTLEMENTS. 235
K F., of ike, and G. H., of &c. [trustees], of the
third part, WITNESSETH, that, in consideration of Witnessotu.
when real estate is settled as in the Precedent in the text,
the ordinary provisions for hotchpot and advancement
cannot be applied, nor those for maintenance and accu-
mulation, conveniently. And it is evident that the effect
of a settlement in trust for sale, (i-uch sale, during the
lives of the tenants for life, to be with their consent), and
a declaration that the rents till a sale shall go as the in-
come of the funds would go, i.s tantamount to the settle-
ment of the real estate in specie, with the ordinary power
of sale. The Precedent in the text, however, is given
principally to afford an example of a settlement in pur-
suance of the Act 8 &'9 Vict. c. 106, with the omission of
the limitations to the trustees to preserve contingent re-
mainders; and partly, also, because a settlement of this
kind is sometimes insisted on. And, as a settlement
among the children equally is almost invariably required
for small, and not for large properties, it appeared to be
more appropriate in this collection of Concise Precedents
than a strict settlement, with powers of jointuring and
charging portions, and the like. To render these latter
settlements really effective and useful, they must neces-
sarily be made of considerable length, and, as they gene-
rally comprise large properties, their bulk is the less ma-
terial. Doubtless, the ordinary language of the provi-
sions in great settlements is materially abridged; but the
tendency of the present day is to multiply the provisions
themselves, to meet the various new difficulties in the
working of them wliich daily occur. TLo Precedent in
the text may be converted into a .simple strict settlement,
by changing the limitation to the children equally into a
limitation to the first and other sous successively in tail,
with remainder to the first and other daughters succes-
236 SETTLEMENTS.
a marriage intended to be shortly solemnised be-
tween the said A. B. and C. D., he the said A. B.,
with the approbation of the said C. D., doth
Conveyance hereby grant unto the said E. F. and G. H., and
of freeholds. ^^^^ -^^-^^^ \_2)arcels in the first schedule — general
Habendum, words, supra,2)p- 96-7], TO HOLD the said premises
UNTO the said E. F. and G. H. and their heirs,
Totheuseof TO THE USE of the Said A. B. and his heirs until
settlor till , . , . , , i • xt.
marriage; the said intended marriage; and after the so-
after mar- lemnisation thereof, to the use of the said A. B.
nage, to uses '
in favour of and his assigns, during his life, without impeach-
the hus- o :> o
band, wife, ment of waste ; and after his death to the
and child- . , . ,
reu: usE of the said C. D. and her assigns, during her
life, without impeachment of waste ; and after
the death of the said C. D., to the use of the
child, or all or such one or more of the children,
of the said intended marriage, for such estates or
estate, and in such manner as the said A. B. and
C. D. shall by deed appoint ; and in default of
and until any such appointment, and so far as no
such appointment shall extend, as the survivor
of the said A. B. and C. D. shall, by deed, or by
will or codicil, appoint ; and in default of and
until any such appointment, and so far as no
sively in tail; the preceding power of ajJpointmeut being
eitbcr omitted or retained. The language of the powers
will require to be altered, by restraining their exercise,
after the death of the tenants for life, to the minority of
a child entitled under the limitations or appointments.
See the Precedent of a strict settlement in a will, infra.
SETTLEMENTS. 237
such appointment shall extend, if there shall be
only one child of the said intended marriage, to
THE USE of such only child, and the heirs of his
or her body; but if there shall be more than one
child of the said intended marriage, then to the
USE of all the children of the said intended mar-
riage, and the heirs of their respective bodies, in
equal shares, as tenants in common ; and if any
one or more of the said children shall die with-
out issue, then, as well as to the original share or
shares of the child or children so dying, as to the
shai-e or shares that shall have survived or accrued
to such child or children, or to the heirs of his, her,
or their body or respective bodies, TO the use of
the others or other of the said children, and the
heirs of their, his, or her respective bodies or body ;
and, if more than one, in equal shares ; and, for and, for dc-
« , . /> ,1 • 1 fiiultof issue,
DEFAULT of such ISSUe, TO THE USE 01 the Said to the hus-
A. B., his heirs and assigns, for ever. And it provision for
IS HEREBY DECLARED, that, after the death of *'!>° ''Pp'*'^^-
' ' tuui of the
the said A. B. and C. D, so long as any child of '■^nts and
' '^ •' profits dur-
the said intended marriage shall be under the age i"g ^^^ ^j-
° ^ noritiesof
of twenty-one years, the said E. F. and G. H., or thechikiren.
the survivor of them, or the executors or admin-
istrators of such survivor, shall receive the rents
and j)rofits of and manage the said premises, and
ma}- fell timber for repairs or sale or otherwise,
and may accept surrenders from, and make allow-
ances to, and arrangements with tenants and
others, and do all such other things as may to them
or him seem expedient for the due management
238
SETTLEMENTS.
thereof; and, after deducting the expenses of
management, repairs, insurance, and other out-
goings, \if there be or can he any charcje on the
premises, add, " and keeping down any annual
sum or sums, and the interest on any principal
sum or sums charged on the premises"], shall
pay to such of the children of the said intended
marriage as shall for the time being have attain-
ed the age of twenty-one years, his, her, or their
share or respective shares of the said net rents
and profits ; and shall, out of the share thereof of
every or any of the said children who shall for the
time being be under the age of twenty-one years,
pay the whole, or such sum or sums as the said
trustees or trustee shall think proper, for or to-
wards the maintenance or education of every such
minor, (either directly, or by payment to his or
her guardian or guardians, to be applied by such
guardian or guardians without accounting to the
said trustees or trustee), and shall accumulate the
residue (if any) of eveiy or any such share of the
said rents and profits in the way of compound in-
terest, by investing the same and all the result-
ing income thereof, in their or his names or name,
in or upon any of the public stocks or funds, or
Government securities of Great Britain, or upon
real securities in England, Wales, or Ireland, with
power to resort to such accumulations respective-
ly at any time or times during the minority of
the child from whose share the same respectively
SETTLEMENTS. 239
shall have arisen, for the maintenance or educa-
tion of such child; and, subject and without pre-
judice to the provision for resorting to the said
accumidations for maintenance and education as
aforesaid, shall hold all the said residue of every
or any such share of the said rents and profits,
and the stocks, funds, and securities in or upon
which the same may be invested, upon such
trusts as the same would be held upon if the
same were monies arising from sales under the
])ower of sale hereinafter contained, or stocks,
funds, or securities purchased therewith : Pro- power of
VIDEO ALWAYS, that the said A. B., during his ''''®'"^"
life, aiid after his death the said C. D., during
her life, and, after the death of the said A. B,
Jid CD., the said E. F. and G. H., and the
survivor of them, and the executors and admi-
nistrators of such survivor, during the minority
of any child of the said intended marriage, may,
at any time or times, appoint, by way of lease,
at rack rent, all or any of the said premises for
any term of years absolute, not exceeding twenty-
one years, to take effect in possession (a) : Pro-
(a) The above is a short form of the ordinary power to
lease for twenty-oue years either bouses or lands. But,
if the property contain stone or minerals, there should be
a power to grant mining leases; and if it comprise land
likely to be required for building, or bouses likely to re-
quire repairs, there should be a power to grant leases for
240 SETTLEMENTS.
Power of viDED ALSO, tliat tlie said E. F. and G. H., and
sale and ex- i . ^ ,
change. the survivor of them, and the executors or ad-
ministrators of such survivor, (hereinafter called
the trustees or trustee), may at any time or times
during the life of the said A. B., with his con-
sent in writing, and after his death during the
life of the said C. J), with her consent in
writing, and after the death of the said A. B.
and C. D., during the minority of any child of the
said intended marriage, at the discretion of them
the said trustees or trustee, (but subject to any
lease which may have been granted under the
power hereinbefore contained), dispose of, either
by way of sale, or in exchange for other heredita-
ments in England or Wales, all or any of the said
premises, ujjon such terms and under such con-
ditions as the said trustees or trustee shall think
fit, and may buy in, or rescind any contract for
sale or exchange, and re-sell or again exchange,
without being responsible for loss occasioned
thereby, and may revoke the uses, trusts, and
powers then subsisting in or of the hereditaments
so sold or disposed of in exchange, and appoint
the same to such uses and in such manner as shall
be expedient to effectuate such sale or exchange.
Trustees' re- AJh^D IT IS HEREBY DECLARED, that the receipt of
the said trustees or trustee for any monies paid
building and repairing purposes. {See the forms of such
powers, 1 Davidson's Precedents in Conveyancing, pp.
333,334.)
SETTLEMENTS. 241
to them or him upon any sale, or for eqiiality of
exchange, under the power of sale and exchange
hereinbefore contained, shall effectually discharge
the persons paying the same thei-efroni, and from
being concerned to see to the application thereof.
And it is hereby declared, that the said trUS- Monies arls-
tees or trustee shall, with such consent or at the power oi
such discretion as aforesaid, lay out the money chanKc to be
1 1 p T, /» laid out iu
received upon any sale or for equality of ex- the purchase
change (ci) in the purchase of freehold or copy- be settled to
hold hereditaments of inheritance (6) in England theseute^
or Wales, or in purchasing the enfranchisement "^"'^ '
of any copyhold hereditaments so purchased, or
for the time being subject to the uses or trusts
of these presents, and shall settle, or cause the
same to be settled, to the uses, iipon the trusts,
and subject to the powers hereby limited, as far
(a) It is usual to provide that the trustees of the power
of sale and exchange may pay or receive money for equal-
ity of exchange; but, as the power so to pay or receive is
incident to the power of exchange, {Dartram v. Which-
cote, 6 Sim. 86), the provision is unnecessary. Money to
be so paid by the trustees may be paid by them out of
any monies received by them under their power, (lb.);
but a power is often added (where conciseness is not an
object) to enable them to raise money for the purpose by
mortgage.
(6) It is convenient to extend the power of purchase
to copyholds for lives, and leaseholds for lives and years;
but, as this requires considerable additional trusts for i-e-
newal and settlement, it is better omitted when brevity
is desired.
242 SETTLEMENTS.
as tlie deaths of parties and other intcrveiiing
And, till a circumstances will permit. And it is hereby
be iuvSted" FURTHER DECLARED, that, Until the moncy to be
or upon se^-*" received upon any sale or for equality of ex-
/ivinties. change shall be laid out as aforesaid, the said
trustees or trustee may, with such consent or at
such discretion as aforesaid, invest the same, in
their or his names or name, in any of the public
stocks or funds, or Government securities of
Great Britain, or upon real securities in England,
Wales, or Ireland, and vary the same, if and as
they or he shall think fit; and that the income
from such stocks, funds, and securities shall be
paid and applied in the same manner as the rents
and profits of the hereditaments to be purchased
therewith as aforesaid would be payable or appli-
cable, in case such pxirchase and settlement as
aforesaid were then actually made (a). And this
(a) It must be understood, that the above power of sale
and exchange is applicable only to small estates, and to
simple settlements. If the estate is, or under i^owers of
charging may become, subject to incumbrances, there
must be provisions for allowing money ai'ising from sales
to be applied in discharge of incumbrances. (See infra,
p. 274). There must also be provisions for purchasing
and selling lands of all tenures, (supra, p. 241, n. (6),) and
a provision that the power shall over-reach all charges to
be created under the powers or terms of years, except
sales or mortgages actually made. (See the form of a
complete power, 1 Davidson's Precedents in Conveyan-
cing, p. 339).
SETTLEMENTS. 243
INDENTURE ALSO WITNESSETH, that, for the COn- WitnessetU
sideratiou aforesaid, he the said A. B., with the "^^ondiy.
approbation of the said C. D., doth hereby, for Coveuant t«
himselr, his heirs, executors, and atlministrators, copyhoUiw.
covenant with the said E. F. and G. H., and
their heirs, that, in case the said intended mar-
riage shall be solemnised, he the said A. B., or
his heirs, will forthwith, at his or their own cost,
effectually surrender into the hands of the lord of
the manor of in the county of , accord-
ing to the custom thereof, all those &c, [parcels
in the second schedule — general words, supra, p.
116], TO the use of the said E. F. and G. H., to the u^e i.t
,•1 • 1 . J . T J. J.1 J. the trustees.
their heirs and assigns, according to the custom upon trusts
of the same manor, by and under the accustomed spond with
rents, fines, suits, and serAdces, and upon such t^g Jrp^f."'
trusts, and subject to such powers, as shall as ^"''''^
nearly correspond with the uses, trusts, and
powers hereinbefore limited and contained of
the said premises hereinbefore granted, as the
different qualities of the estates and the rules of
law and equity -will permit. [Trit^stee clauses, sic-
pra, pp. 224 — 22G]. And the said A. B. doth covenant lor
liereby, for himself, his heirs, executors, and ad- vey and sur-
ininistrators, covenant with the said E. F. and from iiicum-
G. H., their heirs and assigns, that, notwithstand- ''^"''^*'
ing any thing by him the said A. B. or any of
his ancestors done or knowingly suffered, lie
the said A. B. now hath power to grant all and
singular the said premises hereinbefore expressed
to be hereby granted, to the uses and in manner
M 2
ther assur
ince
2i4: SETTLEMENTS.
aforesaid, free from incumbrances, and to surren-
der tlie said premises, hereinbefore covenanted to
be surrendered to tbe use of the said E. F. and
G. H., their heirs and assigns, upon the trusts
and in manner aforesaid, free from incumbrances;
AND that all the several premises aforesaid may-
be quietly entered into, held, and enjoyed, with-
out any interruption by the said A. B., or any
person claiming through or in trust for him, or
.ludforfuv- any of his ancestors; and that he the said A.
B. and his heii-s, and every person lawfully or
equitably claiming any estate or interest in the
premises through or in trust for him or any of
his ancestors, will, at all times, at the cost of the
trust estate, execute and do all such assurances
and things, for further or better assuring all or
any of the said premises respectively to the seve-
ral uses and in manner aforesaid, as by the said
trustees or trustee, or any person interested in
the premises, shall be reasonably required. In
WITNESS &c.
THE FIRST SCHEDULE to which the
above-written Indenture refers.
THE SECOND SCHEDULE to which the
above-written Indenture refers.
SETTLEMEKTS. 24/5
XL.
Conveyance, in Contemplation of Mar-
riage, of a Freehold Estate ix Trust
for Sale, with a Declaration q/" Trust
of the Purchase-Money hy Reference
to a Settlement of even Date (a).
This INDENTUIIE, made drc, between A. Parties.
B.j of (fee. \intended husband], of the first part,
C. D., of &c. [intended ^oife^^, of the second part,
and E. F., of &c., G. H., of &c., and I. K., of
ifec. [trustees], of the third part, WITNESSETH, that, witnesseth.
in consideration of a mai'riagc intended to be
shortly solemnised between the said A. B. and
C. D., he the said A. B., with the consent of the Couveyaiicc
tQ trustees.
Baid C. D., doth hereby grant unto the said E.
R, G. H., and I. K., their heirs and assigns,
ALL THOSE &c. \_parcels — general words — and es-
tate clause, sujyra, pjx 96-7], to hold the said Habendurr,
premises unto the said E. F., G. H., and I. K.,
their heii'S and assigns, to the use of the said
E. F., G. H., and I. K., their heirs and assigas,
IN trust for the said A, B., his heirs and assigns, in tiiist fur
. . the hiisbanrt
until the said intended marriage ; and after the tin mar-
riage ;
solemnisation thereof, upon trust tliat the saidandatter
(a) See supra, p. 234, n. (a), with reference to this form
of Settlement,
246 SETTLEMENTS.
marriage, in E. F., G. H., and I. K., or the survivors or sur-
1^1.*^^°' vivor of tliem, or tlie heirs of such survivor,
shall, with the consent of the said A. B. and C.
D. during their joint lives, and of the survivor
of them during his or her life, and after the
death of such survivor at the discretion of the
said trustees or trustee for the time being, sell
the said premises, either together or in parcels,
and either by public auction or private contract,
and may buy in, or rescind any contract for sale,
and re-sell, without being responsible for loss
occasioned thereby, and may enter into, execute,
and do all such agreements, assurances, and
things for effectuating any such sale, as they or
Trustees' re- he shall think fit. And it is hereby declared,
ceipt clause. ^^^^ ^^^ receipt of the said trustees or trustee
for the pui-chase-monies of the premises sold, or
any part thereof, shall eflfectually discharge the
purchaser or purchasers therefrom, and from be-
ing conceru'cd to see to the application thereof.
Trusts of the AnD IT IS HEREBY DECLARED, that the Said trUS-
S-isefrom tees or trustee shall hold the monies to arise
the sale. fj-om any such sale (after payment thereout of
all expenses) upon such trusts, and subject to
such powers, as shall be declared of the same in
a deed ah-eady ingrossed, and intended to bear
even date with these presents, and to be made
or expressed to be made between the same per-
Power of sons as are parties to these presents. And it is
twentyc°ne HEREBY DECLARED, that the said trustees or trus-
^'^^^^' tee may at any time or times, before all the said
SETTLEMENTS. 247
premises shall have been sold, demise all or any
of the same premises at rack-rent for any term
of years absolute, not exceeding twenty-one
years, to take effect in possession. And it is income oi
HEREBY DECLARED, that. Until all the said pre- until a sale.
mises shall be sold, the said trustees or trustee
for the time being shall hold the income thereof,
or of the unsold part thereof, (after payment
thereout of all rates, taxes, expenses of repairs
and insurance, and other outgoings,) upon such
trusts, and subject to such powers, as shall be de-
clared thereof by the said intended deed of even
date with these presents. [Covenant hy A. B.
for right to convey free from incumbrances, and
for further assurance, sui^ra, 2>p- 97, 98. Power
to aj)point new trustees, supra, 2>- 22o.] In wit-
ness &c.
THE SCHEDULE to which the above-
written Indenture refers.
248 SETTLEMENTS.
XLL
Settlement, on Marriage, of Money to
arise from Real Estate conveyed to
Trustees by a Deed of even Date iv.
Trust /o?- Sale (a).
Paities. This indenture, made &c., between A.
B., of &c. [i7ite7ided husband], of the first part,
C. D., of &c. [intended wife], of the second
part, and E. F., of &c., G. H., of &c., and I. K,,
Recital ofin- of (fec. [trustees], of the third part. Whereas
rf^l^:^™^^" a marriage is intended to be shortly solemnised
—of the con- between the said A. B. and C. D. And where-
real' estate, AS, by an indenture bearing even date with, but
even da"e, to executed before, these presents, and expressed to
trust't'if'sen, be made Ijetween [jmrties], certain heredita-
purc^hase- ^^ ments in the parish of , in the county of
Sie'trusts of , have been conveyed to the use of the said
thojMcsent ^ -p^ fj^ jj_^ ^^^^ j_ ^^ ^i^g^, i^gij.g ^^^ assigns,
in trust for the said A. B., his heirs and assigns,
until the said intended marriage, and, after the
solemnisation thereof, upon trust for sale ; and
it is thereby declared, that the said E. F., G. H.,
and I. K., and the survivors and survivor of
them, and the heirs, executors, and administra-
tors of such survivor, shall hold the net monies
{a) The deed referred to is Precedent XL.
SETTLEMENTS. *-4i»
to arise from such sale, and the net rents and
profits, until -sale of the said hereditaments, or
of the unsold part thereof, upon the trusts to be
declared thereof respectively by these presents.
Now THIS Indenture witnesseth, and it is witticfiseti.
hereby declared, that the said E. F., G. H., and oftnmtof
I. K., and the survivoi's aud survivor of them, to arise fron,
and the heirs, executors, and administrators of * ^''' ^'
such survivor, shall, with the consent in writing
of the said A. B. and C. D., during thcii' joint
lives, and of the survivor during his or her life,
and, after the death of such survivor, at the dis-
cretion of the said E. F., G. H., and I. K., or
the survivors or survivor of them, or the execu-
tors or administrators of such survivor, (herein-
after called the trustees or trustee), invest the
said net monies to arise from any and every sale
under the hereinbefore-recited indenture, in the
names or name of the said trustees or trustee,
in any of the public stocks or funds or Govern-
ment securities of Great Britain, or upon free-
hold, copyhold, leasehold, or chattel real securi-
ties in England, Wales, or Ireland, [or in or up-
on the shares, stocks, or securities of any Com-
pany or Corporation, whether commercial, muni-
cipal, or otherwise, carrying on business or con-
stituted for any purpose in Great Britain, Ire-
land, or India, or any colony or dependency
of Great Britain]; and that the said trustees
or trustee, if and when they or he shall think
fit, may, with such consent or at such discretion
m3
250
SETTLEMENTS.
as aforesaid, vary the said stocks, funds, shares,
D>;ciaration or securities; AND tliat the said trustees or trus-
<if trust of . , , , , . or
thcfuudsto tee shall pay the auuual income, &c. \trusts for
ed Willi the Wife, hushand, and children, and in default of
Declaration children, ut supra, 2JP- 2*21 — 224]. And it is
the™uts^ HEREBY DECLARED, that. Until all the Said here-
tiifsSk.'^*'' ditaments shall be sold, the said E. F., G. H.,
and I. K., and the survivors and survivor of
them, and the heirs, executors, and administra-
tors of such survivor, shall pay and apply the
net rents and profits of the said hereditaments,
or of the unsold part thereof, in the manner iu
which the annual income of the stocks, funds,
shares, and securities aforesaid would be payable
and applicable, if such hereditaments had then
been sold, and the net monies arising from such
sale had been invested as aforesaid. \Trustee
clauses, supra, ])p. 224 — 226.] In witness &c.
SETTLEMENTS.
XLII.
2.01
Voluntary Settlement of Real and
Personal Estate, for the Benefit of the
Settlor, his Wife, Children, and
Grandchildren. Power of Eevo-
CATION.
This indenture, made&c, BETWEEN A. B., p.uties.
of &c. \_settlor\, of the one part, and C. D., ofitc.
and E. F., of &c. [trustees], of the other paii;,
WITNESSETH, that, in consideration of the natural witnessetl.
love and affection of the said A. B. for his wife, Conveyance.
children, and issue hereinafter named, and for
divers other good considerations, the said A. B.
doth hereby grant iinto the said C. D. and E. F.
and their heirs, [parcels — general toords — estate
clause, supra, ^ja 96-7], to hold the said pre- Habendum,
mises unto the said C. D. and E, F., and their To the used
the settlor
heirs, to the use of the said A. B. and liis as- for life.
signs, during his life, without impeachment of
waste: and after his death to the use of G. B., Remaimier
' to ni6 wile
his wife, and her as-signs, during her life, with- for life.
out impeachment of waste, except wilful waste ;
AND, after the death of the said G. B., to the Remainair
USE of the said C. D. and E. F., their heirs and
assigns, upon trust that the said C. D. and E. "p™ tr"st
. . to sell.
F., or the survivor of them, or the heirs of such
survivor (hereinafter called the tqistees or trus-
252 SETTLEMENTS.
tee), shall sell the said premises, either together
or in parcels, aud either by public auction or
private contract, and may buy in, or rescind any
contract for sale, and re-sell, withoiit being re-
sponsible for loss occasioned thereby, and may
enter into, execute, and do all such agreements,
assurances, and things, for effectuating any such
and hotel the Sale, as they or he shall think fit ; and shall
duced^^^'"' hold the monies to arise from every such sale
upon trust, (after payment thereout of all expenses) upon
as to three- the trusts following: (that is to say), AS TO
ce'^tain chii- tliree-sixth parts thereof, upon trust to pay the
settlor; ^ Same equally among such of the children herein-
after named of the said A. B., viz. H. B., J. B.,
and K. B., as shall be living at the death of the
survivor of the said A. B. and G. B., or shall be
then dead leaving issue then living, the share or
shares of such of them as shall be then dead
leaving issue then living to be paid to his, her, or
their respective executors or administratoi's, as
part of his, her, or their respective personal es-
— as to one- tate; AND AS TO one other sixth j^art thereof,
sixth, to ill- , . , ,•■ • ii
vest and ac- UPON TRUST to mvest the Same, m the names or
cumu a.e, j^^me of the said trustees or trustee, in any of
the public stocks or funds of Great Britain, and
to accumulate the income thereof in the way of
compound interest, by similarly investing the
same and the resulting income thereof, until the
same shall become payable as hereinafter men-
nntii claim- tioned ; (that is to say), if L. B., the son of the
the settior^s said A. B., or any issue of the said L. B. (he be-
SE'TLEMEXTS.
253
ing then dead) shall claim, within fifteen years sonsoriiis
' . ■ 1 i issue within
from the date of these presents, then to pay or fifteen years;
transfer the same, and the accumvilations there-
of, to the said L. B., or (he being dead) to
his issue then living, such issue, if more than
one, to take in equal shares, per stirpes; but if
the said L. B., or any issue of the said L. B.,
shall not claim within such fifteen years, or if,
before the exi>iration thereof, it shall be ascer-
tained that the said L. B. is dead, and that no
issue of the said L. B. is then living, then, im-
mediately upon the expiration of the said fifteen
years, or up(ju the death of the said L. B., the
failure of his issue being so ascertained, which-
ever shall fii-st happen, the said trustees or trus-
tee shall hoUl the said last-mentioned sixth part
of the said net purchase-monies, and the accu-
mulations thereof, upon the trusts hereinbefore
declared of the first-mentioned three-sixth parts;
AND AS TO the remaining two-sixth parts of the — as tore-
^ maiinnt'
said net purchase monies, upon trust to pay the two-sixtiis,
'^ . to divide
same equally among such of the persons herein- amonfrst the
after named, viz. M. H., N. H., and O. H., the grandchild-
children of P. H., deceased, who was a daughter
of the said A. B., as shall be living at the death
of the survivor of the said A. B. and G. B., and
shall attain the age of twenty-one years, or shall
be then dead leav-ing issue then living, the share
or shares of such of them as shall be then dead
leaving issue then living to be paid to his, her,
or then- respective executors or administrators,
254 SETTLEMENTS.
as part of his, her, or their respective personal
Power to estate. And it is hereby declared, that the
tweiity-ouc said A. B. during his life, and after his death the
said G. B. during her life, and after the death of
the said Gr. B., the said trustees or trustee, may
at any time or times, before all the said premises
shall have been sold, appoint by way of demise,
or demise, all or any of the same pi-emises at
rack rent for any term of years absolute, not ex-
ceeding twenty-one years, to take effect in pos-
Power to session. And it is hereby declared, that the
trustees to • i • j i • i •
accumulate, said trustees or trustee may invest, m their or nis
names or name, the presumptive or expectant
share of every or any person for the time being
entitled presumptively or in expectancy under the
trusts aforesaid, in any of the public stocks or
funds of Great Britain, and may vary such in-
vestments as and when they or he shall think
fit, and may accumulate the income or any part
of the income thereof in the way of compound
inferest, by similarly investing the same and the
and to apply resulting income thereof; and may, at their or
fncomel'or'^ his absolute discretion, pay or apply the whole
uance^edu- o^* ^^Y V^^^ ^^ the principal or income, or accu-
benefit °^ mulations of income, of any such presumptive or
expectant share, for or towards the maintenance,
education, or benefit of the person for the time
being entitled thereto presumptively or in ex-
Dcciaratinn pectaucy, as aforesaid. And it is hereby de-
reutsand GLARED, that. Until all the Said premises shall be
sale. ^ ' ^ sold, the said trustees or trustee shall pay and
SETTLEMENTS. 255
apply the net income thereof, or of the unsold
part thereof (after payment thereout of all taxes,
rates, expenses of repairs and insurance, and
other o\itgoings), to the person or persons, for the
purposes and in the manner, to whom, and for
and in which, the net monies produced by the
sale thereof, or the stocks or funds in or upon
which any share or shares thereof are hereinbe-
fore directed or authorised to be invested, or the
income thereof, would have been payable or ap-
plicable, if such premises had been sold and such
investments made. And this indenture also wituesseth
WITNESSETH, that, in consideration of the natural ^'^*'°" ^ '
lovo and affection of the said A. B. for his said
wife, and for his daughters hereinafter named, he
the said A. B. doth hereby assign unto the said Assignmeut
C. D. and E. F., their executors, administrators, the tmstees.
and assigns, all and sinoular his pictm-es,
prints, books, plate, plated goods, linen, china,
household goods, furniture, chattels, and effects
(other than money or securities for money), to Habendum
hold the same unto the said C. D. and E. F., ti'^u°s'ts!^' ^"^
their executors, administrators, or assigns, upon
TRUST to permit the .said A. B. during his life,
and after his death the said G. B. during her
life, to use the same ; and after the death of the
survivor of the said A. B. and G, B., upon trust
to divide the same equally between the said H.
B. and K. B., their executors, administrators,
or assigns (a). And it is hereby declared, Trustees' re-
ceipt clause.
(a) This deed (not being a mai-riage settlement) will
vocation.
256 SETTLEMENTS.
that the receipt of the said trustees or trustee
for the purchase-money of premises sold, or for
any monies, funds, shares, or securities, paid or
tranferred to them or him in pursuance of these
presents, or of the trusts or powers thereof, shall
effectually discharge the purchaser or purchasers,
or other person or persons paying or transferring
the same, therefrom, and from being concei'ned to
see to the application thereof. [Foioer to apjyoint
new trustees — trustees indemnity clause, supra,
Power of re- ««. 225.1 AnD IT IS HEREBY DECLARED, -that
the said A. B. may at any time or times by deed,
or will or codicil, either alter or absolutely re-
voke all or any of the uses, trusts, and estates
hereinbefore limited and declared, and by the
same or any other deed, or by will or codicil,
limit and declare such other uses, trusts, and es-
tates of or concerning all or any of the said
premises hereinbefore expi'essed to be hereby
gi'anted and assui-ed, respectively, as he sliall
think fit. In witness &c.
THE SCHEDULE to which the above-
written Indenture refers.
requu-e registration as a bill of sale under the 17 & 18
Vict. c. 36.
WILLS. 257
XLIII.
Will of Real and Personal Estate, for
the Beneft of the Testators Wife and
Children. •
1, A. B., of (fee, DECLARE tliis to be my last will
arid testament. I dequeath to my wife, C B., Gift to wife
all the pictures, prints, books, plate, linen, china, goods^and
wines, liquors, provisions, household goods, furni- ""^"^ "'^^'
ture, horses, cai-riages, chattels, and effects (other
than money or securities for money), which shall
at my death be in or about my dwelling-house,
or the outbuildings or grounds thereof I be- and of a pe-
.,.,., ^ „ , cuniiiry le-
QUEATH to my said wiie the sum oi £ , to be g.icy.
paid to her within one calendar month after my
death, without interest. I devise all my real General de-
estate (except what I otherwise devise by this my estate,
will, and except estates vested 'n me upon trust,)
unto E. F., of etc., G. H., of &c., and I. K., of «fec.,
their heirs, executoi-s, and administrators, re-
spectively, according to the nature and tenure
thereof, upon trust that the said E. F., G. H., in trust n.r
and I. K., or the survivors or survivor of them, '''^'^'
or the heirs, executors, or administx-ators re-
spectively of such survivor, shall, as soon as con-
v7'P
.,^. A^: - /y^ -
258 WILLS.
veniently may be, sell the same, eithei- together
or in parcels, and either by public auction or
private contract, and may buy in, and i-escind
any contract for sale, and re-sell, without being
responsible for any loss occasioned thereby, and
execute and do all such assurances and acts
for effectuating any such sale as they or he shall
General be- think fit. I BEQUEATH all my pei'sonal estate
quest of per- i • i i i . i ^
sonaity, (except chattels real included m the general
devise hereinbefore contained of real estate, and
except what I otherwise bequeath by this my
will,) unto the said E. F., G. H., and I. K., their
in trust for executors and administrators, upon trust that
sale and con- ^^ ,
version into the Said E. F., G. H., and 1. K., or the sur-
vivors or survivor of them, or the executors or
administrators of such survivor, shall, as soon as
conveniently may be, call in, sell, and convert
into money such part of my said personal estate
Declaration as shall not consist of money. And I declare,
of the trusts ,-n -n i t -tt-
of the money that the Said E. F,, G. H., and I. K., and the
the veal and survivors and survivor of them, and the heirs,
tate ; executors, or administrators respectively of such
survivor, shall, out of the monies to arise from
the sale of my said real estate, and from the
calling in, sale, and conversion into money of
such part of my said personal estate as shall not
consist of money, and the money of which I shall
to pay fune- be possessed at my death, pay my funeral and
tanfeiitary testamentary expenses and debts, and the lega-
debt's^'and cics bequeathed by this my will or any codicil
egacies, ^greto : AND SHALL invest the residue of the said
and to invest ■'
the residue.
WILLS. 259
monies, in the names or name of the said E. F.,
G. H., and I. K., or the survivors or survivor of
them, or the executors or administrators of such
survivor (hereinafter called the tinistees or trus-
tee), in any of the public stocks or funds, or
upon Government securities of Great Britain, or
freehold, copyhold, leasehold, or chattel real
securities in England, Wales, or Ireland, [or in
or upon the shares, stocks, or securities of any
Company or Corporation, whether commercial,
municipal, or otherwise, carrpng on business or
constituted for any purpose in Great Britain,
Ireland, or India, or any colony or dependency
of Great Britain] : and I declare, that the said Power to
-' _ vary the iu-
triistees or tnistee may vary the said stocks, vestments.
funds, shares, and securities, at their or his dis-
cretion : AND shall pay the income of the said Trust to pay
. . the income
trust funds to my said wife so long as she shall to testator's
wife for life
continue my widow ; and, after her death or or widow-
marriage, shall hold the said monies, stocks, ^nd after-
funds, and securities, and the income thereof, hoW th" '^
upon trust for all or any such one or more of my ["usUortes-
childreu, and in such manner and form in every ^'^'^g Ws"^
respect, as my said wife shall, so long as she shall ,^,'p(,f,^t^"
remain unmarried, by deed, or will or codicil,
api)oint ; and in default of any such appoint- and. in de-
\ „ . ■^ . , ,, fault of np-
ment, and so far as no such appomtmcnt shall pointment,
1 . /< 11 1-11 '" trust fi'f
extend, in trust tor all my children, or any my all testator's
child, who being sons or a sou shall attain who being
twenty-one yeai-s, or being daughters or a daugh- twenty-one,
ter shall attain that age or marry, and, if more daughters
260 WILLS.
attain that than oiie, in equal shares : Provided always,
marry. that no child taking any part of the said pre-
c^ause^''*^ mises under any such appointment as aforesaid
shall, in default of appointment to the contrary,
be entitled to any share of that part of which no
such appointment shall have been made of the said
premises, without bringing his or her appomted
Advance- share into hotchpot ; Provided also, that the
ment clause. ^^.^ trustees Or trustee may, after the death or
marriage of my said wife, which shall first hap-
pen, or previously thereto if she shall so direct
in writing, raise any part or parts not exceeding
one half part of the then expectant presumptive
or vested share or fortune of any child under the
trusts hereinbefore declared, and apply the same
Mainte- for his or her advancement or benefit. And
education I HEREBY DECLARE that the Said trustces or trus-
tee shall, after the death or second marriage of
my wife, which shall first happen, ap]ily the
whole, or such part as they or he shall think fit,
of the annual income of the share or fortune to
which any child shall, for the time being, be
entitled in expectancy under the trusts herein-
before declared, for or towards the maintenance
or education of such child, either directly, or to
his or her guardians or guardian, without seeing
to the application thereof, rir requii'ing any ac-
Accumuia- count of the same (a) ; and shall, during such
tion clause.
(a) The last part of this provision is, of course, inap-
plicable when the trustees arc appointed guardians.
WILLS.
1261
suspense of absolute vesting, accumulate the
residue (if any) thereof in the way of compound
interest, by investing the same, and the resulting
income thereof, in or upon any such stocks,
funds, shares, or securities as are hereinbefore
mentioned, for the benefit of the person or
persons, who, under the trusts herein con-
tained, shall become entitled to the i)riucipal
fund from which the same respectively shall
have proceded, with power for the said trustees
or trustee to resort to the accumidation of any
preceding year or years, and apply the same for
or towards the maintenance or education of the
child for the time being i)resumptively entitled
to the same respectively. And, if there shall be Dis^osiiien
no child of mine living at my death, who being diiiareu eu-
a son shall attain the age of twenty-one years, th/pieced"
or being a daughter .shall attain that age or "^ ""'' *'
marry, then, from and after the death or mar-
riage of my said wife, and such default or failure
of children, I bequeath the said monies, stocks,
funds, shares, and securities, or so much thereof
as shall not have become vested or been applied
under the trusts afoi^esaid, unto itc. («). AxD I Power of
. , _, .^ - ^_ leasing for
HEREBY DECLARE, that the saul ii. r., G. H., iwoi.ty-ouc
and I. K., and the survivors and survivor of"
them, and the heirs, execvitors, or administrators
(a) If the testator' .s children aro numerous, the bequest
in default of children will probably be omitted.
2G2 WILLS.
respectively of sucli survivor, may, at any time or
times before all my said real estate shall have
been sold, demise all or any joart thereof at rack
rent, for any tei*m of years absolute not exceed-
ing twenty one years, to take effect in possession.
Income of And I FURTHER DECLARE, that, until all my Said
persouaf" real and personal estate shall be sold and con-
Tsak 'and*^'' vertcd into money, the said trustees or trustee
togo^as't'he for the time being thereof respectively shall
thrinv^est- apply the income of such part thereof as shall
Soneyfo''^'^ for the time being remain unsold or unconverted,
saifandTon- ^^^^ payment thereout of all rates, taxes, ex-
version. penses of repairs, insurance, and other outgoings,
in the manner in which the annual income of
the stocks, funds, shares, or securities aforesaid
would be payable and applicable, if such real and
personal estate had then been sold, and the net
surplus monies arising from such sale had been
iTrustees' re- invested as aforesaid. And I hereby declare,
ceip c ause. ^^^^^ ^^^^ receipt of the trxxstees or trustee for the
time being, acting in the execution of any of
the trusts hereof, for the purchase-money of
property sold, or for any monies, funds, shares,
or securities paid or transferred to them or him
in pursuance hereof, or of any of the trusts
hereof, shall effectually discharge the purchaser
or purchasers, or other the person or persons
paying or transfen-ing the same, therefrom, and
from being concerned to see to the application
Powertoap- thereof And I hereby declare, that, if the
trustees. said trustecs hereby appointed, or any of them.
WILLS. -G'*^
shall die in my lifetime, or if they or any of
them, or any trustee or trustees to be appointed
as hereinafter is provided, shall after my death
die, or desire to be discharged, or refuse or become
incapable to act, then and so often the said
trustees or trustee (and, for this purpose, every
retiring or refusing trustee shall be considered a
trustee,) may appoint a new trustee or new
trustees in the place of the trustee or trustees so
dying, or desiring to be discharged, or refusing or
becoming incapable to act; and, upon every such
appointment, the said trust premises shall be so
transferred, that the same may become vested in
the new trustee or trustees, jointly wdth the sur-
viving or continuing trustees or trustee^ or solely,
as the case may require; and eveiy such new
trustee shall (as well before as after the said
trust premises shall have become so vested) have
the same powers, authorities, and discretions as
if he had been hereby originally appointed a
trustee. And I declare, that the trustees for Trustees' in-
1 • 1 • i^ n • -n 1 11 ■• 1 demnitv
the time being ot tins my will shall respectively clause.
be chargeable only with such monies as they
respectively shall actually receive, and shall not
be answerable for each other, nor for any banker,
broker, or other person in whose hands any of
the trust monies shall be placed, nor for the in-
sufficiency or deficiency of any stocks, funds,
shares, or securities, nor otherwise for involun-
tary losses ; and that the said trustees for the Power to re-
,. 1 . i- 1 • 1. j.i_ imburse
time being may respectively reimburse them- themselves
264 WILLS.
their ex- selves out of the trust premises all expenses
penses. . • n ^ p
incurred in or about the execution of the aiore-
Devise of said trusts and powers. I devise all the freehold
estates. and copyhold hereditaments vesited in me upon
trust or mortgage unto the said E. F., Gr. H., and
I. K., their heirs and assigns, subject to the equity
of redemption subsisting therein respectively;
but the money secured on such mortgages shall
be considered as part of my personal estate (a).
Appoint- And I APPOINT the said E. F., G. H., and I. K.
meut
?
mise.
ofexecu- executoi's of this my will, : and authorise the
power to ar- acting executors or executor for the time being
confpro^ of this my will to satisfy any debts claimed to
be owing by me or my estate, and any liabili-
ties to which I or my estate may be alleged to be
subject, upon any evidence they or he shall think
(a) It has been suggested of late that trust estates
ought not to be devised as they iisually have been. (See 5
Mai-tiu's Conveyancing, p. 13; Cooke v. Crawford, 13 Sim.
91. See, however, Tltley v. Wolstenholme, 7 Beav. 426;
Midland Covmties liailioay v. Westcomb, 11 Sim. 57; 2
Jarm. on Wills, p. 714; Macdonald v. Walker, 14 Beav.
556, and the cases there cited; Wilson v. Bennett, 19 L.
T. 243; Kin;jY. Sraith, QUaxe, i'JZ. Wortham v. Ld.
Bacre, 2 K. & J. 437). If trust estates are not to be de-
vised, they had better be expressly excepted from the
general devise of real estate. (Supra, p. 257). See, too, lie
Burtt, 1 Drewrj', 319.
It is unnecessary to include leaseholds or terms of
years in the dispositions in the text, as they vest
in the executors. But see Re Burtt, sujpra, on this
point.
WILLS. '2(ir>
proper, and to accept any composition or so-
curity for any del)t, and to allow such time for ^
payment (either with or without taking security)
as to the said acting executors or executor shall
seem fit, and also to comprumise or submit to arbi-
ti-ation and settle all accounts and matters be-
longing or relating to my estate, and, generally,
to act in regard thereto as they or he shall think
expedient, without being responsible for any loss
thereby occasioned. ) And I appoint my said wifo Appoint-
and the said E. F., G. H., and I. K., guardians guar(ii;iii>.
of mv infant children. In witness (to.
XLIV.
Codicil appointing a New Trustee.
J, A. B., of (fee, DECLARE this to be a codicil to
my last will and testament, dated the day
of . Whereas E. F., in my said will named,
has lately died, now I hereby appoint L. M., of
A:c., to be a trustee and executor of my said will,
and a guardian of my infant children, in the place
of the said E. F. : and I declare, that my said
will shall accordingly be read and construed as if
the name of the said L. M. had been inserted
therein throughout, instead of the name of the
said E. F. ; and in all other respects I confirm
my said will. In witness &c.
N
2fi6 WILLS.
XLV.
Devise -m Strict Settlement («).
UevUein I A. B., of &c., DECLARE this to be my last will
strict settle- ' r /
inent to toe and testament. I devise all my real estate (ex-
rest.ator's • t /• i i •
..wii and his cept what 1 otnerwise dispose oi by this my will,
brother's ex-
isting and and except estates vested m me upon trust,} TO ,
issue. THE USE of my son D. B., during his life, with-
out impeachment of waste; and after his de-
cease, TO THE USE of each successively, according
to seniority, of the sons of the said D. B. born
during my life, for the life of such son, without
impeachment of waste ; and immediately after his
decease, to the use of his first and other sons suc-
cessively, according to seniority, in tail male; and
AFTER the failure or determination of the uses
and estates hereinbefore limited, to the use of
the son and sons of the said D. B. born after my
death, successively, according to seniority, in tail
male ; and in default or failure of such issue,
to the use of each successively, according to seni-
ority, of my sons hereafter to be born, during his
life, without impeachment of waste ; with remain-
(a) This Precedent is not given as an example of a com-
plete will, but as an example of a devise in strict settle-
ment.
WILF.S. -'67
der,immediatelyafter tlie decoaso of each such son,
to the use of his first and other sons successively,
according to seniority, in tail male ; and after
tlie failure or determination of the uses and estates
hereinbefore limited, to the use of my brother
E. B., during his life, withont impeachment of
waste; and after the decease of the said E. B., to
the use of each successively, according to seniority,
of the sons of the said E. B. born during my life,
for the life of such son, without impeachment of
waste; with remainder, immediately after the de-
cease of each such son, to the use of his first and
other sons successively, according to seniority, in
tail male ; and after the failure or determination
of the uses and estates hereinbefore limited, to
THE USE of the son and sons of the said E. B. born
after my decease, successively, according to seni-
ority, in tail male ; and for default of such issixe,
to the use of my own right heii's. And I here- Tms(s dm-
BY DECLARE, that, II any person who would, ii this noritics of
present declaration had not been inserted, be en- "*^^'*'"- ■
titled to the possession, or the receipt of the rents
and profits, of my said real estate, as tenant for
life or in tail male by purchase, shall be under the
age of twenty-one years, then and so often E. F., of
&c., and G. H., of &c. [trustees], and the survivor of
them, and the executors or administrators of such
survivor, (hereinafter called the trustecsor trustee),
shall, during such minority, receive the rents and
profits of and manage the said real estate, and
may fell timber for repairs or sale, or otherwise,
k3
268
and may preserve game, and accept surrenders
from, and make allowances to and arrangements
with, tenants and others, and may do all other
things which to them or him may seem expedient
for the due management thereof; and, after de-
ducting the expenses of management, repairs, in-
surance, and other outgoings, and satisfying any
and every annual sum, and the interest of any
and every gross sum which may be charged upon
the said real estate, or any part thereof, shall pay
such sura as the said trustees or trustee shall think
proper for or towards the maintenance or educa-
tion of such minor, (either directly or to his
guardians or guardian, to be applied by such
guardians or guardian without accounting to the
said trustees or trustee), and shall accumulate
the residue of the said rents and profits in the
way of compound interest, by investing the same
and all the resulting income thereof, in the names
or name of the said trustees or trustee, in any of
the public stocks or funds of Great Britain, or
upon Government or real securities in England,
Wales, or Ireland, and may vary the same at
their or his discretion; and shall hold all the
said residue of the said rents and profits, and the
stocks, funds, or securities in or upon which the
same may be invested, and the annual income
thereof, and the accumulations of such income,
upon such trusts as the same would be held upon
if the same were monies arising from sales under
the power of sale hereinafter contained, or stocks,
WILLS. liO'J
funds, or securities purchased therewith. And Power oi
1 , jointuriiifr,
I HEREBY DECLARE, that evcry person hereby
made tenant for life of the said real estate may,
at any time or times, either before or after he
shall be entitled to the possession or to the re-
ceipt of the rents and profits thereof, (but subject
to the estates preceding his own estate, and to the
powers annexed to such preceding estates, and to
the estates which may have been limited in exer-
cise of such powei-s), by deed, or -will or codicil,
api)oint to any Avoman or women whom he may
marry or have married, for her or their life or
respective lives or any less period, a clear yearly
rentcharge or rentchavges, not exceeding in the
whole, for any one woman, the sum of £ ,
to be charged \ipon and payable out of all or any
part of the said real estate, with usual powers,
by distress and entry, for recovering and en-
forcing the paj^ment thereof; and may also and of limit-
. , ing terms of
appoint the premises so charged to any person or years to se-
, , r. •,! cure joint-
persons, tor any term or terms ot years, Avnth or „res.
without impeachment of waste, to take effect im-
mediately after the decease of the person for the
time being exercising this power, upon usual
ti'usts for securing the payment of the same yearl}-
rentcharge or rentchai-ges : Provided never- No jointure
° , . to become a
THELESS, that no rentcharge shall become a hen lieu, unless
the person
Tipon all or any part of the said real estate, or Umiiing the
... s,ime, or
become payable, unless the person appomting the tome of his
issue be-
same shall be or become entitled to the possession come'ei.ti-
270 WILLS.
tied ill pos- or to the receipt of the rents and profits of the
session. _ '■ '■
said real estate, or some issue of such person shall
The estates or woiild, if of full age, becomc so entitled : and
uot to be .11
subject to ALSO, that the said real estate shall not at any
more than a . , , .
specified an- oue time DC suDject to the payment of rent-
nual sum at , i- • ,i i i i « n
once for cliarges exceeding m the whole the sum oi Jb ,
and that such rentcharges shall have priority
of payment according to the priority in order of
limitation of the respective estates of the several
Power of persons exercising the said power And I also
portfo'nf for DECLARE, that every person hereby made tenant
children ^0^' ^^^'^ *^^ ^^^^ ^^"^ I'^^l estate maj^, at any time
or times, either before or after he shall be entitled
to the possession or to the receipt of the rents
and profits thereof, (but subject to the estates
preceding his own estate therein, and to the
powers annexed to such preceding estates, and to
the estates which may have been limited in ex-
ercise of such powers), by deed, or will or codicil,
charge all or any j)art of the said real estate with
the payment, for the portion or portions of his
child, or all or any of his children (other than
an eldest or only son, for the time being, entitled
to the possession or to the first estate of inherit-
ance of the said real estate), of any sum or sums
uot exceeding in the different events hereinafter
specified the different sums hereinafter men-
varying ac tioned; (that is to say), if there shall be but
the'nunfbc-r ^ne such child (otlier tlian as aforesaid), the sum
of children ; ^^f £ ^^ ^j^^j.^ ^|^^^j| ,^^ y^^^ ^^^ ^^^^^ children
WILLS. :^71
(other than as aforesaid), the sum of >£ ; if
there shall be but three such children (other than
as aforesaid), the sum of £ ; and if there
shall be four or more such children (other than
as aforesaid), the sura of £ , to be an interest
or interests vested in and to be paid to such
child, or among such children, or any one or
more of them, at such times, and in such manner
and form in every respect, as the person for the
time being exercising this power shall appoint;
AND MAY, by deed, or will or codicil, chai'ge the audwituuu-
nual sums,
premises iiitended to be charged with such por- bywaj-ofiu-
. tercst on the
tion or portions respectively, with the payment portions, for
of any clear annual sum or sums not exceeding nance :
the interest of the portion or portions after the
rate of <£ — per cent, per annum, to be applied
for the maintenance or education of the child or
children for whom such portion or portions shall
be intended, until such portion or poi'tious shall
become payable, in such manner in every respect
as the person for the time being exercising this
power shall direct: and may, to provide for the audtolmiit
'■ * . . terms ol
raising and pavment of such portion or poi-tioiis ytars for
^ ' ~ >■ * _ raismg the
and annual sum or sums, by deed, or will or same.
codicil, appoint the premises chai-ged therewith
to any person or pei-sons for any term or terms
of years, with or without impeachment of waste,
upon usual trusts for securing payment of the
same : Provided neveutheless, that no jjoition No porti.n
or annual sum shall become a lien upon all or ueu unless
272 WILLS.
the per.-on auy part of the said real estate, or become pay-
samf.'o?^'''' able, unless the person appointing the same shall
fssue, be-"* be or become entitled to the possession or to the
tredln pos- receipt of the rents and profits of the said real
session. estate, or some issue of such person shall or would,
The ostates if of full age, become so entitled ; and also, that
sub/e^t'to tlie said real estate shall not at any one time
™ ecmed " * be charged with a greater sum in the whole for
for"'wrtions portions than the sum of £ , and that such
portions respectively shall have priority of pay-
ment, according to the priority in order of limita-
tion of the respective estates of the several per-
Power of so"'^ exercising the said power. And I hereby
t^'^*nt^-o*ne DECLARE, that every person hereby made tenant
years. f^^ j^fg ^f i\^q g^id real estate, when he shall be
in the actual possession or entitled to the receipt
of the rents and profits thereof, and also the said
trustees or trustee during the minority of any
person who, if of full age, would be entitled to
the possession or to the receipt of the rents and
profits of the said real estate, may by deed ap-
Power of point by way of demise &c. [supra, 2^. 254.] And
chauge. ^ I HEREBY FURTHER DECLARE, that the Said trus-
tees or trustee may, during the life of any per-
son hereby made tenant for life, and for the time
being entitled to tlie possession or to the receipt
of the rents and profits of the said real estate,
with his consent in writing, and also during the
minority of any i)erson who, if of full age, would
be entitled to the po.ssessiou or to the receipt of
WILLS. 27.5
the rents ami jirofits of the said real estate, at
the discretion of the said trustees or trustee,
(but suhject to any lease which may have been
granted und«r the power in that behalf herein-
before contained), dispose of, either by way of
sale, or in exchange for other hereditaments in
England or Wales, all or any pai-t of the said
real estate, upon such terms and under such con-
ditions as the said trustees or trustee shall think
fit, with power to buy in, or rescind any con-
tract for sale or exchange of all or any of the
said premises, and to re-.sell or exchange the same,
without being responsible for any loss occasioned
thereby, and with power, for the purpose of ef-
fectuating any such sale or exchange, to revoke
all or any of the uses, trusts, or powei's herein-
before limited or to be limited under the powei's
of jointuring and charging portions hereinbefore
contained, of the hereditaments sold or given in
exchange, and to appoint the same in any man-
ner they or he shall think fit. And I HEUEBY Trustees' i-e-
DECLARE, that the receipt of the trustees or
ti'ustee for the time being acting in the execu-
tion of any of the trusts hereof, for the purchase-
monies of premises sold, or for any monies re-
ceived for equality of exchange, shall effectually
discharge the purchaser or purchasers, or other
person or pei"sons paying the same, therefrom,
and from being concerned to see to the applica-
tion thereof. And I hereby declare, that the Jionii-s aris-
ing under
said trustees or trustee shall, with such consent tiie power of
N 3
274 WILLS.
.siic and ex- or at sucli discretion as aforesaid, lay out the
change to bii . t n ^■, i-
laid out in money received upon any sale or tor equality oi
of lands, to exchange (a) in the purchase of freehold or copy-
the uses of hold hereditaments of inheritance (6) in England
roeut. or Wales, or in procuring the enfranchisement of
copyhold hereditaments purchased or previously
settled, and shall settle or cause the same to
be settled to the uses and subject to the powers
herelry limited or to be limited under the powers
of jointuring and charging portions hereinbefore
contained, as far as the deaths of parties and
other intervening circumstances 'will permit :
Power for Provided always, that the said trustees or trus-
trusfees to , ,. .
apply mo- tee may, with such consent or at such discretion
nies receiv- . , „ . i • i
od on a faie as are hereinbefore mentioned with respect to a
or exchange • , , • i
ill di<:ciiargc sale or exchange, apply any monies to be I'eceived
ofincura- t /• i
brances; Upon any sale or tor equality ot exchange as
aforesaid, or any part thereof, in or towards
satisfying any mortgage or other charge or in-
cumbrance which may then affect all or any of
the hereditaments which shall then be subject
audtiiia to the uscs or trusts of this my will: And X
purchase, to .11
be invested HEREBY FUKTHER DECLARE, that, until the money
or iii)on to be received upon any sale or for equality of
exchange shall be laid out or disposed of as afore-
said, the said tmistees or trustee may, with such
consent or at such discretion as aforesaid, invest
(a) See supra, p. "241, n. (a).
(b) See supra. Id. n. (h).
WILLS.
the same in their or liis names or name in any
of the public stocks or funds of Great Britain, or
upon Government or real securities in England,
Wales, or Ireland, and may vary the same if and
as they or he shall think fit; and that the an-
nual income from such stocks, funds, and securi-
ties shall be paid and a]»i)lied in the manner in
which the i-ents and profits of the hereditaments
to be purchased therewith as aforesaid would be
payable or ajtplicable in case such purchase and
settlement as afoi-esaid were then actually made.
[^Trustee clauses. — Devise of iiiortyaye estates,
supra, pp. 262, 264.] In avitness &c.
27G APPOINTMENTS OF TRUSTEES.
!:^ppomtmfnts; of Cnisittfs.
XLVI.
Appointment of New Trustees of a Mar-
riage Settlement, (to be indorsed on
the Settlement) («).
Parties. THIS INDENTURE, made &c., between the
within-named A. B. and C. B., his wife, (at the
date and execution of the within-written inden-
ture the within-named C. D., spinster) [Inishand
and v>ife, donees of the povm"], of the first part,
the within -named G. H. \retio~ing t}ustee~\, of the
second part, and I. K., of &c., and L. M., of &c.,
Of tht,- deatii [new tt'ustees'], of the third part. Whereas
tee, and of the within-named E. F. is dead, and the said
sWngTo be' Gr. H, desires to be discharged fi-om the trusts of
■hscharged. ^j^^ within-written indenture. NoAV this inden-
Witiiesseth, TURE WITNESSETH, that they the Said A. B. and
Appoint- C. B. do hereby, in exercise of the power in this
trustees. behalf in the within-written indenture contained,
appoint the said I. K. and L. M. respectively to
(a) The settlement intended is that of which a Prece-
dent is previously given, XXXVI. p. 220.
APPOINTMENTS OF TRUSTKES. 277
be trustees of the witliiu-writtcu indenture in the
place of the said E. F. and G. H. respectively.
And it is iiereuv declared, tlmt the said I. K. ^^fj^^^^'""
and L. M., their executors, achniiiistrators, and
assigns, shall hold the within-mentioned sum of
£ — I. per Cent. Bank Annuities,
which is intended to be transferred into their
names immediately after the execution of these
presents, and the annual income thereof, upon
the trusts, and subject to the powers, upon and
subject to which the same ought to be held by
virtue of the withiu-written indenture («). In
witness &c.
XL VII.
Appointment of New Trustees of a Will of
Heal and Personal Estate (b).
This indenture, made &c., between E. F., Partie
of &.C., and G. H., of tfec. [surviviiiy trusteed'], of
the first part, L. M., of &g. [nevj trustee], of the
second part, and N. O., of &c. [provisional trustee],
(a) It will, of course, be understood, th.it, if thorehave
been any dealings with the trust property since the date
of the settlement, tliey must be stated, so as to show the
funds now subject to the settlement.
(b) The will intended is that of which a Precedent is
given, XLIII. p. 257.
278
APPOINTMENTS OF TEUSTEES.
Recital of
the will ;
of the tliiid part. Whereas A. B., late of ,
ifec, duly made and executed his will, dated the
day of , and thereby, after giving divers
specific legacies and a pecuniary legacy, devised
all his real estate (except what he thereby other-
wise devised, and except estates vested in him
upon mortgage,) unto the said E. F. and G. H.,
and I. K., their heirs and assigns, upon trusts
and with powers thereby declared of the same ;
and bequeathed all his personal estate (except
chattels real included in the said devise of real
estate, and excej^t what he thereby otherwise dis-
posed of,) unto the said E. F., G. H., and I. K.,
their executors, administrators, and assigns, upon
trusts and with powers thereby declared of the
same ; and devised all the freehold and copyhold
hereditaments vested in him upon mortgage unto,
the said E. F., G. H., and I. K., their heirs and
assigns, subject to the equity of redemption sub-
sisting therein respectively; and appointed the
said E. F., G. H., and I. K. executors of his said
will; and declared, that, in case the said trustees,
&c. [recite the power to appoint neio trustees
literally]. And whereas the said A. B. died
without having revoked or altered his said will,
and the same was proved by the said E. F.,
G. H., an 1 I. K. in the Court of , on
the day of . And whekeas the said
I. K. died in the month of last. Now
WitnessctU. THIS INDENTURE WITNESSETH, that they the Said
Appoint- E. F. and G. H. do hereby, in exercise of the
— ol testa-
tor's death,
and probate
of his will ;
—of the
death of a
trustee.
APPOINTMENTS OF TRUSTEES. 279
aforesaid power in this behalf, appoint the said mcntofuew
L. M. to be a trustee of the said will of the said
A. B. in the place of the said I. K. And this Witnesscth
. secoucUy.
INDENTURE ALSO WITNESSETH, that, in obedience
to the aforesaid direction in this behalf, they the Conveyance.
said E. F. and G. H. do hereby grant unto the
said L. M. and his heirs, all the said i*eal estate
and premises by the said will of the said A. B.
devised iinto the said E. F., G. H., and I. K.,
their heirs and assigns upon trust as aforesaid,
with the rights, easements, and appurtenances,
and all the estate and interest of them the said
E. F. and G. H. in the premises, to hold the Habendum,
said premises unto the said L. M. and his heirs,
TO THE USE of the Said E. F., G. H., and L. M.,
their heirs and assigns, upon the trusts, and
with the powers, upon and with which the
same ought to be held by virtue of the said will.
And this indenture also witnesseth, that, in witi e seth
obedience to the aforesaid direction in this behalf, " ^'
they the said E. F. and G. H. do hereby assign unto Assignment
the said N. O., his executors, administi-ators, and ty^lo'provi'-
assigns all the said personal estate of the said ^[!^"^' ^^^^'
A. B., by tlie said will bequeathed unto the said
E. F., G. H., and I. K., their executors, adminis-
trators, and assigns, and now vested in the said
E. F. and G. H., and all the estate and interest
of them the said E. F. and G. H.* in the premises,
TO HOLD the said premises unto the said N. O., Hubeu.ium
, _ , in trust to
his executors, administrators, and assigns, upon le-assigu
280 APPOINTMENTS OF TRUSTEES.
tocwntinu- TRUST forthwith to assigii the same unto the said
trustees"^^ •^' ^-y ^' H., and L. M., their executors, admi-
nistrators, and assigns, upon the trusts, and with
the powers, upon and with wliich the same ought
Witnesseth to be held by A'irtue of the said wilh And this
fourthly.
INDENTURE ALSO WITNESSETH, that, iu obedieuce
Conveyance to the aforesaid direction in this behalf, they the
estates. ° said E. F. and G. H. do hereby grant unto the
said L. M. and his heirs, all the freehold here-
ditaments which were vested iu the said testator
at his death upon mortgage, with their rights,
Habenduui easements, and appurtenances, to hold the said
to the use of . • i x -hit
continuing premises unto the said L. M. and his heirs, to
trubtees. THE USE of the said E. P., G, H., and L. M., their
heirs and assigns, subject to the equity of re-
demption now subsisting therein respectively (a).
[Covenant hy E. F. and G. //., v)k]b L. J/.,
against incumbrances, supra, p. 114.] In wit-
ness &c.
(a) The copyholds must be surrendered in like manner.
A covenant to that effect may be introduced into the deed.
APPUINTMENTS UF TKUSTEES. 281
XLVIII.
Re-assignment hy the Provisional Trustee, (to be
indorsed on the jn-eceding Deed).
This indenture, made (fee, BETWEEN the Partiea
within-nained N. O. [provis{o7ial trustee^ of the
oue part, and the within-uamed E. F., G. H., and
L. M. \truslees'\, of the other part, WITNESSETH, vvitncssetb.
that, in pursuance of the trust by the within- Assignment
written deed reposed in the said N. U., he the sionai tms-
said N. O. doth hereby assign unto the said E. F., personal es-
G. H., and L. ]\I., their executors, administrators,
and assigns, all the personal estate by the within-
wi'itten indenture assigned unto the said N. O.,
his executoi-s, administrators, and assigns, and
ALL the estate and interest of the said N. 0. in
the said premises, TO hold the said premises unto Habendum
the said E. F., G. H., and L. M., their executors, tinuii.gand
1 . . , , T . new trus-
admuustrators, and assigns, upon the trusts, tees, upon
and subject to the powers, upon and subject to the will.
which tlie same ought to be held by virtue of
the withiu-meiitioncd will. In witness ikc.
282
DISENTAILING DEEDS.
IBigrntaiKnff Beetisf,
XLIX.
Deed hy Tenant in Tail in Possession
to bar the Entail of Freeholds, the Crea-
tion of the Entail not being recited.
Parties. ThIS INDENTURE, made kc, between A. B.,
of &:c. \tenant in tail], of the one part, and C. D.,
Witnesseth of &c. [grantee to uses], of the other part, wit-
his entail, '^'^ NF.ssETH, that, for barring and defeating every
tail conveys, estate in tail, either at law or in equity, of the
said A. B. in the hereditaments intended to be
hereby conveyed, and all remainders, reversions,
estates, rights, titles, interests, and powers, to
take effect after the determination or in defea-
sance of every such estate in tail, he the said A, B.
doth hereby gi-ant unto the said 0. D. and his
Parcels. heirs, all the freehold manors, messuages, lands,
and hereditaments in the parish of , in the
county of , or any parish or place adjoining
thereto, of or to which the said A. B. is seised
or entitled, at law or in equity, for any estate in
tail [general words, and estate clause, sujjra, p.
Habendum. 97], TO HOLD the Said premises unto the said
C. D. and his heirs, to the use of tlie said A. B.,
his heirs and assio-us. In witness &c.
DISENTAILING DEEDS. 1^83
Deed hy Tenant in Tail, icith the Con-
sent oftlie Pkotector, to bar an Entail
of Freeholds.
This indenture, made &c. between C. B. Parties.
[tenant in tail\ of the first paii;, A. B., of &c.
[protector], of the second part, and E. F., of etc.
[grantee to tises\, of the third part. Whereas, Reciui ot
by an indenture dated the day of , and tiieVnuii;
expressed to he made hetween \_pa7'ties\, certain
manors, messuages, lands, and hereditaments in
the parishes of and , in the county of
, in the said indenture described or referred
to, were limited to certain uses, which have now
failed or determined, and, after the failure or
determination thereof, to the use of the said
A. B. and his assigns, during his life, without
impeachment of waste ; with remainder to the
use of certain pei-sons and their heii*s, during the
life of the said A. B., in trust for him and his
assigns, and to preserve the contingent re-
maidei"s ; with remainder, to the use of the fii"st
and other sons of the body of the said A. B.
successively, according to their re.spective seniori-
ties, in tail ; with remaindci-s over. And - ufcii.m^'us
284 DISENTAILING DEEDS.
in the es- WHEREAS some of the hereditaments comprised
in the aforesaid indenture have been sold and
given in exchange under a power in that behalf
thei'ein contained, and other hereditaments have
been taken in exchange and purchased under the
same power, and have been limited to the uses
of the said indenture, by reference thereto, and
certain lands have been allotted by an award
under an Inclosure Act, in respect of lands com-
prised in the said indenture, or settled by re-
— of the ference thereto. And whereas the said C. B.
majortty^of i^ the first SOU of the body of the said A. B., and
fn taii"and ^^^ attained his age of twentj^-one years, and is
bar the'en-'" desirous of barring the said estate tail, and every
^^^^ ' other estate tail (if any) of him the said C. B.
in the aforesaid manors, messuages, lands, and
hereditaments, and all remainders, reversions,
estates, rights, titles, interests, and powers to take
effect after the determination or in defeasance of
the said estate tail, and of eveiy other estate tail
(if any) of him tlie said C.B. in the said premises,
and of limiting the same premises to the use of
—of the con- him, his heirs and assigns. And whereas the
protector. Said A. B., as protector of the said settlement, has
Witnesseth. consented thereto. Now this indenture wit-
Conveyance. NESSETH, that, for effectuating the said desire, he
the said C. B., with the consent of the said A. B.,
doth hereby grant unto the said E. F. and his
Parcels lieirs, ALL AND SINGULAR the said manors, mes-
suages, lands, and hereditaments by the said in-
DISENTAILING DKKDS. 285
denture or by reference thereto limited as afore-
said, or which, nnder the said award or otherwise
howsoever are now subject to the subsisting uses
thereof [general loords, and estate claiise, snpi'a,
J). 97j, KXCEi'T such of the said hereditaments
comprised in the said indenture as have been sold
or given in exchange, to hold the said premises Habendum,
(except as aforesaid, and subject and without
prejvidice to the said estate for life of the said
A. B., and to such of the powers and privileges
thereto annexed, or exei'cisable during the con-
tinuance thereof, as are now subsisting or capable
of being exercised,) umto the said E. F. and his
heirs, to the use of the said C. B., his heirs and
assigns. In witness &c.
286
AUTICLES OF CO-PARTNKRSHIP.
Slrtulfsi of Cc^artnridftip*
LI.
Parties.
Agreement
to become
co-partners.
Proviso for
the deter-
mination of
the co-part-
nership at
the end of
the first
seven years.
Articles of Co-partnekship.
This indenture, made &c., BETWEEN A.
B., of tkc, of the one pai't, and C. D., of <fec., of
the other part, WITNESSETH as follows: — I. The
said A. B. and C. D will become and remain
co-pax'tners in the business of , for the term
of years from the date of these presents, if
both of them shall so long live.
II. Nevertheless the said co-partnership shall
terminate at the end of seven years from the
date of these presents, if either of them shall
desire its termination, and of such his desire
shall give not less than six calendar months' pre-
vious notice in writing to the other of them, or
sliall leave such notice at the place where the
said business shall for the time beini' be carried
Firm and
style.
Place of
business.
III. The firm of the said co-partnership shall
be .
IV. The business of the said co-partnership
shall be carried on at , or at such other
place or places as the said co-partners shall here-
after determine.
ARTICLES OF CO-PARTyERSHIP. 287
V. Both of them the said A. B. and C. D. Partners to
, . attend to tbo
will at all times diligently employ themselves in business,
the business of the said co-partnership, and carry
on the same for the greatest advantage.
VI. Neither of them will, either directly or partners not
indirectly, engage in any business except the gaRed in any
business of the said co-partnership, and upon ac- ness;
count thereof.
VII. Neither of them shall take any appren- "ortohiie
'' ' ^ or aismiss
tice, or hire or dismiss any clerk, traveller, work- ^'l^,^^®,^^*"^^.
man, or servant, without the consent of the tu^icou-
' sent.
other.
VIII. The capital of the said co partnership Capital,—
^ 111 amount, and
shall consist of the sum of £ , to be brought contribution
in by the said A. B. and C. D. in equal shares.
IX. The said capital and the profits arising and empioy-
/ 1 1 • 1 • J. 1- -J luent of.
therefrom (including the premiums to be paid
for any apprentice to be taken by either of the
said co-partnei-s,) shall (subject as hereinafter is
mentioned) be employed in the said business.
X. The rent of the houses, mills, and build- Outgoings of
the partner-
ings in aforesaid, or of any other buildings ship to be
where the said business shall be carried on, and the capital
in, fid profits,
the cost of repairs and alterations, and all rates, or, in case of
dcficicijcv
taxes, payments for insurance, and other out- by the part-
goings whatsoever in respect of the same, and the shares,
wages and remuneration of all persons employed
in the said business, and all other monies to be-
come payable upon account of the said business,
and all losses which shall happen in the same,
ARTICLES OF CO-PARTNERSHIP.
That both
partners
shall sigu
securities
for money ;
and any se-
curity sign-
ed by one
alone to be
the separate
liability of
the partner
giving it.
Either part-
ner lending
or giving
credit to any
person
whom the
other shall
previously
have forbid-
den him to
trust, to
malie good
the defi-
ciency.
Neither
shall be paid out of the capital of the said co-
partnership and the profits arising therefrom, or,
if the same shall be deficient, by the said co-part-
ners in equal shares.
XI. Where there shall be occasion to give any
security or undertaking for the payment of money
on account of the said co-partnership, (except
when the contrary shall, in the common course
of business, be unavoidable), the same shall be
signed by both of the said co-partners.
XTI. If (except in the case aforesaid,) either
of the said co-partners shall give any such secu-
rity or undertaking which shall not be signed by
the other of them, the same shall be deemed to
be given on the separate account of the partner
so giving it, and he shall satisfy the same out
of his separate estate, and shall indemnify the
other of them from all expenses on account
thereof.
XIII. If either of the said co-partners shall
lend any of the monies, or deliver upon credit
any of the goods of the said co-partnership to
any person or persons whom the other of them
shall previously, in writing, have forbidden him
to trust, the partner so lending or delivering
shall pay to the said co-partnership so much
ready money as the full amount or value of the
money or goods which he shall so lend or de-
liver.
XIY. If either of the said co-partners shall
ARTICLES OF CO-PARTNERSHIP. 289
buy any coods or articles exceeding the value of without the
•''''-' • -i- couaeutof
£, without the previous consent in writing bis co-pan-
, , . nor, to enter
of the other, the other shall have the option nuoaiiycon-
, . , , tnict above a
either to take such goods or articles on account certain
« •. . , , -1 ■ I ^ L l^^ arnouut, on
of the said co-partnership, or to let the same re- ,,ainoftiie
, , , i» j.i_ i. same being
mam the separate propei-ty ot the co-partner deemed his
who shall have so bought the same. tract'
XV. Neither of the said co-partners shall, ^^^^^^^^
without the previous consent in writiug of the ^^^["^'f",fj°"'
other, enter into any bond, or become bail or se- co-partner,
' J ' to become
curity for any person, or subscribe any policy of surety, or do
insurance, or do, or willingly suffer to be done, wiiereby the
, CD-partuer-
anything whereby the capital or property ot the ship pmper-
saitl co-partnership may be extended or taken in taken iu
Z 1 •' execution.
execution.
XVI. Each of the said co-partners will punc- Each part-
tually pay his separate debts, and indemnify the hfj^privat^
other of them, and the capital and property of i,^demnify "
the said co-partnership, against the same and all u'^rshlp '"'
expenses on account thereof them"
XVII. Books of account shall be kept by the Books of ac-
count to be
said co-partners, and proper entries made there- kept, and re-
main, with
in of all the sales, purchases, receipts, payments, m partner-
, X i» ii =*'i'P docu-
engagements, transactions, and property ot tlie ments, at
said co-partncr.ship ; and the said books of ac- business.
count, and all securities, papers, and writings of
the said co-partnership, shall be kept at tlie
counting-house in aforesaid, or in such
other place where the business shall be carried
on, and each of the said co-partners shall have
290 ARTICLES OF CO-PARTNERSHIP.
free access at all times to examine and copy out
the same.
Annual ac XVIII. On the day of in the year
counts and '' •'
valuations and on the day of in every sue-
to be made / •' *'
on a certain ceeding year, a general account shall be made
rtay in each ^ '' °
year. and taken by the said co-partners of all the sales,
purchases, receipts, payments, engagements, and
transactions of the said co-partnership during the
then preceding year, and of all the capital, pro-
perty, engagements, and liabilities for the time
being of the said co-pai'tnership ; and the said
general account shall, immediately after the
same shall be made and taken, be written into
two books, and be signed in each such book by
each of the said co-partners ; and after such sig-
nature, each of them shall keep one of the said
books, and shall be bound by every such ac-
count, except that, if any manifest error be found
therein by either of the said co-partners, and
signified to the other of them within twelve
calendar months after the same shall have been
so signed by both of them, such error shall be
rectified.
Partners to XIX. The said A. B. and C. D. shall be en-
nave the net
profits in titled to the net profits arising from the said
equal shares. -i o
business and remaining after the payments here-
inbefore directed to be made thereout, in equal
shares.
Partners XX. In each year it shall be lawful for each
may every ''
year draw ^f them the Said A. B. and C. D. to take out
ARTICLES OF CO-PARTNERSHIP. 291
of the net pi'ofits of the said business, by eqnal certain quar-
, 1 /• tcrlv sums
quarterly payments, on the day ot , outofthc
, „ , uet profits,
the day of , the day ot , and sut.jcct t<. :i
1 f. .1 /• rt ^ 1 • provision for
the day of , the sum ot £ tor tiis refunding at
separate use ; but in case, at the end of any year, the year in
it shall appear, upon taking the general annual cfency.
account, that the net profits of such year shall
not liaAC amounted to the sum of £ , [the
total amount of tlie quarterly allowances to both
partners^, in such case, immediately after such
general annual account shall have been taken,
each of them the said A. B. and C. D. shall re-
pay to the said co-partnership the excess (if any)
of the amount of the sum which he shall actu-
ally have received in respect of such quarterly
payments over the sum which he shall have been
entitled to receive as his share of the net profits
of the said business.
XXI. If either of the said co-partners shall Provision, lu
die during the said co-partnership, his executors partner die
or administrators shall, if such death shall happen partulrsbtp,
before the day hereinbefore appointed for the tAinln'g the
first general annual account, be entitled to the p"™i ^^ ,,^s
capital brought in by such deceased partner ; or, ^epjesenu-
if the same shall happen after the day hereinbe-
fore appointed for the fii'st annual accoimt, shall
be entitled to such sum of money as the share of
the deceased partner of the capital and property
of the said co-partnership shall, upon the then
last general annual account, amount to, or as
such share would have amounted to in case such
o 2
292 ARTICLES OF CO-PARTNERSHIP.
account had been taken on the clay of
with a cer- [the proper day for taking such account^, imme-
ance in lieu diatelj preceding such death ; and in either case
the executors or administrators of the deceased
partner shall also be entitled to an allowance,
after the rate of £ — per cent, per annum, upon
the capital, or share of capital, and property (as
the case may be), of such deceased partner, in
lieu of profits, from the commencement of the
said co-partnership, or from the then last gene-
ral annual account (as the case may be), to the
and deter- time of such death ; and the surviving partner,
mad'elnd^ his executors or administrators, shall pay such
meut°and^' allowance in lieu of profits on demand, and shall,
to bfgi'veu^ within next after the death of the deceased
vfvingpart- Partner, execute and deliver to his executors or
"^*'' administrators a bond in a penalty double the
principal, conditioned for the payment of the
said principal sum to which they shall become
entitled as aforesaid, with interest thereon after
the rate of £ — per cent, per annum from such
death, in manner following; (that is to say), one
third part of such principal sum, with the in-
terest on the same third part, at the end of six
calendar months from the date of such bond; one
other third part, with interest thereon, at the
end of twelve calendar months from the date of
such bond; and the remaining third part, with
interest thereon, at the end of eighteen calendar
months from the date of such bond.
and for the XXII. The surviving partner, his executors
ARTICLES OF CO-PARTXERSIIIP. 293
or administrators, shall also execute and deliver execution of
proper in-
a bond in a sufficient penalty to the executors or domnities
„ , , , . J. . and releases.
administrators of the deceased partner, tor in-
demnifying them, and the estate of the deceased
partner, from the debts, engagements, and liabi-
lities of the said co-partnership at or after such
decease, and from all expenses on account of the
same; and the executors or administrators of
the deceased partner shall release and assign un-
to the surviving partner, his executors or admin-
istrators, all their share, right, title, and interest
in the capital and property of the said co-part-
nership, and empower him and them, as much
as in them lies, to recover and receive the same.
In witness &c.
294: PRODUCTION OP DEEDS.
^rotmctiou of ©eetrsi.
LII.
Covenant to irroduce Deeds.
Parties. ThIS INDENTURE, made &c., between A.
B., of &c. [vendor], of the one part, and C. D., of
tlfedeerfof ^^- [p^*^c^c»5er], of the Other part. Whereas, by
of even^date- ^°- indenture bearing even date with but executed
before these presents, and expressed to be made
between the said A. B., of the first part, the said
C. D. of the second part, and E. E. of the third
part, in pursuance of a contract for sale, and for
the consideration therein mentioned, certain
hereditaments therein described have been limit-
ed to such uses, and upon and for such trusts
and purposes, as the said C. D. shall, by any deed
or deeds, appoint ; and, in default of and until
and subject to such appointment, to the use of the
said C. D. and his assigns, during his life, with
remainder to the use of the said E. F. and his
heirs, during the life of the said C. D., in trust
for him and his assigns, with remainder to the
use of the said C. D., his heirs and assigns. And
That the WHEREAS the several deeds and writings specified
deeds relate . n i
to other es- in the Schedule hereto relate as well to the here-
PRODUCTION OP DEEDS. 295
ditaments comprised in the hereinbefore recited tates than
indenture as to other hereditaments belonging ^ "'^ '>*^' •
to the said A. B., and on the said contract for
sale it was agreed that the said deeds and writings
should remain in the possession of the said A. B.,
his heirs and assigns, and that he should enter
into the covenant hereinafter contained, Now Witncssoth.
THIS INDENTURE WITNESSETH, that, in pursuance Covenant by
'■^ vendor to
of the said agreement, and in consideration of the pjoduce
° . deeds,
premises, he the said A. B. doth hereby, for him-
self, his heirs, executors, administrators, and
assigns, covenant with the said C. D., his heirs
and assigns, that he the said A. B., his heirs and
assigns, will, at all times, upon the request in
writing of the said C. D., his heirs, appointees,
or assigns, or any person lawfully or equitably
claiming through him or them any estate or in-
terest in the said hereditaments comprised in
the hereinbefore recited indenture, at the ex-
pense of the person or persons reqiiiring the
same, produce to him or them, or to such person
or persons as he or they shall appoint, or in any
court of judicature, or elsewhere, as occasion
shall require, all or any of the deeds and writings
specified in the said schedule hereto, for the sup-
port or manifestation of the estate or title of the
said C. D., his heirs, appointees, and assigns, and
every or any other person claiming as aforesaid ;
AND WILL at all times, upon such request and at aud allow
such expense as aforesaid, make and deliver to takeu. '°
the person or persons requiring the same, or to
296 PRODUCTION OF DEEDS.
sucli person or persons as lie or they shall ap-
point, such true copies, attested or unattested,
of the same deeds and writings, as he or they
may require, and will, in the meantime, keep
the same deeds and writings safe, uncancelled,
and undefaced, unless prevented by fire or other
inevitable accident {a). In witness &c.
THE SCHEDULE to which the above-
written Indenture refers.
(a) If (as is often the case) the contract for sale con-
tain a stiijulation to this effect, insert the following pro-
viso : —
" Provided nevertheless, that, if the said A. B.
or his heirs shall deliver the same deeds and writ-
ings to any person or persons who shall have any
lawful or equitable title to the custody thereof,
and shall at his or their own cost procure such
person or persons to enter into with, and deliver
to, the person or persons for the time being en-
titled to the benefit of the covenant hereinbefore
contained, a covenant to the like piirport and
effect, then the said covenant hereinbefore con-
tained shall become void."
PRODUCTION OF DEEDS. 29'
LIII.
Agreement /or the Deposit 0/ Deeds re-
lating to two Estates mortgaged to dif-
ferent Mortgagees.
This indenture, made (fee, between A. B., Parties.
of tfec. [piortgcujor\ of tlie first part, C. D., of
&c. \inortgagee\ of the second part, and E. F., of
&c. [mortgagee], of the third part. Whereas, by ^^'^l'*' ''^
an indenture dated the day of , and mortgage ;
expressed to be made between [parties^, certain
estates in the county of W. were conveyed by, or
by the direction of, the said A. B. to the use of
the said C. D., his heirs and assigns, by way of
mortgage, for securing the sum of £ , and in- —of the
° ^ [ , , , 1 • . titledeeds
terest. A_nd wuereas the deeds and wiutings, having been
. 1111 ij.j_j.i. delivered to
specified in the schedule hereto, relate to the the mortga-
title of the said estates, and on the said mort- posited at
gage were delivered to the said C. D., and have
been deposited by him with Messrs. , his
bankex-s. And whereas, by an indenture bear — of the ee-
coud mort-
ing even date with, but executed before, these gage ;
presents, and expressed to be made between
[parties], cei'tain estates in the county of S. have
been conveyed by the said A. B. to the use of the
said E. F., his heirs and assigns, by way of mort-
gage, for securing the sum of £ , and interest.
And whereas the said deeds and writings relate —that the
o3
298 PRODUCTION OF DEEDS.
deeds relate to the title of the Said estates in the county of S.,
to the title of . .
the estate in as weil as to the saicl estates m the county of W .
mortgage: And WHEREAS, on the treaty for the said mort-
agreement §^o^ ^° *^^® ^^^^ -^- ^'' ^* "^^^ agreed that the said
the^present° P^i'tiss hereto should enter into the agreements
agreement, hereinafter contained. Now this indenture
Witnesseth. , . • i ^ • /> , i
WITNESSETH, and in consideration ot the premises
thlTtS^^ it is hereby agi'eed, that, so long as any money
remalu^V shall remain on the said mortgage of the said W.
thatf both "'^ estates, and also on the said mortgage of the said
shaJilffvl^ S. estates, the said deeds and writings specified
accessthere- in the said schedule hereto shall remain deposited
in the banking-house of Messrs. , on the ac-
count and for the use of the said C D. and E, F.,
and their respective heirs, executors, administra-
tors, and assigns; and that the said C. D., his
heirs, executors, administrators, and assigns, and
his and their solicitors and agents, and the said
E. F., his heirs, executors, administrators, and
assigns, and his and their solicitors and agents,
shall at all times have access to the said deeds
and writings, to examine, copy, or abstract the
same, or make extracts therefrom, and for all
—and that Other reasonable purposes; and that the said
shall be pro- dccds and writings shall be produced and used
duced on all' ^^ . i • i ,i i i i
reasonable On all occasions On which they may be reasonably
occawons , j-gq^irgd, for the support or manifestation of the
title of the said C. D., his heirs, executors, ad-
ministrators, and assigns, to the said W. estates
or any part thereof, and of the said E. F., his
heirs, executors, administrators, or assigns, to the
PRODUCTION OF DEEDS. 2y9
said S. estates or any part thereof ; and that, and that, ii
. , _ , either of the
when and if the said mortgage on either oi tlie mortKnges
.1 1 n 1 • 1 ,r- 1 M Bhallbepaifl
said estates shall be paid on, while any money off, the deeds
remains on the moi'tgage of the other of the said given to the
estates, the said deeds and writings shall be de- g^ec."""^
livered and belong to the mortgagee whose mort-
gage-money, or some part of whose mortgage-
money, shall still remain unpaid, his heirs, exe-
cutors, administrators, and assigns. In witness
&c.
THE SCHEDULE to which the above- written
Indenture refers.
LIV.
Agreement y^r the Deposit o/ Deeds re-
lating to an Estate mortgaged to two
Mortgagees successively.
This indenture, made &c., between A. B., Parties.
of &c., and G. D., of &c. [mortgagors], of the first
part, E. F., of &c., G. H., of &c., and J. K., of &c.,
[Jvrst mortgagees'], of the second part, and L. M.,
of &c., N. O., of &c., P. Q., of &c., and R. S., of
Ac. [second 7nortgagees],of the third part. Where- Recital of
as, by an indenture dated the day of , gage ;
and expressed to be made between [parties], di-
300 PRODUCTION OF DEEDS.
vers hereditaments, situate in the parish of ,
in , and in the said indenture now in recital
or the schedule thereto particularly described,
were conveyed and assured by and by the di-
rection of the said A. B. and C. D,, to the use
of the said E. F., G. H., and J. K., their heirs
and assigns, by way of mortgage, for securing the
— ofthe sum of £ , and interest. And whereas the
deeds relat-
ing to the several deeds and writings specified in the sche-
dule hereto relate to the title of the said here-
ditaments, and, on the execution of the herein-
before-recited mortgage, were delivered to the
—of parts of said E. F., G. H., and J. K. And whereas
Laviug beeu parts of the said hereditaments have been sold,
the mOTtga- and the purchase-monies applied towards the dis-
enteredYato charge of the Said mortgage debt, and, upon the
wilhThe^ sales thereof, the said E. F., G. H., and J. K.,
fo"r produ" with the approbation of the said A. B. and C. D.,
*^'"^' have entered into covenants with the purchasers
of the hereditaments so sold, for the production
and safe custody, and furnishing copies, of the
—ofthe state Said deeds and writings, or some of them. And
mongag^e WHEREAS the principal sum of £ is now
^^^^' owing to the said E. F., G. H., and J. K., upon
—of the se- the security of the hereinbefore-recited indenture.
And whereas, by an indenture beax-ing even
date with, but executed before, these presents,
and expressed to be made between [parties],
such parts of the said hereditaments comprised
in the said indenture of the day of
cond mort-
PRODUCTION OF DEEDS. 301
as now remaiu unsold have been conveyed by
the said A. B. and CD. to the use of the said
L. M., N. 0., P. Q., and R. S., tlieii- heirs and
assigns, by way of mortgage, for securing the
sum of £ and interest. And whereas, —of the
upon the treaty for the said mortgage made by for tiie dc-
the lastly hereinbefore- recited indenture, it was deeds;
agreed that the said deeds and writings should
be deposited in the bank of Messrs. , in
, and that the said parties to these presents
should enter into such agreement respecting the
same as is hereinafter contained. And whereas — ^f the de-
. pobit.
the said deeds and writings have been so depo-
sited in the said bank of Messrs. , Now Witnesseth.
THIS indenture WITNESSETH, and, in considera-
tion of the pi'emises, IT is hereby agreed and Agreement
,, , , . . , that the
declared, that, so long as any principal money deeds shall
or interest shall remain on the seciu-ity of both posited, and
the hereiubefore-i'ecited indentures respectively, setsofmort-
the said deeds and writings specified in the said havo'^access
schedule hereto shall remain deposited in the "''^^ °'
said bank of Messrs. , on the account of the
said E. F., G. H., and J. K., their heirs, execu-
tors, administrators, and assigns, on the one part,
and the said L. M., N. O., P. Q., and R. S., and
their heirs, executors, administrators, and assigns,
on the other part; and that the said E. F., G. H.,
and J. K., their heirs, executora, administrators,
and assigns, and their solicitors and agents, and
the said several persons with whom the said E. F.,
302 PRODUCTION OF DEEDS.
G. H., and J. K. have entered into covenants as
aforesaid, and tlie heirs and assigns of such per-
sons respectively, and all other persons entitled
to the benefit of the said covenants respectively,
and also the said L. M., N. O., P. Q., and R, S.,
their heirs, executors, administrators, and assigns,
and their solicitors and agents, shall and may at
all times have access to the said deeds and
writings, to examine, copy, and abstract the
same, or make extracts therefrom, and for all
and that the other reasonable purposes. And further, that
be produced the said deeds and wi-itings shall be produced
sontbiewj'ca- and used on all occasions on which they may be
sioas . reasonably required for the defence or manifesta-
tion of the title of the said E. F., G. H., and
J. K., their heirs, executors, administrators, and
assigns, or of any of their said covenantees, or
the heirs or assigns of such covenantees respect-
ively, or any of them, or of any other the per-
sons entitled to the benefit of the said covenants,
and of the said L. M., N. O., P. Q., and R. S.,
their heirs, executors, administrators, and assigns,
to the said hereditaments hereinbefore referred
and that, if to, or any of them, or any part thereof. And
either of the "' , ' , -^ . , „ ,
mortgages FURTHER, that, when and II either oi the said
the deeds ' hcreinbefore-recited mortgages shall be paid off
given to the while any money remains owing on the other of
gagees. the said mortgages, then and thenceforth the
said deeds and writings shall be delivered and
belong to the mortgagees whose mortgage-money
PRODUCTION OF DEKDS. 303
shall remain wholly or pai-tially unpaid, their
heirs, executors, admiuistrators, and assigns. In
WITNESS &C.
THE SCHEDULE to which the above-
written Indenture refers.
APPENDIX.
8 & 9 Vict. Cap. 119.
An Act to facilitate (he Conveyance of Heal Property.
[8th August 1845.]
Whereas it is expedient to facilitate the sale and con-
veyance of Real Property : Bo it enacted by the Queen's
most excellent Majesty, by and with the advice and con-
sent of the Lords spiritual and temporal, and Commons,
in this present Parliament assembled, and by the autho-
rity of the same, That, whenever any party to any deed Wlicre the
made according to the forms set forth in the Fii-st Sche- column I. of
dule to this Act, or to any other deed which shall be ex- ^^^ Second
, , , . /. 1 . 1 ,. . Schedule are
pressed to be made in pursuance of this Act, or referring employed,
thereto, shall employ in any such deed respectively any {j':'j°.^^^e *°
of the forms of words contained in Column I. of the same ottcct
Second Schedule hereto annexed, and distinguished by ^urds in
any number therein, such deed shall be taken to have the Column II.
wero in-
same effect and be construed as if such party had inserted scrted.
in such deed the form of words contained in Column II.
of the same Schedule, and distinguished by the same
number as is annexed to the form of words employed by
such party; but it shall not be necessary in any such deed
to insert any such number.
II. That every such deed, unless any exception be spa- Deed to in-
cially made therein, shall be held and construed to in- f''><Je all
•^ , houses &c.,
elude all houses, outhouses, edifices, barns, stables, yards, and the re-
gai'dens, orchards, commons, trees, woods, underwoods, j^fi'^Xo" '^
APPENDIX.
mounds, fences, hedges, ditches, ways, waters, water-
course, lights, liberties, privileges, easements, profits, com-
modities, emoluments, hereditaments, and appurtenances
whatsoever to the lands therein comprised belonging or
in anywise appertaining, or with the same demised, held,
used, occupied, and enjoyed, or taken or known as part
or parcel thereof, and also the reversion or reversions,
remainder and remainders, yearly and other rents, issues,
and profits of the same lands, and of every part or par-
cel thereof^ and all the estate, right, title, interest, inhe-
ritance, use, trust, property, profit, possession, claim, and
demand whatsoever, both at law and in equity, of the
grantor, in, to, out of, or upon the same lands, and every
part and parcel thereof, with their and every of their ap-
purtenances.
Stamp duty HI- That every such deed under this Act shall be
ou deed to chargeable with the stamp duty with which the same
be same as ° i i
on lease &c. would have been chargeable in case it had been a release
for a year. founded on a lease or bargain and sale for a year, and also
with the same stamp duty (exclusive of progressive duty)
with which such lease or bargain and sale for a year
would have been chargeable.
Remunera- IV. That, in taxing any bill for preparing and execut-
tion for deed j ^ny deed under this Act, it shall be lawful for the
under the b j ....
Act not to taxing officer, and he is hereby required, in estimating
only^ ^^'^^^^ the proper sum to be charged for such transaction, to con-
sider not the length of such deed, but only the skill and
labour employed, and responsibility incurred, in the pre-
paration thereof.
Deed failing V. That any deed, or part of a deed, which shall fail to
by^Ws Art *^ take effect by virtue of this Act, shall nevertheless be as
to be as valid valid and effectual, and shall bind the parties thereto, so
made. ^ '^^ far as the rules of law and equity will permit, as if this
Act had not been made.
8 & 9 VICT. c. 110. 307
VI. That in tho construction and for the purpose.'^ of Constmc-
this Act, and the Schedules hereto annexed, unless there **"" "^ ^'^*"
be something in the subject or context repugnant to such
construction, the word " lauds" shall extend to all free-
hold tenements and hereditaments, whether corporeal or
incorporeal, and to such customary land as will pass by
deed, or deed and admittauce, and not by surrender, or
any undivided part or share therein respectively; and
every word importing the singular number only shall ex-
tend and be applied to several peraons or things as well
as one pex'son or thing, and the converse ; and every word
importing the masculine gender only shall extend and be
applied to a female as well as a male; and the word
"party " shall mean and include any body politic or cor-
porate or collegiate, as well as an individual.
VII. That the Schedules, and the directions and forms Schedules,
therein contained, shall be deemed and taken to be pai-ts p^t^o/lcT
of this Act.
VIII. That the Act shall commence and take eflfect Commence-
from and after the first day of October next. ™*^'^ ° *^ '
IX. That this Act shall not extend to Scotland. Not to ex-
tend to Scot-
laud.
SCHEDULES TO WHICH THIS ACT REFERS.
THE FIRST SCHEDULE.
This Indenture, made tho day of , one thou-
sand eight hundred and forty [or other year], in pur-
suance of an Act to facilitate the conveyance of real pro-
308 APPENDIX.
perty, Between {Jtere insert names of parties, and recitals,
if any"], Wituesseth, that, in consideration of £, ster-
ling now paid by the said \_grantee or grantees'] to the said
[^grantor or grantors'], (the receipt whereof is hereby by
him [or, "them"] acknowledged), he [or, "they"] the
said [grantor or grantors] doth \or, " do "] grant unto the
said [grantee or grantees], his [or, "their"] heirs and as-
signs, for ever, all &c. [parcels. Here insert covenants, or
any other ^irovisions.] In witness whereof the said pai'-
ties hereto have hereunto set their hands and seals.
THE SECOND SCHEDULE,
I}irections as to the Forms in this Schedule,
1. Parties who use any of the Forms in the first column
of this Schedule may substitute for the words " cove-
nantor" or "covenantee," or " releasor" or " releasee," any
name or names, and in every such case corresponding
substitutions shall be taken to be made in the corre-
sponding Forms in the second column.
2. Such pai-ties may substitute the feminine gender for
the masculine, or the plural number for the singular, in
any of the Forms in the first column of this Schedule,
and corresponding changes shall be taken to be made in
the corresponding Forms in the second column.
3. Such parties may introduce into or annex to any of
the Forms in the first column any express exceptions
from or other express qualifications thereof respectively,
and the like exceptions or qualifications shall be taken
to be made from or in the corresponding Forms in the
second column.
4. Such parties may add the name or other designation
of any person or persons, or class or classes of persons,
8 & 9 VICT. c. 119.
309
or any other words, at the end of Form 2 of the first
column, so as thereby to extend the words thereof to the
acts of any additional person or persona or class or classes
of persons, or of all persons whomsoever ; and in every
such case the covenants 2, 3, and 4, or such of them as
shall be employed in stich deed, shall be taken to extend
to the acts of the person or persons, class or classeB of
persons, so named.
Column I.
1. The said [covenantor]
covenants with the said
[covenantee],
Column II.
1. And the said covenantor doth here-
by, for himself, his heirs, executors, and
administrators, covenant, promise, and
agree with and to the said covenantee,
his heirs and assigns, in manner follow-
ing : (that is to say),
2. That he has the right
to convey the said lands
to the said [covenantee]
notwithstanding any act
of the said [covenantor] ;
2. That, for and notwithstanding any
act, deed, matter, or thing by the said
covenantor done, executed, committed,
or knowingly or wilfully permitted or
suffered, to the contrary, he the said
covenantor now hath in himself good
right, full power, and absolute authority
to convey the said lands and other the
premises hereby conveyed, or intended
80 to be, with their and every of their
appurtenances, unto the said covenantee,
in manner aforesaid, and according to
the true intent of these presents.
3. and that the said
[covenantee] shall have
quiet possession of the
said lands.
3. And that it shall be lawful for the
said covenantee, his heirs and assigns,
from time to time, and at all times here-
after, peaceably and quietly to enter
upon, have, hold, occupy, possess, and
310
APPENDIX.
Column I. — continued.
4. free from all incum-
brances.
Column II. — continued.
enjoy the said lands and premises hereby
conveyed, or intended so to be, with
their and every of their appurtenances,
and to have, receive, and take the rents,
issues, and profits* thereof, and of every
part thereof, to and for his and their
use aijd benefit, without any let, suit,
trouble, denial, eviction, interruption,
claim, or demand whatsoever of, from,
or by him the said covenantor or his
heu's, or any person claiming or to claim
by, from, under, or in trust for him,
them, or any of them ;
4. And that free and clear, and freely
and absolutely acquitted, exonerated,
and for ever discharged, or otherwise by
the said covenantor or his heirs well and
sufficiently saved, kept harmless, and
indemnified, of, from, and against any
and every former and other gift, grant,
bargain, sale, jointure, dower, use, trust,
entail, will, statute, recognisance, judg-
ment, execution, esltent, rent, annuity,
forfeiture, re-entry, and any and every
other estate, title, charge, trouble, and
incumbrance whatsoever, made, execut-
ed, occasioned, or sufiered by the said
covenantor or his heirs?, or by any person
claiming or to claim by, fi'om, under, or
in trust for him, them, or any of them.
5. And the said [cove- 5. And the said covenantor doth here^
nantor} covenants with by, for himself, his heirs, executors, and
the said [covenantee], that administrators, covenant, promise, and
ha will execute such fur- agree with and to the said covenantee,
8*9 VICT. c. 119.
311
Column I.;— continued.
ther assurances of the said
lauds as may be requisite.
Column II. — continued.
Ills heirs and assigns, that he the said
covenantor, his heirs, executors, or ad-
miuibtrators, and all and every other
person whosoever having or claiming, or
who shall or may hereafter have or
claim, any estate, right, title, or interest
whatsoever, either at law or in equity,
in, to, or out of the said lands and pre-
mises hereby conveyed or intended so
to be, or any of them, or any part there-
of, by, from, under, or in trust for him,
them, or any of them, shall and will
from time to time, and at all times here-
after, upon every reasonable request,
and at the costs and charges of the said
covenantee, his heirs or assigns, make,
do, execute, or cause to be made, done,
or executed, all such further and other
lawful acts, deeds, things, devices, con-
veyances, and assurances in the law
whatsoever, for the better, more per-
fectly, and absolutely conveying and as-
suring the said land.s and premises here-
by conveyed or intended so to be, and
every part thereof, with their appur-
tenances, unto the said covenantee, his
heirs and assigns, in manner aforesaid,
as by the said covenantee, his heirs and
assigns, his or their counsel in the law,
shall be reasonably devised, advised, or
required, so as no such further assurances
contain or imply any further or other
covenant or wairanty than against the
acts and deeds of the person who shall
bo required to make or execute the
same, and his heii-s, executors, or ad-
ministrators, only, and so as no person
312
APPENDIX.
Column I. — continued.
6. And the said [cove-
nantorl covenants with
the said [covenantee], that
he will produce the title-
deeds enumerated here-
under, and allow copies to
be made of them, at the
expense of the said [cove-
nantee'].
Column II. — continued.
who shall be required to make or execute
such assurances shall be compellable for
the making or executing thereof to go or
travel from his usual place of abode.
6. And the said covenantor doth here-
by, for himself, his heirs, executors, and
administrators, covenant, promise, and
agi'ee with and to the said covenantee,
his heirs and assigns, that the said cove-
nantor and his heirs shall and will, un-
less prevented by fire or other inevitable
accident, from time to time and at all
times hereafter, at the request, costs, and
chai'ges of the said covenantee, his heira,
or assigns, or his or their attorney, so-
licitor, agent, or counsel, at any trial or
hearing in any action or suit at law or in
equity or other judicature, or otherwise,
as occasion shall require, produce all and
every or any deed, instrument, or writ-
ing hereunder written, for the manifesta-
tion, defence, and support of the estate,
title, and possession of the said covenan-
tee, his heirs or assigns, in or to the said
lands and premises hereby conveyed, or
intended so to be, and, at the like re-
quest, costs, and charges, shall and will
make and deliver, or cause to be made
and delivered, true and attested or other
copies or abstracts of the same deeds,
instruments, and writings respectively,
or any of them, and shall and will per-
mit and suffer such copies and abstracts
to be examined and compared with the
said original deeds by the said covenau-
8 &0 VICT. c. iia.
313
Column I. — continued.
7. And the said \core-
nantor'\ covenants with
the said [covenantee], that
ho has done no act to in-
cumber the said lands.
Column II. — continued.
tec, his heirs and assigns, or such per-
son as he or they shall for that purpose
direct and appoint.
7. And the said covenantor, for him-
self, his heirs, executors, and adminis-
trators, doth hereby covenant, promise,
and agree with and to the said cove-
nantee, his heirs and assigns, that he
hath not at any time heretofore made,
done, committed, executed, or wilfully
or knowingly suffered, any act, deed,
matter, or thing whatsoever, whereby or
by means whereof the said lauds and
premises hereby conveyed, or intended
so to be, or any part or parcel thereof,
are, is, or shall or may be in anywise
impeached, chargexl, affected, or incum-
bered in title, estate, or otherwise how-
soever.
8. And the said \i-elea-
tor] releases to the said
[releasee] all his claims
upon the said lands.
S. And the said releasor hath remised,
released, and for ever quitted claim, and
by these presents doth remise, release,
and for ever quit claim, unto the said re-
leasee, his heirs and assigns, all and all
manner of right, title, interest, claim,
and demand whatsoever, both at law and
in equity, in, to, and out of the said
lauds and premises hereby granted, or
intended so to be, and every part and
parcel thereof, so as that neither he, nor
his heirs, executors, administrators, or
assigns, shall, nor may at any time here-
after, have, claim, pretend to, challenge,
or demand the said lands and premises,
or any part thereof, in any manner how-
3 I i APPENDIX.
CoLViiN I. — continued. Column 11.— continued.
soever ; but the said releasee, his heirs
and assigns, and the same lands and pre-
mises, shall from henceforth for ever
hereafter be exonerated and discharged
of and from all claims and demands
whatsoever, which the said releasor
might or could have upon him in respect
of the said lands or upon the said lands.
8 ct 9 Vict. Cap. 124.
An Act to facilitate the Granlinrj of certain Leases.
[Sth August 1845.]
Whereas it is expedient to facilitate the leasing of lands
and tenements: Be it enacted by the Queen's most ex-
cellent Majesty, by and with the advice and consent of
the LokIs spiritual and temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same. That, whenever any party to any deed made
according to the forms set forth in the First Schedule to
this Act, or to any other deed which shall be expressed to
be made in pursuance of this Act, shall employ in such
deed respectively any of the forms of words contained in
Column I. of the Second Schedule hereto annexed, and
distinguished by any number therein, such deed shall be
taken to have the same effect and be construed as if such
party had inserted in such deed the form of words con-
tained in Column II. of the same Schedule, and distin-
guished by the same number as is annexed to the form
of words employed by such party ; but it shall not be
necessary in ai:iy such deed to insert any such number.
Deed to in- II. That every such deed, unless any exception be spe-
housc.s !fcc. cially made therein, shall be held and construed to include
all outhouses, buildings, barns, stables, yards, gardens,
Where the
wni-ds of
Column I. of
the Second
Schedule are
employed,
the deed to
have the
s.ame effect
as if the
words of
Column II.
were in-
serted.
S i9 VICT. e. 124. 315
cellars, ancient and other lights, j.athe, passages, ways,
waters, watercourses, liberties, privileges, easements, pro-
fits, commodities, emoluments, hereditaments, andappiir-
teuauces whatsoever, to the lands and tenements therein
comprised belonging, or in anywise appertaining.
III. That, in taxing any bill for preparing and executing Remunera-
any deed under this Act, it sliall be lawful for the taxing ^'I^^ct t^^"'
officer, and he is hereby required, in estimating the pro- Act not to be
per sum to be charged for such transaction, to consider, onjy
not the length of such deed, but only the skill and labour
employed, and responsibility incurred, in the preparation
thereof.
IV. That any deed, or part of a deed, which shall fail Deed failing
to take effect by virtue of this Act shall nevertheless be ^y^"j!^s'fc"
as valid and eflfectual, and shall bind the parties thereto, tobeas valid
so far a.s the rules of law and equity will permit, ns if this ruade.
Act had not been made.
V. Tliat in the construction and fur the purposes of Constmc-
this Act, and the Schedules hereto annexed, unless there
be something in the subject or context repugnant to such
construction, the word "lands" shall extend to all tene-
ments and hereditaments of freehold tenure, and to such
customary lands as will pass by deed, or deed and sur-
render, and not by surrender alone, or any undivided
pai't or share therein respectively; and every word im-
porting the singular number only shall extend and be ap-
plied to several persons or things as well as one person
or thing, and the converse; and every word importing the
masculine gender only shall extend and be applied to a
female as well as a male; and the word "party" shall
mean and include any body politic or corporate or colle-
giate, as well as an individual.
VI. That the Schedules, and the directions and f-^rm? Schedules,
p 2
UG APPENDIX.
i:o. i>ai-t "1 therein contained, shall be deemed and taken to be parts
''<•'■ of this Act.
ueiit .'Act.
VII. That this Act shall commence and take effect
from and after the first day of October.
Act lu.t to VIII. That this Act shall not extend to Scotland.
uxteud to
Srntland.
SCHEDULES TO WHICH THIS ACT REFERS.
THE FIRST SCHEDULE.
This Indenture, made the day of , one thou-
sand eight hvmdred and forty [or other year], in
pursuance of an Act to facilitate the granting of certain
leases, Between [here insert the names of the parties, and
recitals, if any}, Witnesseth, that the said [lessor or les-
sors'] doth [or, "do"] demise unto the said [lessee or
lessees], hia [or, "their"] executors, administrators, and
assigns, all &c. [imrcels], from the day of •, for
the term of • thence ensuing, yielding therefore dur-
ii:g the said term the rent of [state the rent and mode of
payment]. In Witness whereof the said parties hereto
have hereunto set their hands and seals.
THE SECOND SCHEDULE.
Directions as to the Forms in this Schedule.
1. Parties who use any of the Forms in the first column
of this Schedule may substitute for the words " lessee"
or "lessor" any name or names; and in every such case
corresponding substitutions shall be taken to be made in
tlie corresponding Forms in the second column.
8&0VICT. c. 124. -■Jl?
2. Such parties may substitute the feminine gender
for the masculine, or the plural number for the singular,
in the Forms in the first column of this Schedule, and
corresponding changes shall bo taken to bo made in the
coxTOsponding Forms in the second column.
3. Such parties may fill up the blank spaces left in the
Forms 4 and 5 in the first column of this Schedule so
employed by them with any words or figures, and the
words or figures so introduced shall be taken to be in-
serted in the corresponding blank spaces left in the Forms
embodied.
4. Such parties may introduce into or annex to any of
the Forms in the first column any express exceptions from
or express qualifications thereof respectively, and the like
exceptions or qualifications shall be taken to be made from
or in the corresponding Foi-ms in the second column.
5. Where the premises demised shall be of freehold
tenure, the covenants 1 to 10 shall be taken to be made
with, and the proviso 11 to apply to, the heirs and assigns
of the lessor; and where the premises demised shall be
of leasehold tenure, the covenants and proviso shall be
taken to be made with and apply to the lessor, his execu-
tors, administrators, and assigns.
Column I. Column II.
1. That the said [?cs.'cc] 1. And the said lessee doth hereby,
covenants with tlie said for himself, his heirs, executors, admi-
l^ieisor] to pay rent; nistrators, and assigns, covenant with
the said lessor, that he the said lessee,
his executors, administrators, and as-
signs, will, during the said term, pay
unto the said lessor the rent hereby re-
served, in manner hereinbefore men
tioned, without any deduction what^i^
ever;
■rib
APPENDIX.
Column I. — confirmed.
2. and to pay taxes ;
5. aucl to repair;
4. and to paint outside
every year ;
CoLUM>^ II. — continued.
2. And also will pay all taxes, rates,
duties, and assessments whatsoever, whe-
ther parochial, ^parliamentary, or other-
wise, DOW charged or hereafter to be
charged upon the said demised premises,
or upon the said lessor on account there-
of (excepting laud-tax, and excepting,
in Ireland, tithe rent-ehargo, and such
portion of the poor-rate as the lessor is
or may be liable to pay, and excepting
also all taxes, rates, duties, and assess-
ments whatsoever, or any portion there-
of, which the lessee is or may be by law
exempted from) ;
3. And also will, during the said
term, well and sufficiently repair, main-
tain, pave, empty, cleanse, amend, and
keep the said demised premises, witli
the appurtenances, in good and substan-
tial repair, together with all chimnej'-
picces, windows, doors, fastenings, wa-
ter-closets, cistern.?, partitions, fixed
presses, shelves, pij^es, pumps, pales,
rails, locks, and keys, and all other fix-
tures and things which at any time dur-
ing the said term shall be erected and
made, when, where, and so often as need
shall be;
4. And also that the aaid lessee, his
executors, administrators, and assigns,
will, in every year in the said tei'm,
paint all the outside wood-work and iron-
work belonging to the said premises,
with two coats of proper oil colours, in
a workmanlike manner;
S&uVlCT. c. 124.
110
Column I. -continued.
5. aud to paint and
paper inside every — —
year:
Column II. — continued.
5. Aud also that tlie said [lessee], Lis
executors, administrators, and assigns,
will, in every year, paint the inside
wood, iron, aud other works now or
usually painted, with two coats of proper
oil colours, in a workmanlike manner;
and also re-paper, with paper of a quality
a-s at present, such parts of the premises
as are now papered ; and also wash, stop,
whiten, or colour such parts of the said
premises as are now plastered ;
0. and to insure from 6. Aud also that the said lessee, his ex-
fire, in the joint names of ecuturs, administrators, and assigns will
the said [lessor] and the forthwith iusure the said premises hereby
said [lessccl ; demised, to the full value thereof, in some
respectable insurance office, in the joint
names of the said lessor, his executors,
administrators, and assigns, and the said
lessee, his executors, administrators, or
assigns ; and keep the same so insured
during the said term; And will, upon
the request of the said lessor or his agent,
shew the receipt for the last premium
paid for such insm-ance for every current
)f year; And, as often as the said premises
hereby demised shall be bunit down or
damaged by fire, all aud every the sums
or sum of money which shall be re-
covered or received by the said [lessee],
his executors, administrators, or assigns,
for or in respect of such insurance, shall
be laid out aud expended by him in build-
ing or repairing the said demised premi-
ses, or such parts thereof as .shall be burnt
down or damaged by fire, as aforesaid.
to shew receipts ;
and to rebuild in ca.sc
fire.
320
APPENDIX.
Column I. — continued,
7. And that the said
[lessorl may enter and
view state of repair, and
that the said [lessee'] will
repair according to notice.
8. That the said [lessee]
will not use premises as a
shop.
Column II. —continued.
7. And it is hereby agreed, thatit shall
be lawful for the said lessor and his
agents, at all seasonable times during the
said term, to enter the said demised pre-
mises, to take a schedule of the fixtures
and things made and ei'ected thereupon,
and to examine the condition of the said
premises; and, further, that all wants
of reparation which upon such views
shall be found, and for the amendment
of which notice in writing shall be left
at the premises, the said lessee, his ex-
ecutors, administrators, and assigns, will,
within three calendar months next after
every such notice, well and sufficiently
repair and make good accoi'dingly.
8. And also, that the said lessee, his
executors, administrators, and assigns,
will not convert, use, or occupy the said
j/remises, or any part thereof, into or as
a shop, warehouse, or other place for
carrying on any trade or business what-
soever, or suffer the said premises to be
used for any such purpose, or otherwise
than as a private dwelling-house, without
the consent in writing of the said lessor.
9. and will not assign
without leave.
9. And also, that the said [lessee] shall
not, nor will, during the said term, as-
sign, transfer, or set over, or otherwise,
by any act or deed, procure the said pre-
mises, or any of them, to be assigned,
transferred, or set over, unto any per-
son or persons whomsover, without the
consent in writing of the said [lessor], his
8 & 9 VICT, c. 121.
Column I. — continued.
321
10.
leave
•repair,
and that
pi'emises
he will
:n good
11. Proviso for re-entry
by the said lessor on non-
payment of rent or non-
performance of covenants.
Column* IL — continued.
executors, administrators, or assigns,
first had and obtained.
10. And, further, that the said [lessee]
will, at the expiration or other sooner
determination of the said term, peace-
ably surrender and yield up unto the
said lessor the said premises hereby
demised, with the appurtenances, toge-
ther with all buildings, erections, and
fixtures now or hereafter to be built or
erected thereon, in good and substantial
repair and condition in all respects, rea-
sonable wear and tear, aud damage bj"
fire, only excepted,
11. Provided always, and it is ex-
pressly agreed, that, if the rent herebj-
reserved, or any part thereof, shall be
unpaid for fifteen days ofter any of the
days on which the ?ame ought to have
been paid (although no formal demand
shall have been made thereof), or in ca.'e
of the breach or non-performance of anj'
of the covenants and agreements herein
contained on the part of the said lessee,
his executors, admiuLstrators, and as-
signs, then and in either of such cases it
shall be lawful for the said lessor, at any
time thereafter, into and upon the said
demised premises, or any part thereof in
the name of the whole, to re-enter, and
the same to have again, re-possess, and
enjoy as of his or their former estate,
anything hereinafter contained to the
contrary notwithstanding,
p 3 "
322
Column I. — continued.
12. The said [lessor] co-
venants with the said [les-
see] for quiet eujoyment.
APPENDIX.
Column II. — continued.
12. And the lessor doth hereby, for
himself, his heirs, executors, admiuis-
trator.s, and assigns, covenant with the
said lessee, his executors, administrators,
and assigns, that he and they, paying
the rent hereby reserved, and perform-
ing the covenants hereinbefore on his
and their part contained, shall and may
peaceably possess and enjoy the said
demised premises for the term hereby
granted, without any interruption or dis-
turbance from the said lessor, his exe-
cutors, administrators, or assigns, or auj'
other person or persons lawfully claim-
ing by, from, or under him, them, or
any of them.
INDEX
TO THE INTilODUCTOUY MATTEK AND NOTKS.
AGREEMENT FOR LEASE,
observations ou, 61, 91, 95.
ASSIGNMENTS,
ubscrvatioiis on, C3.
CONSIDERATION,
nominal, propei-ly omitteJ, 3.
real, description of, 4.
CONTINGENT ESTATES,
in chattels, 34.
conveyance of, under the old and uo^v law, G8, 69.
CONTINGENT REMAINDERS,
observations on the provisions of the Transfer Act
and the new Act relative to, 36—47, 51, 70.
CORPORATION,
as to conveyance by grant, 5S n.
324 INDEX TO THE
EXCHANGE,
observations on, 60.
not to imply a condition iu law, 65.
FEOFFMENT,
customary, may still be made without deed, 29, 30,
could formerly be made without deed, 59.
can now (except by custom) be made by deed only,
69.
to have no toi'tious operation, 64, 65.
GENERAL WORDS,
observations on, 6,
" GIVE,"
not henceforth to imply a covenant in law, 65.
" GRANT,"
the most appropriate operative word, 5.
does not imply a covenant, 5 u., 57, 65.
freehold lands in possession to be conveyed by,
28, 56.
distinction between estates lying iu livery and iu
grant, 53.
whether corporations can convey by, 58 n.
INDENTURE,
observations on the provisions of the Transfer Act,
relative to indenting deeds, 31, 32, 34.
distinctions between indentm-es and deeds-poll, 66,
67,
partly abolished by the new Act, 68.
INTRODUCTORY MATTER AND NOTES. 325
LEASE,
definition of, 61.
diflBculty of the question, whether a writing operated
as a lease or an agreement, 61.
person holding under agreement for, by what cove.
nauts bound, 62.
MORTGAGEE,
observations on the power given by the Transfer Act
to the executors or administrators of, to convey
the legal estate, 17—21,
OPERATIVE WORDS
used in the present tense only, 4.
used in this work, 5.
PARCELS,
mode of describing, 6.
PARTITION,
observations on, 60.
not to imply a condition in law, 65.
POWERS,
proper and improper restrictions on exercise of, 8.
formalities required in execution of, 102, n. (a),
of appointment, when conveyances may be taken
simply under, 102, n. (b).
RECEIPT.
observations on the power given by tiie Ti-ansfer Act
to tru.steea to give receipts, 21 — 23.
and on the similar power given to the survivors of
mortgagees, 23, 24.
RECITAL.
mode of reciting assurances, 101, n. {b).
'32G INDEX TO INTRODUCTORY MATTER ETC.
REVERSION OF LEASE,
merger of, observations ou the provisions of the
Transfer Act relative to, 47, 71.
STAMP DUTY,
on lease for a year repealed, 55 u., 57 u.
on mortgage of policy of assurance, 185.
SURRENDERS,
observations on, 63.
TERMS OF YEARS,
origin and history of the Act for extinguishing, 73.
inaccuracy of the title and preauible of the Act, 74.
observations on the con,.struction of the Act, 75 — 81.
TRANSFER ACT.
observations on the mode of conveyance introduced
by, 25—36.
INDEX
TO THE PKECEDENTS.
ACCUMULATION CLAUSE
iu marriage settleiueut, commou, 223.
iu voluutary settlement, special, 254
iu Will, commou, 2G0.
ADVANCEMENT CLAUSE
in marriage settlement, commun, 222.
in voluntary settlement, special, 254.
iu will, common, 260.
AGREEMENT
for sale by dean and chapter, 140.
APPOINTMENT
iu a conveyance on a sale, lul, 105.
under a power of sale in a settlement, 114.
of new trustees, 269, 276, 278.
ASSIGNMENT
of policy on a purchase, 137.
ASSURANCE (POLICY OF),
assignmeut of, on purchase, 137.
covenants as to, on purchase, 138.
328 iXDEx
ASSURANCE (POLICY OF)— co7itinuecl.
recital of one having been effected, 186, 227.
assignment of, in a mortgage, 179.
trusts of, in a mortgage, 180.
covenants as to, in a mortgage, 181.
trusts of, in a settlement, 229.
covenant as to, iu a settlement, 230.
powers iu a settlement for keeping up, 231.
BANK OF ENGLAND,
payment of purchase-money into, 141.
CHILDREN,
trusts for, in settlement, 221.
in default of, 223.
limitation of uses in favour of, in settlement, 236.
trusts for, iu voluntary settlement, 252.
in will, 259.
CHURCH ESTATES COMMISSIONERS,
conveyance with the approval of, 139.
CONTINGENT ESTATE,
recital of the ownership of, 118.
of a contract for the sale of, 118.
conveyance of, 119.
CONTRACT
for sale, recital of, 108.
in exercise of a power, recital of. 111, 113.
of a contingent estate, recital of, 118 — ^119.
of a lease, recital of, 121.
of freeholds and leaseholds, recital of, 129.
of freeholds, copyholds, and leaseholds, re-
cital of, 133.
TO THE PKECEDEXTS. 329
COPYHOLDS. Sec Covenant, Covenants for titlk,
Parcels.
COVENANT
against incumbrances by a mortgagee with a pur-
chaser, 109.
by a donee of a power, 114.
by a mortgagee to a trans-
feree, 190.
by two executors of a mort-
gagee, 193.
to suiTender copyholds to a purchaser, 116.
to a mortgagee, 156.
in a settlement, 2-t3.
by purchaser in assignment of lease, 124.
for payment of principal and interest to one mort-
gagee, 144.
of principal and interest to several mort-
gagees, 150.
of interest to one mortgagee, 145.
to several mortgagees, 151,
of principal and interest in a mortgage
to secure future advances, 178-9
in a lease of a house, 201-2.
of a farm, 204-5.
of mines, 207— 210.
See AssDRAXCE, Covenants for Title, Iksuranci:.
COVENANTS FOR TITLE.
in conveyance by grant in fee, 97.
to uses to bar dower, 99.
by appointment and grant in fee, 102-3.
by appointment and grant to uses to
bar dower, 106.
by a tenant for life in oouveyance under a power of
sale in a settlement, 115.
330 INDEX
COVENANTS FOR TnL^—continued.
in a covenant to surrender copyholds, 117.
in a conveyance of a contingent estate, 120.
in an assigumeut of lease, 123.
in conveyance of fx'eeholdij and copyholds, 127.
of freeholds and leaseholds, 130-1.
of freeholds?, copyholds, and leasoliolds,
135.
as to policy of assurance, 1 38.
by dean and chapter, 142.
in mortgaf^e of freeholds to one mortgagee, 149.
to several mortgagees, 155
of leaseholds, 162.
of freeholds and copyholds, 165.
of freeholds and leaseholds, 171.
of freeholds, copyholds, and leaseholds,
176-7.
by several parties as to undivided shares, 215.
in as.sigument of reversionary interest, 228-9.
in strict settlement of freeholds and copyholds, 243.
See Assurance, Insurance.
DECLARATION
of the uses of an appointment and a grant, 106.
that money belongs to mortgagees on a joint account,
152.
of trust of an attendant term, 199.
as to notices and consents in a lease, 210.
DOWER,
declaration to bar, 99.
limitation of uses to bar, 99, 106.
EXECUTORS,
appointment of, 264.
power for, to arrange and compromise, 264 5.
TO TUE PUKCEDEXTS. 331
OEXEUAL WORDS,
form of, Lt", 142.
GUARDIANS,
appointment of, in a -will, 265
HABENDUM,
direct, to uaes, 99, 102, 142.
to uses to be afterwards declared, 105.
freed from a mortgage, 109, 195.
freed from a mortgage and all equity of redemption,
111.
in assignment of lease, 122,
subject to an estate for life, 286.
HOTCHPOT
clause in settlement, common, 222.
INSURANCE
against fii-e, covenant in mortgage as to, 159.
See AssCRASCE.
INVESTMENTS,
power in a settlement to vary, 220.
in a will to vary, 259.
LEASE,
recital of, 121.
by dean and chapter, 140.
of lease being vested in vendor, 121
agreements for granting, 91, 92, 212.
MAINTENANCE AND EDUCATION CLAUSE
in mai'riage settlement, common, 222.
in voluntary settlement, special, 254.
in will, common, 260.
332 INDEX
MINORITIES.
provisions in a settlement for the application of
rents and pi'ofits during minorities of tenants in
tail, 237.
similar provisions in will, 267.
MORTGAGE,
recital of, 108.
vi'ith power of sale, 110.
money, recital relating to, in a conveyance, 108,
in a transfer, 188-9, 191.
power of sale to be exercised by any person
entitled to receive, 148, 154, 162.
agreements for. See Recital.
estates, devise of, 264.
See Covenant, Covenants fob Title, Proviso
FOR Redemption, Transfer.
PARCELS (DESCRIPTION OF),
freehold, 96.
in conveyance of freeholds and copyholds,
125.
copyhold, 116.
in conveyance of freeholds and copyholds,
125, 126.
in conveyance of contingent estate, 119.
leasehold, 122.
in assignment of lease, referring to a plan, 130.
in conveyance of reversion, 142.
in appointment of new trustees, 279, 280.
in disentailing deeds, 282, 284.
POLICY OF ASSURANCE,
assignment of, on purchase, 137.
covenants for title to, 138.
TO THE PRKCEDKNTS. 333
POWER
of sale, in mortgage of freeholds to one mortgagee,! 46.
to several mortgagees, 152,
of leaseholds, 160.
of freeholds and leasehold8,168.
to secux-e future advances, 183.
of policy of assurance, 183, 187.
of contingent estate, 187.
of sale and exchange, in settlement, 240.
in will, 272.
of jointuring, in will, 2G1;).
of charging portions, in will, 270.
of leasing, in settlement, 239.
in conveyance in trust for sale, 246.
in will, 261, 272.
of attorney, in transfer of a mortgage debt, 189.
of distress and entry, in a mining lease, 211.
See Investments.
PROBATE
of will, recital of, 111.
PROVISO FOR REDEMPTION
in mortgage of freeholds to ©ne mortgagee, 145.
to several mortgagees, 151.
of copyholds, 156.
of leaseholds, 1 58.
of freeholds and copyholds, 164, 165.
of freeholds and leaseholds, 168.
of freeholds, copyholds and leaseholds,
175.
to secure future advances, 180.
of a policy of assurance, ISO, 186.
of a contingent estate, 186.
334
INDEX
PURCHxVSE-MONEY,
payment of, into Bank of England, 1-tl.
RECEIPT CLAUSE,
mortgagee's, 147, 154, 161, 170, 181.
trustees', in settlement, 224, 231, 255,
in conveyance in trust for sale, 246.
in will, 262.
RECITAL
of lease by dean and chapter, 140.
of titles to undivided moieties, 213.
of seisin in fee simple, 217.
of title to a reversionary sum of stock, 226.
of agrGco:ient for mortgage, 157, 167, 173, 185.
for transfer of mortgage, 189.
and further advance, 191-2
for marriage, 227.
of conveyance of real estate in trust for sale by deed
of even date, in a marriage settlement, 248.
of will, in appointment of new trustees, 278.
See Assurance, Contingent Estate, Contract,
Dower, Lease, Mortgage, Probate, Set
tlement, transfer, wlll, &c,
REVERSION,
conveyance of, 139.
REVERSIONARY INTEREST,
recital of title to, 226.
assignment of, 227.
REVOCATION
of uses of a settlement in a conveyance to a pur-
chaser, 114.
power of, 256.
TO THE PIlECEDEXTa 335
SEPARATE USE,
trust for, 221.
SETTLEMENT,
recital of, in a couvoj-ancc under a power of sale in.
112.
STAMP DUTY,
apportionmcut of purohase-money in respect of, l-y
declaration, 127.
the same by recital, 133,
TRANSFER
of mortgago debt, 188, 191.
of mortgaged estate, 1S9, 192.
recital of agreement for, 189.
£lnd further advance, 191-2.
TRUST
for aale, in a marriage settlement, 245-0.
in a voluntary settlement, 251.
in a will — of real estate, 257.
of personalty, 258.
of monies to arise from sale, 249,
of income of real estate until a sale, in deeds, 247,
250, 254.
of the same, in will, 262.
of the monies to arise from a .sale of lauds conveyed
by deed of even date, in a settlement, 249.
of produce of real and personal estate devised to be
sold, in will, 258.
TRUSTEES,
power to appoint new, in settlement, 225.
indemnity and reimbui-semeut clause of, in settle-
ment, 225.
336 IN'DEX TO THE PJ?ECEDENTS.
TRUSTEES— continued.
power for, in settlement, to arrange and compromise,
232.
power to appoint new, in will, 262-3.
indemnity and reimbursement clause of, in will, 263.
See Receipt.
WILL
of a mortgagee not devising estate, recital of, 111, 195.
devising estate, recital of, 191.
probate of, recital of, 111, 191.
as to the ownership of a contingent estate under, re-
cital of, 118.
bequest of specific chattels in, 257.
general devise of real estate, 257.
general bequest of personal estate, 258.
devise of rnoi-tgage estates, 264.
See Investments.
FINIS.
London : Printed by William Tyler, Bolt-conrt, Fleet-stitet.
• - . ..