day of , reciting indenture, in order to facilitate the re-conveyance of the said hereditaments on or after the redemption thereof, the said [mortgagor] empowered the said [mortgagee], his executors, administrators, and assigns, on or after such redemption, (whether the debt and interest should be paid at the time thereby appointed or not), by deed, attested by one or more than one witness, to appoint the use of the said hereditaments in such manner as should be requisite for effecting the purposes of such reconveyance; AND WHERE- —of transfer of As, by an indenture bearing date the in mortgage. the year, and made between the said [mortgagee], of the first part; the said [mortgagor], of the second part; the said [transferee], of the third part; and [trustees for transferee], of the fourth part; the said sum of £ secured by the said recited indenture, and the interest thenceforth to accrue due thereon, with all benefit of the said recited security, and of all other securities for the same sum and interest; also the said messuages, lands, tenements, and hereditaments so appointed by the said recited indenture as aforesaid, with their appurtenances, were assigned by the said [mortgagee] unto the said [transferee], his executors, administrators, and assigns, as to the said sum of £— and interest, absolutely and beneficially, and as to the said messuages, lands, tenements, and hereditaments, with their appurtenances, for the then unexpired residue of the said term of 500 years, subject to the right or equity of redemption subsisting by virtue of the said recited indenture; And by the now reciting indenture the said [transferee], in exercise of a certain power given to the assigns of the said [mortgagee] by the said recited indenture, appointed the said [trustees for transferee] to be trustees for the purposes of the trusts and powers by the said recited indenture vested in the said [trustees for mortgagee], in the place of the last-named trustees; And by the now reciting indenture the said [mortgagor], in consideration of the sum of £, then paid to him by the said [transferee], covenanted and declared that the said recited indenture should thenceforth stand as a security for the principal sum of £being the aggregate amount of the said sum of £ and the further sum of £- advanced on the execution of the now reciting indenture, and the interest of the said sum of £ [the aggregate amount]: Now THIS INDENTURE WITNESSETH, TESTATUM. that, in consideration of the sum of £, paid by the said [mortgagor] to the said [transferee], on the execution of these presents, in satisfaction of all principal money due to him upon the said recited mortgage security, (all interest due thereon having been paid by the said [mortgagor] to the said [transferee], up to, inclusively, the day of the date of these presents), Transferee ap- The said [transferee], at the request of the said [mortgagor], points. and in exercise of the aforesaid power of appointment contained in the said recited indenture of the dower. day of Doth appoint that all the said hereditaments therein comprised and thereby appointed as aforesaid, shall henceforth remain, Uses to prevent To such uses as the said [mortgagor] shall, by any deed or deeds, appoint, And in default of such appointment, To the use of the said [mortgagor] and his assigns for his life; And on the determination of his estate in his lifetime, To the use of the said [trustee for mortgagor], his executors and administrators, during the life of, and in trust for the said [mortgagor]; And on the determination of the lastly limited estate, To the use of the said [mortgagor], his heirs and assigns for ever; and the said [mortgagor], hereby declares that his widow, if any, shall not be entitled to dower out of the said hereditaments and premises; And the said [transferee], for himself, his heirs, executors, and administrators, hereby covenants with the said [mortgagor], his appointees, heirs, and assigns, that the said [transferee] has not done or permitted any act, matter, or thing whereby the premises hereinbefore appointed, or any part thereof, are, is, or may be aliened, incumbered, or prejudicially affected. IN WITNESS &c. Covenant by transferee against incumbrances. PART IV. ASSURANCES UNDER THE FINES AND DISENTAILING DEEDS. No. 30. CONVEYANCE, by DEED of GRANT (144), by a Tenant in day of in the THIS INDENTURE, made the (144) The Fines and Recoveries Acts, (3 & 4 Will. 4, c. 74; 4 & 5 Will. 4, c. 92, (Ireland)), have not enjoined the observance of any particular form of assurance. The conveyance, under seal, of the tenant in tail, whatever form it may assume, will be effectual to bar the estate tail and (unless there be a protector who withholds his consent) the remainders and reversion, provided it would have been adequate to pass the estate of the tenant in tail, if that estate had been a legal fee-simple, and provided it be perfected by enrolment within six calendar months after the execution. (Ante, Vol. 1, Chap. v.). But although no legal necessity requires, yet convenience suggests, the adoption of certain appropriate forms. The precedents here given are few, short, and simple; and they are added, rather with the view of illustrating the observations already made upon the recent alterations in the law, (ante, Vol. 1, Chap. v.), and of affording opportunities for comment upon some practical points arising out of those alterations, than because the new statutes render it necessary to make any material change in the ordinary forms of conveyancing. (145) It cannot be certainly inferred, from the existence or non-existence of a protector, whether the estate tail is in possession or in remainder. Thus, if A., tenant for life, remainder to B. in tail, remainder over, The Fines and prescribe forms An estate tail in possession protection, and may be under e converso. RECITALS ing tenancy for in tail, remain ders over. first part; [tenant in tail], of &c., of the second part; and [grantee to uses], of &c., of the third part. WHEREAS, by of will, creat- virtue of the last will and testament of [testator's name and life, remainder description], deceased, duly executed as the law then required for passing freehold estates, bearing date the day of in the year and proved on the day of, in the same year, in the Prerogative Court of the Archbishop of Canterbury, the said protector is now tenant for life in possession of the manors, advowsons, messuages, lands, tenements, tithes, and hereditaments hereinafter described, with remainder to trustees and their heirs, during the life of the said [protector], upon trust to preserve contingent remainders, with remainder to the said [tenant in tail], as the only son of the said [protector], in tail male, with remainders over (146). Now THIS INDENTURE WITNESSETH, that, in order (147) to defeat the TESTATUM. The power of appointing a protector is a power of substitution. Consent of protector, when unnecessary. Resulting use, or trust, will be in fee-simple. surrender (not as protector, expressly consenting to the alienation of the tenant in tail) his life estate to B., the estate tail of B. will be reduced into possession, but A. will continue to be the protector. On the other hand, if A., tenant for the life of B., remainder to C. in tail, remainder over, die, the protectorship will determine, yet C. will continue to be tenant in tail in remainder. (Ante, Vol. 1, Chap. v.). With respect to the appointment of a special protector, (Ib.), the power given by the act is a power of substitution only, which does not authorize the creation of a protectorship where none would otherwise exist. For this purpose, the period of a life or lives in being and twenty-one years, during which period the remainders may be protected by the ordinary limitations in strict settlement, cannot be taken as an absolute or abstract period. (146) If the immediate remainder in fee were limited to the son, the consent of the protector would be unnecessary. (Ante, Vol. 1, Chap. v.). (147) Even in the absence of an express indication of the purpose of the grantor, the conveyance will operate to discharge the land from the entail and remainders; and in the absence of an express limitation of the use or of an express disposition exhausting the use, the resulting use (if not rebutted) will be in fee-simple; just as the use of a common recovery, suffered by tenant in tail, resulted for a new estate in fee-simple. So, if the conveyance be made unto and to the use of a third person in fee, without disposing, or without completely disposing of the beneficial interest, the resulting trust will be of the fee-simple. But though it is clear that the estate tail and remainders may be effectually destroyed by an assurance absolutely silent in regard to its object, still it is proper to declare the intention, which may be done either by inserting the words "in order," &c., as introductory to the operative part of the assurance, according to the old form of a recovery deed, or by inserting the words "discharged from the surance. with the consent of the pro estate tail now vested in the said [tenant in tail] by virtue of Object of asthe said will, in the hereditaments hereinafter granted or intended so to be, and all estates, powers, rights, and interests limited to take effect after the determination or in defeasance of such estate tail, and in order to limit the fee-simple of the same hereditaments in remainder immediately expectant on the decease of the said [protector], to the uses and in the manner hereinafter expressed or referred to, The said [tenant in tail], Tenant in tail, with the consent (148) of the said [protector], as protector of the settlement creating the said estate tail, Hath granted and tector, grants. confirmed, and by these presents Doth grant (149) and confirm unto the said [grantee] and his heirs, All [parcels], of all which hereditaments herein before described, the said [testator] was seised in fee-simple at the time of the making and pub. lishing of his said will and of his decease; And also, all other the manors, advowsons, messuages, lands, tenements, tithes, and hereditaments, of which the said [tenant in tail] is now tenant in tail by virtue of the said recited will, together with all the rights, members, and appurtenances to the said hereditaments belonging or appertaining; And all the estate, right, title, and interest of the said [tenant in tail] in or to the said hereditaments and every part thereof, in remainder expectant as aforesaid: TO HAVE AND TO HOLD the said manors, advow- HABENDUM, sons, messuages, lands, tenements, tithes, and hereditaments to grantee in fee. estate tail, &c., and all estates, &c., limited," &c., at the close of the ha- (149) As a remainder in fee lies in grant, the adoption of a lease and release, where the owner of the particular estate is not an executing party, would be justifiable only, as providing against the possible event of that estate having determined by forfeiture or otherwise. The insertion of a nominal pecuniary consideration would render the deed (if enrolled within six calendar months, though enrolled after six lunar months, from the execution, 3 & 4 Will. 4, c. 74, s. 41) capable of effect as a bargain and sale; but as, were it so to operate, the uses expressed would be void as legal limitations, and it would be necessary to obtain a reconveyance from the bargainee, in whom the legal fee would be executed, its primary operation would be that of a grant at the common law. Protector need not convey. Tenant in tail in remainder may convey by grant. |