Parties. No. 37. RELEASE by a Married Woman of her Right to Dower, in Performance of the Husband's Covenant, with a Mortgagee, to levy a Fine. THIS INDENTURE, made the day of, in the year of our Lord, BETWEEN [mortgagor], of &c., and [Christian name of wife] his wife, of the one part, and [mortgagee], of &c., of the other part. WHEREAS, by indentures of -of mortgage lease and release, bearing date respectively the RECITALS in the year and days of, in the year, the indentures of release being has been levied; executors, administrators, or assigns, acknowledge and levy unto the said [mortgagee], his heirs and assigns, before her Majesty's justices of the Court of Common Pleas at Westminster, one or more fine or fines sur conuzance de droit come ceo, &c., with proclamations, of the said hereditaments and premises, by such names and descriptions as should be sufficient to comprise the same; which fine, it was thereby declared, should enure to the use of the said [mortgagee], his heirs and assigns for ever, nevertheless subject to the aforesaid proviso for redemption and reconveyance; AND WHEREAS no that no fine fine has been levied pursuant to the said recited covenant; AND WHEREAS the only object (181) intended to be effected by the fine so covenanted to be levied as aforesaid, was the extinguishment of the title of the said [Christian name], the wife of the said [mortgagor], to dower out of the said hereditaments and premises. Now THEREFORE THIS INDENTURE WITNESS- TESTATUM. ETH, that, in performance (182) of the aforesaid covenant contained in the said recited indenture of release, The said [mort- Husband and gagor] and [Christian name] his wife Have and each of them wife release. Hath remised, released, quit-claimed, and confirmed, and by these presents Do and each of them Doth remise, release, quitclaim, and confirm unto the said [mortgagee], his heirs and (181) If the intention of the fine or recovery, covenanted or agreed to be levied or suffered, cannot be completely effected by an assurance operating according to the provisions of the act of 3 & 4 Will. 4, c. 74, in regard to alienation by tenants in tail and married women, (as, for example, if the fine was intended to operate as a bar by non-claim, ante, Vol. 1, Chap. v.), then it becomes necessary (s. 3) to insert a special declaration, which (adopting the words of that section) may be in this form, "And the said [intended conusors in the fine, or vouchees in the recovery] hereby declare it to be their desire that this deed shall have the same operation and effect as the fine [or, recovery] covenanted [or agreed] by the said indenture to be levied [or, suffered] would have had if the same had been actually levied [or, suffered]." Indeed, the insertion of such a declaration seems to be proper in every case where the extraordinary effect to be communicated by the declaration would not, by occasioning a forfeiture or otherwise, (ante, Vol. 1, pp. 14, 27), prove injurious to the title. If this suggestion be adopted, the recital to which this note is appended should of course be omitted, and the declaration should immediately precede the covenant. (182) As the act converts the covenant or agreement to levy a fine or suffer a recovery into a covenant or agreement to make the substituted assurance, the assurance is properly said to be made in performance of the covenant or agreement. that the only object of the fine was the ex tinguishment of the wife's dower. Effect of assurances made in performance of Covenant or agreements to levy fines or suffer recoveries. Assurance under the act satisfies covenant to levy a fine. Parcels. INTENT that wife's dower may be extinguished. Declaration that extinguishment of dower shall be assigns, All the said messuage, &c., and other the hereditaments and premises comprised in the said recited indentures; together with all the rights, members, and appurtenances thereunto belonging; To THE INTENT that the title to dower, and all claims and demands in respect of dower, of the said [Christian name], the wife of the said [mortgagor], out of or upon the said hereditaments and premises, may be extinguished; And it is hereby declared by the said [mortgagor] and [Christian name] his wife, that the release hereinbefore contained shall operate as an absolute extinguishment of the dower of the said [Christian name], the wife of the said [mortgagor], out of the said hereditaments and premises, for the benefit, as well of the said [mortgagee], his heirs and assigns, in respect of the said recited mortgage security, as of the said [mortgagor], his heirs and assigns, in respect of the equity of redemption (183); And the said [mortgagor], for himself, his heirs, executors, and administrators, hereby covenants with the said [mortgagee], his knowledgment; heirs, executors, administrators, and assigns, that these pre absolute. Covenant by husband as to wife's ac sents shall forthwith, at the costs of the said [mortgagor], be duly acknowledged by the said [Christian name], his wife, and be perfected in other respects with the solemnities (184) prescribed by law for rendering the deeds of married women ef-that husband fectual to extinguish their interests in land (185); And also that the said [mortgagor] and [Christian name] his wife have not, nor has either of them, done or permitted any act, matter, or thing by which, or by means of which, the release hereinbefore contained may be prevented from taking effect according to the true intent thereof. IN WITNESS &c. and wife have not done any the release from taking effect. As to dower of equity of redemption in fee. (183) This clause is inserted to exclude the questions which have arisen upon fines levied by husband and wife of his inheritance, for the purpose of mortgaging in fee, in respect of her dower ultrà the mortgage. (6 Jarm. Conv. 174). (184) Ante, Vol. 1, p. 206. (185) If the object of the deed be to convey the wife's estate, say "effectual to pass their estates in land.” No. 38. CONVEYANCE by a Person appointed, under the day of THIS INDENTURE, made the in the year of our Lord BETWEEN [substitute for heir of mort- Parties. gagee], of &c., of the first part; [executors of mortgagee], of &c., of the second part; [mortgagor], of &c., and [Christian name] his wife, of the third part; [purchaser], of &c., of the fourth part; and [dower trustee], of &c., of the fifth part. WHEREAS, by indentures of lease and release, bearing date RECITALS respectively the and days of in the year and respectively made between the said [mortgagor], of the one day of (186) 1 Will. 4, c. 60; 4 & 5 Will. 4, c. 23; 1 & 2 Vict. c. 69. (Vide ante, Vol. 1, Illustrations, III., s. 1. -of a mortgage in fee, with power of sale; -of the mortgagee's will, devising mortgaged estates to trustees and executors, but dated prior to the mortgage; —of codicil, at tested by two witnesses only; -of his death, and probate of his will; -that principal is unpaid, and interest in arrear; sale or private contract, for such price or prices as could be |