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der and by virtue of an act passed, &c., entitled, &c., by their award, bearing date, &c., allotted unto, &C., in respect of, &c., all that, &c.; at the end it should state where the award has been enrolled. There should be a title shown to the lands, in respect of which the allotment is made, previously to abstracting the award. Bythewood's Noy, ninth edition, p. 160
In abstracting a decree, such part of it only as af. fects the title should be abstracted; as by declaring the will of the real estate duly proved, decreeing a redemption, a foreclosure, partition, directing a sale in performance of trusts, or a mortgage to be made, or portions to be raised, &c., with any direction for the application of money, and the master's report thereon, with the order for its confirmation. I Preston on Abst. 189.
From what fell from Mr J. Taunton in the discussion of the case of Drax v. Scroope, it would appear, that it is part of the duty of an attorney to peruse an abstract before he takes the opinion of counsel upon it, in order to ascertain whether it is necessary that he should do so ; but the point does not appear to have received the sanction of any direct decision in its favour.
An attorney will not relieve himself from responsibility in accepting a title by taking the opinion of counsel, unless he lays the whole case before him. Thus, in a case,s in which the attorney, instead of setting out in the abstract the terms of sonie instrument, stated what he conceived to be its effect, and Mr Preston, before whom it was laid, approved of the title, upon its proving to be defective, the attorney was held liable to his client for the loss thereby sustained, it appearing that the attorney had misconceived the effect of such instrument, and that, had it been properly set out, Mr Preston would have disapproved of the title.
r1 Dowl. 69.
s Ireson v. Pearman, 3 Barn. and C. 799; 5 Dowl, and R. 687; 3 Law Jo. 119.
Recitals in old deeds are not evidence of facts unless properly corroborated. Fort v. Clarke, I Russ. 601.
The abstract should have four margins, the first for the parties, provisos, covenants, and powers; the second for the recitak, habendum, uses, and trusts ; the third for the operative part; and the fourth for the parcels and general words and execution. The date should be extended beyond the outer margin.
Forms of Abstract.
Lease and 16th and 17th March, 1804. Indentures of lease Lea
Release. and release, the release made between A. B., of, &C., on the first part; C. D., of, &c., of the second part; and E. F., of, &c., of the third part;
It is witnessed, that in consideration of the sum of L.500 to the said A. B. paid by the said C. D., he, the said A. B., did grant, bargain, sell, alien, release, and confirm unto the said C. D., his heirs and assigns,
All [state the parcels as in the deed] together with all outhouses, &c., and the reversion, &c., and all the estate, &c. ;
To hold unto the said C. D., his heirs and assigns, to such uses, upon and for such trusts, intents, and purposes, and with, under, and subject to such powers, provisos, and declarations, as the said C. D., by any deed or deeds, writing or writings, with or without power of revocation, to be by him signed, sealed, and delivered in the presence of, and attested by two or more credible witnesses, should from time to time direct, limit, or appoint; and in the meantime, and until default should be made in any such direction, limitation, or appointment, and so far as the name (if incomplete) should not 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 estate by any means in his lifetime,
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 during his natural life, and from and after the determination of the estate so thereby limited, to the said E. F., as aforesaid ; and in the meantime subject thereto, and to the trusts thereof, to the use of the said C. D., his heirs and assigns, for ever.
Covenants from the said A. B. he was lawfully seised ; that he had good right to convey ; for quiet enjoyment; free from incumbrances; and for further assurance.
Executed by the said A. B., attested by two wit. nesses, and a receipt for the consideration-money indorsed, signed, and witnessed.
Date. Indentures of lease and release, and settlement, the latter between, &c.
It is witnessed, that, in pursuance and performance of the said agreements, and in consideration of natural love and affection, &c., and of 10s. to the said W. B. paid by the said W. H. and E. L., the said W. B. did grant, bargain, sell, release, and confirm unto the said W. H. and E. L., (in their actual possession, &c.,) and to their heirs and assigns ;
All, &c. (set out the premises fully.)
To hold unto the said W. H. and E. L., their heirs and assigns, to the uses, upon and for the trusts, intents, and purposes thereinafter expressed, declared, and contained ; (that is to say ;)
To the use, (set out the uses fully.)
Power of entry and distress to the said N. B., A. B., and C. B., respectively, and to the said W. H. and E. L., in case of non-payment of the said respective annuities within twenty-one days.
Power to the said annuitants respectively, in case of non-payment for forty days, to enter and enjoy, and take rents of the said hereditaments, until satisfaction of the said respective annuities and costs.
And subject to the said annuities, and to the powers and remedies thereby provided, for securing payment thereof, the said hereditaments and premises should be and remain,
To the use, &c. Declaration that the said W. H. and E. L., their executors, &c., should stand seised of the said annuity, or yearly rent-charge of L. upon trust to pay and apply one of the said annuities to and for the benefit of the said H. B. during his life, in manner therein mentioned: and after his decease, in case the same should happen during the continuance of the said annuity, then to stand and be seised thereof, upon such trusts as were thereinafter expressed of and concerning the interest and dividend of the portion and fortune thereby provided for the said H. B. and his issue.
Proviso for cessor of said term of 1000 years when the whole of the said L. and interest should have been raised.
Covenants by said W. B. for payment of the said annuities.
Covenants that said W. B. had power to convey.
Covenants for quiet enjoyment, free from incum. brances, and for further assurance.
Proviso that in case the said W. B. should at any time thereafter, during his life, be desirous to revoke the provision thereby made for his said sons, and should, by transferring to the said trustee or trustees for the time being, a competent sum in the public stocks or funds of Great Britain, or otherwise, to the satisfaction of the said trustees or trustee, secure to or for the benefit of the said T. B., &c., the payment of annuities and portions equal in amount to those thereby provided for them respectively, and to be limited and settled upon the same trusts, and in the same manner, or as near thereto as circumstances would then admit of; then it should be lawful for the said W. B., by deed, to be by him executed as therein mentioned, to revoke the uses, &c., therein contained, and to limit and appoint any
other uses, &c., of and concerning the hereditaments and premises thereinbefore described.
Executed by the said, &c., and attested by two witnesses.
Date. Will of said W. B., whereby he confirmed a settlement made by him upon his children by his late wife E., of annuities and portions charged upon his real estate at, &c., aforesaid, bearing date, &c. . And the said testator gave and devised [inter alia] the said capital messuage, &c., all other his messuages, lands, tenements, hereditaments, and real estate, &c., unto N. H. and J. P. and their heirs, To the use (as to the manor of, &c.,) of testator's wife, M. B., for life.
Remainder. To use of [trustees,] and their heirs, during the life of the said M. B., to support contingent remainders.
Rem. As to said hereditaments so limited to said M. B. as aforesaid, from and immediately after her decease; and as to all other, the said real estate thereinbefore devised from and immediately after the testator's decease.
To use of testator's eldest son, T. B., for life.
To use of the said trustees and their heirs, during the life of T. B., to preserve contingent remainders.
Rem. To use of first, second, third, fourth, and all other sons of the said T. B., lawfully to be begotten severally and successively in tail male.
Rem. To use of testator's second son, N. B., for life.
Rem. To use of the said trustees and their heirs, during the life of the said N. B., to preserve contingent remainders.
To the use of first, second, third, fourth, and all
+ When the remainders are contingent, it is better to take the words in the deed or will than use the word "remainder."