Parties. Recitals. APPOINTMENT AND RELEASE. This indenture, made, &c., between, &c.* [Recite the instrument creating the power and the contract Appointment. for purchase, or as the case may be.] Now, this indenture witnesseth, that, in consideration, &c., he, the said A. B., pursuant to, and by force and virtue, and in exercise and execution of the power or authority to him, by the said hereinbefore in part recited indenture, for this purpose given and limited, doth, by this present deed or instrument in writing, by him sealed and delivered in the presence of the two credible persons whose names are intended to be hereupon indorsed, as witnesses to the sealing and delivery thereof, by him, the said A. B., direct, limit, and appoint, that the messuages, lands, hereditaments, and premises hereinafter described, and intended to be hereinafter granted and released, with their appurtenances, shall henceforth go, remain, and be, and the said last mentioned indenture shall, so far as concerns the same messuages, lands, hereditaments, and premises, be and enure.b To the uses, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisions, agreements, and declarations hereinafter expressed and declared of and concerning the same. And this cases with the cestui que use. The appointee on a subse quent sale would not become the assignee of the appointer, but of the releasees or feoffees to uses, and in the latter character would be entitled to the benefit of covenants entered into with them. * In consequence of the appointment overreaching the estate of the trustee of the vendor, he is not a necessary party. a If the deed creating the power be not recited, it must be referred to in the operative part of the appointment. If it is intended, as in the present precedent, to give the appointee a power of appointment, his name must not be inserted here, as no uses can be limited upon his seisin, he himself being in under the statute. с indenture also witnesseth, that, in further pursuance Release. of the said recited agreement, and for the consideration aforesaid, and for the further and better, assuring the said, &c., to the uses and in manner hereinafter mentioned, [or declared and contained,] he, the said (vendor,) hath granted, bargained, sold, aliened, released, and confirmed, and by these presents doth, &c., unto the said (purchaser,) in his actual possession, &c., and to his heirs and assigns, all, &c., (see Parcels, p. 39.) [Add the general words, Parcels. "with the reversion, and all the estate," &c.; Ha- Habendum. bendum, add covenants for title; see ante, pp. 41 Covenants. and 85.1 d In witness, &c. In small purchases, the release may be omitted; for, unless there should be any informality in the appointment, the release will be useless. Formerly, taking by appointment was the better way, as the title was thereby discharged of the judgment-debts of the vendor; (Doe v. Jones, 10 B. and C. 457; Skeeles v. Shearly, 8 Sim. 153; 3 M. and Cr. 112;) but it is conceived, that, in consequence of the provision of the 1st and 2d Vict. c. 110, sect. 11, such a course would now be no protection to a purchaser. A declaration as to the uses may be added after the habendum, thus: "And it is hereby agreed and declared between and by the parties hereto, that as well the direction and appointment, as also the grant and release hereinbefore contained, shall operate and enure to the use," &c., (or to such uses, &c.) purchaser to such uses as Where the purchaser was married before 1834, the pre- Limitation to mises should be limited "to such uses as he may appoint, and in default thereof either to the use of the purchaser in he may apfee, without a trustee, or with the usual limitation to himpoint, with self for life, remainder to a trustee for his life, with remain- remainder to der to himself in fee;" (see Moreton v. Lees, Sug. Powers ;) him in fee. and by these means the wife of purchaser may be defeated of her dower, by the exercise of the power by the husband. (See Ray v. Pung, 5 Madd. 310; 5 Barn, and Ald. 568.) Parties. Testament. Parcels. Habendum. Livery of seisin. By attorneys. FEOFFMENT. This indenture, made, &c., between (the vendor) of the one part, and (the purchaser) of the other part. Recite the vendor's title and the contract for sale.] Now, this indenture witnesseth, that, in pursuance of the said agreement, and in consideration, &c., (see p. 36,) he, the said (vendor,) hath given, granted, aliened, enfeoffed, and confirmed, and, &c., doth, &c., all, &c., (p. 39.) [Add the general words, "and the reversion, &c., and all the estate, &c., and all deeds," &c. Habendum in fee, or to uses to f Feoffment is completed by the delivery of seisin, on possession of the lands, a memorandum of which must be indorsed on the deed, after the following manner: "Memorandum that, on the day and year first within written, peaceable and quiet possession and seisin of the within-mentioned messuages, tenements, lands, and hereditaments, were openly had and taken by the within-named (feoffor,) and by him delivered to the within-named (feoffee;) to hold the same to the said (feoffee) and his heirs, to the use of him, the said (feoffee,) his heirs and assigns for ever, [or say, upon the uses, trusts, intents, and purposes in the said indenture expressed,] according to the true intent and meaning of the same indenture, in the presence of us whose names are hereunto subscribed." 66 If by attorneys, say, were had and taken by the withinnamed R. S. and T. V. (the attorneys to deliver seisin,) for and in the name of the within-named (feoffor,) pursuant to the letter of attorney in that behalf contained in the withinwritten indenture; and were immediately afterwards delivered by the said (attorneys,) for and in the name of the said (feoffor) to the within-named W. X. and Y. Z., (the attorneys to receive seisin,) for and in the name of the withinmentioned (feoffee,) pursuant to the letter of attorney in that behalf contained in the within-written indenture. To hold, according to the tenor and effect of the within-mentioned indenture." prevent dower, (see p. 52, and notes to p. 357,) and If a power of attorney be added to deliver seisin, it may Power of atbe thus: "And the said (vendor) hath made, ordained, con- torney to destituted, and appointed, and by these presents doth, &c., liver seisin. R. S., of, &c., and T. V., of, &c., [if the attorneys are not parties to the deed, which they need not be, they should be described here,] his true and lawful attorneys jointly, and either of them severally, for him and in his name, into the said, &c., hereby granted and conveyed, or intended so to be, or into some part thereof, and in the name of the whole, to enter, and full, quiet, and peaceable possession and seisin thereof, for him and in his name, to take and have, and such possession and seisin thereof, or of some part thereof, in the name of the whole, unto the said (feoffee,) or to his certain attorney or attorneys in that behalf, to give and deliver; to hold to him the said (feoffee,) his heirs and assigns for ever, [or, to the uses, &c., hereinbefore expressed,] according to the true intent and meaning of these presents; thereby ratifying, confirming, and allowing, and agreeing to ratify, confirm, and allow, all and whatsoever his said attorneys, or either of them, shall do in the premises." If a power of attorney be added to receive seisin, it may Power of atbe thus: "And the said (purchaser) hath, &c., for him and torney to rein his name and stead, to take and receive of and from the ceive seisin. said (vendor,) either in person or by his attorney lawfully authorized in that behalf, possession and seisin of all and singular the said, &c., or of some part thereof, in the name of all the same, &c.; and such possession and seisin so taken thereof, to hold and keep, to the use of the said (purchaser,) his heirs and assigns, according to the true intent and meaning of these presents." N. B.-If livery be made of a house, the feoffor takes the key, and puts it into the hand of the feoffee, at the same time saying, "I do hereby deliver possession and seisin of this house, according to the tenor and effect of this deed." If the feoffment be of lands, it is usual to deliver a turf or twig thereon. (See Co. Litt. 48.) If of divers lands of vendor, situate in one county, and being in the feoffor's possession, livery and seisin of a parcel is sufficient for all, (Litt. s. 61 ;) but if the lands lie in several Parties. Testatum. Grant. Habendum. Covenants. DEED OF GIFT. This indenture, made, &c., between (the donor) of the one part, and (the donee) of the other part. [Recite that the donor is seised or entitled.] Now, this indenture witnesseth, that, [if a relation, say,] in consideration of the natural love and affection which the said (donor) hath and beareth unto the said (donee,) [and if a son or daughter,] and also for the better maintenance, support, livelihood, and preferment of the said (donee,) [or, if a stranger, say, in consideration of the esteem and regard which the said (donor) hath for him, the said (donee,) he, the said (donor,) hath given, granted, released, and confirmed, and, &c., doth, &c., unto the said (donee,) (in his actual possession, &c.,) and to his heirs and assigns, all, &c., and the reversion, &c., and all the estate, &c., and all deeds, &c. Habendum, (either in fee, or to prevent dower. See p. 32.) [Add a covenant for peaceable enjoyment. See p. 87.] In witness, &c. GIFT OF FURNITURE. "Know all men by these presents, that I, A. B., of, &c., for and in consideration of, &c., do give, grant, and confirm to the said C. D. all and singular the household goods, furniture, beds, bedding, china, linen, glass, books, pictures, and all and singular counties, there must be as many liveries as there are coun ties. (2 Black. Com. 315.) If the lands are in the possession of several tenants, there must be several liveries, because each particular tenant must consent. (Dyer, 18.) A livery in law may be made by being in sight of the land only, and by the feoffor saying, "I give you yonder land; enter and take possession;" but this livery cannot be given or received by attorney. And if entry is not made in the life of both the parties, the livery will be void. (Co. Litt. 52, b.) |