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them in and by the said recited will, &c., being about to make sale of the estates devised to them by the said will of the said (mortgagor,) have requested the said A. B. to make such re-conveyance of the said hereditaments and premises to them, the said (trustees,) as hereinafter mentioned. Now, this inden. ture witnesseth, that, in consideration of the premises, and of the sum of, &c., (all interest due thereon having been paid by the said strustees] to the said A. B.) the receipt whereof, and that the same is in full payment, &c., he, the said A. B., doth hereby acknowledge, &c., and doth acquit, &c., and to the intent that all and singular the said hereditaments and premises may be well and effectually vested in them, the said (trustees,) the better to fulfil the trusts of the will of the said (mortgagor,) the said A. B. hath, &c., and by these presents doth bargain, sell, and release unto the said (trustees,) (in their actual possession, &c.,) and to their heirs and assigns, all and singular the and premises, comprised in the said recited indenture of, &c., with their rights, members, and appurtenances, together with all houses, &c., and the reversion, &c., and all the estate, &c. ; habendum unto and to the use of the said (trustees, their heirs and assigns, (freed and absolutely discharged of and from the payment of the said sum of, &c., and the interest thereof,) but nevertheless upon the trusts, and to and for the ends, intents, and purposes, in and by the said recited will of the said (mortgagor) expressed, declared, and contained, of and concerning the same hereditaments and premises, and other his real (and personal estate thereby given and devised;
add a covenant from the said A. B. that he has done no act to incumber.] In witness, &c.
*OBSERVATIONS ON RE-CONVEYANCES.
A re-conveyance, so far as it operates as a transfer or assignment of the property comprised in it, differs in no respect from the ordinary conveyances of pro. perty of a similar tenure, but as the conveying parties in such instruments are generally mortgagees who have been paid off, or trustees whose trusts have terminated, or the representatives of such parties, and not persons dealing with their own property for any valuable consideration, the only object of such deeds is the restoration to the beneficial owner of that legal interest in his property, which is vested in the re-conveying party, with a guarantee that, whilst so vested in him, it has not been incumbered or improperly dealt with.
The recitals and covenants in all well drawn deeds of this character are confined to those two objects, and in order to show what interest the conveying party has, the original mortgage conveyance in trust or will, and (in case such party is the representative or assignee of the original mortgagee or trustee) the assignment, will, or other acts which show the derivative title should be recited, and where the party to whom the re-conveyance is made is not the original mortgagor or cestueque trust, but claims as representative or assignee, his derivative title ought also to be shown.
No alteration" will or ought generally to be permitted in the description of the premises, but they should be re-conveyed according to the description in the original conveyance, making such alterations only as may have become necessary, in consequence of the change of tenants, lapse of time, or otherwise.
The re-conveying parties are bound to covenant, that they have themselves done no act to incumber the premises, but they are not compellable to extend such covenants to the acts of the persons through whom they claim.
On the re-assignment of leaseholds by a mortga. gee, he should ascertain that the rent and covenants
See some observations on recitals in re-conveyances, ante, p. 11 and 16.
* See a dictum of Lord Eldon's in Goodson v. Ellisson, Russ. 594.
have, during the period of his ownership, been satisfied, for his liability to the lessor for any non-payment, or non-performance of them during that period, remains after the assignment, and where there exists any doubt on the subject, it would be advisable to require a covenant of indemnity from the mortgagor. In case a new lease has been granted to the mortgagee under which he has become personally liable to the lessor, the party to whom the re-conveyance is niade must enter into a covenant of indemnity against the future rents and covenants.*
It is the duty of any one in whom an estate is vested, either as a mortgagee or trustee, to ascertain that the party calling for the re-conveyance is really entitled to it; but where there is no reason to doubt the title of such person, it would be highly improper to refuse to execute a re-conveyance, and if a party were captiously to do so, he would run the risk of having to pay the costs of any suit which might be instituted for the purpose of compelling him. " • It not being expected that every person to whom a re-conveyance is tendered for execution should be able to form any judgment on the propriety of his executing it at all, or in the frame in which it has been prepared, he is entitled to have it submitted to his own legal adviser, at the expense of the party requiring it, prior to executing it,' and except in very simple transactions, and where the party has great confidence, both in the person requiring it and his professional adviser, such precaution ought not to be dispensed with. . In a recent case, before the Lord Chancellor, it appeared that a party subjected himself to the annoyance of being made a defendant to a chancery suit, as the trustee of a will, simply on the ground,
* Ante, p. 15, note n.
Angier v. Stannard, 3 M. and K. 566. • Poole v. Pass, 1 Beav. 600. • Winch v. Walker, 3 M. and Cr. 702.
that the deed by which he intended to renounce the trust was framed as a re-conveyance instead of a disclaimer.
Parties seeking a re-conveyance of an outstanding legal estate were formerly exposed to very great inconvenience, in consequence of the infancy of the heir of the deceased trustee or mortgagee, which subjected them to the expense and delay of a chancery suit. The practice which is now frequently adopted of devising trust and mortgage estates to executors or other adult parties, and thereby pre venting them descending to an infant heir, has latterly done much for diminishing this inconvenience, and for cases where this precaution has not been adopted, the legislature have, by some recent provisions, provided a remedy by enabling parties so situated to obtain a re-conveyance without the necessity of resorting to a suit in equity
By the act of 1st William IV., c. 60, effect is given to the conveyance of infant trustees or mortgagees, made under the direction of the Court of Chancery, and by the 14th section of that act, parlies having money to pay to infants, on the redemp. tion of a mortgage, are enabled to obtain a good discharge by paying it into the Bank of England in the name of the Accountant-General of the Court of Chancery or Exchequer.
The benefit of this act, which can be obtained by petition to the Court, is extended to the case of unfound heirs, lunatics, parties out of the jurisdiction of the Court, and several other similar cases, of which the size and object of this work neither admit or require a discussion, and will be found to meet the great majority of those cases where, in consequence of the absence or incompetence of parties, impediments are thrown in the way of persons having the
• This act has been explained and amended in several points by the 4th and 5th William IV., o 23, and 1st and 2d Victoria, c. 69.
beneficial interest in property, acquiring that legal dominion over it to which they are entitled, and for the full enjoyment of which the possession of the legal estate is essential.
Upon the discharge of a mortgage of copyholds to which the mortgagee has not been admitted, the mortgage-deed should be given up with a receipt for the principal and interest, and where a conditional surrender has been made, satisfaction should be entered on the rolls, but no re-conveyance is necessary. If, however, the mortgagee has been admitted, which is not often the case, a regular surrender should be made by him as soon after the payment as convenient, but even then no other re-conveyance will be necessary; but it will be equally important that the mortgagor should obtain a receipt for the money, and the possession of the mortgage and other deeds, and all other securities which he may have given.
The propriety of obtaining a re-conveyance of the legal estate as soon as the purpose for which it was separated from the beneficial interest has been satisfied, and also a surrender or assignment of satisfied terms, has been before adverted to; but the importance of doing so fully justifies a repetition of the advice not to allow a legal estate, whether in the freehold or in a term of years, to remain outstanding after the necessity for doing so has ceased.
On the creation of a mortgage, it is proper and customary for the mortgagee to give a schedule of the deeds delivered over to him; this precaution never should be dispensed with, and on the mortgage being paid off, the redelivery of all such deeds, as well as of the mortgage-deed itself, should always be strictly required.
Where the party calling for a re-conveyance is himself a trustee, and requires the outstanding estate for the purpose of enabling him to execute his trusts, the re-conveyance may be safely made without the concurrence of the cestueque trusts ; but if, in parting with the legal estate, the party in whom it was vest