Appointment.

thing, however, in the statute to preclude a conveyance with an actual lease for a year, as formerly, and (as previously observed) (a) the statute seems to have no bearing on the case where (as in a conveyance by a corporation) a lease, perfected by entry, is required.

Another form of purchase deeds is that of an appointment under a power. It is usual in the conveyance of an estate, not to convey it to the intended owner in fee, but to give him an absolute power to declare uses of it; and, subject to this power, to limit it to certain uses in his favour, so contrived as to preclude his wife from any right to dower (b). Hence, on a sale of an estate so limited, the owner conveys it to the purchaser by an exercise of his power, which is termed an appointment; and which is, in fact, the declaration of a new use, or new uses, upon the seisin of the feoffee, grantee, or releasee of the original deed, by which the power was created. A great number of the precedents in this collection are precedents of appointments; as it is more common, perhaps, to find that estates stand limited in the way adverted to, than to find them vested in vendors as absolute owners (c). It should be observed, that it is the practice to corroborate the appointment by a conveyance by lease and release of the estate limited to the vendor in default of appointment, on the ground that the power may have been extinguished; but when the

(a) Supra, p. 386.

(c) See, particularly, infra, (b) See infra, vol. iii. p. 205, vol. iii. prec. xvii. p. 205. n. (a).

property is small, or (as often happens) the appointment is executed simultaneously with the deed creating the power, the conveyance by lease and release is generally dispensed with (a). The conveyance by appointment is also necessarily employed when an estate is conveyed under a power of sale in a settlement. In this case, the parties selling have no estate, or only a particular estate, in the property; but they have a power to revoke the subsisting uses of the settlement, and to declare new uses in favour of the purchaser; i. e. to appoint the estate as the purchaser desires (b). Sometimes the tenant for life and the trustees to preserve contingent remainders (who are the ordinary devisees of the power of sale) are made, in addition to the appointment, to convey their estates by lease and release; but this practice must be condemned, for, if there is any question as to the efficacy of the appointment, the purchase ought to be altogether abandoned; it cannot (at least in ordinary cases) be the purchaser's intention to take the life estate, and run a risk as to the fee-simple (c). There is another kind of conveyance which resembles an appointment in deriving its effect from a common-law power, but is, in substance, altogether different. It power. is the conveyance in pursuance of a common-law

(a) See infra, vol. iii. p. 206, n. See a precedent of a conveyance by appointment alone in the Appendix to this book, No. 1.

(b) See infra, vol. iii. prec. xxi. p. 221.

(c) See further, as to appointments, 2 Sanders on Uses (5th edit.), 87; 1 Sugd. Pow. ch. vi. sect. 1, and ch. xviii. (6th edit.); 2 Chance on Pow. art. 1458 et seq., and ch. xviii.

Conveyance in

exercise of a

Assignment.

authority, and which, in fact, consists merely in nomi-
nating the person who is to take; for the purchaser
takes, not by force of the instrument by which the
power is exercised, but by force of that by which it
was created (a). A direction, given by will, to sell
an estate, without any devise of the estate to the per-
sons who are to make the sale, gives them a power
to convey the estate to a purchaser; but such pur-
chaser takes the estate by force of the will, and not
of the instrument which professes to act as a convey-
ance. And in such an instrument the estate clause
is not omitted, as in a proper appointment (b), but
refers to the devisor and not to the devisees of the
power (c). The usual words employed in executing
common-law powers are, " bargain and sell" (d).
are,"

The kinds of purchase deeds which have been already mentioned (except the last) apply exclusively to freehold estate. The instrument of conveyance of leaseholds, or terms of years, and of every description of personal chattel for which a conveyance is used, is termed an assignment. An assignment is defined by Blackstone (e) to be "a transfer or making over to another of the right one has in any estate;" and in modern practice, the term is applied

principally to instruments by which personal estate, or chattels real, or rights in real or personal estate, are expressed to be conveyed. The word "assign" is the proper technical word of assignment; but other words are often added, and any expressions, shewing the intent of the parties to make a complete transfer, will constitute an assignment. Previously to the Statute of Frauds, an assignment might have been by parol only; but by that statute it is enacted, that all assignments of leases or terms for years shall be by deed or note in writing duly signed; and at the present day, all formal assignments are made by deed (a). A large number of assignments will be found among the following precedents.

The manner in which copyholds are conveyed to purchasers is explained in a different part of the work (b).

(a) See Hodges v. Drakeford, 1 Bos. & Pull. N. R. 270.

(b) See, infra, vol. iii. p. 304, n. (a), p. 316, n. (j).

CHAPTER II.

OF MORTGAGES.

Mortgagedefinition of.

A MORTGAGE is defined to be "when things moveable or immoveable, as goods or land, are pledged as a security for repayment of money" (a). It may be a question, however, whether this definition draws a sufficient distinction, in the case of a personal chattel, between mortgaging and pawning it. To make the definition complete it should indicate, that the pledge is to be made by a legal or equitable transfer of the property in the things pledged, not depending wholly on actual delivery. The definition, too, must exclude a mere charge, as the case of a portion under a term, in which there is no debt and no right of foreclosure. Generally speaking, a written transfer or agreement to transfer is implied in the idea of a mortgage; but the equitable mortgage made by a simple deposit of the title-deeds of an estate, is an exception to this understanding (b). For the ordinary purposes, however, of conveyancers, there is no difficulty in considering a mortgage as a pledge of real or personal estate for securing the payment of money (c).

(a) 4 Com. Dig. tit. Mortgage, A.

(6) Infra, vol. iii. p. 156, n. (c). (e) A mortgage is defined by