Parties. XI. CONVEYANCE BY LEASE AND RELEASE (a) of the Equity of Redemption of Fee-simple Lands, (part of which were formerly Copyhold,) to Uses to bar Dower: Covenant to surrender Copyhold Lands: and Assignment of Leaseholds for 999 Years, Leaseholds for Years determinable on Lives, and Leaseholds for Years determinable on Lives and subject to a former Lease for Years similarly determinable: Covenant for Payment of the Money due on the Mortgage, and Covenants for the Title. day of THIS INDENTURE, made the 1838, BETWEEN [vendor] of &c., of the first part, [trustee for (a) The following note is extracted from Watkins's Principles of Conveyancing, ch. 19., which will explain the reason for this mode of conveyance being used for an equity of redemption: -"If a person convey lands to another on condition, as a security for money, and the condition be broken, he may, under certain circumstances, redeem the premises; and this privilege is denominated his equity of redemption. "Such equity of redemption may be released to the mortgagee. Sometimes, indeed, the conveyance called a lease and release is adopted for the transfer of such interest; but then the latter species of conveyance does not operate as a lease and release with respect to the equity, as a person cannot be seised of an equity to an use; and, consequently, as no use arises by the bargain and sale, the release can only operate, with respect to the equity, as a mere or proper release; just as it would have done without such a bargain and sale, or lease for a year. "The conveyance by lease and release is, therefore, adopted for caution only; as, in case there be an equity only in the person intending to convey, such release will operate as a common release, and so pass it to the mortgagee, notwithstanding the bargain and sale; and in case there be any legal freehold interest or estate left in the mortgagor, by reason of any default in the mortgage deeds, then the bargain and sale will operate on such legal interest or estate, and, with the release, pass that also. "In like manner as a court of equity considers a mortgage, though in fee, merely as a security for money till the time of redemption be passed, the mortgagor frequently disposes of his own equity, or right of redemption, to a stranger. This can properly be only by way of assignment, grant, or devise; for he cannot pass it by feoffment, bargain and sale, nor, consequently, by lease and release, as the seisin or legal estate is in the mortgagee; though the lease and release are often adopted, for the vendor], of &c., of the second part, [purchaser], of &c., of the third part, and [trustee to bar dower], of &c., of the fourth part: WHEREAS by Indentures of lease and release, bearing date respectively the day of 1790, the release being made or expressed to be made between the said [vendor] of the first part, the said [trustee] of the second part, Sarah now the wife of the said [vendor] (then Sarah -, spinster), of the third part, and A. B., C. D., and E. F., therein respectively described, of the fourth part; after reciting in the release that a marriage had been agreed upon between the said [vendor] and Sarah ——, and reciting that upon the treaty for the said intended marriage it was (amongst other things) agreed between the said [vendor] and Sarahthat certain Bank Long Annuities, then standing in the name of in the books of the Governor and Company of the Bank of England, should be transferred to and become the absolute property of the said [vendor], on the solemnization of the said then intended marriage, and that in lieu and consideration thereof, and of the said then intended marriage, the said [vendor] should settle and secure the sum of 10,000l. to be paid to the said A. B., C. D., and E. F., their executors, administrators, and assigns, upon such trusts, and for such purposes, and with such powers and provisoes, as by a certain Indenture of three parts therein referred to, and therein mentioned to or intended to bear date on the day of the date of the said Indenture now in recital, were intended to be and should accordingly be expressed, It is by the said Indenture of release witnessed, that in consideration of the said then intended marriage, and of the fortune of the said Sarah, and in part performance of the said agreement, and for a nominal consideration of ten shillings, the said [vendor] (with the privity and consent of the said Sarah testified as therein mentioned), did bargain, sell, release, and confirm unto the said A. B., C. D., and E. F., their heirs and assigns (amongst other reason before noticed, with respect to the conveyance of such an equity to the mortgagee in possession.” The conveyance by lease and release of an equity of redemption is the mode now almost universally adopted. A form, however, of a release of an equity of redemption to a mortgagee, and a grant of such equity to a stranger, will be found in a subsequent part of this volume. Recital of a mortgage in fee of part of the freeholds after mentioned by Vendor to A. B, C. D., for 10,000l., and E. F., 1790. hereditaments), the several messuages or tenements, and other hereditaments therein and herein-after particularly mentioned (being part of the freehold hereditaments intended to be hereinafter released), with their appurtenances, to hold the same unto the said A. B., C. D., and E. F., their heirs and assigns, to the use of the said [vendor], his heirs and assigns, until the said then intended marriage should be solemnized; and after the solemnization thereof, To the use of the said A. B., C. D., and E. F., their heirs and assigns; subject nevertheless to a proviso or condition in the said Indenture of release contained for redemption of the same premises, on payment by the said [vendor], his heirs, executors, administrators, or assigns, to the said A. B., C. D., and E. F., their executors, administrators, or assigns, of the sum of 10,000l., with interest for the same after the rate, within the time, of in the manner therein mentioned, and appointed for the payment thereof resThat by inden- pectively. AND WHEREAS (6) by Indenture of lease and release tures of lease (b) It will be observed that part of the freehold lands conveyed by the above precedent were formerly of copyhold tenure, and so continued up to the execution of the instrument. It is recited, in the recital of the conveyance (1800), from the lord of the manor to the trustee for the vendor, that the vendor claimed to hold the land by copy of court roll, and then by that conveyance of 1800 the lord conveys to the trustee the reversion after the determination of the copy, thus keeping the copyhold and freehold interests distinct, for in such case the conveyance will not operate as an enfranchisement, nor as an extinguishment of the copyhold tenure. Enfranchisement is the changing of the tenure from base to free; and is effected by the lord's conveying to the tenant the freehold of the particular and specific premises which were held by copy; or by releasing to the tenant his seignorial rights; or, if the lord convey the freehold to a stranger, and the stranger convey to the copyholder, the base tenure will be destroyed. (Watkins on Copyholds, vol. i. ch. 10.) The conveyance of 1800, above recited, therefore, not being either a conveyance of the freehold from the lord to the tenant, or a conveyance of the freehold to the tenant from a party to whom the freehold had been conveyed by the lord, the copyhold tenure of the land remained unaffected, although the conveyance was made to the trustee in trust for the copyholder, the vendor. (Id. ib.) Extinguishment occurs when a freehold and a copyhold interest in the same premises unite in the same person, and in the same right (id. ch. 9.); so that no extinguishment took place by the deed of 1800, because the freehold and copyhold interest did not unite in the same person, for the vendor had the copyhold interest, and his trustee had the freehold interest. bearing date respectively the-and-days of, 1800, and of roll and release the lord of the Manor of Blackacre conveyed to trustee the reversion of cerland, part of the manor, subject tain closes of to a copy of court roll, by which vendor held some lives, to hold in dors, his heirs trust for ven and assigns (1800). of the said manor of Blackacre, bearing date the day of, 1780, All that the cottage and piece of land called Home Close (except nevertheless unto the lord of closes for three the said manor, his heirs and assigns, a right to inclose so much ground out of the common belonging to the said manor as he or they should think proper, to and for his and their own proper use and benefit), under the rents, heriots, and services therein mentioned or referred to; and also reciting that the said cottage had been some time since taken down, and that the site thereof, and also the said several closes and premises, had been by the said [vendor] laid open and made part of his garden, plantation, and pleasure ground at, It was witnessed that, in consideration of the sum of 100%., to the said Thomas Stiles paid by the said [vendor], and for a nominal consideration of 10s., the said Thomas Stiles, at the request and by the direction and appointment of the said [vendor] (testified as therein mentioned), did grant, release, and confirm unto the said [trustee] and his heirs, All the reversion and remainder expectant upon the determination of the said therein and herein-before in part recited Upon the execution, however, of the instrument of which the above precedent is a transcript, the copyhold tenure of the land to which the vendor was admitted in, and the freehold of which was conveyed by the deed of 1800, became extinct. "By the conveyance of the freehold, the premises were severed from the manor, and, by consequence, must be held of the lord above. Should the grantee convey the freehold over to the copyholder, the copyhold tenure would be extinct, as its existence would be incompatible with the freehold interest. Both tenures could not subsist together, and by consequence, the less worthy would merge; the base would be absorbed in the free." (Id. ch. 10.) Thus the purchaser became entitled to hold the lands, not of the lord, for by his conveyance of 1800 he had severed the land from the manor, but of the superior lord; and as the lord of the manor held the premises by frank tenure, the purchaser must upon the execution of the conveyance to him hold by frank tenure also. vendor to copyholds for lives (1801). copy of court roll, of and in the said therein-before mentioned site, closes, plots, pieces or parcels of land, hereditaments and premises, with their appurtenances, and the rents, heriots, issues, profits and services, and every part and parcel thereof, TO HOLD the same unto and to the use of the said [trustee], and his heirs for ever, In trust for the said [vendor], party hereto, his heirs and assigns for ever, and to be from time to time conveyed and disposed of as he or they should direct or Admittance of appoint: AND WHEREAS at a Court Baron, held in and for the manor of Blackacre, &c. aforesaid, on or about the day of ——, 1801, the said [vendor] was admitted, taking the same from the lord of the manor, to All that, &c. Longlands Mead, except always unto the lord of the said manor, &c. [same as exception in last recital], TO HOLD the same, with the appurtenances, unto the said [vendor], for and during the lives of ——— ——,and—, and the life of the longest liver of them, at the will of the lord, according to the custom of the said manor, under and subject to the rents, heriots, works, burthens, customs, suits, and services for the same due, and of right accustomed Lease of land at to be paid and done: AND WHEREAS by an Indenture bearFyfield to for 999 years ing date on or about the day of, 1690, and made (1690). By divers assignments, and by codicil of, &c., same vested in vendor (1802). or expressed to be made between, of the one part, and , therein respectively described, of the other part, for the considerations therein mentioned, the said -- did demise, grant, and to farm let unto the said All that, &c., situate - -- his in Fyfield, &c. TO HOLD the same unto the said executors, administrators, and assigns, from the date thereof for the term of 999 years, under the yearly rent of one penny, payable at Michaelmas, if demanded: AND WHEREAS under or by virtue of several mesne assignments and acts in the law, and ultimately by a codicil to the last will and testament of ——, late of ——, in the county of, esquire, deceased, and which codicil bears date the day of, 1802, the premises comprised in the herein-before in part recited Indenture of lease or demise became vested in the said [vendor], for all the residue then to come of the said term of 999 years: Lease of copy- AND WHEREAS by an Indenture of lease bearing date on or about the day of ——, 1803, and made or expressed to be made between the said Thomas Stiles of the one part, and the said minable on three [vendor] of the other part, for the considerations therein menlives (1808). hold lands in Whiteacre to vendor for 99 years, deter |