part recited indenture of the day of 1690, with their appurtenances; And also the said tenements and all

the first of which is reported in Dyer, 328 b. pl. 10; and in Leonard's third vol. p. 35, by the name of Lord Windsor's case, and is stated by Rolle as a determination, that if a lease be made of land to a man and his executor pur autre vie, the executor shall be special occupant, although it be a freehold. He also referred to Comyn's Digest, Estates, (F. 1.) tit. Occupant, where the case in Dyer is stated as a decision that the executor shall not have the land as special occupant, for an occupant has the freehold, which an executor cannot take; and Comyn also refers to the second case stated by Rolle, as an authority for this point. That case,' my Lord Redesdate added, which was long subsequent to the case in Dyer, is certainly in conformity to the opinion of Comyn; and according to Salter v. Butler, Moore 664., Cro. Eliz. 901., Yelv. 9; and the law seems to have been understood by Peere Williams, 3 P. W. 264, note (D) as so settled, though Peere Williams does not appear satisfied with it.'

"Now, it is not too much to say, that no point is in practice considered more clear than that an executor or administrator may take a freehold estate as special occupant. The contrary opinion seems to have arisen from the case of a corporeal hereditament, of which there may be an occupancy, and the case of an incorporeal hereditament, as a rent, of which there cannot be any occupancy, having been confounded. Rolle seems

to have drawn a just conclusion from the case in Dyer and Leonard. It appears to have been taken for granted in that case, that an executor might be a special occupant, but there the tenant pur autre vie had made a lease; and the question was, whether the lessee should not be occupant. In the next case stated by Rolle, the determination was, that of a freehold rent the executor could not be special occupant. Lord C. B. Comyn, without doubt, confounded these cases; for in support of his position that an executor cannot take a freehold as special occupant, he refers at once to the case in Dyer, and the last case in Rolle; whereas that case turned upon a corporeal, this upon an incorporeal hereditament; no two cases can be more distinct. The reason

.

stated by Comyn, that an occupant has the freehold, which an executor cannot take,' is copied from Rolle's last case; but there the reason is, because that that (viz. the rent) is a freehold which cannot descend to the executor," and not that a freehold generally, may not be taken by an executor as special occupant. The case of Salter v. Butler, which is referred to by Comyn and by Lord Redesdale, was also the case of a rent, and there the claim was by an administrator, and the rent was granted to the intestate, his executors and assigns, so that he could not claim as an occupant, because the interest was not capable of occupancy, nor by grant, because he was not an assignee. As to Peere Williams, he simply refers to the second case in Rolle, to show that an executor cannot be a special occupant of a rent, although he seems to think that upon principle, an executor might be a special occupant of even a rent as well as an heir; so that if his opinion should be thought to bear upon

and singular other the premises comprised, &c., in 1803, with And all the es- their appurtenances; And also, &c., in 1804; And all the

tate, &c.

To hold for

terms of 999, 99, and 99 years respectively.

estate, right, title, interest, terms of years now to come and unexpired, property, possibility, possession, claim and demand whatsoever, both at law and in equity, of him the said [vendor], of, in, and to the said premises, and every part thereof respectively, together with the said several recited indentures of lease and the full benefit thereof respectively: TO HAVE AND TO HOLD the said plots, &c., and all and singular other the premises herein-after assigned, or expressed and intended so to be, with their appurtenances, unto the said [purchaser], his executors, administrators and assigns, from henceforth for and during all the residue and remainder now to come and unexpired in the same premises respectively, of the said term of 999 years, the said term of 99 years determinable as aforesaid, created by the said indenture, &c., 1803, and the said term of 99 years, determinable as aforesaid, created by the said indenture, &c., 1804 repectively, subject to the rents, payments, services, covenants, elauses and agreements in and by the said indentures of lease respectively reserved and contained, which from henceforth, on the tenant and lessee's part, ought to be paid, rendered, observed and performed; and subject also, as to the premises comprised in the said indenture of lease, &c., 1804, to the

the point, it is in favour of the executor's ability to take as special occupant.

"Lord C. B. Gilbert has taken the precise distinction on this head, for which he refers to Rolle's Abridgment, and the case in Dyer. That learned writer lays it down as clear, that an executor may take a freehold as special occupant; for though it be a freehold, which in course of law would not go to executors, yet they may be designed by the particular words in the grant to take as occupants; and such designation will exclude the occupation of any other person, because the parties themselves who originally had the possession, have filled it up by this appointment. But, he adds, that if a rent be granted to J. S., and his executors, during the life of B., by the death of J. S. the rent is determined, because the executors cannot take as special occupants, since the nature of the thing lying in agreement is not capable of occupation; nor can they take by the grant, because then they must take as representatives, which they cannot be of a freehold, and the law will not permit people at their pleasure to vary the course of descent. Bac. Abr. tit. Estate for Life, s. 3.; and see Savery v. Dyer, Ambl. 140.”

title.

freeholds.

said estate of the said under or by virtue of the said indenture of lease of, &c., 1798. AND the said [vendor], Covenants for for himself, his heirs, executors, and administrators, doth covenant, promise and agree with and to the said [purchaser], his heirs, appointees, executors, administrators and assigns respectively, by these presents, in manner following; (that is to say,) That for and notwithstanding any act, deed, matter or thing by him the said [vendor] made, done, committed, or executed, or knowingly or willingly suffered to the contrary, (except as appears by these presents), he the said [vendor] at the time of the sealing and delivery of these presents is law- Seised in fee of fully, rightfully, and absolutely entitled to the said messuage and other hereditaments, herein-before granted and released, or expressed and intended so to be, and every part thereof, with their appurtenances, for a good, sure, sole, perfect, absolute, and indefeasible estate of inheritance, in fee simple, without any manner of condition, use, trust, property, power of revocation, equity of redemption, remainder or limitation of any use or uses, or other restraint, cause, matter or thing whatsoever, to alter, charge, defeat, incumber, revoke or make void the same (except the aforesaid mortgage for the sum of 10,0001.); And that for and not- Subject to mortwithstanding any such act, deed, matter or thing as afore- gage. said, he the said [vendor] is now seized of, or well and sufficiently entitled to, the said customary or copyhold heredita- And of copyholds; ments and premises hereby agreed to be surrendered as aforesaid, and every part thereof, with the appurtenances thereto belonging, of a good, sure, and indefeasible estate for the lives aforesaid, according to the custom of the manors aforesaid, without any manner of condition, use, trust, equity of redemption, power of revocation, or other restraint, cause, matter or thing whatsoever, to alter, charge, defeat, incum→ ber, revoke or make void the same; and that for and notwith- that leases are good. standing any such act, deed, matter or thing as aforesaid, the said several herein-before in part recited indentures of lease are, at the time of the sealing and delivery of these presents, good and effectual, and leases and demises in the law of and for the said premises therein comprised, and the said terms are not forfeited, merged, extinguished, surren dered, determined, or otherwise become void or voidable

That vendor

and trustee have good right to convey free

holds.

That vendor has good right to

surrender copy

holds;

And that for and notwithstanding any act, deed, matter or thing whatsoever as aforesaid, they the said [vendor] and [trustee for vendor] now have in themselves respectively good right, full power, and lawful and absolute authority to grant, bargain, sell, release, and convey the said messuage and other hereditaments herein-before granted and released, or expressed and intended so to be, with the appurtenances thereunto belonging, to the uses and in manner aforesaid, according to the true intent and meaning of these presents; And that he the said [vendor] now hath in himself good right, full power, and lawful and absolute authority to surrender the said copyhold hereditaments herein-before mentioned and covenanted to be surrendered, with their appurtenances, to the use of the said [purchaser] his heirs and assigns during the lives aforesaid, in manner aforesaid, according to the true intent and meaning of these presents; and to assign and assure the said leasehold premises hereby assigned, or intended so to be, with their appurtenances, unto the said [purchaser], his executors, administrators, and assigns, in manner aforesaid, according to the true intent and For quiet enjoy- meaning of these presents; And that it shall and may be lawful to and for the said [purchaser], his heirs, appointees, and assigns, from time to time, and at all times hereafter, peaceably and quietly to enter into and upon, and to have, hold, occupy, possess, and enjoy the said freehold, copyhold, and leasehold hereditaments and premises hereby granted and released, covenanted to be surrendered and assigned respectively, or expressed and intended so to be, with their respective appurtenances, and to have, receive, and take the rents, issues, and profits thereof, and of every part thereof But subject to (subject nevertheless as to such of the freehold hereditaments as were comprised in the said herein-before in part recited Indentures of Lease and Release of the and days of

and to assign leaseholds.

ment,

mortgage.

1790, to the said mortgage for the said sum of 10,000%. and interest), without the lawful let, suit, trouble, denial eviction, interruption, claim or demand whatsoever, of or by him the said [vendor] or his heirs, executors, or administrators, or of or by any other person or persons lawfully or equitably claiming or to claim by, from, or under, or in Free from in- trust for him, them, or any of them; And that free and

cumbrances,

assurance;

clear, and freely and clearly, and absolutely acquitted, ex- the mortgage onerated, released, and for ever discharged, or otherwise by excepted. the said [vendor], his heirs, executors, or administrators, well and sufficiently saved, defended, kept harmless and indemnified of, from, and against all and all manner of former and other gifts, grants, bargains, sales, jointures, dowers, right and title of dower, uses, trusts, entails, wills, statutes merchant or of the staple, recognizances, judgments, executions, rents, arrears of rent, annuities, legacies, sums of money, yearly payments, forfeitures, re-entries, cause and causes of forfeiture and re-entry, debts of record, debts due to the Queen's Majesty, and of and from all other estates, titles, troubles, charges, debts, and incumbrances whatsoever, either already had, made, executed, occasioned, or suffered, or hereafter to be had, made, executed, occasioned, or suffered by the said [vendor] or his heirs, or by any person or persons lawfully or equitably claiming or to claim by, from, or under or in trust for him, them, or any of them (except the aforesaid mortgage): And further, that he the said For further [vendor], his heirs, executors, and administrators, and all and every other persons and person having or claiming, or who shall or may have or claim any estate, right, title, interest, inheritance, use, trust, property, claim or demand whatsoever, either at law or in equity of, in, to, or out of the said messuage and other hereditaments herein-before granted and released and covenanted to be surrendered and assigned respectively, or expressed and intended so to be, or any of them, or any part thereof, by, from, or under, or in trust for him the said [vendor], his heirs, executors, or administrators, shall and will, from time to time, and at all times hereafter, upon every reasonable request to be made for that purpose, by and at the proper costs and charges of the said [purchaser], his heirs, appointees, executors, administrators and assigns, make, do, acknowledge, and execute, or cause and procure to be made, done, acknowledged, and executed (without prejudice to without prethe aforesaid mortgage) all and every such further and other lawful and reasonable acts, deeds, things, devices, conveyances, surrenders, assignments, and assurances in the law whatsoever, for the further, better, more perfectly, and absolutely granting, conveying, and assuring of the said mes

judice to mort

gage.