Trustee con veys to A. B. pursuance and performance of the said agreement, and for Witness; and in consideration of the premises and of the sum of 10s. of lawful money of Great Britain and Ireland to the said A. B. paid by the said C. D. (party hereto), at or immediately before the sealing and delivery of these presents, (the receipt whereof is hereby acknowledged,) the said A. B. HATH bargained, sold, aliened, and released, and by these presents DOTH bargain, sell, alien, and release unto the said C. D. (party hereto,) (in his actual possession now being by virtue of a bargain and sale to him thereof made by the said A. B. in consideration of 5s., by an Indenture bearing date the day next before the day of the date of these presents, for the term of one whole year, commencing from the day next before the day of the date of the said Indenture of bargain and sale, and by force of the statute made for transferring uses into possession,) and his heirs, ALL [parcels], and all other the hereditaments so General words. conveyed to the said A. B., as is hereinbefore mentioned, Together with all and singular outhouses, edifices, buildings, ways, liberties, privileges, easements, hereditaments, and appurtenances to the same belonging, or in anywise appertaining or taken or known as part and parcel thereof, And all reversions, remainders, rents, isues, and profits of the same, And all the estate, right, title, and interest whatsoever, both at law and in equity, of him the said A. B. of, in, to, from, and out of the same, To HAVE AND TO HOLD the said piece or parcel of To hold to ground, messuage or tenement, buildings, and other the pre- uses to mises hereby released, or intended so to be, and every of them, and every of their appurtenances, unto the said C. D. (party hereto) and his heirs for ever, To such uses, upon such trusts, for such purposes, and subject to such powers as the said C. D. (party hereto) shall by any deed or writing, with or without power of revocation and new appointment, to be by him sealed and delivered in the presence of, and to be attested by, two or more credible witnesses, direct, limit or appoint; And for default thereof, and subject thereto To the use of the said C. D. (party thereto) and his assigns during his life, without impeachment of waste, and subject thereto, To the use of the said [trustee to bar dower], and his heirs, during the life of the said C. D. (party hereto), IN TRUST for the said C. D. (party hereto), and his assigns: And after the determination of the And all rever sions. And all the estate. uses to bar Covenant by A. B. against incumbrances. estate so limited in use to the said [trustee to bar dower], To the use of the said C. D. (party hereto), his heirs and assigns for ever: And the said A. B. (a) doth, for himself, his heirs, executors, and administrators, covenant and declare with and to the said C. D. (party hereto), his heirs, appointees, and assigns, by these presents, that he the said A. B. hath not at any time heretofore made, done, committed, or executed, or knowingly or willingly permitted or suffered, or been party or privy to any act, deed, matter, or thing whatsoever, whereby or by reasoǹ or means whereof the said piece or parcel of ground, messuage or tenement, buildings, and other hereditaments hereby released, or expressed and intended so to be, or any of them, or any part thereof, are, is, can, shall, or may be impeached, charged, affected, or incumbered in little estate or otherwise howsoever. IN WITNESS, &c. (b) (a) As A. B. is a mere trustee, he cannot, of course, be called upon to enter into any other covenant than that he has done no act to incumber. Wakeman v. Duchess of Rutland, 3 Ves. Jun. 233. 504.; 8 Bro. P. C. 145.; and see note (h), ante, page 57. (b) As the ad valorem duty stamp was paid on the conveyance to the trustee, only the common deed stamp will be requisite upon the above. XXV. CONVEYANCE BY LEASE AND RELEASE of an undivided THIS INDENTURE, made the day of in the year of our Lord 1838, BETWEEN [vendor] of &c. spinster, Parties. (a) Tenants in common (unlike co-parceners), always take by purchase. Mr. Watkins, in his Principles of Conveyancing, book i. ch. 12., gives the following summary of the estate :— -"Tenants in common take also by purchase, but hold by distinct titles (2 Bl. Com. 191.; Litt, b. 3. c. 4. and the comment), and have separate freeholds, being not seized per mie and per tout as joint tenants are; and the best way to create a tenancy in common is either to limit one moiety of the premises expressly to one, and the other moiety to the other, or to use the words 'to hold as tenants in common, and not as joint-tenants,' as the law may otherwise construe it joint estate. As the possession of tenants in common is undivided till partition, they cannot exchange with each other, though they may exchange, either together or separately, with a stranger. (Touchst. 292.) But as the seisin of each is distinct (Gilb. Ten. 74.), and their estates several, one may enfeoff the other, or, if the other have a greater estate, surrender to him. So one may devise his part to the other; but one cannot release to his companion as such, because such release must operate by way of enlargement, and there is no estate in the companion in the share of the releasor to be enlarged. Tenants in common may transfer their respective shares to strangers by the usual modes of conveying freehold property, and they may compel a partition among themselves." In Mr. White's edition of Watkins, p. 166., it is observed: "In a will the words equally to be divided,' C 'equally between or to 1 6 creetry them,'-equally alone respectively, rateably, share Words crea a tenancy in common, as well in respect of real as personal estate. "Tenants in one of the daughters of A. B., late of, in the county of -, Esq., of the one part, and [purchaser] of &c., of the other Recital of will, part: WHEREAS the said A. B. duly made, signed, and published his last will in writing, bearing date on or about the in such manner as was then (b) by law whereby premises were devised to vendor and another as tenants in common. day of common are such as hold by several and distinct titles, but by unity of possession; because none knoweth his own severalty, and therefore they all occupy promiscuously. This tenancy, therefore, happens where there is a unity of possession merely, but perhaps an entire disunion of interest, of title, and of time. For if there be two tenants in common of lands, one may hold his part in fee-simple, the other in tail or for life; so that there is no necessary unity of interest: one may hold by descent, the other by purchase; or the one by purchase from A., the other by purchase from B.; so that there is no unity of title: one's estate may have been vested fifty years, the other's but yesterday; so that there is no unity of time. The only unity there is, is that of possession ;" and for this, Littleton gives the true reason, because no man can certainly tell which part is his own. Mr. Merrifield, in his edition of Watkins, page 111., has a long note upon this subject, from which the following observations are derived : — "Tenants in common are they who have lands and tenements in feesimple, fee-tail, or for term of life, &c., by several titles, and not by a joint title, but occupy the same lands in common. (Litt. s. 292.) The essential difference between joint-tenants and tenants in common is, that joint-tenants have the lands by one joint title and in one right, and tenants in common by several titles, or by one title and several rights. It is common to both, that their occupation is undivided, and neither of them knows his part. (Co. Litt. 189. a.) Tenants in common have several freeholds, but joint-tenants and coparceners have but one freehold." (5 Rep. 7.) "If lands be given to two to have and to hold to them, viz., the one moiety to one and his heirs, and the other moiety to the other and his heirs, they are tenants in common. (Litt. s. 298.) This estate may be created by deed or by will, or arise by prescription. (Co. Litt. 195. a.) It may be created by the destruction of joint-tenancy or in coparcenary; thus, if a joint-tenant or coparcener alien to a stranger, the alienee will be tenant in common with the other. (Litt. s. 292. 309. ; Bl. Com. 192.) or if a person convey to another an undivided moiety of his lands, the owners will be tenants in common. (Litt. s. 299.) For a note upon the subject of coparceners, see antè, page 198. note (a). " (b) In all recitals of wills devising real estate, executed previously to the 1st of January, 1838, or not re-executed, republished, or revived before that day, the form above should be adopted. By the law, as it stood previously to the passing of the Act " For the Amendment of the Law with respect to Wills" (1 Victoria, ch. 26.) by the Statute of Frauds (29 Car. 2. c. 3.), a will to be valid of real estate must be signed by the testator, and attested by three witnesses; but now by the 1 Vict. ch. 26., so much of the Statute of Frauds as relates to wills is repealed, tator. required for rendering valid devises of real estate, and thereby gave and devised ALL that freehold farm at, in the county of, unto and to the use of his two daughters, the said [vendor], and Margaret B., their heirs and assigns, as tenants in common, and not as joint-tenants: AND WHEREAS Death of testhe said testator departed this life on or about the day of last, without having revoked or altered his said will, leaving the said [vendor] and Margaret B. him surviving: AND WHEREAS the said [purchaser], hath contracted with the Contract for said [vendor] for the absolute purchase of the undivided purchase. moiety or equal half-part or share of the said [vendor] of and in the farm, lands, tenement, and hereditaments hereinafter described, with their appurtenances, free from all incumbrances, at the price of 700l.: Now THIS INDENTURE WIT- Witness; NESSETH, that in pursuance and performance of the said agree- veys ment, and in consideration of the sum of 7007. of lawful money of Great Britain and Ireland to the said [vendor] in hand well and truly paid by the said [purchaser], at or immediately before the sealing and delivery of these presents, the receipt of which said sum of 7007. the said [vendor] doth hereby admit and acknowledge (c), the said [vendor] HATH granted, bargained, sold, aliened, released, and confirmed, and by these presents DOTH grant, bargain, sell, alien, release (d), and confirm unto the said [purchaser] (in his actual possession now being by virtue of a bargain and sale and by section 3. it is enacted that all real and personal property may be disposed of by will executed as thereinafter mentioned; and by section 9. it is enacted, "That no will shall be valid, unless it shall be in writing, and executed in manner hereinafter mentioned; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." (c) Where brevity is essential, the receipt in the body of the deed may be thus shortly expressed. As to this receipt, see ante, page 29. note (d). (d) Tenants in common may transfer their respective shares to strangers by the usual modes of conveying freehold property. (Ante, note (a) to this form.) Vendor con |