Apportionment of the purchase money. to trustee to join. 1st witness; vendor appoints chaser in fee. purchase it was agreed (b) that the sum of 7. should be taken and considered as the purchase money for the freehold and leasehold messuages, lands, tenements, and hereditaments herein-after appointed and released and assigned respectively, and the sum ofl. should be taken and considered as the purchase money for the said copyhold or customary hereditaments herein-after covenanted to be surrendered; which said two several sums ofl. and 7. make together the said Vendor applied sum of 10907.: AND WHEREAS the said [vendor] hath applied to and requested the said [trustee] to join in conveying and releasing the hereditaments firstly herein-after mentioned and described, which he the said [trustee] hath consented to do: NOW THIS INDENTURE WITNESSETH, that in pursuance and freeholds to pur- part performance of the said agreement, and in consideration of the sum of 1090l. of lawful money of the united kingdom of Great Britain and Ireland, to the said [vendor] by the said [purchaser] in hand paid at or immediately before the sealing and delivery of these presents (the receipt of which said sum of 10902 he the said [vendor] doth hereby admit and acknowledge, and of and from the same, and every part thereof, doth acquit, release, and discharge the said [purchaser], his heirs, executors, administrators, and assigns, and every of them, for ever, by these presents), and pursuant to, and by force and virtue, and in exercise and execution of the power or authority to him the said [vendor] for this purpose given or limited by the herein-before recited Indenture of release of the day of, he the said [vendor] doth by this present deed or writing, by him sealed and delivered in the presence of the two credible persons whose names are intended to be hereupon indorsed, as witnesses attesting the sealing and delivery of these presents by him the said [vendor], direct, limit, and appoint that the piece or parcel of ground, messuage or tenement, and hereditaments firstly herein-after particularly mentioned and described, and intended to be hereby granted and released, with the appurtenances there (b) As to the apportionment of the purchase money upon a sale of freehold and copyhold lands, see the note a appended to No. IX. pages 83 & 84. antè; and see note at page 90. antè. 2nd witness; vendor and trustee convey free unto belonging, shall henceforth remain and be to the use of the said [purchaser], his heirs and assigns for ever: AND THIS INDENTURE FURTHER WITNESSETH, that in pursuance and further performance of the said agreement, and in con- holds. sideration of the said sum of 10907. so paid as aforesaid, and in consideration of 10s. of lawful money aforesaid to the said [trustee] paid by the said [purchaser], at or immediately before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged), he the said [trustee], at the request and by the direction of the said [vendor], testified by his being a party to, and sealing and delivering these presents, HATH bargained, sold, and released, and by these presents DOTH bargain, sell, and release and the said [vendor] HATH granted, bargained, sold, aliened, released, and confirmed, and by these presents DOTH grant, bargain, sell, alien, release, and confirm unto the said [purchaser], (in his actual possession now being by virtue of a bargain and sale to him thereof made by the said [vendor], 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], together with all and singular the appurtenances thereunto belonging; And the reversion and reversions, remainder and remainders, yearly and other rents, issues, and profits thereof; And all the estate, right, title, property, claim, and demand whatsoever of him the said [vendor], or the said [trustee], or either of them, of, in, to, from, or out of the same: TO HAVE AND TO HOLD the said piece or parcel of land, mes- To hold in fee. suage or tenement, hereditaments and premises unto the said [purchaser], his heirs and assigns, to the use of the said [purchaser], his heirs and assigns for ever: AND THIS INDENTURE 3rd witness: FURTHER WITNESSETH (c), that in pursuance, and further vendor per (c) A lease is properly a conveyance of any lands or tenements, (usually in consideration of rent or other annual recompence), made for life, for years, or at will, but always for a less time than the lessor hath in the premises; for if it be for the whole interest, it is more properly an assignment than a lease. The usual words of operation in it are,— "demise, grant, and to farm let: dimisi, concessi, et ad firmam tra conveys leaseholds for lives to pur chaser. formance of the said agreement, and in consideration of the said sum of 10907. so paid as herein-before is mentioned, He didi." By this conveyance an estate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments; though livery of seisin is indeed incident and necessary to one species of leases, viz., leases for life of corporeal hereditaments; but to no other. (Bl. Com. b. ii. c. 20.) An estate pour autre vie is an estate of freehold, though it is the lowest or the least estate of freehold which the law acknowledges, and being an estate of freehold, must be created, if intended to be created out of an estate in possession, by some mode of conveyance which will pass the freehold in possession; but if intended to be created out of an estate in remainder or reversion, it may be created like any other interest by grant only. An estate pour autre vie may be conveyed during the lives of the celles que vies, or parties for whose lives the lands or tenements are held, by the common mode of conveying freeholds. (Bl. Com. b. ii. Co. Litt. 41. b. &c. &c. But though this is an estate of freehold, it may be limited to a man, his executors and administrators, as well as it can be to his heirs for the heirs, or the executors and administrators, take as special occupants. (Carth. 376.; and see Butler's note to Co. Litt. 379. b. note 1.) In the Introduction, sect. 2. Dower, the limitation to the trustee is recommended to be to him, his executors and administrators, during the life of the husband: this was done in order that the trustee's representative might take as special occupant, so that in case of his death the possibility of the estate falling into the possession of an infant heir might be averted. Prudence suggested this, although it has been almost universally neglected in practice; and the limitation has been to the trustee and his heirs in the manner followed in the limitations to bar dower in the preceding forms. Respecting the title by occupancy Mr. Justice Blackstone (b. 2. c. 6.) observes, that it is the taking possession of those things which before belong to nobody. The right of occupancy of real property is confined by the laws of England within a very narrow compass; and was extended only in a single instance; namely, where a man was tenant pour autre vie, or had an estate granted to himself only (without mentioning his heirs), and died during the life of the cestui que vie, or him by whose life it was holden; in this case, he that could first enter upon the land might lawfully retain the possession so long as cestui que vie lived, by right of occupancy. (Id. ib. Co. Litt. 41.) This occupancy was reduced by statute 29 C. 2. c. 3., which enacted that where there was no special occupant in whom the estate might vest, the tenant pour autre vie might devise it by will, or it should go to the executors or administrators. There was another statute, namely, 14 G. 2. c. 20., materially affecting the title by occupancy, which, together with the recent statute of wills, 1 Vict. c. 26., will be noticed in the proper place hereafter. Where, however, an estate is granted to a man and his heirs during the lives of A., B., and C., and he dies, his heir takes by special occu the said [vendor] HATH granted, bargained, sold, aliened, released, and confirmed, and by these presents DOTH grant, pancy; he is held to succeed to his ancestor's estate, not by descent, for then he must take an estate of inheritance, but as an occupant specially marked out and appointed by the original grant. (2 Salk. 464. Carth. 376. Bl. Com. b. ii. c. 16.) Upon the subject of leaseholds for lives Mr. Preston observes (Conveyancing, vol. ii. pp. 147, 156, 157.), "On a lease for life, as it goes to the seisin as well as to the possession, livery must be made as on a feoffment, unless it be of a reversion, or remainder, or a thing lying in grant, or unless it be created under a power, or by a lease and release, which are equivalent to a livery. As a lease for life unlimited by a term is a freehold interest, it should commence and vest immediately, and not in futuro; but if livery of seisin be made after the time it is expressed to commence, or if the lease may operate as a bargain and sale, it will be supported. Lands demised or granted to a man generally, without denoting the quantity of estate intended to be given, and livery be made upon it, such demise or grant to another generally by tenant in fee shall be an estate to the lessee for his own life, for his life is greater in consideration of law than another's life; and therefore, if he lease to him in remainder or reversion, for his life, he shall have it after the death of the lessee, for it was not a surrender; but if it be by tenant in tail, it shall be for the life of the lessor, for that is all he can lawfully grant, unless he lease according to the stat. 32 Hen. 8. c. 28. (Com. Dig. tit. Estates (E. 1.) Co. Litt. 412.) So a demise to another for a time indeterminate passes for life if livery be made. (Ibid.) Estates for life granted absolutely, will, generally speaking, endure as long as the life for which they were granted. (Com. 121.) But there are some estates for life which may determine upon future contingencies, before the life for which they are granted expires; as where a lease is to a man quamdiu se bene gesserit; to a woman, durante viduitate, or dum sola; to husband and wife during coverture; to A., as long as he inhabits or pays such rent, or till he be preferred to such a benefice, or till out of the profits he has paid 100l. or other sum. In these and such like cases, the duration of the estate depends merely upon the condition. (Com. Dig. tit. Estates (E. 1.) Co. Litt. 412.)" In the precedent in the text the leaseholds for lives are conveyed according to the authorities, cited above, by lease and release. With regard, however, to the leaseholds determinable on lives, they, of course, not being of a freehold interest, are conveyed by assignment. The following summary, extracted principally from Bacon's Abridgment, tit. Lease, may be found useful in this place. The usual limitation in leases for the life of the longest liver of any number of lives is, "if A., B., and C., or any or either of them, shall so long live." If it be determinable when the first of any one of the lives named shall die, the condition is usually expressed, "if A., B., and C. shall jointly so long live." So where a lease was made for forty years to two persons, if they lived so long, or to A. for forty years if he and B. should so long live, or the lessor and lessee, or the lessor and J. S. should so long live; same lease for a bargain, sell, alien, release, and confirm unto the said [purchaser] (in his actual possession now being by virtue of the said Indenture of bargain and sale herein-before referred to, and by force of the statute made for transferring uses into Reference to the possession), and his heirs, ALL [parcels in demise and feoffment for lives], Together with all and singular the appurtenances thereunto belonging; And the reversion and reversions, remainder and remainders, yearly and other rents, issues, and profits thereof; And all the estate, right, title, property, claim, and demand whatsoever, of him the said To hold during [vendor] of, in, to, from, or out of the same, To HAVE AND TO HOLD the said pieces or parcels of land or garden ground, &c. unto the said [purchaser], his heirs and assigns, To the use of the said [purchaser], his heirs and assigns, for and during the natural lives and life of the said three lives. &c. and Subject to rent, and of the survivors and survivor of them, Subject nevertheless to the payment of the rent, and to the observance and performance of the covenants, provisoes, agreements, and declarations in the said herein-before recited indenture of demise and feoffment reserved and contained, and which henceforth on the tenant or lessee's part are or ought to be paid, observed, performed, fulfilled, and kept : AND THIS Indenture FURTHER WITNESSETH, that in pursuance and further perder copyholds. formance of the said agreement, and in consideration of the said sum of 10907., so paid as herein-before is mentioned, HE the said [vendor] DOTH hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree with and to the said [purchaser], his heirs and assigns, that 4th witness: in all these cases the death of either of them determines the lease, because their lives are the collateral measure and limitation of the continuance of the term, or rather the condition whereon the estate depends; and by the death of one of them the condition is as much broken as if both were dead; since, with regard to the condition, both made but one person, and they cannot now both so long live, one being dead already; and the condition, being entire, cannot be severed or divided, so as when part of it is broken and gone the estate should still subsist, and hang upon the other part thereof: and therefore this differs from a lease to two persons for their lives; for this gives an estate to both for their lives, and both have an estate of freehold therein in their own right; and, consequently, this cannot determine by the death of one of them, for then the other could not be said to have an estate for his life, as the lessor at first gave it. i |