place] of county of Sworn, &c. [or parishes or places of and -] in the [or counties of -] as the case may be. Affidavits should be engrossed on parchment, and sworn before a judge of the Court of Common Pleas or a commissioner of that court. No stamp is now required on these affidavits. (4 & 5 Vict. c. 34.) SURRENDER out of Court by an equitable Tenant in Tail and his Trustee of the Copyhold Parts of the Estate, in pursuance of the Covenant contained in last Deed, ante, pp. vii, viii. IN THE MANOR OF DALE, WHEREAS [recite the settlement creating the entail, the admission of the trustees, the death COUNTY OF S of the tenant for life, and of one of the trustees, ante, pp. i-iii]. Now THEREFORE BE IT REMEMBERED, that on the day of in the year of our Lord 18—, C. D. of &c. and B. Adams, of &c. esq. copyhold tenants, or one of them, a copyhold tenant of the said manor, came before me, John Giles, steward of the said manor and courts thereof, and for defeating all estates tail of the said B. Adams of and in the lands and hereditaments intended to be hereby surrendered, and all remainders, reversions, estates, interests and powers to take effect after the determination or in defeasance of such estates tail (and in consideration of the sum of 9001. of lawful money of Great Britain to the said B. Adams well and truly paid by [name and description of the purchaser at or immediately before the passing of this surrender, in full for the absolute purchase of the lands and hereditaments intended to be hereby surrendered, and the inheritance thereof in possession, according to the custom of the said manor) he the said C. D. (at the request and by the direction of the said B. Adams, testified by his signing this surrender) and also the said B. Adams, under and by virtue and in pursuance of the powers and provisions for that purpose given by and contained in an act of parliament made and passed in the session of parliament held in the third and fourth years of the reign of his majesty King William the Fourth, intituled "An Act for the Abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance," did, and each of them did, out of court, according to the custom of the said manor, surrender out of their and each of their hands into the hands of the lords of the said manor, by the hands of me the said steward, by the rod, in the presence and testimony of a credible person attesting the same, All and every the messuages, lands, tenements and hereditaments whatsoever of them the said C. D. and B. Adams, and each of them, holden of the said manor by copy of court roll, with their and every of their rights, members, privileges, easements and appurtenances (9), And the reversion and reversions, remainder and remainders, yearly (9) Where the surrenderors hold other copyholds of the manor, besides those intended to be surrendered, there must be a description of the parcels sold, or an exception of such parts as are intended to be retained. and other rents, issues and profits thereof; and all the estate, right, title, interest, use, trust, inheritance, property, claim and demand whatsoever, legal and equitable, of them the said C. D. and B. Adams, and each of them, of, in, to or out of the same premises and every part thereof, with the appurtenances, To THE ONLY USE AND BEHOOF of the said [purchaser], his heirs and assigns for ever, absolutely and without any manner of condition whatsoever. Taken and accepted the of [Signatures of C. D. and B. Adams.] 18-, by me, [Signature of Steward.] Steward of the said Manor. In the presence of [Signature of Witness.] No. II. GRANT by a Tenant in Tail in Remainder with the Consent of the day of THIS INDENTURE, made the in the year of our Parties. Lord 18-, between William Evans, of &c. esq. of the first part; Edward Evans, of &c. esq. [the eldest son and heir of the body of the said William Evans), of the second part; and A. B. of &c. of the third part. WHEREAS Hugh Evans, late of &c. esq. being, at Recital of will creating the date and execution of his will hereinafter recited, and thencethe entail. forth to the time of his decease, seised of an estate of inheritance in fee simple in possession of and in the messuages, lands, tenements and hereditaments hereinafter described, and intended to be hereby granted, duly made, signed and published his last will and testament in writing, bearing date the 10th day of May, 1806, executed and attested in such manner as by law was then required for rendering valid the devise of freehold estates, and thereby gave and devised all and every the messuages, lands, tenements and other hereditaments, situate, lying, and being in the several parishes of A., B., and C., or elsewhere, in the county of Essex, of or to which the said Hugh Evans, or any person or persons in trust for him, was or were seised or entitled for an estate of freehold and inheritance in fee simple, in possession, remainder, reversion, or expectancy, with their and every of their appurtenances, to the uses, upon the trusts, and for the ends, intents and purposes, and with, under, and subject to the powers, provisoes, and declarations thereinafter declared and in part hereinafter mentioned; that is to say, to the use of his (the said testator's) son, the said William Evans, and his assigns, for and during the term of his natural life, without impeachment of or for any manner of waste; and, after the determination of that estate by any means in his lifetime, to the use of C. D., of &c. esq., and E. F., of &c. gentleman, and their heirs, during the life of the said William Evans, upon trust, by the usual ways and means, to preserve the contingent remainders thereinafter limited from being defeated or destroyed; and from and after the decease of the said William Evans, to the use of the first and other sons of the said William Evans successively in tail, so that the elder of such sons, and the heirs of his body issuing, might be preferred to and take before the tator. consent. TESTATUM. younger of such sons and the heirs of their respective bodies issuing, Death of tes- with divers remainders over: AND WHEREAS the said Hugh Evans departed this life on or about the 6th day of April, 1808, without having altered or revoked his said will: AND WHEREAS the said Edward Evans, as the eldest son and heir of the body of the said William Evans, is entitled to an estate tail in remainder immediately expectant upon the decease of the said William Evans in the messuages, lands and hereditaments hereby granted, or exAgreement of pressed and intended so to be: AND WHEREAS the said W. Evans, protector to as the protector of the settlement made by the said recited will, and in order to enable the said E. Evans to make such disposition and conveyance as are hereinafter contained effectual against all persons claiming after the determination or in defeasance of the estate tail of the said E. Evans, has agreed, at the request of the said E. Evans, to consent to the same in manner hereinafter expressed: NOW THIS INDENTURE WITNESSETH, that in pursuance of the said agreement, and in order to defeat and destroy all estates tail of the tenant in tail. said E. Evans in the messuages, lands and hereditaments hereby granted or expressed, and intended so to be, and all estates, rights, interests and powers, to take effect after the determination or in defeasance of such estates tail, and in order to convey and assure the inheritance in fee simple in remainder expectant upon the decease of the said W. Evans in the same hereditaments, unto and to the use of the said E. Evans, his heirs and assigns: He the said Edward Evans, with the consent and approbation of the said William Evans, as such protector as aforesaid, testified by his being a party to and sealing and delivering these presents, doth by these presents grant, dispose of, and confirm unto the said A. B. and his heirs, All that the remainder of him the said Edward Evans, expectant and to take effect upon the decease of the said William Evans, of and in all, &c. [parcels and general words]: and HABENDUM. the reversion, &c. and all the estate, &c. (see ante, p. iv.) To HAVE AND TO HOLD the said messuages, lands, tenements, hereditaments, and all and singular other the premises hereby granted, or expressed and intended so to be, (subject and without prejudice to the estate for life of the said William Evans,) and all powers, exemptions and privileges (except the power of consenting as protector), annexed to such estate, unto the said A. B. and his heirs, To the only use and behoof of the said Edward Evans, his heirs and assigns, for ever, freed and absolutely discharged of and from the estate tail of the said Edward Evans, and all remainders, reversions, estates, rights, interests and powers to take effect after the determination or in defeasance of such estate tail. [When it is intended to bar dower, the declaration may be here inserted. See ante, p. vi.] IN WITNESS, &c. (r). (r) This deed must be inrolled in Chancery within six calendar months after its execution. (See ante, p. 351.) It may be prudent to omit the words " bargain and sell" in an assurance intended not to operate as a bargain and sale. An instrument containing the words "grant, bargain and sell," intended by the parties to take effect as a bargain and sale, and duly inrolled as such, was held to operate as a grant, because the evident design of the parties in making the assurance would have been defeated if it had been construed as a bargain and sale. (Haggerston v. Hanbury, 5 B. & C. 101; 7 D. & Ry. 723. See Miller v. Green, 1 Cr. & J. 142; 8 Bing. 192; Pascoe v. Pascoe, 3 Bing. N. C. 898; Pentland v. Healey, 1 Alc. & Nap. 65; Avery v. Cheslyn, 5 Nev. & M. 372; 3 Ad. & Ell. 75.) It is stated in a learned work (Sugd. V. & P. 588, 11th ed.), "that although both deeds must be inrolled, yet a lease and release by a tenant in tail will still operate as a conveyance, as they did before the late statute, the lease for a year as a bargain and sale, and the release as such; and the enactment will not of itself alter the operation of either of the instruments, and consequently by such a conveyance an estate tail and remainders may be barred, and the fee limited to any uses and with any powers authorized by law. No other alteration ought to be made in a lease and release, as a disposition under the statute, than a recital or declaration in the release of the intention to bar the estate tail and remainders over, although the disposition will have that operation without any such recital." A lease for a year is now unnecessary, 8 & 9 Vict. c. 106, s. 2. No. III. CONVEYANCE by the Owner of a Base Fee for the Purpose of enlarging it into a Fee Simple absolute. See 3 & 4 Will. 4, c. 74, s. 19, ante, p. 328 (s). day of tail in re THIS INDENTURE, made the in the year of our Lord 18-, between Edward Evans, of &c. esq. the [owner of the base fee,] (the eldest son and heir of the body of William Evans, of &c. esq. deceased), of the one part, and A. B., [the releasee,] of the other part: WHEREAS [recital of will creating the entail and death of testator, ante, pp. xvii, xviii]: AND WHEREAS, under and Fine levied by virtue of an indenture bearing date on or about the 1st day of by tenant in May, 1832, and made, or expressed to be made, between the said mainder. Edward Evans of the one part, and C. D. of the other part, and by a fine sur conuzance de droit come ceo, &c. acknowledged and levied by the said Edward Evans before his majesty's justices of the Court of Common Pleas at Westminster, in or as of Trinity term, 1832, in pursuance of a covenant or agreement contained in the same indenture, and a declaration of uses of the same fine therein contained, the messuages, lands and hereditaments hereby granted and released, or expressed and intended so to be, were duly limited and assured (subject and without prejudice to the estate for life of the said William Evans in the same hereditaments,) unto and to the use of the said Edward Evans, his heirs and assigns for ever. AND WHEREAS the said William Evans departed this life on Death of or about the 1st day of June, 1834, whereupon the said E. Evans tenant for became entitled to a base fee in possession in the said hereditaments; and the said E. Evans is desirous of enlarging such base fee into a fee simple absolute: NOW THIS INDENTURE WITNESSETH, TESTATUM. that in order to enlarge the base fee of the said E. Evans in the Owner of messuages, lands and hereditaments hereby granted and released, base' fee conor expressed and intended so to be, into a fee simple absolute, and Veys for the to defeat and destroy all estates tail, remainders, reversions, rights, enlarging it titles, interests and powers, to take effect after the determination into a fee simple absoor in defeasance of the base fee into which the estate tail of the lute." said E. Evans has been converted as aforesaid; and in order to (s) Where there is a protector of the settlement creating the entail which has been converted into a base fee, the owner of it cannot acquire the fee simple absolute without the consent of such protector. (See 3 & 4 Will. 4, c. 74, s. 35; ante, p. 345.) life. purpose of limit and assure the inheritance in fee simple in possession in the same hereditaments to the use of the said E. Evans, his heirs and assigns for ever, he the said E. Evans doth by these presents, made in pursuance of the act passed in the session of parliament held in the fourth and fifth years of the reign of her majesty Queen Victoria, intituled "An Act for rendering a Release as effectual for the Conveyance of Freehold Estates as a Lease and Release by the same Parties," grant, alien, dispose of, release and confirm unto the said A. B., All that, &c. [parcels, general words, and the reversion and all the estate, &c. ante, p. iv.] TO HAVE AND TO HOLD the said messuages, lands, tenements, hereditaments, and all and singular other the premises hereby granted and released, or expressed and intended so to be, with their and every of their rights and appurtenances, unto the said A. B. and his heirs, To THE ONLY USE AND BEHOOF of the said E. Evans, his heirs and assigns for ever, and to and for no other use, intent or purpose whatsoever. [If the party was not married on or before 1st January, 1834, and it is intended to bar dower, the declaration, ante, p. vi, should be added.] IN WITNESS, &c. (t). (t) This deed must be inrolled within six calendar months after its execution in Chancery. (Ante, p. 351, s. 41.) Recitals of vendor's title. Of sale by auction. No. IV. CONVEYANCE by Bargain and Sale (to be inrolled in Chancery) by a Tenant in Tail in Remainder, without the Consent of the Protector of the Settlement, with a Covenant to complete the Title at a future period. THIS INDENTURE, made the -day of in the year of our esq. (the eldest son Lord 18-, between Edward Evans, of &c. (u) A tenant in tail in remainder, without the consent of the protector of the settlement, can only convey a base fee, which will endure so long as such tenant in tail has issue of his body, on the failure of which, unless the base fee be subsequently enlarged, the remainders over will take effect. It would not therefore be prudent for a purchaser to take a conveyance from a tenant in tail in remainder, without the protector's consent, unless there is issue, which will probably live until the title can be perfected, and reliance can be placed on the covenant of the vendor for securing to the purchaser the damage he will sustain by the non-performance of the covenant to complete the title. Hence, in cases of this kind, it will often be necessary to invest the purchase-money in the names of trustees until the title shall be completed. |