UNDER POW ERS. delivered, and so intended to be attested as hereinbefore is mentioned, have, and each and every of them hath conveyed, and by these presents do, and each and every of them doth convey (g) all that messuage, farm, and lands, situate at in the parish of and the county of -, the particulars whereof are mentioned in the second schedule to these presents, and also, all the tithes whatsoever, yearly coming, growing, renewing, happening, or increasing, in, upon, or out of the same farm, lands, and hereditaments, [general words (h)], to such and the same uses, upon such and the same trusts, and with, under, and subject to such and the same powers, provisoes, limitations, and agreements, as the said messuage or tenement, farm, lands, tithes, and other hereditaments herein before conveyed in exchange by the said A. B., party hereto, or expressed and intended so to be, stood limited, or were liable to, immediately before the execution of these presents, IN EXCHANGE for the said messuage or tenement, In exchange. farm, lands, tithes, and other hereditaments hereinbefore conveyed in exchange by the said A. B., party hereto, or expressed and intended so to be (i): AND EACH OF THEM the said E. F., G. H., and I. K., so far as relates to his own (g) This expression is peculiar, but of course it was the word used in the power, and must be considered as a word having the effect of a revocation and new appointment. (See ante, Vol. 3, p. 435, n. (b)). It may be observed, that it is the practice with many conveyancers in effectuating sales, exchanges, or partitions, by means of powers of sale, or exchange, or partition, given to the trustees to preserve contingent remainders, and to be exercised with the assent of the tenant for life, not to content themselves with a due exercise of the powers, but to add, by way of further assurance, a conveyance by lease and release by the trustees and tenant for life. This, however, is manifestly wrong, for as it can but pass the estate for life of the tenant for life, it cannot substantially improve the title if the power has been improperly exercised; and it seems to put an end to the chance of assistance under the covenant for further assurance, as the tenant for life, having parted with his estate, has probably thereby extinguished his right to assent to a further exercise of the power. (See 1 Sugd. Pow. Ch. 2, Sect. 2). (h) See supra, n. (d). (i) See supra, n. (e). Covenants by that they have the trustees Peculiar expression of power. As to the addition of a con veyance after an exercise of a power in a settlement. UNDER POW ERS. done no act to prevent their exercising their power, and against incum brances. Covenants by the tenant for life for title. acts and deeds, doth hereby for himself, his heirs, executors, and administrators, covenant with the said A. B. and his heirs (k), by these presents, that they the said E. F., G. H., and I. K. respectively, have 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 reason or means whereof, they the said E. F., G. H., and I. K. are in anywise prevented or hindered from exercising, in manner aforesaid, the power or authority herein before exercised by them as aforesaid, or expressed and intended so to be, or whereby, or by reason or means whereof, the said messuage, farm, lands, tithes, and other hereditaments lastly hereinbefore conveyed in exchange, 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 title, estate, or otherwise howsoever: AND THE SAID L. M. doth hereby for himself, his heirs, executors, and administrators, covenant with the said A. B. and his heirs, by these presents, in manner following: (that is to say), That, for and notwithstanding any act, deed, matter, or thing, by him the said L. M., or the said N. M., or any of his ancestors, made, done, committed, or executed, or knowingly or willingly suffered, to the contrary &c. [Covenants that the power was well created-is in force—that the tenant for life has right to consent for right to convey-for quiet enjoyment—free from incumbrances-and for further assurance-see the covenants, ante, Vol. 3, p. 233]. IN WITNESS &c. (k) See supra, n. (ƒ). XX. EXCHANGE under the ACT of the 1 & 2 Geo. OF CHARITY THIS INDENTURE, made &c. BETWEEN The Go- Parties. vernors of &c. [the full title of the charitable corporation], (a) In preparing drafts of exchanges under the act referred to, Reference to the act itself must be diligently consulted, as the requisites for the act. effecting an exchange under it are numerous and special. The recitals of the Precedent, however, and the following notes will suggest some of the matters which chiefly require attention. It is doubtful whether an exchange can be effected under the act, unless both estates are free from incumbrances and are in possession, without even an outstanding lease, at rack rent, for it is not clear how otherwise the directions of the 4th section, as to the delivery of possession, can be complied with; and the 9th section, providing a mutual right of re-entry on eviction or disturbance, seems to point to the same conclusion. The language of the act seems to contemplate only exchanges of freehold hereditaments, and does not appear suited to the cases of copyholds or leaseholds. The charity will, of course, be seised of their lands in fee-simple, but it will be necessary too, perhaps, that the owner of the lands given in exchange to the charity should have the whole estate in fee-simple in him, or in trust for him, so as to be capable of passing it by the bargain and sale which the act requires. It is apprehended that an appointment to the charity would not be within the protection of the act, so as to escape the penalties of the mortmain laws, when the charity is a corporation. It is for this reason that, although in the case in the text the lands of the party exchanging with the charity stand limited to the usual uses to bar dower in his favour, yet he is not made to exercise his power, but joins with his trustee in the conveyance by bargain and sale. It has been suggested that a corporation cannot convey by bargain and sale, but there is no ground for this opinion, even independently of the directions in the act that the conveyance shall be by bargain General observations on exchanges under the act. OF CHARITY of the first part; The Right Reverend [christian_name], Lord Bishop of [the bishop of the diocese], of the second part; A. B., of &c., [the exchanging party], of the third part; and C. D., of &c., [his trustee], of the fourth Recital of the part: WHEREAS the said Governors of &c. [full title] are a body corporate, incorporated by letters patent of his late Majesty King, bearing date the creation and objects of the charity, and of the seisin by the charity of the lands to be given in exchange; in the day of year of his reign, and are seised of (among other hereditaments) the pieces or parcels of land, messuages, buildings, and hereditaments, with their appurtenances, intended to be hereinafter given in exchange by them, and which are vested in them for the education and instruction, in the town of, of boys and youths in grammar, the modern languages, arts, and sciences, and for elementary instruction (b): AND WHEREAS, by indenveyance to uses tures of lease and release bearing date, respectively, the -of the con to bar dower, of the lands to be taken in exchange; and days of, the release being made or expressed to be made between [parties], the piece or parcel of land, messuages, buildings, and hereditaments, with the appurtenances, intended to be hereinafter given in exchange by the said A. B., were conveyed and assured to the use of such person or persons, for such estate or estates, and for such intent or intents, and in such shares and proportions, and upon such trusts, and charged and and sale. (Sir Thomas Holland v. Bonis, 1 Leon. 183; 2 Leon. 121; 3 Leon. 175; Com. Dig. Bargain and Sale, (B. 3); Co. Litt. 271. b. n.). (b) If the charity be not a corporation, but be in the hands of trustees, the directions given in the 6th section of the statute, as to the filling up of vacancies prior to the exchange, and as to the number of trustees whose concurrence is required before making an application to the bishop, must be observed. Of course all the existing trustees must be parties to the conveyance. The 7th section of the statute enables the bishop of the diocese to appoint trustees of charity lands of which there are no known trustees, and gives validity to exchanges effected by trustees so appointed. The 9th section enables a trustee of a charity himself to effect an exchange with the charity, the bishop appointing a trustee to act in lieu of the exchanging trustee in the matter of the exchange. But this provision does not apply when the charity is a corporation, although the exchanging party be a member of the corporation. chargeable in such manner, either absolutely or condition- (c) The object of this recital is to shew what bishop has jurisdiction, under the act, as bishop of the diocese. |