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CONVEYANCE

TO USES TO BAR DOWER.

Appointment always confirmed by lease and release.

of the second part; and E. F., of &c. [trustee], of the third

to such uses as the purchaser shall appoint gives him an absolute power over the estate, and one which he may exercise without the concurrence of any other person, and without the employment of a lease for a year. The subsequent limitations prevent the wife's right of dower from attaching, even if the husband die without having exercised his power. It was formerly doubted whether, if the estate were limited to such uses as the husband should appoint, and in default of appointment to him in fee, he could preclude his wife's right to dower by the exercise of his power; 2 Sugd. Pow. 34-36. But the question is now decided in the affirmative. (Ray v. Pung, 5 B. & Ald. 561; 5 Mad. 310).

It is manifest, that when the estate stands limited to such uses as the owner shall appoint, and in default of appointment to the uses in the text, the owner can, by an exercise of his power, vest the estate in any other person. But, it has always been the practice of conveyancers to make the owner confirm his appointment by a conveyance by lease and release as in the following precedent; and it Concurrence of has been a very common practice to make the trustee join in the

the trustee.

Effect of the dower act on the old mode of limitation.

Effect of ap

conveyance. (1 Sugd. Pow. 247). The reason assigned is, that the owner may have destroyed his power; but there does not seem to be much more ground for apprehending this, than that he may have parted with his estate. And, in small purchases, in which it is desirable to save the expense of the lease for a year-the conveyance is constantly made by appointment alone. The practice of making the trustee concur, is in great measure abandoned; and it may be laid down as the modern rule, that the trustee should never be made a party to any assurance.

The statute 3 & 4 Will. 4, c. 105, has placed the wife's dower at the discretion of the husband; and, although the alteration of the law does not affect wives who were married before the 1st of January, 1834; yet the wife can now bar her dower by joining in and acknowledging a deed. (See the form ante, Precedent XVI. and note (k)). Hence, the old mode of limiting the estate has, in great measure, lost its value; but it will be proper to retain the form for several years to come, in order to prevent the necessity of inquiry at a future time, whether the owner of the estate was married before the 1st of January, 1834. And, in order to meet the case of the owner having married after the 1st of January, 1834, it is the universal practice to add a declaration, that no widow shall be entitled to her dower.

There is no practical hardship in excluding widows from their right of dower, because dower is never regarded or depended upon as a provision.

Although the custom of limiting estates to such uses as the pur

part; WHEREAS (b), by indentures of lease and release, bearing date respectively the 4th and 5th days of June,

CONVEYANCE

TO USES TO BAR DOWER.

Recital of con

veyance to uses

to bar dower in

favour of vendor. power,

chaser should appoint, was chiefly followed with a view to the exclu-
sion of dower, it produced a further effect of great practical importance.
For, when a person takes an estate by appointment under the
he takes it under the instrument which created the power, and not
under the appointor; and, therefore, until the passing of the late
statute, a person taking an estate by appointment took it freed from
the judgment debts of the appointor. This principle was established
by the cases of Doe d. Wigan v. Jones, 10 B. & C. 459, and Tunstall
v. Trappes, 3 Sim. 300; and the judgment creditor could have no
relief in equity, although the appointee took, with notice of the
judgment. (Eaton v. Sangster, 6 Sim. 517). In consequence of this
rule, it became unnecessary to search for judgments on purchases
from persons having powers of appointment, and much expense was
saved to purchasers, and much perplexity to their counsel. But the
law has unfortunately been altered by the statute referred to; viz.
the 1 & 2 Vict. c. 110, which enacts (s. 13), that a judgment shall be a
charge upon all hereditaments over which the person against whom the
judgment is entered up, has any disposing power which he might,
without the assent of any other person, exercise for his own benefit.
It is, however, provided that nothing shall alter or affect any doc-
trine of courts of equity whereby protection is given to purchasers for
valuable consideration without notice. Of course, the benefit of the
power of appointment is now comparatively small; although, for
the reasons mentioned in the previous part of the note, the former
mode of limitation must, for the present, be retained. It might be
turned to advantage by using it so as to dispense with the lease for a
year, but, probably, the benefit to be gained in this way will be put
an end to by an act of the legislature abolishing the lease for a year,
and in a few years, practitioners will return to the old mode of con-
veyance in fee. (See further on the subject of powers overreaching
judgments, infra, Precedent XXI).

It is unnecessary here to go into the question as to whether the covenants for title entered into by the appointor with the appointee run with the land. The point will be discussed in the first volume of this work, and will be the subject of future notes.

(b) The manner in which instruments are recited varies according to the purpose and place of the recital. In commencing the recitals, the object is to shew that, at the period at which they commence, the subject-matter of the deed stood settled or limited in the manner stated. How it became so settled or limited is of no consequence; and, therefore, the fashion of the first recital is, that by an assurance or assurances, bearing a given date, and made between given parties,

pointment in overreaching the judgment debts of the ap pointor.

altered by

the stat. 1 & 2 Vict. c. 110.

Manner of reciting instru

ments.

CONVEYANCE

TO USES TO BAR DOWER.

Exception to the general rule in reciting a mortgage;

-a lease.

1801, the release being made, or expressed to be made, between M. S., of the first part; the said A. B., of the

the property was settled or limited in the manner stated. The recital should not be, that by the assurances, the property was conveyed and assured by A. B. to C. D. to the uses stated, but merely that the property was conveyed and assured to the uses. The names of the conveying parties and the mode of conveyance are immaterial; the only thing to be considered is the result of the conveyance.

But the case is altered when we arrive at the subsequent recitals; for having shewn by our first recital, that the property was vested in A. B., the recital of the next assurance must state, not generally, that the property was conveyed, but particularly, that A. B. conveyed the property. Or, to put a more complex case, if the first recital shew that the property was limited to A. B. for life, with remainder to his first and other sons in tail; the second recital will shew who is the first tenant in tail, and that he has attained twentyone years of age; and the third recital will shew that A. B. and such tenant in tail have conveyed, or charged, or settled the property, as the case may be. This last example proceeds, of course, on the supposition, that, for some reason, it is needful to notice the first settlement instead of commencing with the deed barring the entail.

There is an exception with regard to the rule laid down for reciting the first instrument in the chain of recitals. And that arises when the first instrument recited is a mortgage, because then it is needful to shew as well who was the mortgagor, as who was the mortgagee. Hence a mortgage, even when it begins the recitals, is recited formally and according to its technical parts. In reciting a mortgage, too, the consideration is stated, as that is the primary object, but, generally, in recitals of purchase or other deeds, the consideration is not stated as being of no consequence to the effect of the deed. It is usual, however, to refer to a consideration as therein mentioned, to intimate that the deed was not voluntary. But in the general form of recital used in the beginning of deeds, no consideration is ever referred to. If the mortgage be one which several persons (as former incumbrancers who are paid off) join with the mortgagor in making, the recital may be general that the estate was conveyed by and by the direction of the mortgagor to the use of the mortgagee; the proviso for redemption will be stated formally, and will shew in whom the equity of redemption was.

If the subject of the principal deed be leasehold property, it is usual to recite the lease formally; there is no objection to so doing, but it is only essential in cases in which it is required to shew who the lessor is, as in the case, for example, when his consent is needed for the assignment. So, too, a will is recited formally, but only because nothing would be gained by stating the devise or gift generally.

second part; and J. D., of the third part; and by a fine sur conusance de droit come ceo &c., levied in or as of Michaelmas term, in the forty-first year of the reign of his late Majesty King George the Third, before his Majesty's justices of the court of Common Pleas at Westminster, the messuages or tenements, lands and hereditaments hereinafter particularly mentioned, and intended to be hereby appointed and released with their appurtenances (c), were

It is often very difficult to determine at what period or with what instrument the recitals should commence. They should never go further back than is absolutely necessary for shewing the origin of all the estates and interests intended to be conveyed or assured; but as a general rule, they should go sufficiently far back for that purpose. The rule is deviated from in the case of old out-standing legal estates, (see infra, page 224), and in some other cases which depend on their peculiar circumstances, and which cannot well be particularised. Experience alone will enable the draftsman to determine with readiness at what period he will commence his recitals.

The manner of framing recitals of instruments is also to be considered in another light; viz. as to whether the instrument is to be recited verbatim, or whether merely the effect of it is to be stated. There is great danger of misstatement in attempting to state the effect of any instruments, except those which are strictly technical in their form and language. Hence, the general rule is to state the effect of all limi

tations and clauses, the effect of which is well known and certain,

and in which the fashion of the recital is generally as well settled as that of the original limitation or clause; but to give the essential contents of all peculiar or untechnical instruments in the words of the original. And it is to be observed that when the draftsman pro

CONVEYANCE

TO USES TO

BAR DOWER.

Period of com-
mencing reci-

tals.

When instru-
ments are to be

recited verba-
tim, and when
according to
their effect.

Ufered to in
The inboku.

fesses to be reciting an instrument verbatim, he should do so exactly, 13

and not omit or insert any words or phrases at his own discretion.

cels.

(c) The parcels should be described in the recitals by reference to Manner of rethe subsequent description in the witnessing part, because that is the ferring to pardescription by which the purchaser contracts to purchase. All partial or incomplete descriptions should be avoided. In case the instrument in recital affects only part of the property intended to be assured, the reference may be general as to "parts of the hereditaments hereinafter mentioned" &c.; or in case it is necessary or desirable to distinguish the different parts affected by the different instruments recited, the reference may be to the hereditaments, firstly or secondly thereinafter described, using as many numbers as may be needed, and making corresponding distinctions in the actual descriptions of the parcels. In subsequent recitals, the parcels may be dis

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TO USES TO
BAR DOWER.

CONVEYANCE Conveyed and assured to such uses upon such trusts, for such intents and purposes, and with, under, and subject to such powers, provisoes, agreements, and declarations as the said A. B., by any deed or deeds, writing or writings, with or without power of revocation and new appointment, to be sealed and delivered by him in the presence of, and attested by two credible witnesses (d), should direct, limit, or appoint, and in default of, and until and subject to such direction, limitation, or appointment, to the use of the said A. B. and his assigns, during his life, with remainder to the use of the said C. D. and his heirs, during the life of the said A. B., in trust for the said A. B. and his assigns, with remainder to the use of the said A. B., his heirs and -of agreement assigns: AND WHEREAS the said C. D. hath contracted and for purchase. agreed with the said A. B. for the absolute purchase of the

When parcels

are to be described in the recitals.

Manner of re-
citing an in-

strument which
created a
power.

tinguished by reference either to the witnessing part, or to the first instrument in which they are mentioned. Perhaps the best way is to preserve the uniform mode of referring to the witnessing part, unless the instrument in recital refers to the prior instrument; but, in fact, the draftsman must, in this matter, be guided principally by the circumstances, and must consider in each case how he can most conveniently make a clear reference.

There are cases in which the parcels are always described in the recitals; as in assignments of leases and terms of years, policies of assurance, interests in funds, or under particular settlements, and generally in all cases in which it happens that the interest assured was created by the instrument recited. And the reason of this is obvious; for as the object of the principal deed is to assure exactly what was contained in the recited instrument, the method of attaining this is to state exactly what the instrument contained, and assure it by means of a reference. In ordinary cases, the purchaser contracts for a particular estate without any regard to what deeds it was contained in; but in the above cases, he contracts for an interest contained in and depending upon the instrument recited.

(d) If it is intended to exercise the power given by an instrument in recital, (as in the present case), the words creating the power, and prescribing the manner of exercising it, should be given verbatim, in order to shew that the witnessing part is an echo of those words. But if it is not intended to exercise the power, it is proper in reciting its creation, to state merely the object and extent of the power, and to omit the manner in which it was to be exercised. If it has never been exercised, and has ceased to be exercisable, the reference may be of the most general description.

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