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TO USES TO BAR DOWER.
said messuages or tenements, lands and hereditaments conveyance hereinafter particularly mentioned, and intended to be BAR dower. hereby appointed and released with their appurtenances, and the inheritance thereof in fee-simple in possession, free from incumbrances, at or for the price or sum of £- ; NOW THIS INDENTURE WITNESSETH, that in Witnesseth. pursuance of the said agreement, and in consideration of Consideration. the sum of £- to the said A. B., paid by the said C. D., at or immediately before the sealing and delivery of these presents, (the receipt of which said sum of £- , the said Receipt clause. A. B. &c.; see Precedent XVI., p. 194), and pursuant to and by force and virtue and in exercise and execution of the Appointment. power or authority to the said A. B., for this purpose given by the said indenture of the 5th day of June, 1801, as hereinbefore is mentioned (e), and of all other powers or authorities in anywise enabling him in this behalf, he the said A. B., doth by this present deed, or writing, by him sealed and delivered in presence of and attested by the two credible persons whose names are intended to be hereupon indorsed
(e) When it is intended to exercise a power, the instrument creat- Manner of exing the power should be particularly recited; (see the preceding ercising note), and the witnessing part, which purports to exercise the power, should contain a clear reference to it. (See 1 Sugd. Pow. 243). The form in the text is that in general use for this purpose, and in all well drawn instruments is substantially the same. It always contains the clause referring to all other powers, enabling the appointor in that behalf.
The form of appointment, too, always describes the manner in which the deed is to be executed, in terms which are the exact echo of the words contained in the instrument creating the power. (See the exercise of other powers, infra, Precedents XXI. XXIX.). This practice is sanctioned by invariable custom, but it does appear absurd, to make an instrument describe the mode of its own intended execution; and, perhaps, the most that can be said for the practice is, that it serves the solicitor as a guide in preparing the attestation clauses. It seems, however, that a defect in the language of an attestation clause may be aided by expressions in a clause in the body of the deed; (Buller v. Burt, 4 Ad. & Ell. 15; Doe d. Spilsbury v. Burdett, 4 Ad. & Ell. 1; see, too, Allen v. Bradshaw, 1 Curteis, 110); and it might, perhaps, be contended, that the same aid could be derived from the language of this part of the deed, at least, if the words “ intended to be" were omitted.
TO USES TO BAR DOWER.
conveyance as witnesses to the sealing and delivery of these presents,
by him the said A. B., direct, limit, and appoint, that the
messuages or tenements, lands, and hereditaments, hereinOperative words.
after particularly mentioned, and intended to be hereby released (s), with their appurtenances, shall henceforth go, remain, and be to the uses upon the trusts, and subject to
the power hereinafter limited, declared, and contained (9): Witnesseth, se- AND THIS INDENTURE ALSO WITNESSETH, condly, grant and release. Locus of par. (f) When there is an appointment, and also a release, operating
on the same property in the same instrument, the appointment is made by the first witnessing part, and the release by the second. In this case, the parcels are described in the appointment by reference to the subsequent description in the release.
Form of deed (9) When a man has both a power and an interest, and exercises of appointment his power, and also conveys his interest, these objects should be and convey
accomplished by two separate witnessing parts, with a subsequent ance.
declaration of uses, as in the Precedent in the text. It is, however, very common in ill-drawn instruments, to find the appointment and release blended in one witnessing part, by way of appointment and conveyance to the releasee. If it be a conveyance in fee simple to and to the use of the releasee, no evil ensues, because, one way or the other, he gets the legal estate; but, if it be intended to declare uses on the seisin of the releasee, a difficulty arises. For, an appointment to A. B. is, in effect, an appointment to the use of A. B., and vests the legal estate in him, rendering the uses subsequently declared, mere equitable estates; whereas the release to A. B. merely gives him the seisin to serve the legal uses declared. It appears to be well settled, that such an instrument shall be taken, either as an appointment, or as a release, according as the intention of the parties seems to require. (Cox v. Chamberlain, 4 Ves. 631; Roach v. Wadham, 6 East, 289; Wynne v. Griffith, 3 Bing. 179; S. C. 10 Moo. 592; 5 B. & C. 923; 8 Dow. & Ry. 470; 1 Russ. 283; Farmer v. Bradford, 3 Russ. 354); but the question, what is the intention of the parties, is often very difficult to determine. (See the cases, supra, and 1 Sugd. Pow. 451).
It is the business of the draftsman so to frame his draft, as to prevent these questions arising, and he is to accomplish this by keeping his appointment and conveyance quite distinct, and declaring the uses independently and distinctly. Where, however, brevity is much desired, and the purchaser is to take the fee simple, there is no other objection to the blending of the appointment and release, except the informality of the assurance. Perhaps, in such cases, the best way is, to dispense with the release altogether.
TO USES TO BAR DOWER.
that, for the considerations aforesaid, and for further assuring conveyance the said messuage or tenement, lands, and hereditaments, with their appurtenances, to the uses, and in manner herein- after mentioned, he the said A. B., hath granted, aliened, released, and confirmed, and by these presents doth &c. Operative unto the said C. D., (in his actual possession, &c. see Pre- words. cedent, XVI. p. 198), and his heirs; All, &c., [parcels], ro- Lease for a GETHER WITH ALL and singular houses, outhouses, edifices, year.
Parcels. buildings, barns, stables, coachhouses, cottages, yards, gar
General words dens, orchards, backsides, tofts, lands, meadows, pastures, for messuages commons, common of pasture, common of turbary, mines, an minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground and soil thereof; mounds, fences, hedges, ditches, ways, waters, watercourses, liberties, privileges, easements, profits, commodities, emoluments, hereditaments, and appurtenances (h) whatsoever, to the said
(1) The law, with regard to commons, easements, and appurte- General words. nances, will be found succinctly stated in Burton's Law of Real Property, ch, vi. s. 3, and at greater length in Cruise's Digest, Vol. iii. Titles xxiii, xxiv, xxvii. It seems, that the species of common, called common by reason of vicinage, which is not specified in the general words, is merely an excuse for trespass, and may be put an end to by inclosures. (Wells v, Pearcy, 1 Bing. N. C. 556; Heath v. Elliott, 4 Bing. N. C. 388).
The law, with regard to claims by prescription to commons and ease- Easements, &c. ments, now depends chiefly on the statute 2 & 3 Will. 4, c. 71. Several by prescription. decisions have been already made on the different sections of the statute, of which the principal are, Bailey v. Appleyard, 3 Nev. & Per. 357; Bright v. Walker, 1 C. M. & R. 211; Jones v. Price, 3 Bing. N. C,53; Richards v. Fry, 3 Nev. & Per.67; Beasley v. Clark, 2 Bing. N. C.705; Tickle v. Brown, 4 Ad. & Ell. 369; Wright v. Williams, 1 Mee. & Wels. 77.
Where there is a unity of seisin or possession in the same person Extinction of of any land, and of an easement in or over the land, the easement easement by. is either extinguished or suspended, according to the duration of the respective estates, in the land and the easement; and after such extinguishment, or during such suspension, the easement cannot pass as appurtenant, under the general words. And in the case of such unity of seisin or possession as aforesaid, in order to pass an easement existing in point of use, but extinguished or suspended in point of law, the grantor must either employ words of express grant, or must describe the easement in question, as one used and enjoyed with the
TO USES TO BAR DOWER.
CONVEYANCE messuages or tenements, lands, hereditaments, and premises
belonging, or in anywise appertaining, or with the same, or any of them respectively, now, or at any time heretofore demised, leased, held, used, occupied, or enjoyed, or accepted, reputed, deemed, taken, or known as part, parcel, or member of them, or any of them, or any part of them,
or appurtenant thereto, with their and every of their apAnd the rever- purtenances : AND THE REVERSION and reversions, remain
der and remainders, yearly, and other rents, issues, and profits, of all and singular the said messuages or tenements,
and hereditaments, and premises, hereby granted and reAnd all the es- leased, or intended so to be: AND ALL THE ESTATE, right, tate, &c.
title, interest, inheritance, reversion, use, trust, possession, property, claim, and demand whatsoever, both at law and in equity, of him the said A. B., of, in, to, out of, and
upon the same premises, and every part and parcel thereof; Habendum, TO HAVE and to hold the said messuages or tenements,
lands, and hereditaments, and all and singular other the premises hereby granted and released, or expressed, or intended so to be unto the said C. D., and his heirs, to
the uses, upon the trusts, and subject to the power hereinDeclaration of after limited, declared, and contained : AND IT IS HEREBY
agreed and declared between and by the parties to these bar dower,
presents, that the direction, limitation, and appointment, and
the grant and release hereinbefore contained, shall respect--being to such ively operate and enure To such USES, upon and for such uses as purchaser shall ap
ap- trusts, intents, and purposes, and with, under, and subject
USIS, mens, anu pu to shch powers, provisoes, and declarations as the said C.D. shall, by any deed or deeds, with or without power of revocation and new appointment (i), from time to time
No mode of
land, which is the subject of the conveyance. (James v. Plant, 4 Ad. •
(i) It is usual to prescribe a particular mode of execution of the power, (see the form ante, page 210). But this is wrong; for, although in the case of powers to overreach or defeat the uses of a settlement, it is proper to direct, that the power shall be exercised with certain formalities in order to secure due deliberation, and guard against
TO USES TO BAR DOWER,
-in default to
tion to trustee
direct, limit, or appoint; AND IN DEFAULT of, and until conveyance such direction, limitation, or appointment, and so far as no such direction, limitation, or appointment shall extend to the use of the said C. D. and his assigns during his life purchaser for without impeachment of waste, AND AFTER the determi- life; nation of that estate by forfeiture, or otherwise, in his lifetime, to the use of the said E. F. and his heirs, during for life of pur
chaser, in trust the (k) life of the said C. D. in trust, for him and his assigns, for him; and to prevent the present wife (if any) (1) of the said C. D. from being entitled to her dower, out of or in the said premises, or any part thereof; AND AFTER the determination —with remainof the estate so limited in use to the said E. F. and his heirs, during the life of the said C. D. as aforesaid, to the use of the said C. D. (m), his heirs and assigns, for ever; AND THE SAID C. D. doth hereby declare, that if he shall
der to purchaser in fee.
fraud; yet, when the sole intention is to facilitate the disposal of the estate by the donee of the power—that donee taking the whole interest in default of appointment—it is manifest that the power ought not to be clogged with any restrictions.
The power in the text is sometimes extended to appointments by The power will; but this likewise is an error, for the donee of the power having should not exthe whole fee in reversion on his own death, can dispose of it by will,
by will. and the introduction of the power only gives rise to the question, whether the will was an execution of the power or conveyance of the interest. And, as the solution of the question depends on the presumed intention of the testator, and to collect that intention from the will is generally a matter of great difficulty, every thing that may create a doubt on the subject should be eschewed. (See 1 Sugd. Pow. 430—451).
(k) Instead of limiting the estate to the trustee and his heirs, it is sometimes limited to him, his executors, and administrators; the
estate limited being pur auter vie, the executors or administrators take · as special occupants. (See 1 Sugd. Pow. 245).
(1) If to the draftsman's knowledge the purchaser be married, the words“ if any” will be superfluous.
(m) The limitation is occasionally “ to the use of the heirs and assigns of the said C. D.,” which, by virtue of the well-known rule in Shelley's case, gives C. D. the estate in fee subject to the prior limitations; but there seems no occasion for resorting to this method of accomplishing an object, which may be effected by an express limitation.