XXI. CONVEYANCE by APPOINTMENT under a CONVEYANCE UNDER A POWER OF tlement by re covery, and sale. THIS INDENTURE, made &c. BETWEEN A. B., of Parties. &c. [trustee of the power], of the first part; C. D., of &c. [tenant for life in possession under the settlement], of the second part; G. H., of &c. [agent and also trustee], of the third part; and E. F., of &c. [purchaser], of the fourth part; WHEREAS, by an indenture of bargain and sale, and Recital of setsettlement, bearing date the 12th day of May, 1814, perfected by inrolment, and made or expressed to be made bargain and between [the parties], and by a common recovery, duly suffered in pursuance of the same indenture in Easter term (a), in the 54th 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 manor, lands, and other hereditaments hereinafter particularly mentioned, and intended to be hereby appointed, were (among other hereditaments) conveyed, and assured, and limited, (subject to certain sums of money then charged upon the same premises, or some parts thereof, and which have since been duly released), to the use of such person or persons, and for such estate or estates, upon such trusts, and for such (a) A recovery cannot be suffered out of term, but a fine may be Recital of fines levied in vacation and recorded as of the preceding term; (Burton's and recoveries. Law of Real Property, Art. 109, 110, p. 37); and hence, in reciting a fine, it is always described as levied "in or as of-term," while a recovery is recited to have been suffered "in term." CONVEYANCE UNDER A POWER OF SALE. Recital of the power of sale in the settlement. Extent to intents and purposes, and with, under, and subject to such powers, provisoes, limitations, charges, and declarations, and in such manner and form in all respects as the said (b) I. K. and L. M. should, in manner in the said indenture mentioned, direct, limit, or appoint, and in default of, and until and subject to such direction, limitation, or appointment, to the use of the said I. K. and her assigns, for her life, without impeachment of waste, with remainder to the use of the said A. B. and N. O., and their heirs, during the life of the said I. K., in trust for her and her assigns, and to preserve contingent remainders, with remainder to the use of such person or persons &c. [ut supra], as the said L. M. alone should, in manner in the said indenture mentioned, by deed or will, direct, limit, or appoint, and in default of, and until, and subject to such last mentioned direction, limitation, or appointment, to the use of the said L. M. and his assigns, for his life, without impeachment of waste, with remainder to the use of the said A. B. and N. O., during the life of the said L. M., in trust for him and his assigns, and to preserve contingent remainders, with remainder to the use of the said C. D., (then an infant under the age of twenty-one years), and his assigns for his life, without impeachment of waste, with remainder to the use of the said A. B. and N. O., and their heirs, during the life of the said C. D., in trust for him and his assigns, and to preserve contingent remainders, with divers remainders over (c): AND in the said indenture was contained a (b) I. K. and L. M. are called "the said," as having in the complete recital, been mentioned among the parties to the bargain and sale. (c) As the object of narrative recitals is to explain the interest which the limit- which the parties to the principal deed have in the intended subjectmatter thereof, it is requisite to set forth so many only of the limittlements are to ations, powers, and provisoes of a settlement as are sufficient for that ations and clauses of set be recited. purpose. Thus, in the present case, the operation to be effected, is that of making a conveyance under a power of sale which is to be exercised by the trustees for preserving contingent remainders, but with the consent of the tenant for life for the time being. Hence, the limitations to be recited are all those which precede the limit power for the said A. B. and N. O., and the survivor of them &c., [the power of sale including the power to the ation to the actual tenant for life, together with the limitations to that tenant for life and his trustees. The subsequent limitations are of no moment, because we are about to exercise a power which overreaches them, whatever they may be, and we have already shewn who are the parties to exercise and consent to the exercise of the power. We have then to set forth the power; and this should be done verbatim, except as to the change of tense, which a recital requires, and except as to the omission of one of the auxiliary verbs, when they are twice repeated. Thus, "shall and may," becomes "should" or "might;" "do and and shall," becomes "should," and so forth. In other respects, not a word of the power should be altered, and the recital should always state fully and exactly, the power to the trustees to give receipts. The subsequent clauses providing for the disposition and investment of purchase-money, are then seen to be of no importance to the purchaser, and should be omitted. The recital of the settlement is followed, it will be seen, by the recitals of the deaths of parties, and of other circumstances which shew who are the persons, who at the date of the principal deed, are entitled under the settlement to effect a sale. Numerous examples will be found in the course of these precedents, of the extent to which, in different cases, the recitals of limitations are to be carried. If a tenant in tail is the person about to deal with the estate, the recitals will come down to and include the limitation under which he takes, and the subsequent limitations will shew the determination or failure of all prior estates. If the vendor claim under an ultimate limitation in fee, the recitals will embrace the whole chain of limitations, and will shew that all except the last, have determined or failed, and that the vendor is the person entitled under the ultimate limitation. And similarly in other cases. be Occasionally, for particular cases, a more brief form of recital may be used. If the limitations are long and intricate, the recital may that the estate was "conveyed and assured (subject to certain preceding uses and estates which have all since determined or failed of taking effect) to the use of the said A. B., &c." But this method is less intelligible and satisfactory than that in ordinary use, and does not answer the purpose of preserving in the title deeds a distinct narrative of the events on which the title depends. It is not to be employed for common cases. Sometimes, as in stating the creation of a satisfied term, the recital may conveniently and properly be that by such an assurance the estate was "conveyed and assured to the uses and limitations therein limited and contained, including a limitation to the use of A. B. and C. D., their executors, administrators, and assigns, for the term of CONVEYANCE UNDER A POWER OF SALE. CONVEYANCE UNDER A POWER OF SALE. -of death of having exer cised his pow ers; -of deaths of N. O. and I. K.; of C. D., being of age; trustees or trustee to give receipts for the purchase-money, is to be recited verbatim; the power in this case, it will be seen, was to be exercised at the request and by the direction of the tenant for life in possession]: AND WHEREAS the said L. M. without L. M. died (d) in or about the month of April, 1819, without having joined with the said I. K. in exercising the joint power of appointment by the said indenture limited to the said I. K. and L. M., as aforesaid, and without having exercised the power of appointment by the same indenture limited to the said L. M. alone, as aforesaid: AND WHEREAS the said N. O. died in or about the month of October, 1827, and the said I. K. died in or about the month of June, 1828: And wherEAS the said C. D. attained his age of twenty-one years, in or about the month of May, 1830: AND WHEREAS the land tax charged upon the said hereditaments hereinafter particularly mentioned and intended to be hereby appointed, has been redeemed: AND WHEREAS, by an indenture of release, (indorsed on the said indenture of the 12th day of May, 1814), bearing date the 2nd day of March, 1834, grounded on a lease for a year, and made, or expressed to be made between [the parties] after certain recitals, whereby it appeared that the legal estate of inheritance of and in the said manor, lands, and hereditaments hereinafter particularly mentioned, and intended to be hereby appointed, was outstanding prior to the date of the said indenture of the 12th May, 1814, and before the date of the said indenture now in recital had become and was vested in the said P. Q. (e). It was witnessed, that, for the con -of land tax having been redeemed; of re-convey ance of an outstanding legal estate: years, upon the trusts therein mentioned, and which have all since been satisfied and carried into effect." The limits of this work will not allow of any further observation on this subject, although it is one of great importance; but the reader will derive considerable information on it from an examination of the precedents. (d) The usual expression in drafts is "departed this life," but there seems to be no advantage in using three words where one will do. "Died" is certainly less euphonious than "departed this life;" but it states the fact quite as distinctly, and more concisely. (e) A recital of this form may be used in most similar cases with CONVEYANCE UNDER A POWER OF SALE. siderations therein mentioned, the said P. Q. did release unto great advantage, for otherwise, it would be necessary to carry back the commencement of the recitals to the period at which the legal estate became outstanding-frequently forty years or more before the date of the conveyance. (f) As to the necessity of a request being made previous to the sale, see the note infra, on the precedent of a deed of that nature. of purchase and payment of deposit ; (g) In cases of sales by trustees, mortgagees, and other persons In what cases VOL. III. |