CONVEYANCE UNDER A SALE IN CHANCERY. tate, &c. waters, watercourses, liberties, privileges, profits, commodities, advantages, and emoluments whatsoever to the said messuage or hereditaments and premises hereby released, or intended so to be, or any of them 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 appurtenances; AND And the reverTHE REVERSION and reversions, remainder and remainders sion, &c. yearly, and other rents, issues, and profits of all and singular the said messuage, hereditaments, and premises hereby released or expressed, and intended so to be; AND ALL And all the esTHE ESTATE, right, title, interest, inheritance, use, trust, possession, property, claim, and demand whatsoever, both at law and in equity, of them the said A. B. and C. D. respectively of, in, and to the same premises, and every part and parcel thereof: TO HAVE and To Habendum. HOLD the said messuage and hereditaments, and all and singular other the premises hereby released or expressed, and intended so to be, unto the said E. F. and his heirs, to such uses &c.; [common uses to bar dower with To uses to bar a declaration as in Precedent XVII.]; AND each of dower. them the said A. B. and C. D., so far as relates to his Covenants by own acts and deeds only, doth hereby for himself, his heirs, executors, and administrators, covenant with the said E. F. and his heirs, that they the said A. B. and C. D. respectively (k) have not at any time heretofore made, the heir-at-law and devisee, se verally, against incumbrances. the same was enjoyed by some express consent or agreement in writing. (See, too, Garritt v. Sharp, 3 Ad. & Ell. 325). (4) The form of covenant for two or more trustees against their own incumbrances varies a good deal, but that in the text is the one most generally approved. It appears to express sufficiently the real intention, viz. that each trustee means to covenant that he has not done any act to incumber the estate, but that he does not mean to make himself liable for the acts of his co-trustee. It is not uncommon to add, after the words "so far as relates to his own acts and deeds VOL. III. R Trustees' covenants against incumbrances. UNDER A SALE IN CHANCERY. CONVEYANCE done, committed, or executed, or knowingly or willingly permitted or suffered, or been party or privy to any act, deed, matter, or thing whereby, or by reason or means whereof, the said hereditaments and premises hereinbefore released 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. IN WITNESS &c. CONVEYANCE UNDER A Parties. Recitals. Recital of re Recitals on purchases by trustees. XXIII. CONVEYANCE on a PURCHASE under a DE- THIS INDENTURE, &c., [ parties-usual recitals shew- only," the words "but not further or otherwise;" the addition, however, adds no meaning which was not expressed before. When an estate is sold for payment of debts under a decree of a court of equity, the purchaser gets no covenants for title-except the covenants against incumbrances by the parties conveying. (See 1 Sugd. V. & P. 536, 537). (a) In conveyances in which the purchasers are trustees, there are two distinct sets of narrative recitals: one which shews the creation and existing condition of the trust; the other the usual set explaining the estate of the vendor. If he be seised in fee, of course the latter set is not required. The mode of arranging these recitals will be found in Precedent XXIX. p. 280, infra. The two sets of recitals are kept quite distinct, but it is not material which is placed first. Sometimes, the recitals relating to the vendor's title have the precedence, and sometimes the point is determined by the date of the WHEREAS, by an order of the said Court, bearing date the CONVEYANCE ON PURCHASE DECREE. ference to the master respecting the pur day of, after stating the said agreement, and that there was then standing in the name of the said accountantgeneral in trust in the said cause, "the account of the clear residue of the said testator's estate," the stocks or funds therein mentioned, including the sum of £6,700 31. per chase; cent. reduced bank annuities, it was ordered that it should be referred to Master to whom the said cause stood referred, to inquire whether the said freehold estate and premises, situate in the parish of, in the county of day -, the property of the said [vendors], was a proper estate and of sufficient value to be purchased out of the said trust funds in the said cause, upon the trusts of the will of the said [testator], at the price of £1,700; and if the said master should find the said estate and premises to be a proper purchase, and of sufficient value to be purchased out of the said trust funds at the price aforesaid, then that he should inquire whether a good title could be made thereto, and should state the result of the said inquiries, with his opinion thereon, to the said Court: AND WHEREAS the said master, by his report, bearing date the of, and made in pursuance of the said order, certified, that, upon making the said inquiries and upon considering the affidavit of A. B., of &c., land-surveyor, who had then lately surveyed and valued the same estate at aforesaid, he was of opinion, that the said estate was a proper estate and of sufficient value to be purchased out of the said trust funds, upon the trusts of the will of the said [testator], at the price of £1,700, and that abstracts of the title to the said estate having been laid before him (the said master), he had perused and considered the same, and was of opinion that a good title could be made thereto: AND WHEREAS, by another order made in the said cause, bearing date the day of now last past, it was ordered, that the first instrument of each set-the earliest being placed first. But when the transaction is considered as a purchase by the trustees, and not a sale by the vendors, (see ante, page 193, note (c)), perhaps, the proper way is to take first the recitals relating to the trust, and then those which deal with the vendors' title. of master's report, approving purchase; of order, confirming report and directing sale of stock, to raise purchasemoney; CONVEYANCE ON PURCHASE it to master to settle convey ances. said master's report should be confirmed, and that the said accountant-general should sell so much of the said sum of £6,700 31. per cent. reduced bank annuities standing in the name of the said accountant-general in trust in the said cause, "the account of the clear residue of the said testator's estate," as would be sufficient to raise the sum of £1,725, (being the said sum of £1,700, the amount of the purchase-money for the said estate, and £25 the ad valorem duty on the said purchase), and that the said sum of £25, part of the said sum of £1,725, should be paid to Mr. C. D., clerk to the said master, to discharge the said ad valorem --and referring duty, and that it should be referred to the said master to settle proper deeds, conveyances, and assurances for conveying and assuring the said freehold estate and premises unto and to the use of the said [trustees of the will], or of the trustees for the time being of the will of the said [testator], upon the trusts by the said will declared concerning the estates thereby directed to be purchased, and that upon the execution of the said deeds, conveyances, and assurances by all necessary parties as the said master should direct, (such execution to be certified by him), the sum of £1,700 residue of the said sum of £1,725 so to be raised as aforesaid, should be paid to the several persons, and in the proportions following; (that is to say), the sum of &c. [recites the master's approval of deeds, see ante, page 239]: NOW THIS INDENTURE WITNESSETH, that in pursuance of and obedience to the said order of the day of now last past, and in consideration of the sum of £1,700 to be paid in pursuance of the same order to the said several persons, and in the proportions aforesaid, in full for the purchase of the said pieces of land and hereditaments hereinafter mentioned, and intended to be hereby appointed and released; He the said [first conveying party] hath &c. (b). Witnesseth. (b) It has been deemed right (in order to avoid too great an extension of the work) to give merely such parts as are peculiar of the Precedent in the text. The operative parts, habendum, and covenants, do not differ from the forms in other conveyances. The purchaser should preserve evidence of the payment of the purchase-money, XXIV. CONVEYANCE by a MORTGAGEE, under a CONVEYANCE BY MORTGAGEE, WITH POWER OF SALE. THIS INDENTURE, made &c. BETWEEN A. B., of &c., Parties. of &c., widow, [purchaser], of the third part: WHEREAS, Recites mortby an indenture of release, bearing date the day of, grounded on a lease for a year, and made, or expressed to be made between J. B. and J. W., of the first part; W. T., of the second part; and the said A. B., of the either by procuring the receipts of the vendors to be indorsed on the deed in the usual way, or by obtaining office copies of the documents which shew that the money was actually paid. gage deed. (a) Great doubt seems formerly to have been entertained whether Validity of a mortgage, with a power or trust for sale in default of payment, power of sale in was valid, so that the mortgagee could make a perfect title to the mortgage. purchaser, without the concurrence of the mortgagor. (See Coote on Mortgages, ch. v. first edition; 1 Sugd. V. & P. 357). But it is now well established, that a sale made by a mortgagee, under a power or trust for sale, contained in the mortgage deed, is perfectly valid, and that the purchaser, on taking a conveyance from the mortgagee, will hold the estate freed from the equity of redemption of the mortgagor. (Clay v. Sharp, 2 Sugd. V. & P. No. xv; Corder v. Morgan, 18 Ves. 344; 1 Sugd. V. & P. 358). And a clause in the mortgage deed, that the mortgagor shall, if required, be a party to the conveyance, does not render his consent necessary. (Corder v. Morgan, ubi supra). If, however, the mortgagor is willing to concur, he should always Mortgagor's be made a party, as well for removing all doubts as to whether the concurrence desirable. power of sale is effective and duly exercised, as for obtaining the usual covenants for title. The mortgagee, of course, only covenants that he has not incumbered the estate. |