BY MORT GAGOR AND veyances; gage; CONVEYANCE [dower trustee], of the seventh part: [recites conveyance by indentures of lease and release of the 1st and 2nd days MORTGAGEES. of September, 1817, and a fine " of the hereditaments seRecital of con- condly hereinafter particularly mentioned, and intended to be hereby released" to common uses, to bar dower in favour of I. K.-and conveyance by indentures of lease and release of the 17th and 18th days of December, 1827, "of the hereditaments firstly hereinafter particularly mentioned, and intended to be hereby released," to common uses, to --of first mort- bar dower in favour of G. H. (b)]: AND WHEREAS, by an indenture of appointment and release, bearing date the 20th day of March, 1828, grounded so far as the same operated as a release on a lease for a year, and made, or expressed to be made between the said G. H., of the one part, and J. B., of the other part, in consideration of the sum of £5,000 to the said G. H. paid by the said J. B., the said G. H. did, in pursuance of the said power to him given by the said indenture of the 18th day of December, 1827, direct, limit, and appoint, that the hereditaments thereinafter particularly mentioned, and intended to be thereby granted and released, should thenceforth go, remain, and be to the use of the said J. B., his heirs and assigns, subject to the proviso thereinafter contained and hereinafter mentioned for redemption of the same premises: AND by the said indenture now in recital, the said G. H. did grant and release unto the said J. B. and his heirs, the said hereditaments firstly hereinafter particularly mentioned, and intended to be hereby released, to hold the same unto and to the use of the said J. B., his heirs and assigns, subject to the proviso thereinafter contained for redemption of the same premises, on payment by the said G. H., his heirs, appointees, executors, administrators, or assigns, to the said J. B., his executors, administrators, or assigns, abling him the better to determine whether he has put all the proper parties to his draft, and has arranged them in the proper order. But the characters of the parties are often inaccurately described, owing to the necessary brevity of the statement. (b) See the form of this recital ante, Precedent XVII. pp. 209, 210. CONVEYANCE BY MORT GAGOR AND term; of the sum of £5,000, on the day therein mentioned, with interest for the same, at 5l. per cent. per annum, on the days and in manner therein mentioned: [recites a similar MORTGAGEES. mortgage, dated the 26th of July, 1834, of the same here--of second ditaments, and of other hereditaments by the said G. H. to mortgage; the said C. D. for £400 and interest]: AND WHEREAS, of third mortby an indenture bearing date the 30th day of April, 1835, gage-for a and made or expressed to be made between the said G. H., of the one part, and the said E. F., of the other part, in consideration of the sum of £300 then due and owing by the said G. H. to the said E. F., the said G. H. did grant and demise unto the said E. F., his executors, administrators, and assigns, (together with other hereditaments), the said hereditaments firstly hereinafter particularly mentioned, and intended to be hereby released, to hold the same (subject to the said mortgage sums of £5,000 and £400, and the interest thereon respectively), unto the said E. F., his executors, administrators, and assigns, from thenceforth for the term of 1,000 years, without impeachment of waste, upon the trusts therein mentioned, for securing to the said E. F., his executors, administrators, and assigns, the payment of the said sum of £300 and interest, in manner therein mentioned, and subject thereto, upon trust for the said G. H., his executors, administrators, and assigns: AND WHEREAS the said J. B. duly made, signed, and published his last will and testament in writing, bearing date the 1st day of December, 1804, and thereby gave and bequeathed to his brother, the said A. B., all his personal estate and effects, and appointed the said A. B. sole executor thereof: AND of his death, WHEREAS the said J. B. died on the 6th day of May, 1837, heir-at-law; leaving A. B. without having republished (c), or revoked, or altered his by of will of first mortgagor, bequeathing his personal estate to A. B., his executor; Effect of will on after-acquired land; (c) As the testator's will was made before the mortgage to him, and before the stat. 1 & 2 Vict. c. 26, the legal estate did not pass the will, on the general principle, that before the above stat. a will did not operate on after-acquired lands. (Bunker v. Cook, 1 Salk. 237; S. C. D. P. 3 Bro. P. C. 19; Toml. Ed. 1 Pow. on Devises, by Jarm. 152). But if the will had been republished after the mort--and of regage was made, the legal estate in the mortgaged lands would have publication. passed by the will. (Beckford v. Parnicott, Cro. Eliz. 493; 1 Pow. CONVEYANCE BY MORT GAGOR AND MORTGAGEES. -of property having been omitted by mis take, in con said will, and leaving the said A. B., his heir-at-law: AND WHEREAS the said A. B. proved the said will in the Prerogative Court of the Archbishop of Canterbury, on the -of probate of 9th day of November 1837: AND WHEREAS the said herewill; ditaments comprised in the said indentures of the 17th and 18th days of December, 1827, and firstly hereinafter particularly mentioned, and intended to be hereby released, were purchased by the said G. H. of the said I. K., and the said hereditaments secondly hereinafter mentioned, and intended to be hereby released, were contracted to be purchased by the said G. H. of the said I. K. at the same time, and together with the said hereditaments firstly hereinafter mentioned, and were intended to be comprised in the said indentures of the 17th and 18th days of December, 1827, -of money due but were omitted by mistake: AND WHEREAS the said sum veyance to ven dor; on the first mortgage; -of contract for sale by mortgagor, with consent of subsequent mortgagees, to the first mortgagee; of £5,000, together with the sum of £450 for interest on the same, up to the day of the date of these presents is now due and owing to the said A. B. on the aforesaid security for the same: AND WHEREAS the said G. H., with the privity and consent of the said C. D. and E. F., (testified by their severally being parties to and executing these presents), hath contracted with the said A. B. for the sale to him of all the said hereditaments hereinafter particularly mentioned, and intended to be hereby released, and the inheritance thereof in fee simple, free from incumbrances, at or for the price or sum of £5,500: AND WHEREAS, upon the treaty for the said purchase, it was agreed that the said A. B. should, out of the said purchase-money or sum of £5,500, retain the said sums of £5,000 and £450, (making tomoney to mort-gether the sum of £5,450), so due and owing to him for principal and interest as aforesaid, and should pay the sum of £50, - of agree ment, that first mortgagee shall retain his debt, and pay balance of purchase gagor; Stat. 1 & 2 Vict. c. 26. on Devises, by Jarm. 608, 616; and, hence, the recital in the text). It would, however, be more correct to omit the recital, that the will was not republished, and leave that fact to be assumed in the absence of a statement to the contrary. (See ante, Introduction, page 9, and page 148, note (a)). It should be observed, that, by force of the stat. 1 & 2. Vict. c. 26, s. 3, after-acquired lands would now pass by an existing will, if the will contained a general devise of real estate or other sufficient words. CONVEYANCE BY MORTGAGOR AND MORTGAGEES. of subsequent mortgagees to ance; -of former the residue of the said purchase-money, unto the said G. H.: AND WHEREAS the said C. D and. E. F. have respectively agreed, at the request of the said G. H., and in order to enable him to complete his said contract, to join in these of agreement presents, in manner hereinafter mentioned: AND WHEREAS the said I. K. has agreed, at the request of the said G. H., join in conveyto join in these presents, for the purpose and in manner hereinafter mentioned: AND WHEREAS the said A. B. is desirous that the said hereditaments should be conveyed to the uses and in manner hereinafter mentioned (d): AND WHEREAS the said A. B. has agreed to give and execute to the said G. H. such release as is hereinafter contained: NOW THIS INDENTURE WITNESSETH, that, in pursuance of the said agreement in this behalf, and in consideration (e) of the said sums of £5,000, and £450, so due (d) It may be doubted whether this recital is strictly necessary; the uses declared are only the common uses to bar dower, and A. B. does not seem to stand in a situation so different from that of other purchasers, as to require a special recital of his desire to have the property limited in the usual way. It might, indeed, be correct, to have a recital to that effect, in all cases in which the property is not conveyed to the purchaser in fee; but such is not the practice. If, however, the intended limitations are in anywise special, a recital should always be introduced, that the purchaser is desirous to have the property conveyed or limited "to the uses, and in manner hereinafter mentioned," or, " to the uses, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, declarations, and agreements hereinafter limited, declared, and contained." (e) If there be more than one witnessing part to an instrument, the whole consideration should (in general) be stated in the first part, and the reference in the subsequent parts be "for the considerations aforesaid." This course is sanctioned by the almost uniform practice of conveyancers, and is recommended by its great convenience, and by its presenting the reader with a view, at one glance, of the whole consideration. It might be more accurate to apportion the consideration in due order among the witnessing parts, but the difficulty of so doing would often be considerable, and the reader would thereby be precluded from seeing at once the true nature and amount of the consideration. Thus, in the text, the first witnessing part is only the appointment owner to join; that pursirous that hereditaments chaser is de should be con veyed to uses; that pur chaser shall give release. Witnesseth, Consideration. Recital of the desire of purchaser to have the estate spe cially limited. The whole consideration should be stated in the first witnessing part. CONVEYANCE BY MORT GAGOR AND MORTGAGEES. Receipt. Appointment by I. K. and owing to the said A. B., for principal and interest on the aforesaid security for the same, and of the sum of £50. at or immediately before the sealing and delivery of these presents to the said G. H., paid by the said A. B., (the receipt of which said sum, he the said G. H. doth hereby acknowledge, and of and from the same, and every part thereof, and also of and from the said sums of £5,000, and £450, so due and owing to, and to be retained by the said A. B., as aforesaid, and each of them, and every part thereof, respectively, doth acquit, release, and discharge the said A. B., his heirs, executors, administrators, and assigns, for ever, by these presents, and doth hereby declare the said sums of £5,000, £450, and £50, (making together the said purchase-money, or sum of £5,500), to be in full for the purchase of the said hereditaments, hereinafter particularly mentioned, and intended to be hereby released), and in consideration of the release hereinafter given to the said G. H., by the said A. B., he the said I. K., at the request of the said G. H., and by the direction of the said A. B., (testified by their severally being parties to and executing these presents), and pursuant to, and by force and virtue, and in exercise and execution of the power or authority to the said I. K. for this purpose given by the said indenture of the 20th day of September, 1817, as hereinbefore is mentioned; and of all other powers and authorities in anywise enabling him in this behalf, doth, by this present deed or writing, by him sealed and delivered in the presence of, and attested by two credible persons, whose names are intended to be hereupon indorsed, as witnesses to the sealing and delivery of these presents, by him the said I. K., direct, limit, and appoint, that such part of the of a legal estate by a trustee; he appoints, because he is directed to do so by the vendor, and mortgagees, his cestui que trusts, and, therefore, the statement of the consideration moving him is not altogether accurate. But, by this course, we see at once the disposition of the whole purchase-money, and the consideration for the conduct of all the parties, and if we postponed the statement of the consideration to the second witnessing part, we should, in the first, shew no reason for the vendor and mortgagees directing I. K. to appoint. |