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TO TENANTS
IN COMMON.

father.

A. M., of the said premises comprised in the said terms LEASEHOLDS respectively, to the said A. B., in trust for the said A. M. and his assigns, for his life, and after his death for the said L. M., his executors, administrators, and assigns; and recites a mortgage of the same premises, dated the day of , made by the said L. M. to the said E. F., subject to the life estate of the said A. M., and for securing £1,800 and interest]: AND WHEREAS the said A. M. died in the —of death month of — 1836 : AND WHEREAS, by an indenture

dontue of vendor's bearing date the 4th day of February, 1837, and made or -of mortgage expressed to be made between the said A. B. of the first to a trustee for

two sets of part, the said E. F. of the second part, the said L. M. of mortgagees. the third part, the said G. H. and J. K. of the fourth part, and the said C. D. of the fifth part, after reciting to the effect hereinbefore recited, and after reciting that the said sum of £1,800 was still due on the aforesaid security, together with £470 for interest on the same up to the 10th day of January then last; and after reciting that the said L. M. was indebted to the said G. H. and J. K. in the sum of £6,000, secured on bonds executed to them by the said L. M., the one dated the 25th day of June, 1835, in the penalty of £5,000, and on which £2,000 was then due, the other dated the 3rd day of February, 1837, in the penalty of £8,000, and on which £4,000 was then due(6); and after reciting that the said L. M. had agreed to further secure to the said E. F. the said sums of £1,800 and £470, (making together the sum of £2,270), and to the said G. H. and J. K. the said sums of £2,000 and £4,000 in manner thereinafter mentioned, It was, by the said indenture now in recital, Witnessed, that, for the considerations therein mentioned, the said A. B., at the request of the said L. M.,

(6) In reciting a transfer of a mortgage, or a further charge, or the like, it is not usual to set forth the recital, which such instruments generally contain, that the existing mortgage debt then remained due, but that all interest on it had been paid. But if the instrument contains a recital that part of the debt had been paid off, or that interest was due, which was to be converted into principal, or a recital of any similar fact, varying the ordinary condition of the mortgage debt, it is the practice to state the fact so recited, as a recital of the deed which is itself in recital. (See supra, Introduction, p. 12).

LEASEHOLDS

and by the direction as well of the said E. F. as of the said G. H. and J. K., (testified as therein mentioned), did demise; and the said E. F., at such request as aforesaid, did assign, and the said L. M., by such direction as aforesaid, did demise and confirm unto the said C. D., his executors, administrators, and assigns, the said premises by the said indentures of the 14th day of February, 1760, and the 13th day of July, 1765, respectively demised, or expressed to be demised as aforesaid, To hold the same unto the said C. D., his executors, administrators, and assigns, for the residue then to come of the said terms of 999 years and 993 years respectively, except the last day thereof respectively, upon trust, in the first place, for better securing unto the said E. F., his executors, administrators, and assigns, the repayment of the said sum of £2,270, and interest thereon, after the rate of 51. per cent. per annum, to be computed from the said 10th day of January then last, and, in the second place, for securing unto the said G. H. and J. K., their executors, administrators, and assigns, the repayment of the said sums of £2,000 and £4,000, and interest thereon after the rate aforesaid, and after payment of the said sums of £2,270 and £2,000 and £4,000, and the interest thereon, upon trust for the said L. M., his executors, administrators, and assigns : AND WHEREAS the whole of the said sum of £2,270, and £30 for interest thereon, (making together the sum of £2,300), are now due and owing to the said E. F. on his said securities; and the said sums of £2,000, and £4,000, and £100 for interest thereon, are now due and owing to the said G. H. and J. K., on their said securities : AND WHEREAS the said L. M. hath contracted and agreed with the said N. O. and P. Q., for the sale to them of the said pieces or parcels of land, messuages, and premises comprised in the said indentures of the 14th day of February, 1760, and the 13th day of July, 1765, respectively, for the residue now to come of the said terms of 999 years and 993 years respectively, at or for the price or sum of £3,300; and it has been agreed that the said sum of £3,300 shall be paid to the persons and in manner hereinafter mentioned; and the said N. O. and P. Q. are desirous that the said purchased premises shall be assigned to them in manner here

TO TENAXTS
IN COMMON.

of the state of the mortgage debts.

-of contract for sale.

TO TEXANTS

itnesseth.

eration,

inafter mentioned: NOW THIS INDENTURE WIT- LEASEHolds NESSETH, that, in pursuance of the said agreement, and IN COMMON. and in consideration of the sum of £2,300, part of the said sum of £3,300, at or immediately before the sealing and Consideration. delivery of these presents to the said E. F., paid by the said N. O. and P. Q., at the request and by the direction of the said L. M., and with the privity and consent of the said G. H. and J. K., (testified by their severally being parties to and executing these presents), (the receipt of Receipt. which said sum of £2,300, he, the said E. F., doth hereby admit and acknowledge, and of and from the same, and every part thereof, doth acquit, release, and discharge the said N. O. and P. Q., and also the said L. M., and every of them, their and every of their heirs, executors, administrators, and assigns, for ever by these presents, and doth declare the same to be in full discharge of all principal monies and interest due or owing to him the said E. F. upon his said securities); and in consideration of the further Further consisum of £1,000, the remainder of the said sum of £3,300 at the same time paid by the said N.O. and P. Q. to the said G. H. and J. K., at the like request and by the like direction of the said L. M., (testified as hereinbefore is mentioned), (the receipt of which said sum of £1,000, they, the Receipt. said G. H. and J. K., do hereby admit and acknowledge, and of and from the same and every part thereof do, and each of them doth acquit, release, and discharge the said N. O. and P. Q., and also the said L. M., and every of them, their and every of their heirs, executors, administrators, and assigns for ever, by these presents, and do declare the said sum of £1,000 to be in part discharge of the monies due and owing to them on their said securities; and the payment, in manner aforesaid, of which said sums of £2,300, and £1,000, making together the said sum of £3,300, he, the said L. M., doth hereby admit and acknowledge, and of and from the same and every part thereof doth acquit, release, and discharge the said N. O. and P. Q., and each of them, their and each of their heirs, executors, administrators, and assigns for ever, by these presents, and doth declare the same to be in full for the purchase of the

VOL. III.

A

A

TO TENANTS

LEASEHOLDS said premises), he, the said A. B., at the request and by IN COMMON. the direction of the said L. M., (testified by his being a Assignment party to and executing these presents), hath assigned, and

by these presents doth assign, and the said C. D., at the like request and by the like direction of the said L. M., (testified as aforesaid), and with the privity and consent, as well of the said E. F. as of the said G. H. and J. K., (testified by their severally being parties to and executing these presents), hath assigned and surrendered, and by these presents doth assign and surrender, and the said E. F., and also the said G. H. and J. K. have, and each of them hath, assigned and released and quit claimed, and by these presents do and each of them doth assign and release, and quit claim; and the said L. M. hath assigned and confirmed, and by these presents doth assign and con

firm, unto the said N. O. and P. Q., their executors, adPce ls.

ministrators, and assigns, ALL THOSE, the pieces or parcels of ground, messuages, hereditaments, and premises, by the said indentures of the 14th day of February, 1760, and the 13th day of July, 1765, respectively demised, or expressed - to be demised as aforesaid, with all erections and buildings since erected and built upon the same premises, and every

part thereof, and with their and every of their rights, easeAnd all the ments, and appurtenances, AND ALL THE ESTATE, right, estate.

-title, interest, term and terms for years, property, possibility, claim, and demand whatsoever, both at law and in equity, of them the said A. B., C.D., E.F., G.H., J. K., and

L. M., and every of them, in, to, out of, or upon the same Habendum. premises, or any of them, or any part thereof; TO HAVE

AND TO HOLD the said pieces or parcels of ground, messuages, erections, buildings, and hereditaments, and all and singular other the premises hereinbefore assigned or expressed, and intended so to be, unto the said N. O. and

P. Q., their executors, administrators, and assigns, from -to purchasers henceforth in equal shares as tenants in common : As to as tenants in common.

SUCH parts of the said premises as were comprised in the said indenture of the 14th day of February, 1760, for the residue now to come of the said term of 999 years granted by the same indenture, at the rent, and under and subject

TO TENANTS
IN COMMON.

d from

to the covenants, conditions, and agreements, by and in the LEASEHOLDS same indenture reserved and contained, and on the part of IN the lessee, his executors, administrators, or assigns, to be paid, observed, and performed; AND AS TO such parts of the said premises, as were comprised in the said indenture of the 13th day of July, 1765, for the residue now to come of the said tern) of 993 years granted by the same indenture, at the rent, and under and subject to the covenants and agreements by and in the same indenture reserved and contained, and on the part of the lessee, his executors, administrators, or assigns, to be paid, observed, and performed; AND AS TO ALL and singular the said premises

mortgages. hereinbefore assigned or expressed, and intended so to be, freed and absolutely discharged from the said sums of £2,270, £2,000, and £4,000, respectively, secured by the said indenture of the 4th day of February, 1837, and all interest for the same respectively, and all claims and demands of the said E. F., G. H., and J. K., or any of them, in, to, out of, or upon, the same premises, or any of them, or any part thereof: AND EACH OF THEM, the said A. B., C. D., Covenants by

the trustees E. F., G. H., and J. K., so far as relates to his own acts

and mortgagees and deeds only, doth hereby for himself, his heirs, execu against incumtors, and administrators, covenant with each of them, the said N. O. and P. Q., his executors, administrators, and assigns (c), that they, the said A. B., C. D., E. F., G. H.,

brances.

(c) When the covenantees are tenants in common, the covenants Covenants with should be entered into with them severally, for their interests are several

tenants in

common, and distinct. And it might, perhaps, be correct to confine the several covenants to the undivided shares taken by the respective covenantees, because that appears to be the practical effect of the covenants. If the interest conveyed be freehold, and be conveyed by lease and release, the covenants should be entered into with the releasee, it being considered that the effect of the statute of uses is to distribute the benefit of covenants made with the releasee, in due proportion to all the cestuis que use.

The questions relating to covenants with tenants in common are extremely unsettled and difficult. It is clear, however, that the nature of the interests of the covenantees are more to be considered than the mere words of the covenant, in determining whether the covenant is joint or several. Thus, if a man covenant with two or more jointly, and the interest and cause of action of the covenantees be several, and not joint, the

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