LEASEHOLDS TO TENANTS Covenants by vendor. Covenants by purchaser to pay rent and perform cove nants. Covenants by purchasers as tenants in common, and J. K., respectively &c., [Covenants against incumbrances, see supra, p. 241]: AND THE SAID L. M. doth hereby for himself, his heirs, executors, and administrators, covenant with each of them, the said N. O. and P. Q., his executors, administrators, and assigns, that for and notwithstanding any act, deed, matter, or thing whatsoever by him the said L. M. made, done, &c., [Covenants that the leases respectively are in force that the respective rents and covenants have been paid and performed up to the date of the assignment for right to assign surrender and release—for quiet enjoyment-free from incumbrances-and for further assurances. See supra, pp. 263 and 336]: AND THEY, the said N. O. and P. Q., do for themselves, their heirs, executors, and administrators, and each of them doth for himself, his heirs, executors, and administrators (d), covenant with the said A. B., his executors and administrators, and also as a separate covenant with the said L. M., his executors and covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint. (Eccleston'v. Clipsham, 1 Wms. Saund. 153, n. (1)). And if a covenant be made with several covenantees, and each of them, there, if the interests of the covenantees be several, the covenants are several; but, if the interests are joint, the covenant is joint. (Slingsby's case, 5 Rep. 18 b; 1 Wms. Saund. 155, n. (1). See further, Southcote v. Hoare, 3 Taunt. 87; James v. Emery, 8 Taunt. 245; S. C. 2 J. B. Moore, 195; Withers v. Birchman, 3 B. & C. 254; S. C. 5 Dow. & Ry. 106; Anderson v. Martindale, 1 East, 497; Lane v. Drinkwater, 1 Cro. Mee. & Ros. 599; Lee v. Nixon, 1 Ad. & Ell. 201; Servante v. James, 5 Man. & Ry. 299; Simpson v. Clayton, 4 Bing. N. C. 758, 781. See too, ante, Vol. 1, Art. COVENANTS. (d) It is a question whether the vendor is entitled to a joint, or a joint and several covenant from the purchasers, for payment of the rent and performance of the covenants, or whether the liability of each purchaser ought not to be limited in proportion to the share which he takes in the property. As, however, the tenancy in common is created for the convenience of the purchasers, and not of the vendors, it would seem that the vendor is entitled to a joint covenant at least, even if not to the additional several covenants. He ought not to be obliged to bring two actions on each breach of the covenant, and he ought to be able to compel either party to save him harmless, even if the co-tenant cannot be found, or is not a responsible person, administrators, that they, the said N. O. and P. Q., or one of them, their or one of their executors, administrators, or assigns, shall and will henceforth, from time to time, and at all times during the continuance of the said terms of 999 years and 993 years respectively, pay the said yearly rents of £ and £ -, by the said indentures of the 14th day of February, 1760, and the 13th day of July, 1765, respectively reserved and henceforth to become payable, and observe and perform all and every the covenants, conditions, and agreements, in the same indentures respectively contained, and on the part of the respective lessees, their respective executors, administrators, or assigns, henceforth to be observed or performed; and shall and will, from time to time and at all times hereafter, save, defend, keep harmless and indemnified, each of them, the said A. B. and L. M., and each of their executors and administrators, of, from, and against all actions, suits, damages, costs, expenses, claims, and demands, for or by reason or on account of the nonpayment of the said rents, or either of them, or any part thereof respectively, or the breach, or non-observance, or non-performance of the said covenants, conditions, or agreements, or any of them. IN WITNESS &c. FREEHOLDS, Parties. XXXIX. CONVEYANCE to uses in favour of a HUSBAND and WIFE, of FREEHOLDS, LEASEHOLDS, and COPYHOLDS, where the Lands of different Tenures cannot be distinguished, and PART of the PURCHASE-MONEY is advanced by MORTDECLARATION that the LAND is to GAGEES. be the PRIMARY Resort for Payment of the MORTGAGE. THIS INDENTURE, made &c. BETWEEN A. B., of &c., widow, [vendor], of the first part; C. D., of &c., widow, [a party joining to release a claim], of the second part; E. F., of &c., [purchaser]; and A. F., his wife, of the third part; G. H., of &c.; I. K., of &c.; and L. M., of &c., [mortgagees], of the fourth part; and N. P., of &c., Recital of lease. and Q. R., of &c., [trustees], of the fifth part, [recites a -of a will. lease of the 11th of October, 1807, from X. Y. to J. B., for fifty-one years, at a peppercorn-rent, with a covenant for conveyance, in certain events, of the fee-simple of the land demised] AND WHEREAS the said J. B., being seised or entitled for an estate of inheritance, in fee-simple, of or to the capital messuage or mansion-house, lands, and other freehold hereditaments, hereinafter particularly mentioned, and intended to be hereby released, (except such of the same hereditaments as were purchased, or taken in exchange, by the said testator, after the execution of his will, hereinafter recited, and before the execution of his codicil, also hereinafter recited), and being also possessed or entitled, under or by virtue of the said indenture of the 11th day of October, 1807, for the residue then to come of the said term of fifty-one years, of or to the said piece of ground, by the same indenture demised, as herein before at with LEASEHOLDS, AND COPY- AND PUR- is mentioned, and to the benefit of the said hereinbefore FREEHOLDS, recited covenant in the same indenture contained, and being also seised and entitled to him and his heirs for an estate of inheritance, according to the customs of the manors of which the same are respectively holden, of or to the copyhold lands and hereditaments hereinafter particularly mentioned and covenanted to be surrendered, and having duly surrendered the same copyhold hereditaments, respectively, to the use of his will (a), duly made, signed, and published his last will and testament, in writing, bearing date the day of, and thereby (among other things), gave and devised unto the said A. B., then his wife, ALL that his mansion-house, situate and being and all other his real estate in aforesaid, or near thereto, with the appurtenances, to hold the same to her the said A. B., her heirs and assigns for ever; and the said testator, after bequeathing several specific parts of his personal estate and effects, directed that. all the residue of his personal estate and effects, which should remain after payment and satisfaction of his funeral and testamentary expenses and debts, should be employed and vested at interest, during his wife's life, by W. L. and M. T., in their or one of their names, in government or real securities, and the clear interest, dividends, and pro-. duce therefrom arising, he willed and directed, should be paid to his said wife and her assigns, during her life, and at her decease, he gave and bequeathed the principal money, and such interest and dividends as should be then due and owing for the same and unpaid, unto his two daughters, the said C. D. and E. B., equally to be divided between them; AND the said testator did thereby appoint the said A. B. and codicil.. and W. L. executrix and executor of his said will: AND (a) The words, "and having duly surrendered the same copyhold hereditaments respectively to the use of his will," are not applicable, and should be omitted where the will has been made since the passing of the statute 55 Geo. 3, c. 192, which has rendered a surrender to the use of the will unnecessary. (See 1 Powell on Devises, by Jarman, p. 45, n. (8); Ibid. Vol.-ii. p. 121. See, too, statute, 1 Vict. c. 26, s. 3). FREEHOLDS, AND PUR- -death of testator leaving two daughters. WHEREAS the said J. B. duly made, signed, and published a codicil, bearing date the day of to his said will; and thereby gave and devised unto the said A. B. and her heirs, all such lands and tenements in aforesaid, or near thereto, as had been purchased by or taken in exchange by him, since the making of his said will; and he did earnestly recommend his said wife to make such disposition of his property she would have a power to dispose of, as would make the fortunes of his two daughters, with what he had given them in his life, or by his will, equal; but that she would secure £6,000, part of his daughter C. D.'s fortune, for the benefit of her three children, in equal shares, payable at such time and in such manner as his said wife should think fit to direct; the residue of his daughter C. D.'s fortune, or share, being left subject to her own disposal; and the said testator confirmed his said will in all other respects: AND WHEREAS the said testator died in or about the month of, without having revoked or altered his said will, except so far as the said will is revoked or altered by the said codicil, and without having revoked or altered his said codicil, and leaving the said C. D. and E. B., his only children and co-heiresses at law: -of probate of AND WHEREAS the said will and codicil were, on the of , proved by the said A. B. and the said W. L., in the Prerogative Court of the Archbishop of Canterbury: AND WHEREAS the said E. B. died on or about the day of, intestate, and without having been married, and leaving the said C. D. her only sister and heiress at law, and the said A. B. and C. D. her next of kin; and letters of administration of the goods and chattels, rights and credits of the said E. B., have since been granted by the Prerogative Court of the Archbishop of Canterbury to the said A. B.: AND WHEREAS the said E. F. hath contracted and agreed with the said A. B. for the absolute purchase of the said capital messuage, lands, and other freehold hereditaments, hereinafter particularly mentioned, and intended to be hereby released, with the appurtenances and the inheritance thereof in fee-simple, in possession, free from incumbrances, and also of the said piece of ground will and codicil. -of death of one daughter. -and admin istration to her. ---of agreement for purchase. |