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BANKRUPT'S

FREEHOLD

ESTATE.

executing these presents), and of the sum of £595 at the same time paid to the said E. F. by the said U. V., with the privity and consent as well of the said L. M., N. P., J. K., A. B., and C. D., as of the said S. T., (testified by their severally being parties to and executing these presents) (d), (the receipt of which said several sums of £105 Receipt. and £595, making together the said purchase-money or sum of £700, he the said E. F. doth hereby acknowledge, and of and from the same and every part thereof doth acquit, release, and discharge the said U. V., his heirs, executors, administrators, and assigns, and also the said L. M., N. P., and S. T., and every of them, their and every of their heirs, executors, administrators, and assigns, and the estate and effects of the said Q. R., for ever, by these presents, and the payment of which said sum of £700 in manner aforesaid, for the purchase of the said piece or parcel of land and hereditaments hereinafter particularly mentioned, and intended to be hereby released, the said L. M., N. P., and S. T. do hereby acknowledge, and of and from the same and every part thereof do, and each of them doth, acquit, release, and discharge the said U. V., his heirs, executors, administrators, and assigns, for ever, by these presents), he the said E. F., at the request and by the direction of the said L. M., N. P., and S. T., and with the privity and consent of the said A. B., C. D., and J. K., (testified as aforesaid), hath released, and by these presents doth release, and the said J. K., at the request and by the direction of the said L. M., N. P., and S. T., (testified as aforesaid), hath released, and by these presents doth release, and the said L. M., N. P., and S. T. have, and each of them hath released, and by these presents do, and each of them doth release unto the said U. V. (in his actual possession now being by virtue of a bargain and sale to him thereof made by the said E. F., J. K., L. M., N. P., and S. T., in consideration of 5s. apiece, &c., supra, p. 198), and to

(d) In the precedent in the text the purchase-money is paid to the mortgagees. An example will be found in the next precedent of the payment being made to the official assignee. See supra, p. 413, n.

FREEHOLD

ESTATE.

Habendum to purchaser in

fee.

BANKRUPT'S his heirs, ALL THAT, &c. [parcels-general words], To HAVE AND TO HOLD the said piece or parcel of land and hereditaments, and all and singular other the premises hereinbefore released, or expressed and intended so to be, unto the said U. V. and his heirs, To THE USE of the said U. V., his heirs and assigns for ever, freed and absolutely discharged of and from the said mortgage sums of £18,000 and £7,000, and each of them, and all interest now due or hereafter to grow due from the same respectively; AND EACH of them the said E. F., J. K., L. M., N. P., and S. T., so far as relates to his own acts and deeds, doth hereby for himself, his heirs, executors, and administrators, covenant with the said U. V., his heirs and assigns, by these presents, that they the said E. F., J. K., L. M., N. P., and S. T. respectively have not &c. [covenant against incumbrances; supra, p. 241.] IN WITNESS &c.

Covenants.

BANKRUPT'S
LEASEHOLD.

Parties.

Leasehold

XLV.

ASSIGNMENT of LEASEHOLDS by the As-
SIGNEES and OFFICIAL ASSIGNEE of a BANK-
RUPT (a).

THIS INDENTURE, made &c. BETWEEN A. B., of
&c., C. D. of &c., and E. F. of &c., [assignees of the

(a) The leasehold estates of bankrupts vest in the assignees by virtue estates of bank- of their appointment (supra, pp. 410, 411, n.); but the assignees are rupt. at liberty to decline any lease, or agreement for a lease, (see the cases cited infra), as it is obvious that the burden of the rent and covenants of a lease might be very prejudicial to the creditors. Before the stat. 6 Geo. 4, c. 16, a bankrupt lessee remained liable at all times, and even after obtaining his certificate, in an action for breach of covenant. (Auriol v. Mills, 1 H. Blackst. 433; S. C. 4 T. R. 94). But by section 75 of that statute a bankrupt having a lease, or a covenant for a lease, is exonerated from liability if the assignees accept the lease or agreement, or

estate and effects of G. H., under a fiat in bankruptcy], of the first part; I. K., of &c., [official assignee under the

if they decline it, and he deliver it up to the lessor within fourteen days after he shall have had notice that the assignees declined it; and if the assignees shall not, upon being thereto required, elect whether they will accept or decline such lease or agreement, the lessor, or any person entitled under him, may apply by petition to the Court of Bankruptcy, which may order them to elect, and act according to their election. And the protection of this section is extended to a lessee by parol contract; (Slack v. Sharp, 3 Nev. & Per. 390); and to a person who has covenanted with the bankrupt that he will procure a lease to be granted to him by a third person of certain premises. (Ex parte Benecke, 1 Dea. 186). And as to the mode of proceeding if the assignee do not elect, see Ex parte Fletcher, (1 Dea. & Chit. 356); Ex parte Blandy, (1 Dea. 286). But the statute operates only as a personal discharge of the bankrupt, and therefore the bankruptcy of the assignee of a lease does not discharge the lessee from his personal covenant. (Manning v. Flight, 3 B. & Ad. 211). Nor does the discharge of the lessee operate as a discharge of a surety. (Tuck v. Fyson, 6 Bing. 321; S. C. 3 Moo. & Pay. 715; Inglis v. Macdougal, 1 J. B. Moore, 196).

What amounts to an election by the assignees to accept the lease is a question which has given rise to considerable litigation. If the assignees take possession of the premises, or deal with them as the owners, or absolutely sell the lease, they will be deemed to have accepted the lease. (Thomas v. Pemberton, 7 Taunt. 206; Hanson v. Stevenson, 1 B. & Ald. 303; Hastings v. Wilson, Holt's Reports, 290; Ansell v. Robson, 2 C. & J. 610). But the assignees will not be deemed to have elected to accept a lease by having put it up to auction to ascertain its value; (Turner v. Richardson, 7 East, 335); or by having retained the key of the premises, or paid rent to avoid a distress on the goods of the bankrupt; (Wheeler v. Bramah, 3 Camp. 340); or by having released an under-tenant. (Hill v. Dobie, 8 Taunt. 325; S. C. 2 J. B. Moore, 342). If the assignees decline the lease, the term is considered as having determined, and the rights of all parties under the covenants are governed by that consideration. (Ex parte Maundrell, 2 Madd. 315; S. C. Buck, 83; Ex parte Nixon, 1 Rose, 445; S. C. Buck, 85; Ex parte Whittington, Buck, 87). But it seems that a covenant by a lessor to take the fixtures at a valuation cannot be enforced by assignees declining the lease. (Kearsey v. Carstairs, 2 B. & Ad. 716). And assignees declining a lease cannot avail themselves of an agreement by the lessor to allow the lessee to deduct from the rent money which he had laid out on the premises. (Ex parte Ladd, 3 Dea. & Chit. 647).

If the assignees accept the lease, and find it burdensome, they may assign it to any person, and even to an insolvent person, for the purpose

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BANKRUPT's

LEASEHOLD.

What is an election by the assignees to accept a lease.

BANKRUPT'S

LEASEHOLD.

Recites the lease and its having vested in bankrupt.

-fiat against

choice of assignees.

-of official assignee.

-of sale.

same fiat], of the second part; G. H., of &c., [bankrupt], of the third part; and L. M., of &c., [purchaser], of the fourth part, [recites lease to G. H.; supra, p. 333]: AND WHEREAS a fiat in bankruptcy, under the hand of the Lord High Chancellor of Great Britain, was, on the bankrupt, and day of, awarded and issued against the said G. H., and the said G. H. was thereupon found and declared bankrupt, and the said A. B., C. D., and E. F., were chosen assignees of his estate and effects: AND WHEREAS the said I. K. is official assignee under the said fiat: AND WHEREAS, by order of the said A. B., C. D., and E. F. (b), the said piece or parcel of land, messuages, and premises were, on the day of put up to sale by public auction, and at the said sale the said L. M. was the highest bidder for, and was declared the purchaser of the said premises, at the price or sum of £: AND WHEREAS the said G. H. hath agreed to join in these presents in manner hereinafter mentioned: NOW THIS INDENTURE WITNESSETH, that, for effectuating the said sale, and in consideration of the sum of £ at or immediately before the sealing and delivery of these presents to the said I. K. paid by the said L. M., (the receipt and payment of which said sum of £ the said I. K., and also the said A. B., C. D., and E. F., and the said G. H.

-of bankrupt having agreed to join in assignment. Witnesseth.

Consideration.

Receipt.

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of relieving themselves from future responsibility; (Onslow v. Corrie, 2 Madd. 330; see, too, Fugg v. Dobie, 3 You. & Col. 96. But not if the landlord himself be the assignee. (Ex parte Wright, 2 Rose, 244; see, too, Ex parte Warwick, Buck, 326).

It will be seen that the bankrupt is made to join in the assignment and covenant for title, but he cannot be compelled to do so. See supra, page 413, n.

(b) The sale is sometimes recited to have been made by the order as well of the creditors' assignees as of the official assignee, but this recital seems improper, as the 23rd section of the statute 1 & 2 Will. 4, c. 56, expressly declares that the official assignee is not to interfere with the creditors' assignees in directing the time and manner of effecting any sale of the bankrupt's estates or effects. (See, too, Arch. Bank. Law, Section xviii).

LEASEHOLD.

do hereby respectively acknowledge, and of and from BANKRUPT'S the same and every part thereof do, and each of them doth acquit, release, and discharge the said L. M., his heirs, executors, administrators, and assigns for ever, by these presents), they the said A. B., C. D., and E. F., and Assignment. also the said I. K., have and each of them hath assigned, and by these presents do, and each of them doth assign, and the said G. H., at the request and by the direction of the said A. B., C. D., E. F., and I. K., (testified by their severally being parties to and executing these presents), hath assigned and confirmed, and by these presents doth assign and confirm unto the said L. M., his executors, administrators and assigns, THE SAID piece or parcel of Parcels. ground, messuage, or building, and all and singular other the premises, by the said indenture of the day of demised, or expressed and intended so to be, with their rights, easements, and appurtenances, AND ALL the estate &c.: TO HAVE AND TO HOLD the said piece or parcel of Habendum. ground, messuage, or building, and all and singular other the premises hereinbefore assigned, or expressed and intended so to be, unto the said L. M., his executors, administrators, and assigns, for all the residue now to come of the said term of years, at the rent and under and subject to the covenants, conditions, and agreements, by and in the said indenture of the

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day of

reserved and contained, and on the part of the lessee, his executors, administrators, or assigns, to be henceforth paid, observed, and performed [Covenants se- Covenants. verally by the assignees and official assignee with the purchaser against incumbrances; supra, p. 241:-covenants by bankrupt for the validity of the lease for right to assign—for quiet enjoyment-free from incumbrancesand for further assurance; supra, pp. 233 & 336 (c)]. IN WITNESS &c.

(c) It will be observed, that the purchaser does not in the present instance enter into the usual covenants to indemnify the vendor against the rent and covenants. For the assignees are not themselves liable in respect of the rent and covenants after they have assigned the lease, and

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