Page images
PDF
EPUB

SHARE OF A
MARRIED
WOMAN.

said C. D to the ve and inten

at all times hereafter, upon every reasonable request to be UNDIVIDED made for that purpose, by and at the proper costs and charges in the law of the said F. G., his appointees, heirs, or assigns, make, do, acknowledge, and execute, or cause and procure to be made, done, acknowledged, and executed, all and every such further and other lawful acts, deeds, and things, devices, conveyances, and assurances in the law whatsoever, for the further, better, more perfectly and absolutely granting, releasing, disposing, conveying, and assuring of the said part or share and premises hereinbefore released, or expressed and intended so to be, and every part thereof, To the uses and in manner aforesaid, as by the said C. D., his appointees, heirs, or assigns, or his or their counsel in the law, shall be reasonably devised or advised and required. AND THIS INDENTURE Witnesseth,

secondly, co ALSO WITNESSETH, that, in pursuance of the said venant by the agreement in this behalf, and for the considerations afore

annuitant not

to resort for said, he the said D. E., at the request of the said A. B. his annuity to and C. B., (testified by their being parties to and executing the sea.

tin the share purthese presents), doth hereby for himself, his heirs, executors, and administrators, covenant with the said F. G. and his heirs, that he the said D. E. or his assigns, or any person or persons claiming by, from, or under him, shall not nor will at any time hereafter resort to the said part or share and other the premises hereinbefore released, or expressed and intended so to be, for payment of the said weekly sum of 10s., or any part thereof, and shall and will, at the request, costs, and charges of the said F. G., his appointees, heirs, and assigns, at any time hereafter, make, do, and execute all such acts, deeds, and things, for better and more perfectly protecting the said undivided share and premises from all claims and demands in respect of the said weekly sum of 10s. and all arrears (if any) and future payments thereof as by the said F. G., his appointees, heirs, or assigns, or his or their counsel, shall be reasonably advised or devised and required (6). IN WITNESS &c.

(6) If the person entitled to a rent charge release part of the land out Releas of which it is payable, the whole rent charge is thereby extinguished. of the land

XLVII.

ENFRANCHISE-
MENT UNDER

POWER.

ENFRANCHISEMENT of COPYHOLDS under

a Power in a SETTLEMENT.

Parties. THIS INDENURE made &c. Between A. B. of &c.,

and C. D. of &c. [the donees of the power), of the first part; E. F. of &c. (tenant for life under the settlement], of the second part; and G. H. of &c. [copyholder], of the third

part: Whereas, by indentures of lease and appointment Recital of sete and release, bearing date respectively the — and tlement;

days of — , the appointment and release being made or expressed to be made between (parties], (being the settlement made previously to, and in consideration of the marriage then intended, and shortly after had and solemnized between the said — and ), the manor or lordship of

— , in the county of — , with its rights, members, and appurtenances, (together with other manors, lands, and hereditaments), was conveyed and assured, and limited, from and after the solemnization of the said marriage (subject to a yearly rent-charge of £- , thereby limited to

, and his assigns, during the joint lives of himself and the said M. N., and to the powers and remedies thereby

charged with a rent charge.

(Co. Lit. 148. a.; Burton's Law of Real Property, 372; 3 Cru. Dig. 301). And hence, when the person entitled to a rent charge is desirous of releasing part of the land out of which it is payable, the usual mode is for him to enter into such a covenant as that in the text, which effectually precludes him from subsequently claiming his rent charge out of the land released, and is in fact an equitable release. (Butler v. Monnings, Noy, 5; Deux v. Jefferies, Cro. Eliz. 352, Ambl. 250). It is said that such a covenant amounts to a legal release of the lands ; (Cru. Dig. tit. xxviii. ch. ii. s. 21 ; Co. Lit. 148. a., note (*)); and if there be any consideration due to this opinion, it may be proper to frame the covenant as a covenant to indemnify against the rent charge and expenses. See another precedent of an equitable release of a rent charge in a subsequent volume of this work.

ENFRANCHISE-
MENT UNDER

POWER.

limited or created for enforcing the payment of the said ENFRANCHISErent charge when in arrear, and to a term of — years, thereby limited to the said — , their executors, administrators, and assigns, upon the trusts therein mentioned, for further securing the payment of the said rent charge), to the use of the said M. N. and his assigns for his life, without impeachment of waste, with remainder to the said A. B. and C. D., and their heirs, during the life of the said M. N., in trust for him and his assigns, and to preserve the contingent remainders, with remainder to the use of the said E. F. and his assigns for his life, without impeachment of waste, with remainder to the use of the said A. B. and C. D., and their heirs, during the life of the said E. F., in trust for him and his assigns, and to preserve the contingent remainders, with divers remainders, over : And in the —and particusaid indenture of appointment and release, (amongst other a

power of enpowers and provisoes), was contained a power or proviso franchisement. that it should be lawful for the said A. B. and C. D., or the survivor of them, or the executors or administrators of such survivor, at any time or times thereafter, at the request and by the direction of the said M. N. and E. F., during their joint lives, and, after the decease of such of them as should first die, at the request and by the direction of the survivor of them during his life, and after the decease of such survivor, then at the request of the persons therein mentioned or referred to, (such request and direction to be testified by some writing or writings under the hand and seal, or respective hands and seals of the person or persons whose request and direction was thereby made necessary), to enfranchise, and for that purpose to grant, bargain, sell, release, and confirm, all or any part of the messuages, lands, tenenements, or hereditaments holden by copy of court roll of the manors thereinbefore mentioned, or any of them, for such price or prices in money as should be thought reasonable; and it was by the same indenture provided [that the receipts of the trustees should be good discharges-recited verbatim]; and that when any of the premises should be enfranchised, and such proper receipts as aforesaid should be given for the

MENT UNDER

POWER.

ENFRANCHISE- consideration money of such enfranchisement, the freehold

of all and every the messuages, lands, tenements, and hereditaments so enfranchised should be and remain for ever from thenceforth freed and absolutely discharged of and from all and every the uses, estates, trusts, limitations, powers, provisoes, and agreements thereinbefore limited, declared, or expressed, and then and from thenceforth the said indenture now in recital, as to the same hereditaments so enfranchised, should be and enure to the only use and behoof of the person or persons to whom such enfranchisement or enfranchisements should be respectively

made, and of his, her, and their heirs and assigns respec---of death of tively for ever: AND WHEREAS the said M. N. died on

or about — : And whereas the said G. H. is seised life;

of the seisin or entitled for an estate of inheritance to him and his of the copy

heirs, according to the custom of the said manor of — , holder.

of or to the messuages, lands, and other hereditaments hereinafter particularly mentioned and intended to be hereby enfranchised: AND WHEREAS the said A. B. and C. D., at the request and by the direction of the said E. F., (testified by this writing under his hand and seal) (a), have contracted and agreed with the said G. H. for the enfran

first tenant for

Form of testifying request.

(a) The form in which a request should be testified depends on the circumstances of each case : for, if a particular form of request be made necessary by the terms of a power or trust, that form must be observed. Thus, if the request, as in the text, is to be testified by writing under hand and seal, the expression should be, “testified by this writing under his hand and seal.” And so the expression should be, “testified by this writing under his hand ;” or, “by his being a party to and executing this present deed ;" or such other phrase as the power or trust requires. If no form be required, the usual expression is, “testified by his being a party to and executing these presents.” And it is usual to introduce this expression whenever it is intended to express a request, or direction, or consent, even if such be not required by a power or trust, although there can be no doubt that if it be stated that an act is done, or about to be done, at the request, by the direction, or with the consent of any person, and that person is a party to and executes the deed in which the statement is made, he will be as effectually precluded from denying his concurrence, as though the manner in which his concurrence was given were formally stated.

chisement to him of the said messuages, lands, and other enfranchisehereditaments hereinafter particularly mentioned and in- **Power. tended to be hereby enfranchised, with their appurtenances, at or for the price or sum of £- : NOW THIS IN- Witnesseth. DENTURE WITNESSETH, that, in pursuance of the said agreement, and in consideration of the sum of Consideration. £4 , at or immediately before the sealing and delivery of these presents, paid by the said G. H. to the said A. B. and C. D., (the receipt, &c.; supra, p. 296), and pursuant to, and by force and virtue, and in exercise and execution of the power or authority in and by the said indenture of the day of — , to them the said A. B. and C. D. for this purpose given or limited as hereinbefore is mentioned, and of every or any other power or authority in anywise enabling them in this behalf, they the said EnfranchiseA. B. and C. D., at the request and by the direction of ment. the said E. F., (testified by this writing under his hand and seal), have and each of them hath enfranchised, and for that purpose granted, bargained, sold, released, and confirmed, and by these presents do, and each of them doth enfranchise, grant, bargain, sell, release, and confirm unto the said G. H., (in his actual possession now being, by virtue of a bargain and sale thereof to him made by the said A. B. and C. D., in consideration of five shillings a-piece, &c. ut supra, p. 198), and his heirs (6): ALL &c. (parcels-general wordssupra, p. 277]: To Parcels.

MENT UNDER

POWER.

ment.

(6) With respect to the nature and effect of an enfranchisement, see Enfranchisesupra, p. 276, n. (b), and the authorities there cited.

The power of enfranchisement given in the text is extremely meagre, Operation and and the manner in which it should be exercised is not very intelli- nature of a

power of engible; for the donees of the power are simply trustees to preserve franchisement contingent remainders; and it might well happen, that, when they came to exercise the power, their estate in the land might have determined. Why, then, should they convey by lease and release, or what estate passes by such a mode of conveyance, beyond the estate (if any) vested in the trustees for preserving the contingent remainders? The truth seems to be, that the power given “ to enfranchise, and for that purpose to grant, bargain, sell, release, and confirm,” is simply a power to enfranchise, and for that purpose to appoint the freehold of the enfranchised lands to new uses. The lease for a year is erroneous; and the words “grant,

« PreviousContinue »