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ENFRANCHISE- HAVE AND TO HOLD the said messuages, lands, and
hereditaments, and all and singular other the premises Habendum.
bargain, sell, release, and confirm,” are to be taken merely as the words of appointment. In a recent case in practice the power of enfranchisement was blended with that of sale and exchange, the power being, to sell, exchange, or enfranchise, and for those purposes to revoke the old uses and appoint new. But for the enfranchisement the difficulty was, that the old uses were declared of the manor, and not of the lands, to be enfranchised, and the powers being to revoke the uses of the lands enfranchised, there was an inconsistency on the face of the instruments. It was, however, considered that the power by necessary intendment must enable the appropriate revocation to be made, and the operation was conducted as follows: By the first witnessing part of the enfranchisement deed the donees of the power “enfranchised” the copyholds; By a second witnessing part for effectuating the enfranchisement they revoked the old uses, declared " of the freehold of the lands enfranchised, and of the manors so far as they relate thereto;" and by a third witnessing part for further effectuating the enfranchisement, the donees appointed the lands to the purchaser freed of the copyhold tenure. And a course somewhat similar to this would seem to be the appropriate one in the case of an enfranchisement under an ordinary power. The only intelligible view of an enfranchisement under a power is to consider, that, by the settlement of the manor, the freehold of the copyhold lands is settled, and that the power to enfranchise is a power to revoke the uses of the settlement, and
appoint new uses of the lands to be enfranchised. Whether a It has been suggested that the common power of sale and exchange of power of sale a manor authorizes the enfranchisement of the copyholds of the manor. authorizes an
But there is no authority (so far as the editor knows) for this proposition, enfranchisement.
and the principle of it is extremely doubtful. It might even be a question whether a power to sell the manor would authorize the sale separately from the manor of any demesne lands of the manor which had fallen into the lord's hands; but there appears to be a great dearth of
authorities on points of this nature. Enfranchise. In cases where the customary lands are copyholds for lives, the transment of copyholds for lives.
action must partake of the nature of a sale as well as of an enfranchisement; for admitting that with respect to the life interests it is an enfranchisement, still with regard to the reversions expectant on the lives it must be deemed a sale. Perhaps it may be doubted whether the ordinary power of enfranchisement authorizes an enfranchisement in fee-simple to a copyholder for lives; and supposing it does not, then the question arises, whether the enfranchisement being applied to the estate for lives, so as to convert them into a freehold lease for lives, the reversion expectant on that lease can be disposed of under the common power of sale. The difficulty cannot be got rid of by surrendering the life estate, because
hereinbefore enfranchised, and granted and released, or Enpranchiseexpressed and intended so to be, unto the said G. H., his heirs and assigns, to the use of the said G. H., his heirs and assigns for ever (c), freed and absolutely discharged of and from the copyhold tenure thereof, and of and from all rents, payments, heriots, suits, customs, and services incident thereto, or by custom, prescription, or otherwise howsoever, to be paid, rendered, or performed to the lord of the said manor of — for the time being, for or in respect of the same premises or any of them (d): AND EACH of them Covenants. the said A. B. and C. D., so far as relates to his own acts and deeds, doth hereby &c. (covenant for right to exercise the power; supra, pp. 232 and 241. Covenants by E. F., as at p. 233, changing the word of reference “appointed” to “enfranchised and granted and released"]. IN WITNESS &c.
it is still obvious that the sale is not made at the best price that might be had, as the copyholder, though he might technically surrender his lifehold estate, would undoubtedly take its value into consideration in the price he gave for the fee. If all the lives have dropped, it is clear that an enfranchisement cannot be made, because there is no copyholder to accept it; whether a sale is practicable depends on the question above stated, whether a power to sell a manor authorizes a sale of the demesne lands of the manor separately from the manor.
(c) When an enfranchisement is made under a power, the usual prac- Mode of limittice is to convey or limit the estate to the coppholder in fee-simple, and ing the freenot to uses. But viewing the enfranchisement (see preceding note) as an appointment under a power, there can apparently be no objection to appointing the freehold to any uses which may be desired. It is presumed that the copyhold interest will be as effectually extinguished if only a partial estate in the freehold is limited to the copyholder, as though the whole fee had been limited to him. See supra, p. 276, n. (b), and the authorities there cited.
(d) See supra, p. 277, n. (c).
No re-grant of rights of common is made in the present case, (supra, p. Re-grant of 277 & p. 278, n. (d)), because the power being simply to enfranchise, does commons. not authorize a grant which is not necessarily incident to an enfranchisement. But as it seems that even if the right of common were not re-granted it would subsist in equity, (Styant v. Staker, 2 Vern. 250), it might perhaps
TO A RAILWAY
CONVEYANCE to a RAILWAY COMPANY (a).
THIS INDENTURE, made &c. BETWEEN A. B. of &c., C. D. of &c., and E. F. of &c., [vendors], of the one part, and the --- Railway Company established and incorporated by an Act of Parliament, made and passed in the — year of the reign of his late Majesty King William the 4th, in
tituled “ An act for making a railway from — to — , Recital of a with a branch therefrom,” of the other part: Whereas the seisin in fee by said A. B., C. D., and E. F., are seised or entitled of or to the vendors as tenants in the lands and other hereditaments hereinafter mentioned or
referred to, and intended to be hereby conveyed in equal
Proviso restricting the effect of the enfranchisement.
be maintained that the power to make the usual re-grant of common is necessarily incident to a power to enfranchise. All well drawn powers of enfranchisement expressly authorize the re-grant of commons.
It may perhaps be proper, in the case of an enfranchisement under a power, when the uses declared of the manor, so far as they relate to the lands intended to be enfranchised, are expressly revoked, to insert the proviso given ante, p. 278, n. (e); not that it is essential, but simply to make the intention more clear.
(a) All modern acts for railways, canals, and other undertakings, which require numerous purchases of real estate, contain forms of conveyance differing from those in ordinary use. These forms are not, however, made compulsory; but it is simply enacted, that conveyances for the purposes of the act may be made according to these forms, or as near thereto as circumstances will permit. The forms themselves are absurd, and are inapplicable except in the very simplest cases; but coupled with the permissive clause previously referred to they are very useful, because they enable the draftsman to simplify his conveyances by using the operative words rendered effective by the act. The best way is to make the conveyance by indenture, giving parties and recitals in the usual way, and to avail ourselves of the words of the statutory form in the operative part and habendum. With respect to the introduction of ovenants, see the note infra.
shares as tenants in common for an estate of inheritance in to a Railway fee-simple in possession, free from incumbrances : And –
-of contract WHEREAS the said company, in pursuance of the powers re- for
for purchase. posed in them by the said act, have contracted for the purchase, for the purposes of the said act (6), of the said lands and other hereditaments, and the inheritance thereof in feesimple in possession, free from incumbrances, at or for the price or sum of £— NOW THIS INDENTURE Witnesseth, WITNESSETH, that, in pursuance of the said contract, and in consideration of the sum of £— paid by the said Consideration. company to the said A. B., C. D., and E. F. (c), at or before the execution of these presents (the receipt of which said sum of £— , they, the said A. B., C. D., and E. F., 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 company, their successors and assigns for ever by these presents). They, the said Conveyance. A. B., C. D., and E. F., do hereby convey (d) to the said
(b) When the company are purchasing from persons who have power to sell independent of the act, the recital may be either of a sale to, or of a purchase by, the company for the purposes of the act; supra, p. 193, n. (c). But when the company are purchasing from persons who have no capacity to contract, except by force of the act, the recital should be of a purchase by the company. If, on the other hand, a sale is made to the company, not by virtue of the powers of the act, but by virtue of a power or trust for sale reposed in the vendors, the recital should be of a sale. The distinction in the case of a settled, or trust estate, is of considerable importance ; because, if the company purchase by virtue of the powers of the act, the purchase-money must be paid into the Bank of England in manner provided by the act; but if the sale he made to the company by virtue of an independent power or trust for sale, the purchase-money may be paid to the vendors, as in the case of an ordinary purchase.
(c) If the purchase be made from persons who have no capacity to contract, except by force of the act, the money must be stated to be paid into the Bank of England to the account, &c., according to the form which the acts require. If an acknowledgment be added in such case, of course it must be an acknowledgment of payment not of receipt.
(d) It has been before observed, that the operative words which the act renders effective must be used.
TO A RAILWAY company, their successors and assigns, ALL THOSE pieces
or parcels of land, situate in the parish of , in the Parcels.
county of — ; containing in the whole - now or late in the occupation of -- ; the particular shape, boundaries, and position of which said pieces or parcels of land are delineated in the map or plan drawn in the margin of these presents, (and which said pieces of land intended to be hereby conveyed form parts of the pieces numbered — and
in the map and book of reference of the said railway,
deposited with the clerk of the peace for the said county of General words. - ; Together with all ways, rights, easements, and ap
purtenances thereunto belonging, and all such estate, right, title, and interest in and to the same and every part thereof, as they, the said A. B., C. D., and E. F., respectively are
or shall become seised or possessed of, or are, by the said Habendum. act, capacitated or empowered to convey (e), To hold the
said premises to the said company, their successors and as
signs, for ever, according to the true intent and meaning of Covenants by the said act (S): AND EACH (9) of them, the said A. B., the vendors.
C. D., and E. F., so far as relates to his own acts and deeds, and the acts and deeds of his heirs, and of all persons claiming through or under him or them, and so far as relates to his own undivided third part of and in the said premises, doth hereby, for himself, his heirs, executors,
(e) The mode of referring to the parcels depends in some degree on the language and provisions of the act, but the clauses relating to these matters are very nearly the same in all modern acts of the same kind. The form and expressions given as general words are those contained in the form prescribed by the act.
1) The habendum is taken from the form in the act.
(9) The parliamentary forms are not indentures, and do not contemplate or admit of the introduction of covenants. Perhaps the company could not insist on having any covenants from the vendors when the land is taken by force of the act, or even in any case ; (supra, p. 32, n. (k)); but, unless the vendors be trustees, or persons having no interest, it seems fair that they should covenant for their right to convey and for further assurance. In all the conveyances to the company which the precedent refers to, covenants were entered into by the vendors without objection.