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TO CHURCH- will within calendar months, from the day of the date WARDENS AND overseers. of these presents, at the costs and charges of the said
churchwardens and overseers, their successors or assigns, erect and set up, at or upon the extreme boundaries of the north and west sides of the said piece of ground hereby bargained and sold, or expressed and intended so to be, a strong and substantial fence, either of brick or sound oak, of the height of six feet at least, and shall and will at the like costs and charges of the said churchwardens, their successors or assigns, for ever thereafter keep and maintain the same fence in good order, condition, repair. IN WITNESS &c.
FORM of DECLARATION merging Tithes, under the statute of 6 & 7 Will. IV. c. 71, when such Merger is declared by a separate
Instrument (a). KNOW ALL MEN by these presents, I, — of — , in the county of — , gentleman (or whatever be the party's
Statute 6 & 7 Will. 4, c. 71.
(a) Before the recent alterations in the law, unity of seisin of the tithes and of the land out of which they issued, was of no avail to extinguish the tithes ; they continued to subsist independently, and could by no means whatever be merged. They were not deemed appurtenances to the land, and did not pass in a conveyance of it, “ with all profits, commodities, advantages, emoluments, hereditaments, and appurtenances." (Phillips v.Jones, 3 Bos. & Pul. 362; Chapman v. Gatcombe, 2 Bing. N. C. 516).
But, by the statute 6 & 7 Will. 4, c. 71, s. 71, it is enacted, “ that it shall be lawful for any person seised in possession of an estate in feesimple or fee-tail, of any tithes or rent-charge in lieu of tithes, by any deed or declaration, under his hand and seal, to be made in such form as the said commissioners, [the tithe commissioners], shall approve, and to be confirmed under their seal, to release, assign, or otherwise dispose of the same, so that the same may be absolutely merged and extinguished in the freehold and inheritance of the lands on which the same shall have
proper description], being lawfully seised of an estate in possession in fee-simple [or in fee-tail, as the case may be],
been charged.” And by the stat. 7 Will. 4 & 1 Vict. c. 69, such deeds and declarations are exempted from stamp duty.
These powers are explained and greatly extended by the recent statute Statute 1 & 2 1 & 2 Vict. c. 64, which enacts, (sect. 1), that, from and after the pass- Vict. c. 64, s. 1. ing thereof, “it shall be lawful for any person or persons who shall, either alone or together, be seised of or have the power of acquiring or disposing of the fee-simple in possession of any tithes, or rent-charge in lieu of tithes, by any deed or declaration, under his or their hand and seal, or hands and seals, to be made in such form as the tithe commissioners for England and Wales shall approve, and to be confirmed under their seal, to convey, appoint, or otherwise dispose of the same, so that the same may be absolutely merged and extinguished in the freehold and inheritance of the lands out of or on which the same shall have been issuing or charged; and every such deed or declaration as aforesaid shall be valid and effectual for the purpose aforesaid, although the same may not be executed, or made in the manner, in or with the formalities or requisites which, if this act had not been passed, would have been essential to the validity of any instrument by which such person or persons could have acquired or disposed of the fee-simple in possession of such tithes or rent-charge in lieu of tithes.” By the same statute it is further enacted (sect. 2), “ that no deed or declaration authorized by this Sect. 2. act for the merging of tithes shall be chargeable with any stamp duty;" and (sect. 3), “that in all cases where tithes, or rent-charge in lieu of Sect. 3. tithes, and the lands out of which the same are payable, are both settled to the same uses, it shall be lawful for any person in possession of an estate for life in both such lands and tithes, or rent-charge in lieu of tithes, by any deed or declaration under his hand and seal to be made, in such form as the said commissioners shall approve, and to be confirmed under their seal, to release, assign, or otherwise disposé of such tithes or rent-charge, so that the same may be absolutely merged and extinguished in the freehold and inheritance of the land out of which such tithes shall have been issuing, or in which such rent-charge shall have been charged ;” and (sect. 4), that the provisions in the act of the 6 & 7 Will. Sect. 4. 4, c. 71, s. 71, and this act contained, “as to the merger of any tithe, or rent-charge in lieu of tithe, shall be deemed and taken to extend to all lands, being copyhold of inheritance or copyhold for lives, or of any other tenure whatsoever.” Section 5 of the above act explains the meaning of the words “person,” “lands,” and “tithes," as used in it.
With regard to the language of the third section of this act, it may be observations observed, that the words“ person in possession of an estate for life" are not on the statute. very technical or precise. What they are intended to mean, is, it is presumed, a person tenant for life in possession, and probably this is the con
in the tithes (or rent-charge, if the declaration is not made till after an agreement for a rent-charge in commutation of such tithes] issuing from or arising upon (or charged upon, if it be a rent-charge that is to be merged] the lands hereinafter described, situate in the parish of — , in the county of — that is to say, [here describe the lands fully and accurately], do hereby declare it to be my will and intent that the said tithes (or rent-charge, as the case may be] shall henceforth be absolutely merged and extinguished in the freehold and inheritance of the said lands, according to the provision in that behalf contained in a statute made in the reign of his present Majesty King William the Fourth, intituled, “ An Act for the Commutation of Tithes in England and Wales.”
In testimony whereof, I have hereunto subscribed my
on the form of merger.
struction they will receive; but whether they will be held to apply to the case of a tenant for life in the receipt of the rents and profits, but whose estate is preceded by a term of years, is not clear.
The precedent in the text is a copy of the printed form published by the Tithe Commissioners, under the authority of the act 6 & 7 Will. 4, c. 71; but it is obviously inapplicable to a great number of cases. The commissioners have not published any form for merger under the stat. 1 & 2 Vict. c. 64. It is not essential to adhere to the printed form, even where circumstances permit; although the deed of merger must be approved by the commissioners, and confirmed under their seal; and it will probably be found most convenient to adhere to the usual forms of conveyancing, which have been tested by experience, rather than attempt to follow the devices of the commissioners. In the printed paper (0. 1.)—19, issued by the commissioners, it is observed, that “as the title to a rent-charge in commutation of tithe must be looked for in the instrument confirmed by the Tithe Commissioners, (meaning the general agreement for commutation) it will be convenient to have the merger evidenced by that instrument, rather than by a separate one, which may be lost or secreted ;" and the following form is recommended for introduction into any agreement for commutation, immediately after the recitals stating that a person is seised in possession of an estate in feesimple or fee-tail in any tithes : “And the said — hereby declares it to be his will and intent, certified by his seal and signature hereunto annexed, that the said tithes shall henceforth be absolutely merged and extinguished in the freehold and inheritance of the said lands." See further on this subject supra, p. 79, n. (b).
ASSIGNMENT of a Term already ATTEND- ASSIGNMENT
ANT upon the Inheritance to a Trustee for a o
THIS INDENTURE, made &c., BETWEEN A. B. of &c. Parties. (the administrator with the will annexed of E. J., the last
(a) The law with regard to terms attendant upon the inheritance is General law of fully stated in 1 Sug. V. & P. Ch. IX. s. 11 ; see too, supra, p. 64, n. terms. (a), and p. 65, n. (b). An opinion was expressed in n. (a), p. 65, that, in heritance.
upon the inthe absence of an express stipulation to the contrary, the expense of the perusal of the assignment, both on behalf of the assignor and the vendor, must in all cases be borne by the vendor. This opinion is still adhered to, but it is understood that in the recent case of Johnson v. George, 12 July, 1838, where the sale was made under a condition that the expense of all “ assignments and surrenders of terms shall be borne by the person or persons requiring the same," it was held by the Vice-Chancellor that the fees of counsel for, and solicitors' charges attending the perusal of the assignments of the terms on behalf of the trustees of the terms and of the vendors, and the execution of the assignments by the trustees, must be borne by the purchasers.
It will be fitting to explain here the structure of the deeds by which Structure of terms are assigned to attend the inheritance.
terms. If the term has never been assigned to attend the inheritance, the
- not pre recitals will commence (assuming that the circumstances of the fee do viously
ree do viously atiendnot require an earlier commencement) with the deed creating the terms, ant on the in. setting out in the recital of that deed the parcels (or so many of them as heritance. are intended to be assigned), (supra, p. 209, n. (c), ) and the trusts or purposes for which the term was created. The recitals will then proceed in the order of date, tracing the devolution of the fee and of the term up to the date of the intended assignment, and shewing that the trusts or purposes for which the term was created, have all been satisfied, and that the owner of the fee has thereby become entitled to call on the termor to
ASSIGNMENT OF ATTENDANT
ASSIGNMENT trustee of the term], of the first part, C. D. of &c., and
M. D. his wife, and E. F. of &c., spinster (the vendors] of
assign the term to attend the inheritance. If the assignment be made, as it generally is, on the occasion of a conveyance of the fee, and the objects or purposes of the term are satisfied out of the purchase-money, the assignment is commonly made by the deed of conveyance, because the existence of the term is necessarily disclosed on the face of the conveyance. (See supra, Precedent XXVII. p. 267). But if the trusts or purposes of the term have been antecedently satisfied, and the recitals required for the purpose of the conveyance do not necessarily disclose the existence of the term, the assignment should be taken by a separate deed, in order not to show on the face of the conveyance that the legal estate is outstanding. The proper parties to such separate deed will be the termor of the first part, the vendor of the second part, the purchaser of the third part, and the intended trustee for the purchaser of the fourth part, and
the deed will bear even date with the conveyance of the fee. and pre
If the term have been already assigned to attend the inheritance, the viously attend- assignment should (unless on very trifling transactions) be made by a ant on the in separate deed, having the same parties and date as the last-mentioned. heritance.
But the recitals of an assignment of a term which has previously been assigned to attend the inheritance, differ materially from the recitals of an assignment of a term in gross. For with the latter, as has been already explained, it is necessary to shew the original trusts or purposes of the term, and to trace the devolution, both of the fee and the term, from the date of the creation of the latter. But in the case of an assignment of a term which has been previously assigned to attend the inheritance, it is sufficient to recite the deed creating the term in the most general way, taking care only to give the parcels, the date of the commencement, and the duration of the term. We then recite, that, by divers mesne assurances and acts in the law, and ultimately, by an indenture, of which the date and parties are given, the fee became vested in the person directing the assignment, or in those under whom he claims, and that by divers mesne assignments and acts in the law, and ultimately by an indenture, of which the date and parties are given, the term became vested in the trustee, in trust for the persons directing the assignment, or those under whom he claims. That is, we proceed at once to the last occasion on which the term was assigned to attend, and shew to whom it was assigned, and in trust for whom. The intermediate recitals are obviously of no moment, because the trustee can only be affected by the acts of his own cestui que trust, and is in nowise concerned with the dispositions either of the term or the fee, prior to the assignment to him
From the period to which the narrative is thus brought down the recitals will proceed in the usual manner, setting forth all the deeds,