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ASSIGNMENT said G. H.; and from and after the expiration or sooner
determination of the said term of ninety-nine years, and in the meantime subject thereto, and to the trusts thereof, to the use of all and every the child and children of the body of the said G. H., begotten or to be begotten, and
their heirs and assigns, in equal shares as tenants in com-of the death mon: And whereas the said E. J. died on the day of the trustee of having first duly made, signed, and published his of the term, and of adminis- last will and testament in writing, bearing date the 17th tration to him.
day of November, 1832, and having thereby appointed two executors thereof, who both died without proving the same, and letters of administration of the goods and chattels, rights, and credits of the said E. J., with the said will annexed, were on the 4th day of May, 1833, granted
to the said A. B. by the Prerogative Court of the Arch-of desire that bishop of Canterbury : AND WHEREAS the said G. H. and term may be assigned.
I. K. are desirous that the said premises comprised in the -said term of years (9), should be assigned by the said
A. B. to the said L. M., his executors, administrators,
and assigns, upon the trusts and in manner hereinafter Witnesseth. mentioned : NOW THIS INDENTURE WITNESSAssignment. ETH, that, for effectuating the said desire, and in con
sideration of the premises, he the said A. B., at the request and by the direction of the said C. D. and M. D., and the said E. F., and upon the nomination and appointment of the said G. H. and I. K., (testified by their severally being parties to and executing these presents), hath assigned, and by these presents doth assign unto the said L. M., his executors, administrators, and assigns,
(9) See, with reference to the frame of this recital, the remarks contained in the ensuing note, on the manner of referring to the parcels. The recital must, of course, be made to correspond with the description of the parcels. When the term coinprises more property than that intended to be assigned, the recital may refer to the parcels as comprised in the term " and hereinbefore particularly mentioned," or as “such of the said hereditaments comprised in the said term as were assigned or expressed to be assigned” by the last assignment. These, or such similar phrases as the circumstances of the case require, will sufficiently distinguish the parcels intended to be assigned, from the others comprised in the term.
ALL such and so many, and such part and parts of the ABSIGNMENT messuage, land, and hereditaments by the said indenture °F of release of even date herewith granted and released, or par expressed and intended so to be, as by the said indenture of the 16th day of April, 1819, were assigned or expressed to be assigned to the said E. J., his executors, administrators, and assigns, for the residue of the said term of years (h), as hereinbefore is mentioned, with their appurtenances, AND ALL the estate, &c.: To Habendum. HAVE AND TO Hold the said messuage, land, and hereditaments, and all and singular other the premises hereby assigned, or expressed and intended so to be, unto the said L. M., his executors, administrators, and assigns, for the residue now to come of the said term of years, UPON TRUST for the several persons who shall from time
(h) It is necessary to pay considerable attention to the mode of stating, Mode of deor rather of referring to the parcels intended to be assigned. In the case scribing the in the text the purchase deed comprises the whole of the property in the
ha parcels in as
signments of term, and the whole was assigned on the last assignment; hence the re- terms. ference is to such of the hereditaments comprised in the purchase deed as were assigned on the last assignment. And the reference may be the same if the purchase deed comprises the whole property included in the term and more. But if the purchase deed comprises only part of the property included in the term, and assigned on the last assignment, the mode of description must be reversed, and the reference be to such of the hereditaments included in the last assignment as are comprised in the purchase deed.
Again, a variation is required, if since the last assignment there has been an inclosure act, or other act, by means of which the property now included in the term, or subject to the trusts thereof, is different from that included in it on the last assignment. The reference will then be to the hereditaments "assigned or expressed to be assigned to the said E. T., his executors, administrators, and assigns, for the residue of the said term of — years, or which are now by virtue of the said inclosure act [or such other act as it may be], or by any other means whatsoever, comprised in the same term, and subject to the trusts thereof." And, of course, various combinations of circumstances will demand variations in the language of the description, which must be supplied by the ingenuity of the draftsman. His principle should be to pay little attention to the form, but to attend closely to the fact, to make out clearly and exactly what he means to comprise in his assignment, and to introduce words of description which will aptly express his meaning.
to time be entitled to or interested in the reversion expectant on the said term of years of and in the premises therein comprised, under the limitations and trusts of the said indenture of even date herewith, and to assign and dispose of the same as they shall from time to time direct (i), and in the meantime to permit and suffer the residue of the said term of years to wait upon and attend the reversion, freehold, and inheritance of the premises therein comprised, and to protect the same from all mesne incumbrances, if any such there be : AND THE SAID A. B. doth hereby for himself, his heirs, executors, and administrators, covenant with the said L. M., his executors, administrators, and assigns, that he the said A. B. hath not at any time heretofore made, done, committed, or executed, or knowingly or willingly permitted or suffered, or been party or privy to any act, deed, matter, or thing whatsoever, whereby or by reason or means whereof the said messuage and other hereditaments hereinbefore assigned, or expressed and intended so to be, or any of them, or any part thereof, are, is, can, shall, or may be impeached, charged, affected, or incumbered in title, estate, or otherwise howsoever. IN WITNESS &c. (j).
(*) In the case in the text the freehold is conveyed to the uses of a settlement, and hence the trust of the attendant term differs somewhat from the common form, which runs as follows : “UPON TRUST for the said [purchaser], his [if the conveyance be to uses to bar dower, insert“ appointees,"] heirs and assigns, and to assign and dispose of the same as he or they shall from time to time direct,” continuing as in the text.
Cases to which the protection of the legal estate is extended.
6) It may be proper to take this opportunity of referring the practitioner to the recent case of Jones v. Powles, (3 My. & Ke. 581); in which tioner to the recent ad it was laid down by the Master of the Rolls “that the protection of a legal estate extends not merely to cases in which the title of the purchaser for valuable consideration without notice is impeachable by reason of a secret act done, but also to cases in which it is impeached by reason of the falsehood of a fact of title, asserted by the vendor or those under whom he claims, where such asserted title is clothed with possession, and LII.
ASSIGNMENT of two Attendant Terms in Assignment
SEPARATE Properties to a Trustee for a Pur-
OF TWO ATTENDANT
THIS INDENTURE, made &c. BETWEEN A. B., of Parties. &c., [assignor), of the first part; C. D., of &c., and E. F.
the falsehood of the fact asserted could not have been detected by reasonable diligence.” The person who in this case claimed and obtained the protection of the legal estate, derived title under a will which turned out to have been forged. The subject will be more fully discussed in another part of this work, but most of the cases connected with it are cited in Jones v. Powles.
(a) In the precedent, the skeleton of which is given in the text, it ap- Form of assign pears that both the terms had become vested in one trustee at the date of ment when the
terms are in the assignment. If it happen that the terms are in different trustees, the different trus. frame of the recitals will not be materially different; they will commence tees. with the creationof the terms in the order of date, and then pass in the usual way to those conveyances of the respective reversions on which the terms were last assigned to attend, and to the assignments themselves ; and afterwards trace the devolution of the fee in the usual manner. There will be distinct witnessing parts for each term, each having its own habendum referring to the subsequent declaration of trust, and each being followed by the covenant against incumbrances from the assignor ; and the draft will conclude with the declaration of trust in the text, introduced by the following form, “ And it is hereby agreed and declared between and by the parties to these presents, that the said (trustee], his executors, administrators, and assigns, shall stand possessed of and interested in the said premises hereinbefore assigned, or expressed and intended so to be, for the respective residue now to come of the said terms of — years and — years respectively, in trust, &c.” as in the text. See further, supra, notes to Precedent LI.
OF TWO ATTENDANT
ASSIGNMENT of &c., [trustees of legal estate in the premises), of the
second part; the said A. B. and G. H., of &c., [vendors), of the third part; I. K., of &c., [purchaser], of the fourth
part; and L. M., of &c., [purchaser's trustee], of the fifth Recitals.
part, [recites indenture of mortgage of the 24th of June, 1781, creating a term of 1,000 years, see supra, p. 451, and a similar indenture of the 29th of June, 1798, creating a term of 1,000 years in other property—that by divers mesne assurances and acts in the law, and ultimately by an indenture, bearing date fc., the reversion of the property comprised in the first term had become vested in X. Y., in fee, (see the form supra, p. 452,)—that by divers other mesne assurances and acts in the law, and ultimately by the said indenture of 8c. (the last mentioned), the reversion of the property comprised in the second term had become vested in X. Y., in fee, (same form)—that by divers mesne assignments and acts in the law, and ultimately by an indenture, bearing date fc., the property comprised in both terms had been assigned to A. B., his executors, administrators, and assigns, in trust to attend, (see the form supra, p. 452), and recites the subsequent dealings with the fee, from which it appears that the legal estate in the premises is outstanding
in C. D. and E. F., and that A. B. and G. H. are trustees Recital of con- for sale]: AND WHEREAS, by an indenture of release, veyance to purchasers.
bearing date the day of — , grounded so far as the same operated as a release on a lease for a year, and made or expressed to be made between (parties], for the considerations therein mentioned, the said C. D. and E. F., by the direction of the said A. B. and G. H., testified as therein mentioned, did release, and the said A. B. and G. H. did release unto the said I. K. and his heirs, (among other hereditaments), all and singular the said messuage, lands, and hereditaments, comprised in the said several terms of 1,000 years and 1,000 years respectively, with the appurtenances, (with an exception of such estate or interest, or estates or interests, if any, as was or were vested in the said A. B., of or in the same premises respectively, or any part or parts thereof respectively, for