his heirs, [or his executors and administrators,] as well the within indenture of lease as the lands and premises therein mentioned, and the term of years therein yet to come, with all my right, title, and interest thereto; AND I do hereby covenant that the same are free and clear of all incumbrances of what kind soever, at any time by me, or my privity, consent, or procurement, done, committed, or knowingly suffered.

WITNESS my hand and seal, this one thousand eight hundred and SIGNED AND SEALED

in presence of

E. F.

day of

A. B. [SEAL.]

(900a.) ATTORNMENT by several TENANTS with CONSENT of

the MORTGAGOR.

WE, whose names are hereunto subscribed, being severally tenants in possession of the several estates, lands, and tenements, specified, and set opposite to our respective names, in the schedule here underwritten, as tenants of (mortgagor,) of at the request, and by the direction of the said (mortgagor,) testified by his signature hereto, do hereby severally attorn, and become tenants of the said estates, lands, and tenements, unto (mortgagee,) of

to whom the same were by a certain indenture, dated the

day of

18 and made between the said (mortgagor,) of the one part, and the said (mortgagee,) of the other part, conveyed and assured unto the said (mortgagee,) his heirs and assigns, for securing to him, his excutors, administrators, and assigns, the money therein expressed, to be advanced by him as therein mentioned. AND we do hereby severally undertake and agree to pay the rent payable in respect of the said premises, as, and whenever the same shall become due, as in the said schedule, expressed unto the said (mortgagee,) or his representatives who for the time being, through or under him, shall be entitled to receive the same, or unto his, or their agents, or agent, lawfully authorized and appointed by him, or them, to receive the same.

IN TESTIMONY WHEREOF, we have this day paid unto the said (mortgagee,) the sum of one dollar in consideration of the said agreement, and in part of the said rents, payable by us in respect of the said estates and premises.

AS WITNESS, our hands, this

day of

year of our Lord one thousand eight hundred and

in the

Mortgagor.

A. B.

C. D.

E. F.

THE SCHEDULE ABOVE REFERRED TO.

Tenants Name.

Names of Ten-
ants.

Town, Village,

or Township, Yearly Rents. When Payable. and County.

(9006.) COMMON FORM of ATTORNMENT by SEVERAL TEN

ANTS.

WE, whose names are hereunto subscribed, being severally tenants of the several lands, tenements, and premises set opposite to our respective names in the schedule here underwritten, do hereby severally agree to pay the respective rents payable for the same premises, whenever, and as the same shall become due, and as in the said schedule, expressed unto the said A. B., or his representatives for the time being, who, through, or under him, shall be entitled to receive the same, or unto his, or their agent, or agents, lawfully authorized by him, or them, to receive the same.

IN WITNESS WHEREOF, we have severally paid unto the said A. B., the sum of one dollar, in the name of attornment, and in part of the said rents.

CONCLUSION and SCHEDULE, (as in n. 900a.)

900c. CLAUSE of ATTORNMENT by MORTGAGOR to MORTGA GEE in a Mortgage Deed.

66

"AND for the better enabling the said (mortgagee) to receive and enforce payment of the interest hereby reserved on the several days "herein before appointed for payment thereof, the said (mortgagor) "does hereby attorn and become tenant to the said (mortgagee) at "the yearly rent of $ (the same as the amount of the inter

66

est) to be paid in two equal half yearly payments, on the "day of in every year during the continuance

, and

"of this mortgage security."

900d. ATTORNMENT by a TENANT to a MORTGAGEE after a JUDGMENT recovered by him in an action of EJECTMENT.

in

WHEREAS, (mortgagee) of has lately obtained a judgment in an action of ejectment brought against me for (here set out the parcels us described in the judgment) now in my possession, situate within the in the county

of

of

which said premises have been conveyed to the said (mortgagee,) his heirs and assigns, by a certain indenture, dated the

day of

eight hundred and

9

in the year of our Lord one thousand

, and made between (mortgagor) of

of the one part, and the said (mortgagee)

Now, I do hereby attorn and become tenant to the said (mortgagee) for or in respect of the several messuages, farms, and tenements, specified and set forth in the schedule hereto annexed; AND I hereby further agree to pay the yearly rent of $ for and in respect of the said premises as and whenever the same shall become due unto the said (mortgagee,) his heirs, or assigns, or his or their agent or agents lawfully authorized by him or them to receive the same, and in testimony of such attornment have paid to the said (mortgagee) the sum of one dollar in part of the said rent payable by me; AND I do hereby further agrce on the expiration or sooner determination of my lease in the said premises, to deliver up the possession of the same unto the said (mortgagee,) his heirs or assigns, and that I will not pay such rents nor deliver up possession of the said premises, or any of them, or any part of the same, to any other person or persons whomsoever, unless compelled so to do by the judgment, order, or decree of some court of law or equity.

IN WITNESS, &c., (as in n. 900a.)

CHAPTER IX.

MARRIAGE ARTICLES.

NOTES.

901. A deed of settlement is usually prepared at once without previous articles where the property is inconsiderable, and this is to be recommended in every case where it is practicable.

902. Marriage settlements are valid as against creditors, whether executed before or after the marriage, if they are in pursuance of articles entered into before marriage, and this without reference to the settlor being in debt or not at the time of the settlement. (Campion vs. Cotton, 17 Ves., 263.) And semble that an agreement in consideration of marriage, and to settle after-acquired property, will be good against creditors, though the settlor were in debt at the time of the agreement; but the settlor himself may defeat it by conveyance to a purchaser for valuable consideration, even though he have express notice of the prior settlement.

903. Marriage articles are within the 29 Car. i., c. 3, s. 4, and must therefore be signed by the party to be charged; but they may be established through the medium of letters, as in the case of agreements to purchase real estate. And if intended to be written, and that intent is prevented by the fraud of one of the parties, equity will compel performance; and so if there has been part performance of an unwritten agreement, as where the wife, under such agreement, was permitted to enjoy the interest of a certain sum for her separate use during the marriage, equity will enforce specific performance; but marriage itself is not part performance.

904. The construction of marriage articles by courts of equity is not merely technical, but according to the intention of the parties, and that intention is held to be mainly a provision for the issue; therefore, when the words of the articles would confer an estate tail on the settlor which he might bar and defeat, equity will direct a strict settlement, and cut down the settlor's estate to a life estate only. Daughters also are included in the general term "issue," and estates will be decreed to be limited to them accordingly.

905. The recital is usually confined to that of the intended marriage, except where it is desirable to show the interest which the settlor takes in the property, or the power which he has of making the settlement; but, if the articles are in consideration of a mutual settlement, the deeds or agreements should be briefly recited.

906. In strict settlements the property is usually settled on the intended husband for life, with a rent charge to the wife, if she survive him, remainder to the children of the marriage in tail, with power to raise portions for younger children, to grant leases, and the usual powers of sale and exchange.

These objects are effected in the following manner:—

(1.) The property is conveyed to trustees to uses by name, and their heirs, to the use of the trustees of the term, [who are different persons, and must be named,] their executors, administrators, and assigns, for a long term of years, upon the trusts mentioned.

(2.) That, subject thereto, the property is to be to the use of the intended husband for life, without impeachment of waste.

(3.) That, after his death, the wife shall have a rent charge by way of jointure out of the premises, stating the periods of payment, and giving her the usual powers of distress and entry.

(4.) Estates tail are next limited, whether special or otherwise, and also, if daughters take, whether they are to take successive estates or as tenants in common; and, in the latter case, cross remainders usually take place, and should be stated, with a final limitation of the ultimate remainder.

(5.) Next comes the agreement to raise portions for the younger children; the consent of parents thereto, if necessary, and the precise amount, and the mode of raising them, [as by sale or otherwise,] are carefully set out.

(6.) Powers of leasing, if granted, should state the term for which the property is to be let, and whether, as is usual, the power is to be restricted to granting leases in possession.

(7.) Powers of sale and exchange are now given to the trustees to uses; and, if any of the premises consist of an undivided estate, a power of partition should be added, for it is doubtful whether a mere power of sale will authorize a partition.

The articles conclude by providing

(8.) Power to appoint new trustees, and all other usual powers contained in such settlements.

907. Any proviso intended to defeat a part or all of the settled estates on the happening of an event, as the bankruptcy of the husband, must be in the articles, otherwise it cannot be put in a settlement executed after marriage; but it is important to note that, under the bankrupt laws in England, the property of the intended wife, and that only, or the husband's property to an equal amount in lieu thereof, may be so settled as to survive the bankruptcy.

908. A power of revocation, if general, will avoid the settlement, as against strangers, under 27 Eliz., c. 4, s. 15, but the statute does not extend to personal estate. And a power in sale and exchange clauses intended to effectuate the settlement, as to revoke old uses, will not cause such avoidance, nor will a power of revocation de