Operative each of them DoTH grant, alien, and convey; and the part. of the marriage before they enforced their rights. As a consequence of this ability to enforce and defend the judgment in the suit was conclusive, and barred the wife, as also did a compromise of the suit by an agreement of record. It is easy to perceive how these suits were made the medium of conveying the wife's estate by means of a fictitious suit or claim, and an equally fictitious agreement of compromise. When to these was added, (as a remedy for the abuse of what was found to be a social benefit,) an examination of the wife to ascertain her free will in the conveyance effected by the compromise, we have the general outline of the nature and effect of a fine, which, whatever complexity may be attendant on its theoretical operations, was nothing more than common assurances." (Co. Litt. 121. a., Harg. n.)] [On the abolition of fines and recoveries, and the substitution of more simple modes of assurance (3 & 4 W. 4, c. 74), it came necessary to provide for the alienation of the estates of married women, and several provisions are to be found in that statute applicable to the subject. We will here only refer to such as enable a wife to convey her estate in land generally, reserving the cases of her being tenant in tail, which are mentioned, post. [By sect. 77, every wife may by deed dispose of lands of any tenure, and money subject to be invested in the purchase of lands, and also to dispose of, release, surrender, or extinguish any estate which she alone, or she and her husband in her right, may have in any lands of any tenure, or in any such money as aforesaid, and also to release or extinguish any power which may be vested in, or limited or reserved to her in regard to any lands of any tenure, or any such money as aforesaid, or in regard to any estate in any lands of any tenure, or in any such money as aforesaid, as fully and effectually as she could do if she were a feme sole, but no such disposition, &c., shall be valid without the husband's concurrence, nor unless the deed be acknowledged by her. By sect. 79, every deed to be executed by a wife under the Act, shall, upon her executing the same or afterwards, be produced and acknowledged by her as her act and deed before a judge of one of the superior courts at Westminster, or a Master in Chancery, or before two of the perpetual commissioners. Habendum. Covenants by mortgagee. said (husband of annuitant and wife), to the intent to extinguish the rent-charge of £ so devised to the said (wife), Do and each of them DотH by these presents, intended to be acknowledged by the said (wife) as aforesaid, release and confirm; and the said (mortgagee) as such surviving executor as aforesaid to the intent to merge the aforesaid term of 1000 years, at the request of the said (husbands of tenants in common), by these presents DоTH surrender and also assign unto the said (purchaser) and to his heirs, ALL (parcels), together with all and singular the appurtenances to the said hereditaments, or any of them, or any part thereof. [Deeds, supra, p. 46.] TO HAVE AND TO HOLD the said hereditaments herein before described, with their appurtenances, unto the said (purchaser) and his heirs. [Add, dower uses if required, ut supra, p. 49.] [Covenant by (mortgagee) with (purchaser) that he has done no act to incumber, supra, p. 105.] [The deed by section 84, is to be marked thus :— "This deed marked (mark) was this day produced before me [or us], and acknowledged by (wife) therein named "to be her act and deed, previous to which acknowledgment "the said (wife) was examined by me [or us] separately "and apart from her husband, touching her knowledge of "the contents of the said deed and her consent thereto, "and declared the same to be freely and voluntarily exe"cuted by her. Dated, &c." [A certificate of the acknowledgment and examination is to be signed by the person taking it, and when verified by affidavit is to be filed at the Common Pleas Office for that purpose.] [It is not necessary to state in the conveyance that it is made in pursuance of the Act, but the reference to it is so brief, and its By husAND the said (husband of annuitant) doth hereby band of annuitant. for himself and his heirs covenant with the said (purchaser), his heirs and assigns, that they the said (husband and wife) have not, nor has either of them, made, done, or suffered anything whereby the said hereditaments or any part thereof can remain in any manner subject to the said rent-charge of £ any arrears thereof. By vendors for title. or AND each of them the said (husbands of tenants in common), to the value of one undivided moiety only of the said hereditaments hereinbefore described, doth hereby for himself and his heirs covenant with the said (purchaser), his heirs and assigns, that notwithstanding anything made, done, or suffered by the said (husbands' vendors), or the said (executors of mortgagee), or the said (testator's mortgagee) deceased, (annuitant and husband), or by the said (vendors' testator) deceased, they the said (husbands' vendors) now have [good right to convey, for quiet enjoyment, free from incumbrances, and further assurance, as ante, p. 63.] IN WITNESS, &c. (7) value as a reminder that the forms of the Act must be complied with is so great, that it can hardly be objectionable.] (7) [To be acknowledged by the wives of the vendor and annuitant respectively, and certificate of such acknowledgment and affidavit to be filed in the Common Pleas Office.] PRECEDENT VII. CONVEYANCE BY AN EXECUTOR AS THE DONEE of Parties. THIS INDENTURE, made &c., BETWEEN (heir) of the first part, (executor) of the second part, (cestuis que trust) of the third part, and (purchaser) of the fourth Recitals. part: WHEREAS (testator), late of &c., being seised Seisin and in absolute fee simple, by purchase for a valuable attempted devise. consideration, of the hereditaments hereinafter de Nature of collateral powers. scribed, died on &c., leaving an instrument in writing, purporting to be his last will, and bearing date &c., whereby he devised the said hereditaments to his then wife Ann for her life, and after her death directed his executor to sell (1) the same either by public auction or private contract for the best price that could be obtained for the same, and to divide such sum equally amongst such of his children as should be then living. And the said testator ap (1) A naked authority, or as it is more usually called, a power simply collateral, has been after some critical remarks on Lord Hale's definition, (Hard. 415,) defined by Sir E. Sugden to be a power to a person not having an interest in the lands, and to whom no estate is given, to dispose of or charge the estate in favour of some other persons. (Pow. Ch. 1, s. 4.) Hence a devise, that the executors of testator shall sell his lands, exempli to confirm. pointed the said (executor) executor of his said will: Devise in- AND WHEREAS by reason of the said will not being valid, but heir willing executed and attested as by law required, the said hereditaments have descended to the said (heir), the eldest son of the said testator, but the said (heir), being desirous of effectuating the intention of his said father, hath agreed, as heir at law of the said testator, distinctly to concur in the conveyance of the said hereditaments, in the manner hereinafter apDeath of pearing (2): AND WHEREAS the said (wife) enjoyed tenant for life leaving children. When exe cutors are to convey the fee under a direction to sell. Heir the most important fies such a power. Its peculiar characteristic is that, unlike other powers, it cannot be extinguished either by the donee or any other person, but continues to subsist notwithstanding a fine, feoffment or release. [When lands are devised to be sold, but it is not said by whom the sales are to be made, the person to sell is to be ascertained by referring to the distribution which is directed to be made of the proceeds: "If the produce of the sale is to be applied by the executors in the execution of their office, a power to sell will be implied to the executors," per V. C. in Tylden v. Hyde, (2 S. & S. 238,) where the direction was that the residue of the testator's landed property should be converted into money, and dealt with by the executors in the execution of their office. On a sale by the executors, the purchaser objected that they had no power, but the Master reported that the executors could without the concurrence of any other person legally and effectually convey the estate to the purchaser, and the report was confirmed on exceptions. [If the proceeds of the sale be not distributable by the executors, then the heir will take the estate, clothed with a trust to sell. And in those cases where the power is implied to the executors, they take simply a power and no estate. "Till the power is executed the estate descends to the heir at law; but as soon as the power is executed the legal estate is in the vendee." (Warnford v. Thompson, 3 Ves. 515.)] (2) In a transaction circumstanced like this, the concurrence of the heir is the one point to be regarded, as a will defectively |