Testatum. Now THIS INDENTURE WITNESSETH, that in pursu ance of the said agreement, and in consideration of £500 of sterling money to the said (mortgagee) paid main is not void, but only voidable by the lord or the crown. It seems that nothing but entry is requisite on the lord's part. In the case of the king, however, it is said that there cannot be entry made until office found. (12 East, 96. 5 B. & C. 587.) At any rate, of things not lying in tenure, as rents, commons and the like, it is certain that the king is not entitled to them until office found, and till then they remain in the corporation. (Shelford, Mort. 8.) [P. 101: "Formerly, previous to the grant of a royal licence, a writ of ad quod damnum must have been sued out to inquire what damage it would be to the king or to other persons if the king do grant such licence. But this writ has been long disused, and instead of it the licence may contain a clause dispensing with the necessity of that writ, or any other writs, inquisitions or mandates. Also in modern Acts of parliament, enabling corporations to hold lands, there is usually a clause dispensing with that writ, as well as with the statutes of Mortmain, so that the writ, though disused, is by no means obsolete. ["The licence is usually granted by writ of privy seal or letters patent (the latter seems to be the more regular course), empowering the licensee to hold lands to such an annual amount in value, and frequently also empowering all the subjects, whether incorporated or unincorporated, to alien in mortmain to the licensee up to such amount. In the case of trading or other private corporations the Acts of parliament or charters constituting them usually express in each case the extent to which the corporation may hold lands; if no amount be mentioned in the licence, charter or statute, they may hold to any extent. P. 103. ["With respect to municipal corporations, they are allowed to purchase and hold in perpetuity lands to the extent of 5 acres in the whole, either within or within the limits of the borough, and to build thereon a town hall, council house, police office, gaol or house of correction for the borough ( 1 Vict. c. 78, s. 40); but this enactment leaves untouched any powers that such corporations may have of taking and holding in mortmain by royal licence in their charters or otherwise." P. 108.] "Grant" an inno cent term. Successors unne cessary to be men by the said (corporation) at or before the execution of these presents by the direction of the said (vendor), in part payment of the said sum of £1,000 so due to the said (mortgagee) on his said recited security, and in full for the absolute purchase of the hereditaments hereinafter described, discharged from the residue of the said sum of £1,000 and its interest, the payment and receipt of which said sum of £500 the said (vendor and mortgagee) do hereby acknowledge, and from the same respectively release the said (corporation), the said (mortgagee) by the direction of the said (vendor) DOTH grant, alien and convey (3); and the said (vendor) DOTH grant, alien, convey and confirm; and the said (mortgagee) for the purpose of merging the said term of 1,000 years in the said hereditaments hereby conveyed DOTH surrender and also assign to the said (corporation) and their successors (4) and assigns, All (parcels and (3) Some gentlemen would add, " by way of conveyance, and not by way of covenant or warranty." But it is now agreed by every respectable text writer, that even when a trustee conveys the inheritance by the word "grant," no fear of an implied covenant or warranty need be entertained. Mr. Butler recommends as a means of contra-distinguishing the conveyance of the beneficial owner from the guarded one of the trustee, that the former should be made to grant "fully and absolutely." (See the note, ante, p. 42.) (4) In grants of lands to sole corporations, the word successors is necessary to supply the place of heirs (1 Inst. 8 b.), but in conveyances to corporations aggregate that word, though usually tioned, ex- inserted, is needless. Sir W. Blackstone's observation (2 Com. 109), that such a simple grant is strictly only an estate for life, but perpetual or equivalent. to a fee simple, because a corporation never dies, erroneously assumes that the law distinguishes between such a grant and one which contains a limita cept of corpora tion sole. appurtenances. Deeds, as ante, p. 46.) TO HAVE AND TO HOLD the said hereditaments hereinbefore described, with their appurtenances, to and to the use of the said (corporation) and their successors and assigns. [Covenant by mortgagee that he has not incumbered, ante, p. 105. Covenants by vendor for title, as ante, p. 63, with the corporation, their successors and assigns.] IN WITNESS, &c. tion to the successors, and that it allows the former to confer a virtual inheritance in consequence of the legal immortality of that corporation, whereas the truth is that the limitation to its successors is merely nugatory, and a fee simple, therefore, is as effectively and directly given to without as with that limitation. [The commentator's remark seems founded on Co. Lit. 9. b.: "On this statement of Sir E. Coke's, it seems necessary to remark, that the estate which a corporation aggregate has in its lands does not seem to be a fee simple absolute, but to be conditional upon the maintenance of the succession, for upon failure of the successors as in consequence of death of all the members, or surrender of charters, or dissolution from any cause, the lands of the corporation revert to the donors, this being as the courts have observed the only instance in which a possibility of reverter could remain after a fee granted. (1 W. Bla. 165. 7Q. B. 384.) There is something, therefore, quite peculiar in the nature of the 'fee' which a corporation takes by a grant or devise." (Grant on Corp. 109.) ] PRECEDENT XIII. CONVEYANCE BY THE ASSIGNEES OF A BANKRUPT Recitals. 1. Con Parties. THIS INDENTURE, made &c., BETWEEN (creditors and official assignees) of the first part, (bankrupt) of the second part, and (purchaser) of the third part: WHEREAS by indenture bearing date and made veyance to between A.B. of the one part, and (bankrupt) of the bankrupt. other part, for the valuable considerations therein expressed, the hereditaments hereinafter described were conveyed to and to the use of the said (bank2. Bank- rupt) and his heirs: AND WHEREAS, under and by appoint- virtue of a petition (1) to the Court of Bankruptcy for the the day of said (bankrupt) was adjudged bankrupt, and the said (official assignee) was appointed the official assignee, and the said (creditors' assignees) were chosen and appointed the creditors' assignees of the said bankrupt's estate, and such several proceedings are ruptcy and ment of assignees. district, dated the As to the (1) [The disposition of a bankrupt's estate has been materially disposition of a bank- altered since the author wrote. As, however, a conveyance rupt's from a bankrupt's assignees under an old bankruptcy will der the old frequently be met with on investigating titles, we give the estate un and new Acts. author's recital, for which the above is substituted. "And whereas a commission of bankrupt, under the great seal of Great Britain, bearing date at Westminster, was awarded against the said (bankrupt), and the said were duly chosen his assignees. And by an indenture of bargain and Contract duly entered of record: AND WHEREAS the said for sale. New bankruptcy Acts. Nature of sale, duly enrolled* in his Majesty's Court of Chancery, [or any other court of record,] and bearing date the major part of the commissioners named in the said commission, conveyed the real estate of the said bankrupt (including the hereditaments aforesaid†) unto the said (assignees) and their heirs, in trust for themselves and such of his creditors as should prove their debts under the said commission." 1 [In 1831 (1 & 2 W. 4, c. 56), commissions were abolished, and fiats to the court of bankruptcy substituted. Official assignees were appointed to act with the creditors' assignees, and the real estate of the bankrupt was to vest in the assignees for the time being, by virtue of their appointment, without any deed of conveyance for that purpose. [Conveyances under bankruptcies after that Act will therefore merely contain a recital of the fiat and the appointment, and choice of the official and creditors' assignees. [By the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106, s. 89), an adjudication of bankruptcy is to be made upon a petition to the court of bankruptcy for the district which the trader was in then: and (s. 142) on his being adjudged bankrupt, "all lands, tenements and hereditaments (except copy or customary-hold) in England, Scotland, Ireland, &c., and all *Although the conveyance to the assignees was termed a a bargain bargain and sale, and was to be enrolled, it was not a bargain and sale by assignees. and sale within the Statute of Enrolments, and therefore might have been enrolled at any time. The deed operated by transmutation of possession, and not under the Statute of Uses. Similarity in name, and in the requirement of enrolment, led some persons to assert an identity of operation. The enrolment was, however, different, for a bankruptcy bargain and sale might be enrolled in any court of record; whereas, a bargain and sale, under the Statute of Uses was to be so in one of the courts of Westminster, or with the custos rot. of the county. †This is only an averment, for the actual description of the particular hereditaments will not be found in the deed, which was general in its terms. |