Appoint ment of assignees. Sale. and advertised, the said hereditaments hereinafter described were, with the other real and personal estate of the said (insolvent), duly vested in (provisional assignee), the provisional assignee for the time being of the estate and effects of insolvent debtors in England: AND WHEREAS by another order of the said court made on (assignee) was duly appointed to be assignee of the estate and effects of the said insolvent for the purposes of the said Act, which appointment has been accepted, and is duly recorded in the same court and advertised: AND WHEREAS the said (assignee), after duly pursuing and observing the directions of the statutes in that case made and provided (4), caused the hereditaments hereinafter described to be offered for sale at a public auction, held at &c., on &c., and the said (purchaser) was declared at such sale the highest bidder for and the purchaser of the said hereditaments at the sum of Estate sub- £ : AND WHEREAS the hereditaments hereinject to a mortgage, after described were subject to a mortgage to (administrator of mortgagee), as the personal representative of (mortgagee), so far as relates to the residue of a term of 500 years therein, he the said (administrator) being to that extent the administrator of the goods of the said (mortgagee) which were left unadministered by (executor), as by letters of administration obtained by the said (administrator) from and in whom vested, Mode of selling insolvent's estate. (4) [By sect. 47 of 1 & 2 Vict. c. 110, the assignees are to sell the prisoner's real estate, by public auction, in such manner and at such place as shall, thirty days before, be approved of in writing, by the major part in value of the creditors, who shall meet on notice of such meeting, published fourteen days previous thereto, in the way therein specified.] Mortgage paid off. Testatum. , the Prerogative Court of Canterbury, and bearing date will appear (5): AND WHEREAS the said mortgage has since been paid off, and by an indenture bearing date and expressed to be made between the said (administrator) of the one part, and the said (assignee) of the other part, the residue of the said term was assigned to the said (assignee), discharged from the proviso for redemption contained in the indenture, by which the said term was created; and it has been agreed that the residue of the same term, so far as it may be subsisting, may be assigned for the purpose of merger (6): Now THIS INdenTURE WITNESSETH, that in consideration of the sum of £ of sterling money to the said (assignee) paid by the said (purchaser), at or before the execution of these presents, the receipt of which said sum, and that it is in full for the absolute purchase of the fee simple of the said hereditaments, the said (assignee) doth hereby acknowledge, and from the same sum doth hereby release the said (purchaser); HE the said (trustee), by the direction of the said When a (5) The interest vested in the executor by the will of the representa- deceased may be continued by the will of the same executor, [if tion is broken or he had proved, and himself appoints an executor, who proves his continued. testator's will, Toller, 115,] and such executor is the representative of the original defunct; but it is otherwise of the administrator of the executor, and therefore, if the latter dies intestate, the course of representation is interrupted, and administration must be committed afresh of the goods of the deceased, not administered by the former executor. This officer is called an administrator de bonis non, but he may have, and most frequently in cases like the present has, only a limited or special administration quoad the specific effects, e. g. the outstanding term. Non merger (6) It may be observed, that this term did not merge by the accounted assignment of the assignee, as he had only an equitable estate, of term Habendum. to execute (assigne, by these presents DOTH grant, alien and convey, and the said (assignee) DOTH grant, alien, convey and confirm (7), and also surrender and assign unto the said (purchaser) and his heirs, ALL (parcels, appurtenances, deeds, p. 46.) TO HAVE AND TO HOLD the said hereditaments hereinbefore described, with their appurtenances, to and to the use of the said (purchaser) and his heirs. [Covenant by trustee and assignee that they have done no act to incumber, p. 130.] IN WITNESS, &c. Assignees (7) The reader will observe that the assignee does not exercise are enabled the general power of appointment, which was vested in the insolvent's insolvent; but had not the legal fee been vested in the trustee, the powers. assignee would have been able to do this, for [by sect. 49 of 1 & 2 Vict. c. 110,] assignees are enabled to execute all powers which the insolvent might have executed for his benefit. PRECEDENT XV. CONVEYANCE OF A RECTORY BY A SURVIVING arties. THIS INDENTURE, &c., BETWEEN (trustee) of the first part, (tenant for life) of the second part, (remainderman) of the third part, and (purchaser) of the fourth Recitals. part: WHEREAS by indentures of lease and release, Lease and bearing date respectively on the and days of release, Trusts. the release made between C. Carr of the first part, A. Adams of the second part, and B. Bond and the said (trustee) of the third part, the hereditaments hereinafter described were conveyed to and to the to trustees. use of the said B. Bond and (trustee), and their heirs, on divers trusts, by virtue whereof they now stand limited in trust for the said (tenant for life), with remainder to the said (remainder-man), her son, 2. Agree in fee: AND WHEREAS the said B. Bond is dead, and surviving the said (trustee), in whom, therefore, the legal estate of the said hereditaments is now vested, has agreed to join in these presents for the purpose of conveying that estate: AND WHEREAS the said (purchaser) has agreed with the said (vendors, tenant for life and remainder-man) for the purchase of the said hereditaments as hereinafter mentioned, for the sum of £ ment of the trustee. 3. Contract. Testatum. NOW THIS INDENTURE WITNESSETH, that in performance of the said contract, and in consideration of the sum of £ of sterling money to the said (vendors) paid by the said (purchaser) at or before the execution of these presents, in full for the absolute purchase of the fee simple of the said hereditaments, free from all incumbrances, the receipt of which said sum the said (vendors) do hereby acknowledge and therefrom respectively release the said Operative (purchaser); HE the said (trustee), at the request of the said (vendors), by these presents DOTH grant, alien and convey, and the said (vendors), according to their respective interests, by these presents Do grant, alien, convey and confirm, unto the said (purchaser) and his heirs, ALL that the parsonage or rectory impropriate of B in the said county of part. Parcels. with the glebe lands, tithes, Habendum. 1. By trustee. title by cestui que trust for life and and other &c. (1). [Appurtenances, sup. 45. Deeds, ante, 46.] TO HAVE AND TO HOLD the hereditaments herein before described (2), with their appurtenances, [to the said N, Noble and his heirs to the uses (uses to prevent dower, if required, p. 51)] and to the use of the Covenants. said purchaser and his heirs. [Covenant by the said (trustee) that he has done no act to incumber, p. 105]. 2. For the And the said (vendor for life), as concerning the acts and defaults of herself and her ancestors or testators, but to the value only of her equitable estate for life person in in the said hereditaments, and the said (other vendor), as concerning only the acts and defaults of himself and his ancestors or testators, but to the value only of his equitable remainder in fee in the said hereditaments, do hereby severally covenant with the said (purchaser) as follows:-that is to say, that notwithstanding anything made, done or suffered by them the said (vendors), or either of them, their or either of their ancestors or testators, or by the said (trustee), they the said (trustee and vendors), or one of them, now have or hath in themselves, himself or herself, good right, &c. [vid. sup. p. 63, remainder. (1) Whatever is appendant will pass under the word appurtenances, (3 Lev. 165); and in general the incident passes without it. (Comyn's Dig. Grant, E. 11.) And an express mention of the tithes as an appendancy to the principal subject-matter of the deed, seems to make no difference; for if one convey a rectory, and all tithes thereto belonging, if the rectory does not pass from the conveyance being insufficient for the transfer of corporeal, though abstractedly sufficient for that of incorporeal hereditaments, the tithes do not pass. (2) That the word "hereditament" will include a rectory, parsonage, &c., see R. Dyer, 351. a. |