Parties.

No. 37.

RELEASE by a Married Woman of her Right to Dower, in Performance of the Husband's Covenant, with a Mortgagee, to levy a Fine.

THIS INDENTURE, made the day of, in the year of our Lord, BETWEEN [mortgagor], of &c., and [Christian name of wife] his wife, of the one part, and [mortgagee], of &c., of the other part. WHEREAS, by indentures of -of mortgage lease and release, bearing date respectively the

RECITALS

in the year

and

days of, in the year, the indentures of release being
made between the said [mortgagor] and [Christian name] his
wife, of the one part, and the said [mortgagee], of the other
part; All [parcels], with their appurtenances, were conveyed
and assured by the said [mortgagor] unto and to the use of the
said [mortgagee], his heirs and assigns, subject to a proviso
therein contained for redemption of the said hereditaments and
premises, and for the re-conveyance thereof unto the said
[mortgagor], his heirs and assigns, or as he or they should di-
rect, on payment by the said [mortgagor], his heirs, executors,
administrators, or assigns, to the said [mortgagee], his execu-
tors, administrators, or assigns, of the sum of £-
on the
day of
with interest for the same
after the rate of £4 per cent. per annum, payable half-yearly,
as therein mentioned; And the said indenture of release con-
tains a power enabling the said [mortgagee], his executors, ad-
ministrators, or assigns, after such default in payment of the
said sum of £- or the interest thereof, and after the ex-
piration of such notice, as therein mentioned, to sell the said
hereditaments and premises, and out of the produce of the sale
thereof to satisfy the said sum of £, with all interest and
costs; And by the same indenture the said [mortgagor] cove-
nanted with the said [mortgagee], his heirs, executors, adminis-
trators, and assigns, that the said [mortgagee] and [Christian
name] his wife, (she thereby consenting), would, in or as of the
then last term, the then next term, or any subse-
quent term, at the request of the said [mortgagee], his heirs,

has been levied;

executors, administrators, or assigns, acknowledge and levy unto the said [mortgagee], his heirs and assigns, before her Majesty's justices of the Court of Common Pleas at Westminster, one or more fine or fines sur conuzance de droit come ceo, &c., with proclamations, of the said hereditaments and premises, by such names and descriptions as should be sufficient to comprise the same; which fine, it was thereby declared, should enure to the use of the said [mortgagee], his heirs and assigns for ever, nevertheless subject to the aforesaid proviso for redemption and reconveyance; AND WHEREAS no that no fine fine has been levied pursuant to the said recited covenant; AND WHEREAS the only object (181) intended to be effected by the fine so covenanted to be levied as aforesaid, was the extinguishment of the title of the said [Christian name], the wife of the said [mortgagor], to dower out of the said hereditaments and premises. Now THEREFORE THIS INDENTURE WITNESS- TESTATUM. ETH, that, in performance (182) of the aforesaid covenant contained in the said recited indenture of release, The said [mort- Husband and gagor] and [Christian name] his wife Have and each of them wife release. Hath remised, released, quit-claimed, and confirmed, and by these presents Do and each of them Doth remise, release, quitclaim, and confirm unto the said [mortgagee], his heirs and

(181) If the intention of the fine or recovery, covenanted or agreed to be levied or suffered, cannot be completely effected by an assurance operating according to the provisions of the act of 3 & 4 Will. 4, c. 74, in regard to alienation by tenants in tail and married women, (as, for example, if the fine was intended to operate as a bar by non-claim, ante, Vol. 1, Chap. v.), then it becomes necessary (s. 3) to insert a special declaration, which (adopting the words of that section) may be in this form, "And the said [intended conusors in the fine, or vouchees in the recovery] hereby declare it to be their desire that this deed shall have the same operation and effect as the fine [or, recovery] covenanted [or agreed] by the said indenture to be levied [or, suffered] would have had if the same had been actually levied [or, suffered]." Indeed, the insertion of such a declaration seems to be proper in every case where the extraordinary effect to be communicated by the declaration would not, by occasioning a forfeiture or otherwise, (ante, Vol. 1, pp. 14, 27), prove injurious to the title. If this suggestion be adopted, the recital to which this note is appended should of course be omitted, and the declaration should immediately precede the covenant. (182) As the act converts the covenant or agreement to levy a fine or suffer a recovery into a covenant or agreement to make the substituted assurance, the assurance is properly said to be made in performance of the covenant or agreement.

that the only object of the fine was the ex

tinguishment

of the wife's

dower.

Effect of assurances made in performance of

Covenant or

agreements to levy fines or

suffer recoveries.

Assurance

under the act satisfies covenant to levy a fine.

Parcels.

INTENT that wife's dower may be extinguished.

Declaration that extinguishment of dower shall be

assigns, All the said messuage, &c., and other the hereditaments and premises comprised in the said recited indentures; together with all the rights, members, and appurtenances thereunto belonging; To THE INTENT that the title to dower, and all claims and demands in respect of dower, of the said [Christian name], the wife of the said [mortgagor], out of or upon the said hereditaments and premises, may be extinguished; And it is hereby declared by the said [mortgagor] and [Christian name] his wife, that the release hereinbefore contained shall operate as an absolute extinguishment of the dower of the said [Christian name], the wife of the said [mortgagor], out of the said hereditaments and premises, for the benefit, as well of the said [mortgagee], his heirs and assigns, in respect of the said recited mortgage security, as of the said [mortgagor], his heirs and assigns, in respect of the equity of redemption (183); And the said [mortgagor], for himself, his heirs, executors, and administrators, hereby covenants with the said [mortgagee], his knowledgment; heirs, executors, administrators, and assigns, that these pre

absolute.

Covenant by husband as to wife's ac

sents shall forthwith, at the costs of the said [mortgagor], be duly acknowledged by the said [Christian name], his wife, and be perfected in other respects with the solemnities (184) prescribed by law for rendering the deeds of married women ef-that husband fectual to extinguish their interests in land (185); And also that the said [mortgagor] and [Christian name] his wife have not, nor has either of them, done or permitted any act, matter, or thing by which, or by means of which, the release hereinbefore contained may be prevented from taking effect according to the true intent thereof. IN WITNESS &c.

and wife have not done any

the release from taking effect.

As to dower of equity of redemption in fee.

(183) This clause is inserted to exclude the questions which have arisen upon fines levied by husband and wife of his inheritance, for the purpose of mortgaging in fee, in respect of her dower ultrà the mortgage. (6 Jarm. Conv. 174).

(184) Ante, Vol. 1, p. 206.

(185) If the object of the deed be to convey the wife's estate, say "effectual to pass their estates in land.”

No. 38.

CONVEYANCE by a Person appointed, under the
Acts (186) relating to Infant Trustees, &c., to con-
vey instead of the Unknown Heir of a Mortgagee,
with the Concurrence of the Executors and of the
Mortgagor, to a Purchaser under a Power of Sale
contained in the Mortgage.

day of

THIS INDENTURE, made the in the year of our Lord BETWEEN [substitute for heir of mort- Parties. gagee], of &c., of the first part; [executors of mortgagee], of &c., of the second part; [mortgagor], of &c., and [Christian name] his wife, of the third part; [purchaser], of &c., of the fourth part; and [dower trustee], of &c., of the fifth part. WHEREAS, by indentures of lease and release, bearing date RECITALS respectively the and days of in the year

and respectively made between the said [mortgagor], of the one
part, and [deceased mortgagee], of the other part, the heredi-
taments hereinafter described, with their appurtenances, were,
among other hereditaments, conveyed and assured by the said
[mortgagor] unto and to the use of the said [deceased mort-
gagee], his heirs and assigns, subject to a proviso for redemp-
tion on payment by the said [mortgagor], his heirs, executors,
administrators, or assigns, unto the said [deceased mortgagee],
his executors, administrators, or assigns, of the sum of £
with interest, on the
then next; And the
said indenture of release contains a proviso, that if default
should be made in payment of the said sum of £, or in-
terest, or any part thereof, at the time aforesaid, it should be
lawful for the said [deceased mortgagee], his executors, ad-
ministrators, or assigns, at any time or times thereafter, either
with or without the consent or concurrence of the said [mort-
gagor], his heirs or assigns, to sell the said hereditaments or
any part thereof, either together or in parcels, and by public

day of

(186) 1 Will. 4, c. 60; 4 & 5 Will. 4, c. 23; 1 & 2 Vict. c. 69. (Vide ante, Vol. 1, Illustrations, III., s. 1.

-of a mortgage in fee, with

power of sale;

-of the mortgagee's will, devising mortgaged estates to

trustees and executors, but dated prior to the mortgage;

—of codicil, at

tested by two witnesses only;

-of his death, and probate of his will;

-that principal

is unpaid, and interest in arrear;

sale or private contract, for such price or prices as could be
reasonably obtained, and to convey the said hereditaments, or
such of them as should be so sold as aforesaid, in such manner
as should be expedient for effectuating the sale or sales thereof;
with a declaration that upon payment of the money arising
from such sale or sales to the said [deceased mortgagee], his ex-
ecutors, administrators, or assigns, his or their receipt should
be a good discharge to the purchaser or purchasers for the same
money; and that such purchaser or purchasers should not be
liable to inquire whether the said hereditaments had become
saleable by virtue of the indenture now in recital; and with a
further declaration that the said [deceased mortgagee], his exe-
cutors, administrators, or assigns, should, out of the money to
arise by the sale of the said hereditaments, first pay all the
costs of sale and of default in payment of the said principal
sum and interest, and then pay or retain the said principal
sum and all interest due thereon, and should pay the surplus of
the money to arise as aforesaid to the said [mortgagor], his
heirs, executors, administrators, or assigns; AND WHEREAS the
said [deceased mortgagee], made and published his last will and
testament in writing, bearing date the
day of in the
year, duly executed as the law then required for passing
freehold estates, and thereby devised unto the said [executors],
their heirs and assigns, all such real estates as were then vested
in the said testator, by way of mortgage, in order to enable
them with the greater ease to get in the money thereby se-
cured, for the purposes of his will; And the said testator ap-
pointed the said [executors] executors of his said will; AND
WHEREAS the said testator made and published a codicil to his
said will, bearing date the day of, in the year,
attested by two witnesses only, and thereby, after making
certain alterations in the disposition made by his said will of
his personal estate, confirmed his said will in all other re-
spects; AND WHEREAS the said [deceased mortgagee] died in
the
without having revoked, altered, or re-pub-
year-
lished his said will, otherwise than by the said codicil; and on
the day of
in the same year, the said [executors]
proved the said will, with the said codicil thereto, in the Pre-
rogative Court of the Archbishop of Canterbury; AND WHERE-
As the said mortgage debt of £ still remains unpaid, and
a considerable arrear of interest is due thereon; AND WHERE-