administrators, and the heirs, executors, and administrators, and the real and personal representatives for the time being of the said [deceased assignee], deceased, from all actions, suits, and other proceedings, and all costs, losses, damages, and expenses, by reason of the non-payment of the same rent, or the non-observance or non-performance of the same covenants and conditions, or any of them, or by reason of any matter or thing relating thereto. IN WITNESS &c.

PART II.

ASSURANCES OPERATING UNDER THE

STATUTE OF USES.

I. By Transmutation of Possession.

1. WHERE THE SEISIN AND THE USE ARE CREATED BY THE SAME INSTRUMENT.

Parties.

TESTATUM.

Nominal considerations.

Conveyances to uses, operating as bargains and sales.

No. 13.

SETTLEMENT, by Feoffment, after Marriage to Uses in Favour of the Feoffor, his Wife and Children.

THIS INDENTURE, made the day of, in the year of our Lord, BETWEEN [feoffor], of &c., of the one part, and [feoffees to uses], of &c., of the other part. WITNESSETH, that, in consideration of the marriage heretofore solemnized between the said [feoffor] and [Christian name] his wife, formerly [maiden name], spinster, and in consideration of the love and affection which the said [feoffor] bears towards his said wife, and for divers other good causes and considerations (42) him the said [feoffor] hereunto moving, and in consideration of 10s. (43) paid by the said [feoffees] to the

(42) Ante, Vol. 1, Illustrations, I.

(43) It is not necessary to the validity of a conveyance at common law, that any consideration should be given or expressed. (Vide ante, Illustrations, I.). The only purpose of the nominal consideration expressed in the text is to render the deed capable of operating as a bargain and sale, if inrolled within six lunar months from the date, pursuant to the stat. 37 Hen. 8, c. 16. But in most cases the intention would be defeated by giving that operation to assurances designed to take effect by transmutation of possession. Thus, the precedent in the text, operating as a bargain and sale of the use, instead

words.

[feoffor] immediately before the execution of these presents, the receipt whereof is hereby acknowledged, the said [feoffor] Hath given, granted, and enfeoffed, and by these presents Operative Doth give, grant, enfeoff, and confirm unto the said [feoffees] and their heirs, All [parcels], (of which said hereditaments the Parcels. said [feoffor] is seised in fee-simple in possession), Together with all rights, members, and appurtenances thereunto belonging; And also all the estate, right, title, and interest at All estate, &c. law or in equity of the said [feoffor], in or to the said hereditaments and premises, and every part thereof, with their appurtenances; And all deeds and muniments in his pos- Deeds, &c. session or power relating thereto; To HAVE AND TO HOLD HABENDUM. the said hereditaments and premises hereby granted and enfeoffed, or intended so to be, with their appurtenances, unto the said [feoffees] and their heirs (44): NEVERTHELESS, To

of a feoffment of the land, would vest the legal fee in the persons named as feoffees, and the limitations purporting to be uses would confer only equitable interests. Besides, although the use may be bargained and sold to A. for life, with remainder to B., it cannot be bargained and sold to such persons, and in such manner, as A. shall appoint (Gilb. Uses, 46); so that, for example, the power of appointment which forms part of the ordinary limitations to prevent dower, cannot be created by way of bargain and sale, (and see 6 Nev. & Mann. 482, n.).

(44) By this conveyance the possession of the land is transferred to the feoffees, to hold to them and their heirs: they have consequently the legal seisin of the fee as joint tenants. The words "and their heirs," are used to denote the quantity of estate (viz. the fee) requisite to supply the uses, as these, in point of legal effect, cannot be more than commensurate with the seisin; so that if the conveyance were made to A. (without words of inheritance) to the use of B. and his heirs, then, as A. would be seised for life only, the use would confer upon B. and his heirs (the heirs taking as special occupants) an estate pur auter vie, (i. e. for the life of A.). The habendum is usually made to the feoffees or relessees to uses, and their heirs, and not to them, their heirs and assigns; and there seems to be propriety in this, inasmuch as they have but a momentary title. The attraction of the uses, as magnetised (if such an expression be allowable) by the statute, instantly draws the possession from the feoffees or relessees, and executes

To USES, viz.

such uses as

feoffor and wife

of the seisin to

serve uses.

it in the objects of the limitations. If no use, or only contingent or future Resulting uses. uses, were limited, then, in the absence as well of a valuable consideration moving from or on behalf of the feoffees or relessees, as of an apparent intent to be answered by vesting the estate in them, the use would instantly result to the feoffor or relessor, who would be reinstated in his former ownership, (but see 3 & 4 Will. 4, c. 106, s. 3, ante, Vol. 1, Chap. v.): so, if the use were limited for particular estates, as for life or in tail only, the

shall by deed appoint;

for life;

-use of trus

tees during his life to support contingent re

and for such uses, estates, intents, and purposes, and in such manner as the said [feoffor] and [Christian name] his wife, at any time or times, by any deed or deeds (either with or without power of revocation and new appointment) to be executed by them in the presence of and to be attested by one or more witness or witnesses, shall jointly appoint; And in default of -use of feoffor such appointment, To the use of the said [feoffor] and his assigns during his natural life, without impeachment of waste; And after the determination of that estate by any means in his lifetime, To the use of the said [feoffees] and their heirs during the natural life of the said [feoffor], upon trust to support the contingent remainders hereinafter limited, but to permit the said [feoffor] and his assigns to receive the rents and profits of the said hereditaments and premises during his natural life; And after the decease of the said [feoffor], To the use of the said [feoffor's wife] and her assigns during her natural life, without impeachment of waste; And after the determination of that estate by any means in her lifetime, To tees during her the use of the said [feoffees] and their heirs during the life of the said [feoffor's wife] (45), Upon trust to support the contingent remainders hereinafter limited, yet nevertheless to permit the said [feoffor's wife] and her assigns to receive the rents, issues, and profits of the said hereditaments and premises during her natural life; And after the decease of the -use of child- said [feoffor's wife], To the use of the child, if only one,

mainders;

-use of feoffor's wife for life;

-use of trus

life, to support,

&c.

ren of feoffor

and wife in

or the children, if more than one, of the said [feoffor] and common in fee; [Christian name] his wife, and, if more than one, to take in equal shares as tenants in common, and the heirs (46) and as

Misuse of the word survivor.

Limitation to

serve.

use of the ultimate fee would result. (Ante, Vol. 1, Illustrations, II. s. 2). It is a common error to express the grant or the habendum as made to the grantees and the survivor of them, &c., thus giving to the conveyance a contingent aspect. The word survivor is a rock on which the framers both of deeds and wills are very apt to split, as the reports abundantly prove. It has been already observed, that the effect of limiting the use to the relessee is merely negative; he is still in at the common law.' (Ib.).

(45) This second limitation to trustees is not necessary to preserve the trustees to pre- contingent remainders, but it protects the wife against the consequences of an inadvertent act of forfeiture. (Vide ante, Vol. 1, pp. 14, 27, 73). (46) The expense and inconvenience of fines and recoveries brought limitations to children as tenants in common in tail, with cross remainders in tail, into disrepute. In every point of view, limitations in fee, with

Tenancy in

common in tail, with cross remainders.

peace

tations between executory limithem in fee;

-use of feoffor in fee.

Covenant by feoffor, for quiet enjoyment according to the limita

tions;

signs of such child or respective children; And in case any of -with cross the said children shall die under the age of twenty-one years without leaving issue living at his, her, or their death or respective deaths, then as to as well the share hereinbefore limited to each child so dying as the share or shares limited to such child by this executory limitation, To the use of the other, if only one, or the others, if more than one, of the said children, and if more than one to take as aforesaid, and the heirs and assigns of such other or others respectively; but in case there shall be no child of the said [feoffor] and [Christian name] his wife, or no such child who shall attain the age of twenty-one years, or who dying under that age shall leave issue living at his or her death, To the use of the said [feoffor], his heirs and assigns for ever. And the said [feoffor], for himself, his heirs, executors, and administrators, hereby covenants with the said [feoffees] and their heirs, that the said hereditaments and premises hereby enfeoffed, or intended so to be, shall or may at all times henceforth be ably held and enjoyed, and the rents and profits thereof be received according to the limitations herein before contained, without any eviction, interruption, or denial from or by the said [feoffor], or any person or persons rightfully claiming or to claim through, under, or in trust for him, or through or under any of his ancestors; Free and clear, or by the said -freedom from [feoffor], his heirs, executors, or administrators, effectually kept indemnified from or against all former or other estates, titles, and incumbrances created or occasioned by the said [feoffor], or any person or persons claiming or to claim through, under, or in trust for him, or through or under any of his ancestors, or by his or their or any of their acts, defaults, privity, or procurement; And further, that the said further as[feoffor], and every person rightfully claiming or to claim surance. through, under, or in trust for him, or through or under any of his ancestors or devisors, will, at any time or times, at the request and costs of any person or persons for the time being entitled to any estate or interest under the limitations afore

incumbrances;

cross executory limitations, are still to be preferred. Indeed, where a small estate is to be distributed among several, the better plan is to impress it with a trust for conversion, and to settle the produce.