tail.

name of feoffee's wife], the wife of the said [feoffee], and Remainder in her assigns, during her natural life, without impeachment of waste; and immediately after her decease, unto the said [son Remainder in of feoffee] and the heirs male of his body (8); and on failure fee.

of such issue, unto the right heirs (9) of the said [feoffor] for

ever.

And the said [feoffor] hath granted for himself and Qualified warhis heirs, that he the said [feoffor] and his heirs, the said ranty of title. hereditaments and premises hereby granted and enfeoffed, or intended so to be, with the appurtenances, unto the said [feoffee], during his natural life, with remainders over as aforesaid, according to the tenor and effect of these presents, against him the said [feoffor], and against all persons rightfully claiming through or under him, or through or under any of his ancestors, shall and will for ever warrant and defend, by these presents. AND the said [feoffor] doth hereby con- Power of attorstitute and appoint [names and additions of attornies to deliver ney to deliver seisin] (10), jointly, and each of them severally, to be the attornies and attorney of the said [feoffor], for him and in his name to enter upon the said hereditaments and premises hereby granted and enfeoffed, or intended so to be, with the appurtenances, or upon some part thereof in the name of the

(8) It is quite unnecessary to add "lawfully begotten," or "lawfully issuing," or any other expressions of the like import, in order to create an estate tail even in a deed. It is enough if the word heirs be used, and the person from whom the issue is to proceed be ascertained. In framing limitations to children as purchasers, it is abundantly sufficient to say, “the children of A.," or "the children of A. by B.," or "the children of the intended marriage." The vulgar form, "the children of the body of A., on the body of B., his (A.'s) intended wife, lawfully to be begotten," seems to be the product of a confused notion of the legal rules relative to the creation of an estate tail.

seisin.

Limitation to right heirs of

grantor,

(9) This limitation being to the right heirs of the feoffor, merely expresses the legal destination of that undisposed of remnant of his former fee, which would revest in him sub silentio. It is therefore immaterial whether the limitation be to him and his heirs, or to his heirs; or, if made to his heirs, whether he takes an estate of freehold under the conveyance or not; -in each case the ultimate fee resides in him. Before the recent stat. 3 & 4 Will. 4, c. 106, he would have been in as of his old estate, but now he will take by purchase, (s. 3). But if the limitation be to the heirs of a stranger, -to right heirs it then becomes material to inquire whether an estate of freehold is of stranger. previously limited to him by the same conveyance or not. This subject is further considered, ante, Vol. 1, Chap. v.

(10) The attornies need not be parties to the deed. (Moyl v. Ewer, Cro. Eliz. 905. But see 2 Sand. Us. 6).

ney to receive seisin.

whole; and after such entry, in the name of the said [feoffor], and for him, to give and deliver seisin and possession of the said hereditaments and premises, or some part thereof in the name of the whole, unto the said [feoffee] in his own person, or by his attornies or attorney for that purpose authorized, to hold according to the tenor and effect of these presents, the said [feoffor] hereby undertaking to ratify and confirm whatsoever his said attornies or attorney shall lawfully do by Power of attor- virtue of these presents. AND the said [feoffee] doth hereby constitute and appoint [names and additions of attornies to receive seisin], jointly, and each of them severally, to be the attornies and attorney of the said [feoffee], for him and in his name to enter upon the said hereditaments and premises hereby granted and enfeoffed, or intended so to be, or upon some part thereof in the name of the whole; and after such entry, in the name of the said [feoffee], and for him, to take and receive the seisin and possession of the said hereditaments and premises, or some part thereof in the name of the whole, from the said [feoffor] in his own person, or by his attornies or attorney for that purpose authorized, to hold according to the tenor and effect of these presents, the said [feoffee] hereby undertaking to ratify and confirm whatsoever the lastmentioned attornies or attorney shall lawfully do by virtue of these presents. IN WITNESS whereof the said parties hereto have hereunto set their hands and seals the day and year first above written.

ATTESTATION of Execution to be indorsed on the preceding
Feoffment.

SIGNED (11), sealed, and delivered, (being first duly stamped,) by the within-named (12) [feoffor and feoffee], in the presence of us (13), [names and additions of witnesses].

(11) Signing is not essential to a deed, except so far as the Statute of Frauds, 29 Car. 2, c. 3, ss. 1 & 3, requires deeds relating to land to be signed. (But see Shep. Touch. by Preston, 56, n. 24). Where a power is given to be exercised by a deed signed by or under the hand of the donee of the power, signing is of course essential; and if the power requires the deed to be attested, the omission of the fact of signature in the attestation is fatal; for the act of 54 Geo. 3, c. 168, passed to supply such omissions, is not prospective; as to which, however, see the judgment of the court of K. B. in Doe d. Spilsbury v. Burdett, (6 Nev. & M. 259; 1 Per. & D. 670).

(12) The attestation should always express to whose execution it is ap

MEMORANDUM of Livery of Seisin to be indorsed on the preceding Feoffment.

BE IT REMEMBERED, that, on the day of the date of the Memorandum of livery. within-written indenture, peaceable and quiet seisin and possession of the within-mentioned hereditaments were taken by the within-mentioned [attornies to deliver seisin], for and in the name of the within-named [feoffor], pursuant to the letter of attorney in that behalf contained in the withinwritten indenture, and were immediately afterwards delivered by the said [same attornies], for and in the name of the said [feoffor], to the within-mentioned [attornies to receive seisin], for and in the name of the within-named [feoffee], pursuant to the letter of attorney in that behalf contained in the withinwritten indenture, to hold according to the tenor, form, and effect of the within-written indenture: In the presence of [subscriptions of witnesses, with their additions].

EXCHANGE.

No. 3.

EXCHANGE by a Tenant in Fee with a Tenant for
Life and Remainder-man in Fee.

THIS INDENTURE, made the

day of

in the Date.

year of our Lord, BETWEEN [tenant in fee], of &c., of the Parties. one part, and [tenant for life], of &c., and [remainder-man in

fee], of &c., of the other part. WHEREAS the said [tenant in RECITALS fee] is now seised of the fee-simple in possession of the close of of seisin in

plicable. A power was given to husband and wife, to be executed by deed signed, sealed, and delivered, in the presence of, and attested by, &c. The attestation of a deed of appointment, duly signed and sealed by the joint donees, ran thus, "signed, sealed, and delivered, (not stating by whom), in the presence of." The title derived under this deed was pronounced doubtful and unmarketable. And see Doe v. Burdett, supra, n. (11).

witnesses.

(13) Powers are commonly, though unnecessarily, so framed as to re- Number of quire two or more witnesses; otherwise, it seems better to have only one witness to a deed, as rendering the proof more easy and certain.

land;

-of seisin for

life, with re

of a messuage;

to exchange.

fee of a close of land or ground hereinafter described, with the appurtenances; AND WHEREAS the said [tenant for life] is now seised in possession for the term of his natural life, without impeachment mainder in fee, of waste, with the immediate remainder to the said [remainderman] in fee-simple of the messuage or tenement hereinafter -of agreement described, with the appurtenances; AND WHEREAS the said [tenant in fee] on the one part, and the said [tenant for life] and [remainder-man] on the other part, have agreed to make an exchange between them of the fee-simple in possession of the said close of land or ground, with the appurtenances, for the fee-simple in possession (14) of the said messuage or tenement, with the appurtenances, the said [tenant for life] and [remainder-man] paying to the said [tenant in fee] the sum of £for equality of exchange (15). Now THIS INDENTURE WITNESSETH, that, in pursuance of the said recited agreement, and in consideration of the conveyance and assurance by the

TESTATUM.

Exchange at the common law distinguished from other exchanges.

Mutual con

veyances recommended.

Stamp duty on exchanges.

Ex

(14) This being an exchange at the common law, it is requisite that the exchanging parties should be upon a footing of equality in point of estate, and that the transaction should be completed by actual entry. But as well conveyances requiring livery, as conveyances requiring entry, have fallen into disuse. The modern lease and release has superseded them all. changes are now commonly effected by mutual conveyances, adapted to pass the land without entry. Such conveyances are valid without regard to the requisites of a common law exchange; for property of any given kind may be bartered for property of the same or any other kind, and the bargain may be completed by adopting the modes of assurance suitable to the transfer of the respective properties. Unless the relative condition of the parties, the subject-matter, and the form of assurance, are in accordance with an exchange strictly at the common law, the incidents of such an exchange cannot belong to the transaction. (See Bartram v. Whichcote, 6 Sim. 86). In every case, the better course appears to be, to proceed upon the basis of a reciprocal sale—the consideration being land instead of money—and for each party to investigate the other's title, as upon a purchase, in order that mutual conveyances may be executed in the ordinary form, with the usual qualified covenants for title. Each title will thus be independent of the other; whereas, a vendor, deriving his title under a proper exchange made within sixty years, is obliged to shew the title to both estates; unless, indeed, he can prove that the fee of the lands exchanged away has since been aliened, for the implied right of re-entry does not pass to an alienee. But note, that the writ of warrantia chartæ is abolished by the act 3 & 4 Will. 4, c. 27, s. 36; vide ante, Vol. 1, Chap. v.

(15) The ad valorem duty attaches, as upon a sale, in respect of the money paid for equality of exchange. But upon an exchange or barter of one subject of property for another, neither subject consisting wholly or in part of a gross sum of money, no ad valorem duty is payable.

Money payment for equality of exchange.

Tenant in fee conveys to te

said [tenant for life] and [remainder-man] hereinafter contained, and also in consideration of the sum of £- of lawful British money paid by the said [tenant for life] and [remainder-man], in proportion to their respective interests, to the said [tenant in fee], at or before the execution of these presents, the receipt of which sum the said [tenant in fee] hereby acknowledges, and from the same sum and every part thereof hereby acquits, releases, and for ever discharges the said [tenant for life] and [remainder-man], their heirs, executors, administrators, and assigns, The said [tenant in fee] Hath given, granted, and confirmed, and by these presents Doth give, grant, and confirm unto the said [tenant for life] (16), All that close of land or ground situate in the parish of, in the county of, heretofore land. called or known by the name of and described to contain, by estimation, one acre, but now called or known by the name of ——, and found by a recent admeasurement thereof to contain one acre and one rood, be the same more or less, Together with all ways, trees, hedges, ditches, fences, profits, advantages, rights, members, and appurtenances to the said close of land or ground belonging or appertaining: To HAVE HABENDUM, AND TO HOLD the said close of land or ground, hereditaments and premises herein before given, granted, and confirmed, with

nant for life, -a close of

the appurtenances, unto the said [tenant for life] and his for life, assigns, for the term of his natural life, without impeachment

fee.

In exchange for

of waste, and immediately after his decease, unto the said remainder in [remainder-man], his heirs and assigns for ever, IN EXCHANGE (17) for the messuage or tenement hereinafter given, messuage. granted, and confirmed by the said [tenant for life] and [remainder-man]. AND THIS INDENTURE ALSO WITNESSETH, that, in 2nd TESTAfurther pursuance of the said agreement, and in consideration TUM. of the conveyance and assurance by the said [tenant in fee] herein before contained, The said [tenant for life] and [remainder-man] Have, and each of them Hath given, granted, and Tenant for life

(16) By inserting in this place (in each testatum) the "actual possession" clause, and inserting the "all estate" clause immediately before the habendum, and by changing the operative words into "grant, release, and confirm," the precedent in the text may be adapted to an exchange by lease and release.

(17) The word "exchange" is essential to produce the effects of a common law exchange, but in no other point of view. This word, and the word "heirs," afford almost the only instances in which a rigid adherence to technical expressions is necessary even in deeds.