assurance. ministrators, effectually kept indemnified from or against all former or other estates, rights, titles, and incumbrances, created or occasioned by the said [appointor], or any person or persons claiming or to claim through, under, or in trust for him. And lastly, that the said [appointor], and every per- for further son rightfully claiming or to claim through, under, or in trust for him, will, at any time or times, at the request and costs of the said [purchaser], his appointees, heirs, or assigns, make, do, and execute every such act, deed, or assurance for more effectually assuring the said hereditaments and premises, or any part thereof, to the uses aforesaid, or otherwise according to the direction of the said [purchaser], his appointees, heirs, or assigns, as by the said [purchaser], his appointees, heirs, or assigns, or his or their counsel in the law, shall be reasonably required or advised, and as shall be tendered to be done or executed. IN WITNESS &c. II. Without Transmutation of Possession. BARGAIN AND SALE. No. 17. BARGAIN and SALE to a Purchaser in Fee. THIS INDENTURE, made the ———— day of, in the year of our Lord, BETWEEN [bargainor], of &c., of the Parties. one part, and [bargainee], of &c., of the other part. WITNESS- TESTATUM. ETH, that, in consideration of the sum of £of lawful Consideration. British money, paid by the said [bargainee] to the said [bargainor] on the execution of these presents, the receipt of which Operative words. sum, and that the same is in full for the absolute purchase of the fee-simple in possession, whereof the said [bargainor] is now seised, of the manor, messuages, lands, and hereditaments hereinafter described, the said [bargainor] hereby acknowledges, and from the same sum hereby acquits and releases the said [bargainee], his heirs, executors, administrators, and assigns, The said [bargainor] Hath bargained and sold (64), Bargains and sales, proper and improper, distinguished. Relation of en rolment of the proper bargain and sale. Appointments purporting to be bargains and sales. 66 (64) Conveyances under acts of parliament, as the old bankrupt acts purporting to be bargains and sales, are not unfrequently confounded with bargains and sales within the Statute of Uses, but they are in fact perfectly distinct in their nature. A bargain and sale within the Statute of Uses, (or, in other words, a bargain and sale properly so called), is a contract in consideration of money or money's worth, by the owner of land, for the total or partial alienation of his interest, which contract raises a use in favour of the purchaser, grounded on the seisin of the bargainor, and the use so raised (provided the contract, if it concern the freehold, be attended with the ceremonies prescribed by the Statute of Enrolment, 27 Hen. 8, c. 16) is instantly transferred into possession by the Statute of Uses. The enrolment of the proper bargain and sale has relation to the execution of the instrument. The Statute of Enrolment denies effect to the assurance, except the same bargain and sale be made by writing, indented, sealed, and enrolled, &c., and the same enrolment be made within six [lunar] months after the date," &c.;-the condition being complied with, the Statute of Uses imparts legal efficacy to the use from its inception. But a bargain and sale, so called, under an act of parliament, is, in general, merely the execution of a naked authority given to A. to dispose of the estate of B., and has no other title to the appellation of a bargain and sale than that which it may derive from the occurrence of the words "bargain and sell" in the statute which confers, and in the instrument which executes the authority. The same observation applies to every instrument assuming the form of a bargain and sale, by which lands are disposed of in pursuance of a power or authority, whether created by statute or by other means. Suppose, for example, that land were conveyed to such uses as A. should, by deed, indented and enrolled within six months from the date, bargain and sell the same:-a deed perfected conformably to this power would have all the qualities and incidents of an appointment, and none of the qualities or incidents peculiar to a bargain and sale; though, if the appointment were made to A. to the use of B., the legal estate would vest in A., just as under a bargain and sale to A. to the use of B., the use is executed in A. Considered as the execution of a power, the instrument could operate only from the time of the completion of the ceremonies prescribed by the power. So, an instrument made in pursuance of a statutory authority to bargain and sell, has its legal inception in the fulfilment of the requisites of the statute. If the power or authority requires the deed to be enrolled, but does not limit the time, the enrolment is wholly independent of the And by these presents Doth bargain and sell unto the said period fixed by the Statute of Enrolment, (Ingram v. Parker, T. Raym. 239, cited), but till enrolment the power or authority remains unexecuted at law. The enrolment of a proper bargain and sale relates back to the creation of the use, which springs, on the execution of the deed, from the seisin of the bargainor; but it is manifest that an instrument enrolled, purporting to be a bargain and sale in pursuance of a mere power or authority to "bargain and sell by deed enrolled," can have no such relation. It is hardly necessary to add, that a power or authority to bargain and sell may be executed by any other form of expression; and as the adoption, in such cases, of the words of the power, is apt to suggest an erroneous notion of the nature and operation of the instrument, it seems desirable to avoid using them.—An authority given to executors to sell, is in effect a power to ascertain the purchaser, who is in as a devisee under the will; and the result of an execution of the power is to supply the devise with an object. Under the statute 10 Anne, c. 18. s. 3, examined copies of the enrolment of a bargain and sale (i. e. such a bargain and sale as is within the Statute of Enrolment) are admissible in evidence, notwithstanding the existence of the original. The conveyance by bargain and sale is, therefore, sometimes adopted on account of the security and facility in point of evidence afforded by the enrolment, particularly where the subject of conveyance is a large estate about to be sold in lots; and it was formerly much the practice to convey to a purchaser, as well by lease and release, as by a contemporaneous bargain and sale enrolled. It should be borne in mind, however, that if a bargain and sale be made to A., to uses, the legal estate will be executed in A., and the uses will be in effect trusts in equity; for that which passes by the bargain and sale is the use, upon or out of which other uses cannot, of course, be limited. But it is conceived that the use may be distributed through a series of limitations by way of bargain and sale, and consequently, that a bargain and sale may be made to the use of a purchaser for life, with remainder to a trustee for the life of the purchaser, with remainder to the purchaser in fee. The power of appointment, however, which forms part of the limitations commonly inserted to prevent dower under the old law, (ante, Vol. 1, Chap. v.), would be obviously inadmissible in a bargain and sale. Copy of enrolment of bargain and sale, evidence. Bargain and sale for a parwith remain ticular estate, ders. The consideration of money, or of money's worth, is essential to raise Consideration. the use; but it is by no means requisite that the consideration should move from the bargainee to the bargainor. The use would arise upon a bargain and sale by A. to B.. in consideration of money paid by C. to D. With respect to bargains and sales in bankruptcy, they are taken away, except as to copyholds, by the act of 1 & 2 Will. 4, c. 56, (“ An Act to establish a Court in Bankruptcy "), which vests all the other real estate of the bankrupt in the assignees by virtue of their office, s. 26. As to the conveyance of copyholds under the bankrupt acts, vide post, Part III. Bargains and sales in bankruptcy. All estate clause. HABENDUM. Covenants by bargainor, -for right to convey; General words. all courts, franchises, rents, services, and other privileges and fruits of seigniory, mines, minerals, trees, woods, ways, waters, watercourses, profits, easements, rights, members, and appurtenances whatsoever to the said manor and other hereditaments and premises belonging, or at any time heretofore held, used, or enjoyed therewith; And also all the estate, right, title, interest, claim, and demand, at law or in equity, of the said [bargainor], in, to, out of, or upon the said manor and other hereditaments and premises or any part thereof, with their appurtenances: To HAVE AND TO HOLD the said manor, and other hereditaments and premises hereby bargained and sold, or intended so to be, with their appurtenances, unto and to the only proper use of the said [bargainee], his heirs and assigns for ever. And the said [bargainor], for himself, his heirs, executors, and administrators, hereby covenants with the said [bargainee], his heirs and assigns, That, notwithstanding any act, matter, or thing done or permitted by the said [bargainor] or any of his ancestors to the contrary, the said [bargainor] has in himself good right by these presents to bargain and sell the said hereditaments and premises, with their appurtenances, unto and to the use of the said [bargainee], his heirs and assigns for ever; And also, that the said hereditaments and premises, with their appurtenances, and the rents, issues, and profits thereof, shall or may at all times hereafter be peaceably and quietly held, received, and enjoyed by the said [bargainee], his heirs and assigns, without any eviction, interruption, or denial from or by the said [bargainor], or any person or persons rightfully claiming or to claim under or in trust for him, or under any of his ancestors, Free and clear, or by the said [bargainor], his heirs, executors, or administrators, effectually kept indemnified from or against all former or other estates, rights, titles, charges, and incumbrances created or occasioned by the said [bargainor] or any of his ancestors, or any person or persons claiming or to claim under or in trust for him, or under them or any of them; And lastly, that the said [bargainor], and every person rightfully claiming or to claim under or in trust for him, or under any of his ancestors, will at any time or times, at the request and costs of the said [bargainee], his heirs or assigns, make and execute every such act, deed, or assurance for more effectually or satisfactorily assuring the said hereditaments and premises, or any part of the same, with the for quiet en joyment; -for freedom from incumbrances; -for further assurance. appurtenances, unto or to the use of the said [bargainee], his heirs or assigns, as by the said [bargainee], his heirs or assigns, or his or their counsel in the law, shall be reasonably advised and required, and as shall be tendered to be made or executed. IN WITNESS &c. No. 18. BARGAIN and SALE for a long term of Years, by way THIS INDENTURE, made the day of, in the year of our Lord, BETWEEN [bargainor], of &c., of the Parties. one part, and [bargainee], of &c., of the other part, WIT- TESTATUM. NESSETH, that, in consideration of the sum of £— of lawful Consideration. British money, lent by the said [bargainee] to the said [bargainor], immediately before the execution of these presents, the receipt of which sum the said [bargainor] hereby acknowledges, and therefrom releases and discharges the said [bargainee], his executors, administrators, and assigns, The said [bargainor] Hath bargained and sold (65), And by these Operative presents Doth bargain and sell unto the said [bargainee], his words. executors, administrators, and assigns (66), All [parcels], Of Parcels. (65) Mortgages for years are commonly called mortgages by demise, but when the mortgagor is seised, they take effect as bargains and sales. The consideration raises the use, and the mortgagee is presently in possession under the Statute of Uses, without entry, and (as the statute of 27 Hen. 8, c. 16, does not extend to the creation of terms of years, ante, Vol. 1, p. 50), without enrolment. The operative words generally used are, “grant, bargain, sell, and demise.” Mortgage by bargain and sale for years. pur auter vie. (66) It seems more correct to omit the words of limitation in the tes- Words of limittatum, it being the proper office of the habendum to limit the estate. ation-estates Words of limitation are not essential to the creation of a term of years, nor, indeed, to the creation of any estate less than an estate of inheritance; though in a recent case it was inadvertently held, that, for want of words of limitation, or equivalent words in the devise of an estate pur auter vie, the devisee took only an estate for the joint lives of herself and the |