the day of the date of these presents, and to be made between [parties to the release], To the uses and in manner therein expressed. IN WITNESS &c. COVENANT TO STAND SEISED. No. 20. COVENANT TO STAND SEISED to Uses in favour of THIS INDENTURE, made the day of ——, in the (77) Before the Statute of Uses, a covenant to stand seised, like a bar- Covenant to gain and sale, charged the person of the legal owner with the performance stand seised. of a use or confidence, but conferred no legal estate in the land. Equity would not enforce the conscientious obligation created by the covenant, in favour of strangers not connected by blood or marriage with the covenantor. The statute communicated to the covenant the effect of a legal conveyance; but the law still requires the same consideration of blood or marriage, just as it requires the consideration of money or money's worth to raise the use upon a bargain and sale. In short, those circumstances which were essential to raise the use before the statute must still exist, if not in substance, yet in form. It follows, that a covenant to stand seised is not adapted to the purposes of a modern settlement, because trust estates and terms can be limited only to relations of the covenantor, (see 1 Keen, 799, n.), while various powers, as powers of leasing, and selling, and exchanging, cannot be limited at all.-A deed indented, purporting to be a covenant to stand seised, but incapable of operating as such, may operate as a bargain and sale, provided it be supported by the requisite consideration, and be duly enrolled: and although a covenant to stand seised may fail to operate as a legal conveyance, yet it may entitle the covenantees to an action at law, and, if supported by a valuable consideration, may be specifically enforced as a contract in equity. On the other hand, a deed purporting to be a bargain and sale, but failing of effect as such, may be effectual at law as a covenant to stand seised, if supported Operative words. Parcels. USES: -covenantor for life; life of covenan Consideration. in consideration of the marriage heretofore solemnized between the said [covenantor] and [Christian name], now his wife, and of the natural love and affection which he bears towards her and towards his [brothers], the said [covenantees], and in order to make some certain provision for her and for the children of the said marriage, The said [covenantor], for himself and his heirs, hereby covenants with the said [covenantees], and their heirs, That the said [covenantor] and his heirs shall henceforth stand seised of All [parcels], All which said hereditaments and premises the said [covenantor] is now seised of for an estate of inheritance in fee-simple in possession, Together with the rights, members, and appurtenances thereto belonging, TO THE USE of the said [covenantor] and his assigns, during his natural life, without impeachment of waste; And on the determinatrustees, for tion of that estate in his lifetime, To the use of the said [covetor, to preserve nantees], their executors and administrators, during the life of contingent re- the said [covenantor], Upon trust to preserve the contingent remainders hereinafter limited, but to permit the said [covenantor] and his assigns to receive the rents and profits of the said hereditaments and premises during his life; And immediately after his decease, To THE USE and intent that the said [Christian name], the wife of the said [covenantor], in case she shall survive him, may receive out of the rents and profits of the said hereditaments and premises, a yearly rent-charge of £- sterling money, clear of land-tax and all other deductions, by equal quarterly portions, on the 25th day of March, the 24th day of June, the 29th day of September, and the 25th day of December in every year, the first quarterly portion to be paid on such of the said days as shall happen next after the decease of the said [covenantor], and which rent-charge shall be accepted by her in bar and in satisfaction of her dower, thirds, and free-bench; AND TO THIS FURTHER USE and intent, that when and so often as the said yearly rent-charge shall be in arrear for twenty-one days after the same shall mainders; -rent-charge to wife, sur viving, for life, in bar of dower. Power of distress for securing rent-charge. Effect of assurances, how to be determined. by the requisite consideration of blood or marriage. It cannot be too strongly impressed upon the student, that assurances depend for their character and effect less upon the form of the instrument itself than upon the state of the title, the observance or non-observance of prescribed ceremonies, and other extrinsic circumstances; so that the question, whether a given instrument is really a feoffinent, grant, release, bargain and sale, &c., cannot be solved by means of internal evidence alone. become due, it shall be lawful for the said [Christian name] and her assigns to enter upon the said hereditaments and premises, and distrain for the arrears of the said yearly rentcharge, and the distresses then and there found to dispose of according to law, in order that such arrears and all incidental costs and expenses may be satisfied; AND TO THIS FURTHER Power of entry for securing USE and intent, that when and so often as the said yearly rent- rent-charge. charge shall be in arrear for thirty days after the same shall become due, it shall be lawful for the said [wife] and her assigns, without any formal demand, to enter into the possession of the said hereditaments and premises, or any part thereof in the name of the whole, and take the rents and profits thereof until such arrears, and all incidental costs and expenses, together with so much of the said yearly rent-charge as shall grow due during such possession, shall be satisfied, such possession to be without impeachment of waste; And subject to the said yearly rent-charge and the remedies for enforcing pay- his wife in ment thereof, To THE USE of all the children (78) of the said common in fee; [covenantor] by the said [Christian name], his wife, in equal shares, as tenants in common, and their respective heirs and assigns; But if any of such children shall die under the age of -with cross (78) This is a limitation to "children" as a class, which, without the aid of any other words, will comprehend as well all the existing children, as all the children coming into existence before the determination of the particular estates limited for the life of the husband. The learning connected with this subject cannot be compressed within the compass of a note, but it may be useful to illustrate the distinction between a limitation to objects individually, and to objects as a class, by a familiar instance. If a testator devise Blackacre to his "children," as tenants in common, and have at the making of the will two children, A. and B., who die in his lifetime, and have one child subsequently born, C., who survives him, C. takes the whole benefit of the gift. But if for "children," we substitute "children A. and B.," or 66 two children," or "children now living," then the devise, unless saved by the recent act, (ante, Vol. 1, Chap. v.), lapses on the death of one, as to a moiety—on the death of both, as to the whole. In the former case, where the term used is descriptive of a class, the period for ascertaining the objects is the death of the testator; the devise is, in effect, to persons sustaining a given character at that period; but in the latter case, the children are selected as individually objects of the testator's bounty. Expressions referable to existing children as "children now born," should therefore be avoided in a gift designed to be as comprehensive as possible. (See 2 My. & K. 301; and see further as to gifts to classes, ante, Vol. 1, Chap. iv., v.). Children of co venantor and executory li 92 mitations be fee; ASSURANCES UNDER THE STATUTE OF USES. [PART II. twenty-one years, without leaving issue living at his or her tween them in death, Then, as to the share or shares of the child or respective children so dying, as well original as accruing under this limitation, To THE USE of the other child or children of the said [covenantor] and [Christian name], his wife, or if more than one, in equal shares as tenants in common, and the heirs and assigns of such other child or respective children; But if no child of the [covenantor] by the said [Christian name], his wife, shall attain the said age, or, dying under that age, shall leave issue living at his or her death, Then, as to the said hereditaments and premises, To THE USE of the survivor (79) of them, covenantor and the said [covenantor] and [Christian name], and the heirs and assigns of such survivor. IN WITNESS &c. -survivor of wife in fee. Contingent remainder to survivor. (79) This limitation to the survivor is a contingent remainder; for, till the death of the husband or the wife, the remainder has not an ascertained object; and though one or the other must survive, yet the remainder may never take effect, inasmuch as the particular estates of the husband and the trustees may determine during the joint lives of the husband and wife. PART III. MIXED ASSURANCES. CONVEYANCES ON SALES. No. 21. CONVEYANCE by APPOINTMENT and LEASE and RE- THIS INDENTURE, made the day of in the Date. year of our Lord —, BETWEEN [vendor], of &c., of the first Parties. part; [purchaser], of &c., of the second part; and [trustee for purchaser], of &c., of the third part. WHEREAS, by virtue of RECITALS indentures of lease and release, bearing date respectively the of convey days of in the year his wife, in and the indenture of release being made between &c., [names of parties], and by a fine duly levied by the said and term, in the year of the reign of his late Majesty, King George the Fourth, in pursuance of a covenant contained in the said indenture of release, the freehold hereditaments hereinafter described and hereby released or otherwise assured or intended so to be, with their appurtenances, now stand limited to such uses, for such estates, and in such manner as the said (80) This precedent is adapted to a sale of freehold and copyhold lands at an entire price, but the parts relating to the copyhold lands may be readily separated. So far as regards the freehold lands, the precedent exhibits the form of conveyance in general use for the transfer of the fee upon a sale by a vendor entitled under the uses commonly inserted to prevent dower by the old law. (Ante, Vol. 1, Chap. v.). Much of the exuberance of expression, which occurs in the ordinary forms, has, however, been pruned away. ance of free holds, by lease and release and fine, to the common uses to prevent dower in favour of the vendor; Conveyance on sale of free holds and copyholds at an entire price. |