party who is to pass the legal interest in the premises: (see the form 1 Con. Prec., Part. II., Section II., No. V., clause 5, p. 262, 2nd edit.) These recitals are generally inserted immediately after the description of the parties, but sometimes, where brevity is desirable, they are inserted in a more concise form at the end of the granting clause, after the description of the parcels, as for example

All which said premises were by indenture, dated the

day

of made between (lessor) of the one part, and (lessee), of the other part, demised by the said (lessor) to the (lessee), from thenceforth, for an absolute term of 99 years, and the same premises, by virtue of divers mesne assignments, and ultimately, by an indenture dated the made between A. B., of the one part, and the (present assignor), of the other part, became vested in the (present assignor), for all the unexpired residue of the said term.

day of

Where the legal estate is outstanding in a third party.]— In case any mortgage has been made, or the legal estate is in any way outstanding, then the deed creating such mortgage or other estate must be recited: (see the form 1 Con. Prec., Part II., Section II., No. V., clause 3, p. 263, 2nd edit.)

Burdensome or unusual covenants should be recited.]— In case the lease contains any burdensome or unusual cove nants, all these ought to be recited: (see forms of this kind 1 Con. Prec., Part II.. Section II., No. II., clause 2, p. 249, 2nd edit.; see also clause A. ib. in notis.)

Where there is a covenant not to assign without licence.]— Where the original lease contains a covenant or proviso against assigning without licence from the lessor, the latter ought to be made a party to the assignment, in which the covenant or proviso against such assignment should be recited, and also that the lessor has granted such licence, and is made a concurring party to the assurance for the purpose of testifying the same: (see the form 1 Con. Prec., Part II., Section II., No. II., clauses 1, 2, 4, and 5, pp. 248, 249, 2nd edit.)

Where lease contains a covenant for renewal.]—If the lease contains a covenant for renewal, it should be so recited, as also the terms upon which such renewal is to be obtained: (see the form 1 Con. Prec., Part II., Section II., p. 243, in notis A. 2nd edit.)

Operative words.]-The operative words that have been generally employed in a deed of assignment are "grant, bargain, sell, assign, transfer, and set over," but the expressions, "bargain " and "sell," although often used, are, strictly speaking, inapplicable to an assignment, although properly adapted to an original demise, where it is intended to transfer the actual possession through the medium of the Statute of Uses; but that statute has no application to the assignment of a term, and it is therefore more correct to omit those terms altogether. The strongest and most apt term is "assign," but the words "transfer," or 66 set over," will have precisely the same effect.

Parcels, how inserted and described.]-The parcels are usually inserted verbatim from the original lease in its recital, and are merely referred to by a short general description in the operative part of the instrument, as "all the aforesaid messuage," &c. This mode is very well adapted for general purposes, where the property itself has undergone little or no change from the time it was originally granted, down to that of the assignment then made. But where it has undergone any important alteration subsequently to the creation of the term, so that the original description would not be particularly applicable to it; as where the demise was of a close of land, which has subsequently been built upon, the parcels should be described so as to correspond with these changes, and instead of being included in the recitals should be set out in the operative part of the deed.

All-estate clause.]-The all-estate clause is proper in a deed of assignment if the assignor really does intend to assign all his estate and interest in the property; but for that very reason those expressions would be improper, where the assurance is intended to operate as an underlease; still, although incorrect, the effect of those expressions may, as we have previously remarked, be controlled by the habendum.

All-deeds clause.]-It is also usual in assignments to insert the all-deeds clause, by which the original lease, and and all other deeds and writings relating to the title of the premises are granted to the assignee: (see the form 1 Con. Prec., Part II., Section II., No. V., clause 6. p. 264, 2nd

edit.)

Habendum.]-The habendum contains a short general description of the property, which is limited to the assignee for all the then unexpired residue of the term, subject to the rents and covenants (if any) of the original lease.

Usual covenants by vendor.]—The usual covenants entered into by the vendor are qualified covenants that, notwithstanding any act done by him, the lease is a valid lease; that he has good right to assign; that he has paid reserved rents, and performed all covenants up to the time of assignment, for quiet enjoyment and freedom from incumbrances, and for further assurance: (see the form 1 Con. Prec., Part II., Section II., No. I., clauses 6 to 10 inclusive, pp. 245 to 247, 2nd edit.)

Usual covenants by purchasers.]-The usual covenant from a purchaser is to indemnify the vendor from the reserved rents and performance of the covenants reserved and contained in the lease: (see the form 1 Con. Prec., Part II., Section II., No. I., clause 11, p. 247.) And whenever the vendor is the original lessee, the purchaser is bound to enter into this covenant, in the absence of an express stipulation to the contrary: (Williams v. Fry, 1 Mer. 244.)

Liability of original lessee to the covenants in the lease.]— This covenant is indeed a most important one, where the vendor is the original lessee, because he will remain liable to all express covenants entered into by him, which liability will endure throughout the whole term, notwithstanding his assignment to a third person, and the lessor's having actually accepted such assignee as his tenant: (Orgill v. Kemshead, 4 Taunt. 642; (Auriol v. Mills, 4 T. R. 94), but it is not an important covenant where the vendor is himself only an assignee of the term, because an assignee is only liable for breach of covenant during such time as he is in possession of the demised premises (Tovey v. Pitcher, 3 Lev. 295.)

And therefore, under the latter circumstances, the purchaser need not enter into any covenant of the above kind, for being only liable during the continuance of his estate, the assignee vendor has nothing left to indemnify him from.

V. WHERE PROPERTY OF DIFFERENT TENURES IS CONTAINED IN THE SAME PURCHASE DEED.

As to the recitals.]-It sometimes happens that the purchased property is of a mixed kind, part being freehold, and part leasehold, or of copyhold or customary tenure. Whenever this occurs, the proper way is to point out the several distinct tenures in the recitals, and in so doing those relating to the freehold portion of the property should come in first; next, those relating to the leaseholds, and if copyholds or customary estates are also to be included, the recitals relating to these should come in after those affecting the leaseholds: (see the form 1 Con. Prec., Part II., Section V., No. I., clauses 2, 3, and 6, pp. 374, 375, 2nd edit.)

As to the operative part of the deed.]-The same order of arrangement should be observed in the granting clause or operative part of the deed. By this the freehold part of the property should be granted and released, the leasehold assigned, and a covenant entered into by the vendor to surrender the copyholds to the purchaser's use if no surrender has been made; but if the copyholds have been previously surrendered to the purchaser, then the uses of such surrender should be declared: (see clauses 8 and 12 in the form above referred to.)

Covenants.]-When freeholds, leaseholds, and copyholds are included in the same deed, the covenants for title may be blended together so as to embrace the whole property; viz., that the vendor has good right to convey the freeholds, assign the leaseholds, and surrender the copyholds, and for the quiet enjoyment of each free from incumbrances; and also for further assurance: (see clause 13 in the form above referred to.)

Ancient demesne.]-It is a common practice to convey lands held in ancient demesne by lease and release, and also under the statute (4 & 5 Vict. c. 21), which dispenses with the lease for a year. It seems, however, that lands of the tenure of ancient demesne do not fall within the statute (8 & 9 Vict. c. 106), which renders it unnecessary to make any reference to the lease for a year; for as a correspondent of the Law Times very aptly remarks (Vol. XIV., No. 358, p. 429), the words of the last-mentioned statute are confined to such corporeal hereditaments as regards the conveyance of the immediate freehold thereof; whereas it is quite clear, [P. C.]

Ꮓ

both upon principle and authority, that the freehold of lands in ancient demesne is in the lord, and for that reason the statute cannot comprehend a conveyance of land of that tenure. Under these circumstances, therefore, the prudent course will be to convey property of this kind in pursuance of the statute (4 & 5 Vict. c. 21), and to refer to the lease for a year, or else to convey in the old form by lease and release.

Objection to including freeholds and leaseholds in the same deed.]-It is not, however, considered advisable to include both freehold and leasehold property in the same deed, unless where they are designed to be occupied together, and to be transmissible to the same persons as the freeholds; because, on the decease of the owner of the respective properties, they would devolve upon a different class of representatives, and be transmissible in a different course, when some difficulty and inconvenience might arise with respect to the possession of the title deeds.

VI. HOW THE DEED SHOULD BE PREPARED WHEN IT IS DESIGNED TO OPERATE BOTH AS A PURCHASE DEED AND MORTGAGE.

Purchase and mortgage may be both comprised in the same instrument.]—When part of the purchase money is allowed to remain upon mortgage, the purchase and mortgage are sometimes both contained in the same deed.

Old and modern practice respecting.]-The old practice was to create a term of years for this purpose, which was limited to the vendor as his mortgage security, the inheritance being conveyed to the purchaser; but the modern plan is to reassure the fee to the purchaser for that purpose by limiting the property to him and his heirs to the use of the vendor, his heirs and assigns, subject to a proviso for redemption on payment of the remainder of the purchase-money and interest, with powers of sale in default. The vendor then enters into the usual qualified covenants for title; and the purchaser into the usual general covenants from a mortgagor, viz., for payment of principal and interest, that he has good right to convey, for quiet enjoyment and freedom from incumbrances, and for further assurance, concluding with covenants from the vendor that the purchaser shall enjoy until default, and that the former will not exercise power of sale without giving the