100. Powers.]-Powers, where they are to be acted on, should be recited very fully, almost verbatim. In general, it seems unnecessary to recite anything further, than to shew that the exercise then intended to be made of the power is warranted by it: thus, where an estate is held under a power of sale and exchange, it is unnecessary on a sale to recite either so much of the power as respects the exchange, or any of the directions for the application of the money; so, if a jointure is to be created by deed, it seems unnecessary to particularize the formalities prescribed by the power for the creation of it by will. When a power is intended to be exercised, and the uses to take effect in default of such exercise are not such as authorize a conveyance from the parties, it seems unnecessary to make any mention of those uses. So powers of leasing, for appointment of new trustees, and other powers usually contained in settlements, trust deeds, &c., are never recited, unless the deed in preparation is to depend on the power; nor is any notice to be taken of clauses of regulation, such as those of shifting and springing uses, taking the name and arms of a family, &c.; nor of covenants, as those for title, &c., unless such deed is made in pursuance of these clauses, or for carrying them into effect.

5. Recitals in Purchase-deeds.]—If the deduction of title from the last purchase-deed to the present sale be not multifarious, it may be recited by each separate document; as, first, a will containing an entail, then a recovery or dis-entailing deed, then a devise to trustees for sale; but if it be multifarious,—as if there be numerous mortgages which ultimately become consolidated,— it is sufficient to state that the party had created several mortgages, which are now, by divers mesne assignments, become vested in the conveying party. Where an estate is sold, which has been purchased at several times and under several titles, the rule is, to begin the recitals with the most valuable part, and shew a clear identity between the old and the modern descriptions. In the case of a purchase-deed, if the title-deeds be not delivered to the purchaser, as where the estate is sold in lots, or from any other cause, it is proper to recite the vendor's title more fully, and from an earlier period, than is usually done, as such recital may be called in aid in evidence of the title.

6. Recitals in Marriage Settlements.]—In marriage settlements, more is seldom recited than that the party is seised,

with an introductory recital to shew the immediate object of the deed. This may be done either by stating the heads of the proposed contents of the deed, or by referring to them: as, for instance, it may be recited, that "A. hath agreed to limit "his estate to the use of himself for life; remainder to his sons successively in tail male; remainder " to B. for life; re"mainder to his sons successively in tail male:" and "that in "consideration thereof B. hath agreed to limit his estate to the "use of himself for life; remainder to his sons successively in tail "male; remainder to A. for life; remainder to his sons in tail "male." The other mode is to recite that "A. hath agreed to "limit his estate to the uses hereinafter mentioned, and that "in consideration thereof B. hath agreed to limit his estate to "the uses hereinafter mentioned." The latter mode seems the most proper if the uses of both estates appear upon the deed, or if the uses appear on separate deeds, and those separate deeds remain in the hands of the same party; if not, the first mode is preferable. An introductory recital seems to be almost necessary in those cases where the motives of the deed are acts already done, or where the acts on which the consideration arises consist of various transactions, or arise from instruments which by their nature must be delivered over to third perons, as bonds, mortgages, &c. In reciting a settlement for the purpose of revoking it, it is not the practice to recite the limitations at length, unless some are intended to be excepted.

7. Recital of a Lease and Release.]—When a lease and release are recited, and the recital speaks of the united operation of both, the expression should be, that by those indentures the lands in question were "conveyed;" when in the recital the lease is dropped, so that the operation of the release only is spoken of, the expression should be "grant and release." The word "limit" seems to apply rather to the uses declared by the conveyance than to the lands conveyed. It is therefore inaccurate say that by deeds of lease and release the lands were "limited' to A. and his heirs, to the use of B. and his heirs,"-the expression should either be "that the lands were conveyed to A. and his heirs to the use of B. and his heirs," or immediately that the lands were "limited to the use of B. and his heirs." In the recital of a lease and release, it is common to say that the release is of three or four parts. This is inaccurate, as a release must be

to

between the releasors and releasees, and consequently can be of two parts only. It is therefore more correct to say-by indentures of lease and release, the indenture of release being made between &c.

8. Recital of a Fine or Recovery.]—A fine or recovery operates as a conveyance; and, therefore, it may be said that by the fine or recovery the lands were "conveyed" to the conuzee or recoveror; but if the conuzee or recoveror is passed over, it should be said that by the recovery the lands were "limited" to the uses in question. In reciting a fine and recovery the deed making the tenant to the præcipe and the deed creating the uses form one conveyance; it is, therefore, sufficient to say, that by these the lands were "limited" to the uses in question. When lands are conveyed to A. and his heirs to uses, it is of course inaccurate to say, that they are "conveyed unto and to the use of A. and his heirs," the use not residing in him, but being limited

over.

9. Recital of a Lease.]-In assignments a lease is recited according to the order of the clauses; in other instruments it is sufficient to state the effect, as that by indenture &c., all &c. were &c.

10. Recital of an Act of Parliament.]—Where a person has a power of appointment by virtue of an act of parliament, a recital of the act is quite unnecessary, as it is of record and cannot be lost,—it is enough to say, "in pursuance and by virtue of an act made in the year &c., and the powers thereby given and all powers &c."

11. Recital of Chancery Proceedings.]-In the recital of Chancery proceedings, it is, in general, sufficient to state the name of the cause and the general effect of the preliminary proceedings, with a full recital of the immediate order of the court under which the deed is prepared.

12. Recital of recited Deeds.]—It is better to recite deeds as principal deeds, than as recited deeds, if the party has the original deeds, or can depend on the recital of them; but if he has not the deeds, and cannot depend on the recital of them with which he is furnished, then it is better to recite them as recited deeds. Thus, if it is necessary to recite several deeds anterior to the year 1790, and also to recite the deed of 1790, which contains recitals of all the former deeds, if the party think those recitals may be depended upon, he may insert them as the immediate recitals

1 Doe v. Webber, 6 Scott, 189.

* Fort v. Clarke,

1 Russ. 601.

Doe v. Shel

of the deeds themselves; but if he cannot depend upon those recitals, he may begin with the last deed, and state that as reciting the former deeds.

13. Recitals in the Assignment of Attendant Terms.]-When a term of years has once been assigned to attend the inheritance, there seems no reason to recite more than the deed creating the term, and the deed ultimately assigning it; but in this, as in all other cases, it should be shewn on the face of the deed that the trustee in whom the term ultimately becomes vested, is justified in making the then actual assignment of it.

14. Effect of a Recital as Evidence.]-Recitals are admissible in evidence by way of estoppel against all persons parties to the deed, and perhaps also against privies1, but not against strangers, unless corroborated by collateral circumstances 2; as for instance, where the possession has gone for a considerable length of time conformably to it, the recitals will be admitted as evidence for want of better. Where a leasehold title is derived through successive assignments, and the lease is lost, the recitals are evidence of the state of the title as against all persons, except the lessor. A party to a deed of conveyance is not estopped by recitals contained in other deeds through which the title to the estate so conveyed is derived3. The recitals in an assignment of a mortgage are ton, 3 Ad. & El. evidence in an ejectment by the assignee of the mortgagee against a tenant of the mortgagor's of the prior mortgage. The recital in a deed of a former deed between the same parties proves (as between the parties) so much of the former deed as is recited, and no more5. By an Irish Act of Parliament, the recital of a lease is, as to lands in that country, conclusive evidence of a lease; and, as to lands in Jamaica, a lease for a year is, by an act of the colonial legislature, made unnecessary. As against parties to a deed and their heirs, the recital of a lease for a year of land in England is an estoppel in evidence; but, as against issue in tail and remainder-men, it may be questioned, though the contrary has been strongly argued, whether the recital is evidence, since

265.

• Doe v. Maple, 5 Scott, 35.

Gillett v. Ab

bott, 7 Ad. & El. 783.

3 Prest. Abs. they are not bound by estoppel6.

30.

SECT. 4.-OF THE CONSIDERATION.

1. Of the Consideration, 37.

Notice, 44.

2. Pecuniary or valuable Considera- 9. Meaning of Voluntary' Convey.

6. Of the Stat. 13 Eliz. c. 5, for the 11. Voluntary Deed may be made good

Protection of Creditors, 40.

7. Of the Stat. 27 Eliz. c. 4, for the Protection of Purchasers, 43.

12.

8. A Voluntary Conveyance is void 13. against a Purchaser even with

by Consideration subsequent, 48. Walwyn v. Coutts, and that Class

of Cases considered, 49. Voluntary Trusts executory will not be enforced, 52.

1. Of the Consideration.]-The consideration of a deed is that which is given in lieu of the estate or other benefit thereby conveyed or granted, and should be fully expressed; and if it be very complicated, it is better to express it by way of recital than in the operative part of the deed. If there are no considerations but those expressed, the expression, "and for divers other good causes and valuable considerations," should not be inserted. To constitute a deed binding as well upon the grantor as upon all persons claiming under him, there must be an adequate consideration. Such a consideration may arise either from money or money's worth, and is said to be valuable. If there be no consideration, or only an inadequate one, as for example the implied obligation of a parent to provide for his wife and children,—and in such a case the consideration is said to be meritorious,—the deed is voluntary. A voluntary conveyance is not binding upon creditors, or subsequent purchasers even with notice, although so far binding upon the grantor that he cannot himself directly set it aside. A conveyance for the benefit of creditors generally, to which no creditor is a party or privy, is also a voluntary conveyance, and, as we shall presently see, is not even binding upon the grantor, such deed being treated as merely in the nature of a power of attorney, and, consequently, revocable at any time.

2. Pecuniary or valuable Consideration.]—Where all the parties to a conveyance are legally competent to act, and meet each other on equal terms, the more or less of consideration, or whether it consist of money or money's worth, provided a bonâ fide consideration was actually given, is, except on the sale of

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