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This indenture, made, &c., between A. B., of, &c., Re-conveyeldest son and heir-at-law of C. D., (the mortgagee,) ance from the late of, &c., deceased, of the first part; E. F., of, &C., of the mort. and G. H., of, &c., the executors of the last will and gagee. testament of the said C. D., deceased, of the second part; and (the mortgagor,) of, &c., of the third_part; [recite the mortgage and default in payment;] and whereas the said C. D., having first duly made and published his last will and testament in writing, bearing date, &c., and thereby appointed the said E. F. and G. H. executors thereof, departed this life on or about the day of , leaving the said A. B., his eldest son and heir-at-law, him surviving; and the said will was shortly afterwards duly proved by the said E. F. and G. H. in the Prerogative Court of Canterbury, [then recite the amount due, and agreement for re-conveyance, as in last precedent.] Now, this indenture witnesseth, that, in pursuance of the said recited agreement, and in consideration of the sum of L. of, &c., by the said [mortgagor,] in hand at, or immediately before the execution of these presents to the said E. F. and G. H., as such

estate, or his heir, or devisees in trust, of the one part; and outstanding the owner of the inheritance, of the other part. After recit- legal freehold. ing the deed or will whereby the estate became vested in the

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re-conveying party, and the several subsequent conveyances, &c., (or, if numerous, say, by divers," &c., as in p. 32,) whereby the present owner became beneficially entitled, and that the said, &c., at the request of the said owner, consented to re-convey the legal estate so vested in him as aforesaid, of and in the said hereditaments, in manner hereinafter mentioned, the indenture will then witness, that, in pursu ance of the said agreement, and in consideration of 5s. to (the party re-conveying,) he will, at the request, &c., (according to his estate and interest in the premises,) bargain, sell, and release unto (the owner) in his actual possession, &c., and to his heirs and assigns, all, &c.; to hold in fee-simple, (or to the uses and trusts of the deed or will by which the owner is entitled to the premises) Add a covenant by the re-conveying party that he has done no act to incumber.

Re-convey

heir-at law

sees in trust

mortgagor.

executors as aforesaid, well and truly paid, the receipt, &c., [as in last precedent ;] and in consideration of the sum of 5s. of like lawful money by the said [mortgagor] to the said A. B. at the same time paid, the receipt whereof is hereby acknowledged, he, the said A. B., at the request, and by the direction of the said E. F. and G. H., testified by their severally executing these presents, hath, &c., and by these presents doth bargain, sell, release, and confirm; and the said E. F. and G. H. have, and each of them hath, &c., and by these presents do, and each of them doth, renounce, release, quit claim, and confirm unto the said [mortgagor,] (in his actual possession, &c.,) all, &c. [Habendum as in preceding precedent, add a covenant by the heir that he has done no act to incumber, p. 89.] In witness, &c.

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This indenture, made, &c., between A. B., of, ance from the &c., the eldest son and heir-at-law of C. D., (the and executor mortgagee,) late of, &c., deceased, of the one part; of the mort- and E. F., of, &c., and G. H., of, &c., the devisees gagee to devi- in trust for sale, and executors named in the last for sale of the Will and testament of (mortgagor,) late of, &c., deceased, of the other part. [Recite the mortgage, the will, and death of the mortgagee, and the probate of his will; and recite the will and death of the mortgagor, and the proving his will.] And whereas the said [trustees] have this day, out of the moneys which have come to their hands on account of the estate and effects of the said (mortgagor) deceased, paid to the said A. B. the said sum of, &c., with all interest due in respect thereof up to the day of the date of these presents, which the said A. B. doth hereby confess and acknowledge; and whereas the said (trustees,) in pursuance of the trusts reposed in

money belongs.

To whom the " On the death of the mortgagee, the mortgage-money belongs to the executors, and the heir-at-law is considered as a trustee only for the executors, and is bound to convey to them, or to such persons as they shall direct. (Barn. 50; Fisk v. Fisk, Prec. Ch. 11;) Thornborough v. Baker, 3 Swanst. 628; Tabor v. Tabor, Ib. 636.

them in and by the said recited will, &c., being about to make sale of the estates devised to them by the said will of the said (mortgagor,) have requested the said A. B. to make such re-conveyance of the said hereditaments and premises to them, the said (trustees,) as hereinafter mentioned. Now, this indenture witnesseth, that, in consideration of the premises, and of the sum of, &c., (all interest due thereon having been paid by the said [trustees] to the said A. B.,) the receipt whereof, and that the same is in full payment, &c., he, the said A. B., doth hereby acknowledge, &c., and doth acquit, &c., and to the intent that all and singular the said hereditaments and premises may be well and effectually vested in them, the said (trustees,) the better to fulfil the trusts of the will of the said (mortgagor,) the said A. B. hath, &c., and by these presents doth bargain, sell, and release unto the said (trustees,) (in their actual possession, &c.,) and to their heirs and assigns, all and singular the

and premises, comprised in the said recited indenture of, &c., with their rights, members, and appurtenances, together with all houses, &c., and the reversion, &c., and all the estate, &c.; habendum unto and to the use of the said (trustees,) their heirs and assigns, (freed and absolutely discharged of and from the payment of the said sum of, &c., and the interest thereof,) but nevertheless upon the trusts, and to and for the ends, intents, and purposes, in and by the said recited will of the said (mortgagor) expressed, declared, and contained, of and concerning the same hereditaments and premises, and other his real (and personal) estate thereby given and devised; Ladd a covenant from the said A. B. that he has done no act to incumber.] In witness, &c.

*OBSERVATIONS ON RE-CONVEYANCES.

A re-conveyance, so far as it operates as a transfer or assignment of the property comprised in it, differs in no respect from the ordinary conveyances of pro

perty of a similar tenure, but as the conveying parties in such instruments are generally mortgagees who have been paid off, or trustees whose trusts have terminated, or the representatives of such parties, and not persons dealing with their own property for any valuable consideration, the only object of such deeds is the restoration to the beneficial owner of that legal interest in his property, which is vested in the re-conveying party, with a guarantee that, whilst so vested in him, it has not been incumbered or improperly dealt with.

The recitals and covenants in all well drawn deeds of this character are confined to those two objects, and in order to show what interest the conveying party has, the original mortgage conveyance in trust or will, and (in case such party is the representative or assignee of the original mortgagee or trustee) the assignment, will, or other acts which show the derivative title should be recited, and where the party to whom the re-conveyance is made is not the original mortgagor or cestueque trust, but claims as representative or assignee, his derivative title ought also to be shown.

No alteration" will or ought generally to be permitted in the description of the premises, but they should be re-conveyed according to the description in the original conveyance, making such alterations only as may have become necessary, in consequence of the change of tenants, lapse of time, or otherwise.

The re-conveying parties are bound to covenant, that they have themselves done no act to incumber the premises, but they are not compellable to extend such covenants to the acts of the persons through whom they claim.

On the re-assignment of leaseholds by a mortga gee, he should ascertain that the rent and covenants

See some observations on recitals in re-conveyances, ante, p. 11 and 16.

"See a dictum of Lord Eldon's in Goodson v. Ellisson, Russ. 594.

have, during the period of his ownership, been satisfied, for his liability to the lessor for any non-payment, or non-performance of them during that period, remains after the assignment, and where there exists any doubt on the subject, it would be advisable to require a covenant of indemnity from the mortgagor. In case a new lease has been granted to the mortgagee under which he has become personally liable to the lessor, the party to whom the re-conveyance is made must enter into a covenant of indemnity against the future rents and covenants.*

It is the duty of any one in whom an estate is vested, either as a mortgagee or trustee, to ascertain that the party calling for the re-conveyance is really entitled to it; but where there is no reason to doubt the title of such person, it would be highly improper to refuse to execute a re-conveyance, and if a party were captiously to do so, he would run the risk of having to pay the costs of any suit which might be instituted for the purpose of compelling him.

. It not being expected that every person to whom a re-conveyance is tendered for execution should be able to form any judgment on the propriety of his executing it at all, or in the frame in which it has been prepared, he is entitled to have it submitted to his own legal adviser, at the expense of the party requiring it, prior to executing it, and except in very simple transactions, and where the party has great confidence, both in the person requiring it and his professional adviser, such precaution ought not to be dispensed with.

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In a recent case, before the Lord Chancellor, it appeared that a party subjected himself to the annoyance of being made a defendant to a chancery suit, as the trustee of a will, simply on the ground,

* Ante, p. 15, note n.

Angier v. Stannard, 3 M. and K. 566.
Poole v. Pass, 1 Beav. 600.

• Winch v. Walker, 3 M. and Cr. 702.

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