Parcels. All estate, &c. before the day of the date of these presents, for one year computed from the day next before the day of the date of the said indenture of bargain and sale, and by force of the statute for transferring uses into possession,) All [parcels] And also all other the manors, messuages, lands and hereditaments of which the said [tenant in tail] is tenant in tail by virtue of the said recited indentures; Together with all the rights, members and appurtenances to the said hereditaments and premises belonging or appertaining: and all the estate, right, title, interest, claim and demand whatsoever of the said [tenant in tail], in, to, out of, or upon the said hereditaments and premises; TO HAVE AND TO HOLD the said manors, messuages, lands, hereditaments, and premises hereby released or intended so to be, with their appurtenances (subject to the said jointure-rent-charge of £, limited by the said recited indentures to the said [mother] for her life, and the powers and remedies thereby given for enforcing the payment thereof, and to the said term of 500 years thereby limited to the said [trustees of term], and the subsisting trusts To relessee in fee. thereof), unto the said [relessee], and his heirs, To such uses (153) upon and for such trusts and purposes, and in such HABENDUM. (Subject to rent charge and term.) Uses to prevent dower. Conveyance by tenant in tail to his own use sufficient. Conveyance to uses by tenant in tail having no seisin. (153) Although the estate be instantly revested in the tenant in tail, by limiting the use to himself, it is clear that he will acquire a new ownership, discharged from the limitations of the settlement, no less effectually than if he had so conveyed as to vest the estate in a third person, and had afterwards taken a reconveyance.-It is equally clear that a conveyance to uses will be effectual for the purposes of the act, notwithstanding that the conveying party has no legal seisin, as where the estate tail is equitable, or has been turned to a right or absolutely barred, though in such cases the assurance is merely formal; or rather the assurance proceeds upon the fiction of a legal tenancy in tail, for when the assurance is said to be formal it is not meant that the form of a lease and release, &c. as settled by practice, must be strictly pursued, since it is clear that the act would be satisfied by any instrument, however informal, which, if the tenant in tail were owner of the legal estate, would, under the circumstances of the title, operate substantially as a legal conveyance. It has been shown in a former note, (vide suprà, n. (73),) that the character of an assurance is not determined by its intrinsic form and ostensible purport. manner as the said [tenant in tail] shall by any deed or deeds appoint, and in default of appointment, To the use of the said [tenant in tail], and his assigns, for his life, without impeachment of waste, and immediately after the determination of his estate in his lifetime, To the use of the said [relessee], his executors and administrators, during the life of the said [tenant in tail], In Trust for the said [tenant in tail] and his assigns, And immediately after the determination of the estate of the said [relessee], To the use of the said [tenant in tail], his heirs and assigns for ever. (154) IN WITNESS, &c. (155) (154) Vide suprà, n. (150), as to adding a declaration against dower. The tenant in tail may, if he thinks fit, make a partial or limited disposition, as for years or for life, thereby barring the entail to the extent only of giving effect to such disposition; but every disposition made by him, either of the entire fee, or of an estate less than the fee, for a particular or limited purpose, as by way of mortgage, will depend for its effect ultra that purpose upon s. 21 of the act, on which some remarks have already been made, (vide suprà, Chap. V.) A tenant in tail intending to make a mortgage or other disposition of that nature, will probably be advised to acquire the fee by a previous assurance under the act, (vides uprà, n. (145)). If it be his wish that a mortgage or other disposition in fee, or for the life of the tenant in tail, made for a limited purpose, should operate in equity as a bar pro tanto only, he must either declare, by a separate deed, his intention to restrain its operation, or, what is the same thing in substance, resettle the equity of redemption to the old uses, which may be effected by a short reference to those uses, but as such resettlement may be deemed a declaration in contravention of the act, it should likewise be the subject of a separate deed. In considering this section of the act another point presents itself. If a tenant in tail suffered a recovery and limited the use to a mortgagee in fee, with a condition avoiding the limitation on payment of the money at a given time, it is clear that, on performance of the condition, the fee-simple gained by the recovery vested in the tenant in tail; but where a tenant in tail makes an assurance under the act, conditioned to be void in toto on a given act or event, it should seem that, after performance of the condition, nothing would remain to operate upon the entail, and that therefore a mortgage in fee intended to work an absolute bar should not be so conditioned, but that the proviso for redemption should direct a reconveyance. (155) The lease and release must be inrolled in the Court of Chancery Inrolment and acknowledgment. Parties. RECITALS, -of will, devising one for life, -to grantor in tail, -to another in tail, -to grantor in fee, No. 33. CONVEYANCE, by Deed of GRANT, by a Tenant in Tail in Remainder, under a protected Settlement, without the Consent of the Protector; with a Covenant to perfect the Title at a future period. THIS INDENTURE, made the day of in the year of our Lord 1835, Between [tenant in tail], of, &c. the year of the one WHEREAS freehold estates to under the last will and testament of [testator's name and description], deceased, bearing date the day of, in —, duly executed for passing freehold estates, and proved in the Prerogative Court of the Archbishop of Canterbury, on the day of in the year [protector], of, &c. is seised in possession of the messuage or tenement and hereditaments hereinafter described, and hereby granted, or intended so to be, with the appurtenances, for his life, with remainder to the said [tenant in tail] and the heirs of his body, with remainder to [remainder-man] and the heirs of his body, with remainder to the said [tenant in tail], his heirs and assigns for ever. AND WHEREAS the said [tenant in tail] has issue [number] children now living, namely, [names of children]: (156) AND WHEREAS the said -of contract for Bale, Inrolment gives priority. Effect of assurance by tenant in tail of a protected within six calendar months after the execution, in order to be effectual as a bar to the estate tail, (vide suprà, Chap. V.) and the release must be acknowledged before a judge or a master in chancery, &c. in order to be effectual as a release of the dower (ib.). For forms of memorandum of acknowledgment, certificate of acknowledgment, and affidavit, vide infrà, p. 409, 410. A purchaser or mortgagee cannot safely pay his money till the assurance of tenant in tail is inrolled, nor without having ascertained by search that no previous assurance has been inrolled, for priority is given to the assurance first inrolled, (vide suprà, Chap. V.) (156) This fact is recited because during the existence of issue in tail, the enjoyment of the purchaser under this assurance will be secure, as its effect settlement, with will be to convey a fee determinable on the failure of such issue. After the making of the assurance, the tenant in tail and his issue will retain out consent. [tenant in tail] has contracted with the said [purchaser] for the sale (157) to him of the remainder in fee simple immediately expectant on the decease of the said [tenant for life] in the said messuage or tenement and hereditaments, with the appurtenances, at the price of £: AND WHEREAS the said [tenant in tail] cannot obtain the consent of the said [tenant for life], as protector of the settlement made by the said will to the alienation of the said remainder in fee, but the said [purchaser] has agreed to accept a conveyance (158) from the said [tenant in tail] without such consent, on his entering into a covenant (159) that he or his issue will perfect only the bare, unproductive and unalienable right of perfecting the title of the purchaser by an assurance under the act, to be made either during the protectorship, with the consent of the protector, or after the protectorship thai consent of be obtained, protector cannot of agreement to accept convey ance from tenant in tail, with a covenant to per fect the title. shall determine (vide infrà, No. 34); meanwhile the purchaser will be en- Enlargement of titled to a "base fee," which he may alien by deed or will, and which, if base fee. it should become united in him with the immediate remainder in fee, by failure of the mesne remainder in tail, expectant on the estate tail of the vendor, would be enlarged (vide suprà, Chap. V.) into a fee simple. heirs expectant. (157) It must be borne in mind that equity extends its peculiar protection Sales, &c. by to heirs expectant, and persons standing in that relation, by relieving against their improvident contracts, and consequently that all dealings with remainder-men in tail must be open to equitable scrutiny. (158) The distinction which existed under the old law between the oper. ation of the fine with proclamations, and of the recovery of a tenant in tail, the former barring the issue in tail only, the latter barring as well the issue in tail as every ulterior claimant, is abolished with the assurances them selves, except that the substituted assurance of a tenant in tail under a protected settlement, made without the consent of the protector, is so far assimilated to the operation of the fine, that it will not confer a title as against any estate or interest limited to take effect after or in defeasance of the estate tail, and to which the tenant in tail is not himself entitled. With this single exception, the substituted assurance will produce the full effect of a recovery, as a bar to estates tail and remainders. (159) This covenant will not be of any force to bind the issue in tail or the remainder-men. (Vide suprà, Chap. V.) So far as regards their acts, it sounds merely in damages against the covenantor. In aid of the covenant, CC Assurance under lated to a recovery, unless made the act assimi without the con sent of the pro tector. Issue and reunaffected by mainder-men the covenant of tenant in tail. TESTATUM. Tenant in tail grants. the title of the said [purchaser] to the said remainder: Now THIS INDENTURE WITNESSETH, that in pursuance of the said recited contract, and in consideration of the sum of £of lawful British money paid by the said [purchaser] to the said [tenant in tail], on the execution of these presents, the receipt of which sum the said [tenant in tail] hereby acknowledges, and therefrom releases and discharges the said [purchaser], his heirs, executors, administrators and assigns, The said [tenant in tail], in order as well to defeat his estate tail under the said will in the said messuage or tenement and hereditaments, and pass a base fee (160) in remainder immediately expectant on the decease of the said [tenant for life], as also to pass his ultimate remainder in fee simple under the aforesaid limitation to him, his heirs and assigns, Hath granted (161) and conveyed, and by these presents Doth grant and convey unto the said [purchaser], his heirs and assigns, All [parcels], Together with all the rights, members and appurtenances thereunto belonging; And also all the estate, right, title and interest of the said [tenant in tail], in or to the said hereditaments and premises; TO HAVE AND TO HOLD the said messuage or tenement, hereditaments and premises hereby granted or intended so to be, with their appurtenances, unto and to the use (162) of the said [purchaser], his -to purchaser in heirs and assigns, Subject to the estate for life of the said [protector], and the estates, rights, interests and powers, to take effect after the determination or in defeasance of the estate tail of the said [tenant in tail], other than the ultimate Parcels. All estate, &c. HABENDUM. fee. Suggestion in regard to convey ance by grant to uses. a portion of the purchase-money may be impounded in the names of trustees, (161) Suprà, No. 30. (162) When a valuable consideration is expressed, and uses are to be limited upon the seisin of the grantee, it may be prudent to insert the words "by way of grant at the common law, and not of bargain and sale," immediately before the operative words. Vide suprà, n. (150). |