-with power of Bale, --and covenant by mortgagor that he and his wife would levy a fine, between the said [mortgagor] and [christian name], his wife, next term or any subsequent term, at the request of the said [mortgagee], his heirs, executors, administrators or assigns, acknowledge and levy unto the said [mortgagee], his heirs and assigns, before his majesty's justices of the Court of Common Pleas at Westminster, one or more fine or fines sur conuzance de droit come ceo, &c. with proclamations, of the said hereditaments and premises, by such names and descriptions as should be sufficient to comprise the same, which fine, it was thereby declared, should enure to the use of the said [mortgagee], his heirs and assigns for ever, nevertheless subject to the aforesaid proviso for redemption and reconthat no fine has veyance; AND WHEREAS no fine has been levied pursuant to been levied. that the only object of the fine was the extinguish ment of the wife's release. the said recited covenant; AND WHEREAS the only object (176) intended to be effected by the fine so covenanted to be levied as aforesaid, was the extinguishment of the title of the said dower. [christian name], the wife of the said [mortgagor], to dower out of the said hereditaments and premises: Now THIS INDEN- TESTATUM. TURE WITNESSETH, that in performance (177) of the aforesaid covenant contained in the said recited indenture of release, The said [mortgagor] and [christian name], his wife, Have Husband and wife and each of them Hath remised, released, quit-claimed and confirmed, and by these presents Do and each of them Doth remise, release, quit-claim and confirm unto the said [mortgagce], his heirs and assigns, All the said messuage, &c. and Parcels. other the hereditaments and premises comprised in the said recited indentures; together with all the rights, members and appurtenances thereunto belonging; TO THE INTENT that the title of the christian name], the wife of the said [mortgagor], to dower out of the said hereditaments and premises, may be INTENT that wife's extinguished. dower may be ances in performance of covenants or agreements to levy fines or suffer recoveries. (176) If the intention of the fine or recovery covenanted or agreed to be Effect of assurlevied or suffered cannot be completely effected by an assurance operating according to the provisions of the act of 3 & 4 Will. 4, c. 74, in regard to alienation by tenants in tail and married women, (as, for example, if the fine was intended to operate as a bar by non-claim, vide suprà, Chap. V.) then it becomes necessary (s. 3) to insert a special declaration, which (adopting the words of that section) may be in this form, “And the said [intended conusors in the fine, or vouchees in the recovery,] hereby declare it to be their desire that this deed shall have the same operation and effect as the fine [or, recovery,] covenanted [or, agreed,] by the said indenture to be levied, [or, suffered,] would have had if the same had been actually levied [or, suffered]." Indeed, the insertion of such a declaration seems to be proper in every case where the extraordinary effect to be communicated by the declaration would not, by occasioning a forfeiture or otherwise, prove injurious to the title. If this suggestion be adopted, the recital to which this note is appended should of course be omitted, and the declaration should immediately precede the covenant. the act satisfies (177) The act converts the covenant or agreement to levy a fine or suffer Assurance under a recovery into a covenant or agreement to make the substituted assurance, covenant to levy a so that the assurance is properly said to be made in performance of the fine. covenant or agreement. extinguishment of dower shall be absolute. Covenant by husband that wife the deed, &c. Declaration that extinguished. And it is hereby declared by the said [mortgagor] and [christian name], his wife, that the release hereinbefore contained shall operate as an absolute extinguishment of the dower of the said [christian name], the wife of the said [mortgagor], out of the said hereditaments and premises, for the benefit, as well of the said [mortgagee], his heirs and assigns, in respect of the said recited mortgage security, as of the said [mortgagor], his heirs and assigns, in respect of the equity of redemption. (178) And the said [mortgagor], for shall acknowledge himself, his heirs, executors and administrators hereby covenants with the said [mortgagee], his heirs, executors, administrators and assigns that these presents shall forthwith, at the costs of the said [mortgagor], be duly acknowledged by the said [christian name], his wife, and perfected in other respects with the solemnities (179) prescribed by law for rendering the deeds of married women effectual to extinguish their interests in land; (180) And also that the said [mortgagor] and [christian name], his wife, have not nor has either of them done or permitted any act, matter or thing by which or by means of which the release hereinbefore contained may be prevented from taking effect according to the true intent thereof. IN WITNESS, &c. -that husband and wife have not done any act to prevent the release from taking effect. (178) This clause is inserted to exclude the questions which have arisen upon fines levied by husband and wife of his inheritance, for the purpose of mortgaging in fee, in respect of her dower ultra the mortgage. 6 Jarm. Conv. 174. (179) Vide supra, n. (175). (180) If the object of the deed is to convey the wife's estate, say "effectual to pass their estates in land.” |