Page images
PDF
EPUB

200

CHAPTER XII.

EXCHANGE.

WITH the exception in favour of commissioners and assignees in bankruptcy and insolvency, and copyholders exchanging common lands under 4 & 5 Wm. 4, c. 30 (a), there can be no transfer, substitution or investiture of copyhold tenancy, but by surrender and admittance (b); consequently an exchange must be effected by such mode of assurance. The exchange at common law, with its incidental implied warranty of title (c), is not matter of purpose in this place; neither does it fall within our limit of inquiry, to enlarge upon exchanges to be made under statutory direction (d): such as occasion may necessitate to consult authorities on those subjects, are referred to the volumes of Bythewood, or more distantly, Viner's or Bacon's Abridgment, where every elucidation is afforded. Exchanges, however, very seldom occur, and when they may do so, it can only be proper to adopt a method of conveyance exempt from a possibility of objection; this must be left to each practitioner's discretion, with a caution to act upon certain and worthy counsel. It is with respect to lands of a freehold nature that the premised subtleties in exchanges have been bestowed; copyholds, although certainly under the range

43.

(a) Vide Chap. VI., ante.
(b) Knight v. Cooke, 2 Ch. Ca.

(c) Bustard v. Coulter, Cro. Eliz. 902, 917; Shepherd's Touchst.

290. Sed. Stat. "Quia Emptores," 18 Edw. 1, c. 1; 3 & 4 Wm. 4, c. 27, s. 36.

(d) Vide 55 Geo. 3, c. 147; 56 Geo. 3, c. 52; 1 Geo. 4, c. 6.

of the above suggested legal battery of warranty and eviction, are in practice generally disposed of in a manner to obviate danger.

To complete an exchange agreed upon between two copyholders (e), they must surrender to each other by separate surrenders, and be separately admitted (ƒ); a precedent is furnished.

No. 75.

SURRENDER out of Court of copyholds of inheritance by way of exchange.

[blocks in formation]

BE IT REMEMBERED that on the

day of [insert date], in consideration of the SURRENDER hereinafter mentioned, to be made and passed by [surrenderor] of [residence and calling], unto [surrenderee] of [residence and calling]; and also in consideration of the sum of ten shillings of lawful money current in Great Britain, paid by the said [surrenderee] to the said [surrenderor], the receipt whereof is hereby acknowledged. HE the said [surrenderor], DOTH out of Court by a rod, surrender and give up into the hands of the lord of the said manor, by the hands and acceptance of [name], a customary tenant, and sworn according to the custom thereof, ALL THAT, &c. [parcels], which said copyhold, hereditaments and premises are of the yearly rent to the lord of the said manor of [fine], TOGETHER WITH [general words], (insert here any particular right or liberty), AND the reversions and remainders

(e) It must be borne in mind that an exchange cannot be made between more than two persons. Anon. Lofft, 414, Provost of Eton v. Bishop of Winchester, 3 Wels.

491.

(f) Kitch. 171; Co. Cop. s. 36, Tr. 83. Earl of Carlisle v. Armstrong, 1 Burr. 333.

yearly, and other rents, issues and profits of the said plot of land and premises, AND all the estate, right, title and interest whatsoever, of him the said [surrenderor], of, in, or to the same, TO THE USE AND BEHOOF of the said [surrenderee], his heirs and assigns for ever, by and under the rents, suits and services therefore due and of right accustomed according to the custom of the said manor, IN EXCHANGE for ALL THAT, &c. [parcels exchanged], of the yearly rent to the lord of the said manor of [fine], TOGETHER with [general words], [insert any particular right], AND all reversions and remainders yearly and other rents, issues and profits of the said lastly named hereditaments and premises; AND all the estate, right, title and interest whatsoever, of him the said [surrenderee], of, in, or to the same, AND WHICH said lastly described copyhold plot of land, buildings, hereditaments and premises, are intended to be surrendered and assured, TO THE USE of the said [surrenderor], his heirs and assigns, by a surrender to be made and executed on the day of the date hereof, in exchange as aforesaid, by and under the rents, suits and services therefore due and of right accustomed, according to the custom of the said manor.

[blocks in formation]

203

CHAPTER XIII.

SETTLEMENT AND ANNUITY.

It must be presumed that the word settlement is well understood in its legal signification; still there are various modes of effecting settlements as influenced by the intentions, politic or capricious, of different individuals. Such assurances of property are usually made in contemplation of a change in family connexions, as marriage, or a rupture and severance of its members; and not unusually to provide against the casualties of life and fortune, in securing portions or annuities to those dependent upon the settlors. An anticipated marriage is a good consideration in every transaction, and will give the full effect of validity to a settlement so made; but should this precaution have been neglected, it may sometimes be very inconvenient, if not morally questionable, to endeavour a post nuptial arrangement: this allusion has a bearing upon parties in trade, as controlled by the statutes upon voluntary settlements (a). The same effect, of course, is to be anticipated in every other family arrangement, and it will behove the professional gentleman to search the circumstances of each particular case prior to aiding these delicate matters.-It follows then

(a) 13 Eliz. c. 5; 27 Eliz. c. 4. Terry v. Terry, Prec. Ch. 275. Brown v. Jones, 1 Atk. 187. Townsend v. Westacott, 2 Beav. 340. Richardson v. Smallwood, (Jac. 552). Townsend v. Wind

ham, 2 Ves. Sen. 1. Whittington v. Jennings, 6 Sim. 493. Kidney v. Coussmaker, 12 Ves. 136. Ede v. Knowles, 2 You. & C. 178. Skarff v. Soulby, 13 Jur. 89.

that any person capable of disposing of property, may make an ante-nuptial settlement, or a post-nuptial one (subject, in the latter case, to the effect of his circumstances), and this also of any description of realty or personalty, legal or equitable, and in possession or reversion. The latitude of capability is even extended to female infants and femes covertes, governed however by the rule that the former must have contracted to her own benefit, and the latter have acted under some protection of property to her own use (b): for more ample information, the reader must have recourse to other more voluminous and abler works (c). It would not consist with the author's intention to enter into a dissertation upon the learning connected with settlements in its diverse ramifications of contingent and cross remainders, executory devises, conditional limitations and springing uses, &c.; still such must be closely studied and borne in mind, when occasion demands the ability of the practitioner in framing so important a document as a family settlement; the author most urgingly recommends attention in these matters, and this as guided by more elaborate treatises than his own. The most general settlement is that made before marriage, and is often made where the intended wife or her governor wishes to provide for her and her children, independently of the husband: sometimes a power to the lady of appointing the property by will is inserted in the deed of settlement, and sometimes the husband has a life interest secured to him, yet, as frequently, (and in larger properties particularly) both these provisions are omitted. When the omission alluded to prevails, the settlement is called strict, and often limits the property in tail, or otherwise excludes all

(b) Chitty v. Chitty, 3 Ves. 545. Carruther v. Carruther, 4 B. C. C. 500. Seamer v. Bingham, 3 Atk. 55. Williams v. Williams, 1 B.C.C. 152. Pyke v. Pyke, 1 Ves. 377. Cannell v. Buckle, 2 P. Wms. 243.

Seaman v. Duil, 10 Ves. 581. Gage v. Lister, 2 B. P. C. 4.

(e) Bythewood by Jarman, tit. "Settlements." Atherley on Settlements; Roper's Husband and Wife; Bird upon Settlements.

« EelmineJätka »