Covenant by J. Still that his wife shall acknowledge the missioners. Power for Mary Still to appoint a for his indemnity. so far as any such direction, limitation or appointment, if incomplete, shall not extend, To THE USE of the said Mary Still, her heirs and assigns for ever: AND it is hereby declared that the hereditaments and premises comprised in the said third schedule are limited to the uses, upon the trusts, and for the intents and purposes hereinbefore expressed and declared concerning the same, in lieu of the undivided part or share of the said J. Still and Mary his wife, in right of the said Mary, of and in the entirety of the said messuages, farms, lands and other hereditaments herein before expressed to be hereby granted and released, AND the said J. Still doth hereby for himself, his heirs, executors and administrators, covenant and agree with the said [trustee] and his heirs (o), That the said Mary Still (she hereby consenting) deed before com- shall and will forthwith, or as soon as conveniently may be after the execution of these presents, at the costs and charges of the said J. Still, his heirs, executors or administrators, duly acknowledge these presents, and perfect the same in other respects, with the solemnities prescribed by law for rendering the deeds of married women effectual for passing their interest in land. PROVIDED ALWAYS and it is hereby declared, that if the said [trustee] or any trustee to be appointed as hereinafter new trustee, and is mentioned shall die, or decline or become incapable to act in the trust aforesaid before the same shall be executed or become incapable of taking effect, then and so often as the same shall happen it shall be lawful for the said Mary Still, notwithstanding her coverture, by any deed duly executed by her, to appoint any other person to be a trustee in the place of the trustee so dying, declining or becoming incapable to act, and that upon every such appointment the hereditaments and premises comprised in the said third schedule hereunder written, or such of them as shall not have been previously disposed of under the joint power of appointment herein before limited to the said J. Still and Mary his wife, shall be conveyed in such manner that the same may be effectually vested in the new trustee and his heirs during the joint lives of the said J. Still and Mary his wife, upon the trusts hereinbefore declared concerning the same premises. And it is hereby declared that the receipts in writing of the trustee for the time being of these presents shall be effectual discharges for any sum or sums of money payable to him in and about the execution of the trusts aforesaid, and that the trustee for the time being under these presents shall not be answerable for any involuntary losses which may happen in the execution of the trusts aforesaid, and that it shall be lawful for such trustee for the time being to reimburse himself out of the monies to be received by him under the trusts hereby declared all such costs and expenses as he shall incur or be put unto in the execution of the aforesaid trusts, or in relation thereto: AND each of them the said John Gay and Lucy quiet enjoyment. Gay, so far as relates to his and her undivided third part or share of and in the messuages, farms, lands, hereditaments and premises hereinbefore expressed to be hereby granted and released, and the quiet enjoyment, freedom from incumbrances, and further assurance thereof, doth for himself and herself respectively, and his and her respective heirs, executors and administrators, and the said J. Still, so far as relates to the undivided third part or share of the said J. Still and Mary his wife, in right of the said Mary, of and in the said messuages, farms, lands, hereditaments and premises herein before expressed to be hereby granted and released, and the quiet enjoyment, freedom from incumbrances, and further assurance thereof, doth for himself and his heirs, executors and administrators, covenant, promise and agree with and to Covenants for (0) See other form of covenants of this kind, ante, pp. 713, 714. the said [trustee] and his heirs, and cestuis que use, and separately with every such cestuis que use, in manner following (that is to say), THAT the messuages, farms, lands and other hereditaments hereinbefore expressed to be hereby granted and released, with their appurtenances, shall and may from time to time, and all times hereafter, go and remain to the several uses herein before respectively limited, expressed and declared of and concerning the same, and be peaceably and quietly entered into and upon, and be held, occupied, possessed and enjoyed, and the rents, issues and profits thereof, and of every part thereof, had, received and taken accordingly, without the lawful let, suit, trouble, denial, eviction, interruption, claim or demand whatsoever of or by them the said John Gay, Lucy Gay, and J. Still and Mary his wife, or any or either of them, or any other person or persons claiming or to claim by, from, through, under or in trust for them or any or either of them, And that free and clear, and freely and clearly, Free from incumand absolutely acquitted, exonerated, released and for ever discharged brances. or otherwise, by the said John Gay, Lucy Gay, and J. Still and Mary his wife, or some or one of them, their or some or one of their heirs, executors or administrators, well and sufficiently saved, defended, kept harmless and indemnified, of, from and against all and all manner of former and other gifts, grants, bargains, sales, jointures, dowers, right and title of dower, uses, trusts, entails, wills, statutes merchants or of the staple, recognizances, judgments, executions, rents, arrears of rent, annuities, legacies, sums of money, yearly payments, forfeitures, re-entries, cause and causes of forfeiture and reentry, debts of record, debts due to the queen's Majesty, and of, from and against all other estates, titles, troubles, charges, debts and incumbrances whatsoever, either already had, made, executed, occasioned or suffered, or hereafter to be had, made, executed, occasioned or suffered by the said John Gay, Lucy Gay, and J. Still and Mary his wife, or any or either of them: AND FURTHER, that they the said John Gay, For further asLucy Gay, and J. Still and Mary his wife respectively, and their issue surance. respectively, and all and every other persons and person having or claiming, or who shall or may have or claim any estate, right, title, interest, inheritance, use, trust, property, claim or demand whatsoever, either at law or in equity, of, in, to or out of the said messuages, farms, lands, and other hereditaments herein before expressed to be hereby granted and released, or any of them, or any part thereof, by, from, under or in trust for them the said John Gay, Lucy Gay, and J. Still and Mary his wife respectively, or any of them, their or any of their heirs or issue respectively, shall and will from time to time, and at all times hereafter, upon every reasonable request to be made for that purpose, by and at the proper costs and charges in the law of the person or persons beneficially entitled to the same premises by virtue of the uses and limitations herein before expressed and declared, or any of them, make, do, acknowledge and execute, or cause and procure to be made, done, acknowledged and executed, all and every such further and other lawful and reasonable acts, deeds, things, devices, conveyances and assurances in the law whatsoever, for the further, better, more perfectly and absolutely granting, conveying and assuring of the said messuages, farms, lands and other hereditaments herein before expressed to be hereby granted and released, and every part thereof, with their appurtenances, to the uses herein before limited and declared of and concerning the same, as by the said person or persons making such request and so entitled as aforesaid, his, her or their heirs, appointees or assigns, or his, her or their counsel in the law, shall be reasonably devised or advised and required; so that the person or persons who shall be re3 с S. ment as to title deeds. SECOND TESTA- Covenant for quired to make and execute such further assurance or assurances be not compelled nor compellable, for the making or doing thereof, to go or travel from his, her or their dwelling, or respective dwellings, or place Recital of agree or respective places of residence or abode: AND WHEREAS, upon the treaty for the aforesaid partition, it was agreed that the several title deeds, evidences and writings relating to the said messuages, farms, lands and other hereditaments hereinbefore expressed to be hereby granted and released, or expressed and intended so to be, should be deposited with the said John Gay, upon his entering into a covenant to produce the same, and permit copies to be made thereof, when thereunto required, in manner hereinafter mentioned, and in pursuance of such agreement the title deeds, evidences and writings mentioned in the fourth schedule hereunder written have been delivered to the said John Gay, which he doth hereby acknowledge (p): Now THIS INDENTURE LASTLY WITNESSETH, that in pursuance and performance of the said last recited agreement, and in consideration of the premises, the said John Gay, for himself, his heirs, executors, adininistrators and assigns, doth hereby covenant, promise and agree, to and with the said [trustee], his heirs and cestuis que use, and as a separate covenant to and with each of them, the said Lucy Gay, her heirs and assigns, and the said J. Still and Mary his wife, their and her appointees, heirs and assigns, that he the said John Gay, his heirs, executors, administrators or assigns, shall and will from time to time, and at all times hereafter (unless prevented by fire or other accident happening without his or their default), upon every reasonable request, and at the proper costs and charges of the person or persons for the time being beneficially entitled to the premises comprised in the said second and third schedules, by virtue of the uses and limitations hereinbefore contained, or any of them, produce and show forth, or cause to be produced and shown forth, to him, her or them, or any of them, or to such person or persons as he, she or they, or any of them, shall by writing direct, desire or require, or at any trial, hearing or examination, in any court of law or equity, or other judicature, or upon the execution of any commission in England, as occasion shall be or require, the several deeds, evidences and writings mentioned in the fourth schedule hereunder written or hereunto annexed, and every or any of them, for the manifestation, defence and support of the estate, right, title, interest, property or possession of the person or persons for the time being beneficially entitled as last aforesaid, or any of them, of, in and to all or any part of the said messuages, farms, lands and other hereditaments, with their appurtenances, comprised in the said second and third schedules hereunder written: AND ALSO, that the said John Gay, his heirs, executors, administrators or assigns, shall and will, at the request, costs and charges of the person or persons for the time being beneficially entitled as last aforesaid, give and deliver to him, her or them, one or more fair, true and attested or other copy and extract, or copies and extracts, of and from the same deeds, evidences and writings, or any of them, and shall and will permit and suffer such copies and extracts respectively to be examined and compared with the originals thereof, either by such person or persons as last aforesaid, or by any person or persons whom he, she or they shall appoint in writing under his, her or their hand or hands for that purpose. IN WITNESS, &c. (q). (p) See ante, p. 712, note. (q) This deed must be inrolled in Chancery. See forms of acknowledgment, certificate and affidavits, ante, pp. 717, 718. THE FIRST SCHEDULE to which the above-written indenture refers. THE SECOND SCHEDULE to which the above-written indenture ALL THAT, &c. [Description of the portion of the estate THE THIRD SCHEDULE to which the above-written indenture ALL THAT, &c. [Description of the portion of the estate THE FOURTH SCHEDULE to which the above-written indenture [A list of the deeds covenanted to be produced, setting out the No. XVI. MORTGAGE in Fee, by a Tenant in Tail in Remainder, after an absolute Consent had been given by the Protector of a prior Settlement, with Variations where the Protector joins for the Purpose of consenting to the Mortgage and Power of Sale. (See 3 & 4 Will. 4, c. 74, s. 21, ante, p. 350, n. (u).) (r). day of THIS INDENTURE, made the of the other [or third] part: WHEREAS by indentures of lease and re- Recital of creation AND WHEREAS by a deed poll under the hand and seal of the said Deed of consent [D. Dunn], bearing date the 1st day of February, 1863, and duly in- of protector. rolled in his Majesty's High Court of Chancery on the 12th day of the same month, after reciting the herein before in part recited indentures of lease and release, and reciting that (see ante, p. 736); it was by the indenture now in recital witnessed, that the said D. Dunn did give and grant his absolute and unqualified consent and approbation to any conveyance, assurance and disposition, which should be made and executed by the said E. Dunn, either on the day of the date of the said deed poll, or at any time thereafter, of all or any part or parts of the manors, messuages, farms, lands, hereditaments and premises, comprised in and conveyed and assured by the said therein and herein (r) It will be frequently advisable for the tenant in tail to execute the necessary assurance for barring the entail, by a deed to be executed and inrolled before the mortgage, which will supersede the necessity of inrolling the mortgage deed. This form can easily be adapted to the case of a mortgage by a tenant in tail in possession. Application for loan. before in part recited indentures of lease and release, subject nevertheless and without prejudice to the estate for life of the said D. Dunn, of and in the same hereditaments, and all powers, privileges and exemptions, (except the power of consenting as protector,) annexed to such estate (s): AND WHEREAS the said E. Dunn has applied to and requested the said [mortgagee] to advance and lend him the sum of 1,500l., which the said [mortgagee] has consented and agreed to do upon having the same sum, with interest for the same, secured in manner hereinafter expressed. [Where the protector consents by the same deed, instead of the recital of the deed poll, the following recital and operative part should precede the conveyance by the mortgagor.] AND WHEREAS the said [protector], in order to enable the said [mortgagor] to make an effectual security for the said sum of 1,5004. and interest, as against all persons whose estates are to take effect after the determination or in defeasance of the estate tail of the said [mortgagor], of and in the messuages, lands and hereditaments hereinafter described, and intended to be hereby granted and released, has agreed, as the protector of the said recited settlement, to consent to the conveyance, assurance, and disposition intended to be made by these presents, in manner hereinafter expressed: Now THIS INDENTURE WITsents to mortgage NESSETH, that in pursuance and performance of the said recited Recital of agree ment of protector to consent to mortgage. Protector con made by this deed. Conveyance by tenant in tail. HABENDUM. To use of mortgagee in fee. agreement on the part of the said [protector], He the said [protector] doth by these presents give and grant his absolute and unqualified consent to the conveyance, assurance and disposition intended to be made by the said [mortgagor] in and by these presents, subject, nevertheless, and without prejudice to the estate for life of the said [protector], or any power, privilege or exemption, annexed to such estate. Now [or And] THIS INDENTURE [or further] WITNESSETH, that in pursuance and performance of the said recited agreement, [or on the part of the said mortgagor], and for and in consideration of the sum of 1,500l. of lawful money of Great Britain to the said E. Dunn in hand paid by the said [mortgagee] at or immediately before the sealing and delivery of these presents, the receipt of which said sum of 1,500l. the said E. Dunn doth hereby admit and acknowledge, and of and from the same, and every part thereof, doth acquit, release and discharge the said [mortgagee], his heirs, executors, administrators and assigns, and every of them, for ever, by these presents, and in order to defeat the estate tail of the said E. Dunn of and in the messuages, lands and hereditaments hereinafter described and intended to be hereby granted, and all remainders, reversions, estates, rights, interests and powers, to take effect after the determination or in defeasance of such estate tail, he the said E. Dunn, with the consent of the said D. Dunn, testified [by the said recited deed-poll,] [or, as aforesaid], doth by these presents grant, alien, dispose of and confirm unto the said [mortgagee] and his heirs ALL THAT the remainder of him the said E. Dunn expectant and to take effect on the decease of the said D. Dunn, of and in ALL THAT, &c. [parcels, general words, reversions, &c. and all the estate, &c. ante, p. 711.] TO HAVE AND TO HOLD the said messuages, lands, and all and singular other the hereditaments herein before expressed to be hereby granted, subject and without prejudice to the estate for life therein of the said [protector], and all powers, privileges, and exemptions thereto annexed, (except the (s) In cases where it appears that a tenant for life has powers, it must be ascertained that they are not of such a kind as will enable him to defeat the mortgage: it is assumed in this case, that the tenant for life had only the usual power of leasing at rack-rent for the term of twenty-one years. |