when the interest is six months in arrear, and requires six months' notice to be given in every case; whereas, as we saw, the power of sale ordinarily inserted in mortgage deeds can be exercised, if necessary, after six months from the time fixed for payment of the principal, or when the interest is three months in arrear, and requires no notice to be given in the latter case. The requirements, too, in the act as to notice, oblige the mortgagee, if he cannot leave the notice upon some conspicuous part of the premises (a process, of course, impossible where they consist of incorporeal hereditaments), first to ascertain the precise person entitled to the equity of redemption, and then to serve him with the notice, although he may be at the other end of the world; thus encountering an amount of risk and difficulty sufficient to deter most people from lending money on mortgage at all. From these considerations it would seem that the better plan is to insert, as heretofore in a mortgage deed, the ordinary clauses relating to the insurance and sale of the mortgaged property, and at the same time to obtain all the benefits derivable from the act, by abstaining from any express declaration that it is not to apply to the deed in question.

CHAPTER VI.

OF SETTLEMENTS.

A "strict" settlement.

HITHERTO We have dealt only with instruments having
for their object the alienation of land, either absolutely
or temporarily; we turn now to those which seek to
prevent its alienation, so far as the law will allow.
This object may be attained either by wills operating
as settlements, or by settlements proper. These lat-
ter again are divided into family settlements, whereby
provision is often made for several branches of one
family, and marriage settlements, the benefits of which
are primarily conferred only on two persons about to
marry,
and their issue. Settlements made by wills,
or by means of family settlements, may, evidently,
take almost innumerable forms, varying with the
wishes of each individual settlor, and cannot be
properly dealt with in an elementary work like the
present. We will, therefore, confine our attention
to the less complex subject of marriage settlements
of land, selecting as a specimen the most ordinary
form, that, namely, which is usually known as a
"strict" settlement.

The object of such an instrument is to give the settled property to the eldest son of the marriage in tail male, subject to its providing a life income for the husband and wife and portions for the younger children: the deed containing, in addition to the clauses apt for these purposes, some which provide

for various contingencies, and others whereby the wishes of the settlors can be more effectually carried

out.

The settlement, after the usual formal introduction, Parties. states the parties to the deed. These consist of the intended husband and wife respectively, and of four different sets of trustees, whose functions we shall presently consider. Supposing that, as is more ordinarily the case, the estate to be settled belongs to the future husband, the first thing to be done is to keep it in his absolute possession until the marriage is solemnized. This can be accomplished by means of a shifting use, the application of which to this purpose is one of the many advantages derived from the passing of the Statute of Uses. With this object the deed proceeds to witness that, in consideration of the intended marriage, and in pursuance of a previous agreement, the husband, with the consent of the wife, conveys the property in fee-simple to the first set of trustees, whom we may distinguish as the "general trustees." This he does by assuring it to them by means of the same words of conveyance and clauses as are usually contained in purchase deeds; the habendum being to the use of himself (the husband) in fee-simple until the solemnization of the marriage; thus effecting no change in his ownership until that event takes place.

secure wife's

The settlement then goes on to declare the uses Term to which are to take effect after the marriage. Of these, income during the first is limited for a term of ninety-nine years, the coverture. without impeachment of waste, to the second set of trustees. The declaration of the trusts of the term are, however, postponed for the sake of convenience, to a subsequent part of the settlement, and we will,

1 27 Hen. VIII. c. 10.

Husband's life-estate.

Wife's jointure.

Meaning of jointure.

therefore, only mention now, that its object is to give a separate income to the wife during the coverture.

Subject to this term, the next use is to the husband for life, without impeachment of waste: thus giving him the legal estate in the property during his lifetime, with as much power over it as is consistent with its due preservation for the remaindermen. He is, therefore, in a position to deal with the estate much as a prudent man would deal with one of which he was absolute owner; being allowed to open mines and quarries, pull down buildings when necessary, and cut ordinary timber for his own benefit; whilst, on the other hand, he cannot commit that which is known as "equitable waste," such as pulling down the mansion-house of the estate,2 or cutting ornamental timber.3

Provisions having been thus made for the wife during the coverture, and for the husband during his life, the next thing is to give an income to the wife in case she survives her husband. With this object the next limitation is to the use that if the wife survive the husband she may receive during her lifetime, in lieu of all dower and freebench, a specified yearly sum for her jointure, such sum being charged upon the property, and payable quarterly: the first payment being made at the expiration of three calendar months from the death of her husband.

The word "jointure is synonymous with " provision; "4 the old way of securing a jointure was to set aside, for that purpose, the rents and profits of

1 Bowles's Case, 11 Rep. 79b; and Tu. L. C. 27.

2 Vane v. Barnard, 2 Ver. 738.

8 Downshire v. Sandys, 6 Ves. 107; see also the notes to Garth v. Cotton, 1 L. C. 697.

4 See Hervey v. Hervey, 1 Atk. 560, 562.

some particular estate belonging to the husband; and in most great families the same estate was commonly so settled from generation to generation. Hence the frequent occurrence, on large estates, of a house distinguished as "the jointure house."

A jointure made in conformity with the requirements of the Statute of Uses will bar the widow's right to dower; but it is better to state in the deed that the provision thus made for her is to be in lieu of all dower and freebench, because the intention to bar dower must, in order to operate under the statute, be either expressed 2 or clearly implied; and because, although jointure may act as a bar to freebench in equity, the statute itself does not extend to copy-. holds.

5

The form of limitation mentioned above gives the widow a legal rent-charge, in the same way as if it had been granted to her directly. For the Statute of Uses enacts that where any person shall be seised of any lands, to the use and intent that some other person shall have any annual rent thereout, the person that has such use shall be deemed to be in possession and seisin of the same rent, of and in such like estate as they had in the use of it; and as if a sufficient grant of such rent had been made to them by the persons seised of the use. charge did not formerly give a

The grant of a rent- Power of power to distrain for distress.

rent due, unless this power were expressly conferred

on the grantee; but this has been altered by an act,

which gives the legal owner of a rent-charge the same 4 Geo. II. c. power of distress as is possessed by a lessor.

1 27 Hen. VIII. c. 10, § 6.

Never- 28.

2 Co. Litt. 36 b.

3 Co. Litt. 36, note B; Vizard v. Longdale, cited 3 Atk. 8; Garthshore v. Chalie, 10 Ves. 1; Hamilton v. Jackson, 2 Jo. & L. 295.

4 Walker v. Walker, 1 Ves. 54.

5 27 Hen. VIII. c. 10, §§ 4, 5.

7 Dodds v. Thompson, L. R. 1 C. P. 133.

6 4 Geo. II. c. 28, § 5.