BARGAIN AND or an acknowledgment of which said exchange, if given in exchange] the said A. B. hath admitted by an indorsement on (for incumbent). the back of this deed, HATH granted, bargained, sold, and by House, &c. To hold to rector and succes sors. Covenant for title. Warranty. these presents DOTH grant, bargain and sell, [if by exchange hath granted, bargained, sold, and exchanged with and] unto the said E. F. and his heirs, ALL [here insert a full description of the buildings or lands so intended to be conveyed] with their and every of their rights, privileges, and appurtenances. TO HOLD to the said E. F. and his heirs in trust, for the sole use and benefit of the said G. H. and his successors, rectors, vicars, &c. [as the case may be] of the said living or benefice for the time being for ever. AND the said A. B. for himself, his heirs, executors and administrators, doth covenant and agree to and with the said E. F. and his heirs, THAT he hath good right to convey the said messuage, house, or tenement and building, lands, &c. [as the case shall be], and that he will warrant the same for the use and purposes aforesaid, for ever, free from all claims and incumbrances whatsoever, by, from, or under him, or any of his ancestors. IN WITNESS, &c. as aforesaid, and intended to be conveyed by him the said A. B., to the said ordinary, patron, and incumbent by indenture of equal date herewith." No. CLXXVI. A Bargain and Sale of Timber (1) growing upon an Estate, by Variations where the vendor is Tenant in tail (2). Also where BARGAIN AND SALE. Timber. (1) Timber, generally speaking, comprises such trees only as are fit to be used in building and repairing houses, as oak, ash, and elm; Co. Lit. 53. a; but the custom of the country will sometimes make those trees timber which in their nature are not so, if, from the scarcity of timber, they are used for building, as horse-chestnut and lime-trees, Duke of Chandos v. Talbot; 2 P. Wms. 605; birch, Countess Cumberland's Ca. Mo. 812; Toth. 151. S. C.; beech, Walton v. Tryon, Amb. 130; and aspen, Wright v. Powle, I Gwil. 357. if of the age of 20 years, Hob. 219. Pollards also, if the bodies are sound, and walnut-trees, if of considerable size, will also be estimated as timber: and in a sale of timber, where the trees are valuable, and the parties cannot agree as to the valuation of them as timber, the court of Chancery will send it to be tried, whether by the custom of the country, any and which of them are timber trees; Duke of Chandos v. Talbot, ubi sup. But purchaser of timber from entitled to such as remain standing at vendor's tenant in tail not (2) A tenant in tail has, equally with the tenant in fee-simple, the Vendor tenant power of felling timber and disposing of it as he pleases; with this dis- in tail. tinction only, that if he sell the trees when growing on the soil, the purchaser must sever them during the life of the tenant in tail; for if he die before they are cut down, they will belong to his heirs in tail as part of the inheritance, and the purchaser, although obliged to pay the whole sum contracted for, is not allowed to cut down a single tree after the death of the tenant in tail, even though it be half cut down; for as the tenant in tail has power over the inheritance during his own life only, he cannot delegate that power to another for any longer period, and conse quently, whatever remains part of the inheritance at the death of the tenant in tail (which timber while standing does, Duke of Chandos v. Talbot, 2 P. Wms. 606,) must necessarily go to the heir to whom the inheritance belongs; see Liford's Ca. 11 Co. 50; Secheverell v. Dale, Poph. 194; Plow. 250. death. BARGAIN AND SALE. Timber. Recital of seisin of vendor. Contract for purchase of the timber. That in consideration of the sum of £ one part, and the (purchaser) of, &c. of the other part. WHEREAS the said (vendor) is seised of an estate for inheritance, in possession, of certain manors, woods, lands, and hereditaments, situated at , in the county of AND WHEREAS (1) the said (purchaser) hath contracted with the said (vendor) for the absolute purchase of certain (2) timber and other trees, now standing and growing thereupon, and particularly specified in the schedule or inventory thereof hereunder written, for the price or sum of £ WITNESS. NOW THIS INDENTURE WITNESSETH, that in pursuance of the said contract, and for and in consideration of the sum of £ of lawful money of the United Kingdom of Great Britain and Ireland, to the said (vendor) in hand well and truly paid by the (purchaser), at or before the sealing and delivery of these presents the receipt whereof the said (vendor) doth hereby acknowledge [and of and from the same doth fully and absolutely acquit, release, exonerate, and for ever discharge the said (purchaser) his executors and administrators, as well by these presents, as by the receipt and acknowledgment for the same sum hereupon indorsed], HE the said (vendor) HATH granted, bargained, and sold, and by these presents DоTH grant, bargain, and sell unto the said (purchaser), his executors, administrators, and assigns, ALL (3) those The vendor bargains and sells. Previous agree(1) If the timber be sold in pursuance of a previous agreement in ment in writing. writing, say, Underwood. Underwood. 66 AND WHEREAS, by articles of agreement entered into the day of "For the purchase of certain coppice or underwood growing thereon, and hereinafter particularly described, for the price or sum of Ꮺ (3) If the sale be of underwood, say, "ALL and singular the woods, underwoods, and trees, now standing and growing in and upon a certain coppice or wood called timber and other trees now standing and being in a certain wood or BARGAIN AND Timber (purchaser). the lands. containing in number square feet, as the same are more particularly described in a schedule The timber thereof hereunder written; and also all the loppings, tops, shrouds, growing upon limbs, and boughs of the said timber and other trees respectively [together with full power and free liberty and privilege of ingress (1), egress, and regress, way and passage for him the said (purchaser), his executors, administrators, and assigns, and for his and their agents and servants, with workmen, labourers, horses, carts and carriages, to enter and come in, upon, and through all or any part or parts of the said lands and hereditaments of him the said (vendor), or any of them, at all times in the day-time, to view, fell, cut down, saw off, hew, square, work out, cord, stack, cart, and carry away all the said timber and other trees, or any part or parcel thereof, at his and their free will and pleasure, they doing as little damage to the herbage, land, and premises of the said (vendor) as may be, and not grubbing up the said trees, nor breaking the soil or ground for the purpose of obtaining the same, but felling or severing the said timber not lower than inches from the bottom or root thereof; and also to sell and dispose of the same in as full and beneficial a manner to all intents and purposes whatsoever, as he the said (vendor) could or might have done if these presents had not been made];. and also all the estate, right, title, interest, property, claim, and surement and hedgerows thereunto adjoining, containing by admeaacres, be the same more or less; except and always reserved unto the said (vendor), his heirs and assigns, the soil of the same coppice wood, and all timber trees, and trees likely to become timber, and lopped or pollard trees, standing and growing dispersedly within or amongst the said coppice or underwood hereby assigned, and the usual and accustomed wavers and standils there to be left, as are usually left in cases of a like nature. By the 35 Hen. 8. c. 17, it is enacted that in every case of coppice felled under twenty-four years' growth, there shall be left twelve standils or storers of oak; and if there be not so many, then of some other kind, as elm, ash, asp, or beech, under a penalty of 3s. 4d. for each standil short of that number. Stores to be left on felling coppice under 24 years' growth. (1) It is not material that the grant of ingress and regress for the pur- Grant of ingress pose of felling and carrying away the trees should be inserted, as a right not material in of entry upon the lands of the vendor is incident to the grant of the trees, as in all other cases where entry is requisite to obtain the things sold; see Liford's Ca. 11 Co. 52. SUP.-VOL. II. E sale of timber. BARGAIN AND SALE. Timber To hold to the purchaser absolutely. demand whatsoever, both at law and in equity, of him the said (vendor), of, in, or to the said timber and other trees, toppings, and (purchaser). premises aforesaid. AND also full power and free liberty and privilege to make and dig saw pits in or upon any convenient part of the said premises, and there to saw and cut all or any part of the TO HAVE AND TO trees, as he the said (purchaser) shall think fit. HOLD the said timber and other trees, lops, tops, and shrouds, and other the premises hereby granted, bargained, and sold, or mentioned or intended so to be, with their and every of their appurtenances, unto and by the said (purchaser), his executors, administrators, and assigns, absolutely to and for his and their own proper use and benefit, and as his and their own proper goods, chattels, and effects. AND the said (vendor) doth hereby for himself, his heirs, executors, and administrators, covenant, promise and agree with and to the said ( purchaser), his executors, administrators, and assigns, that for and notwithstanding any act, deed, matter, or thing whatsoever, made, done, occasioned, or knowingly suffered or omitted by him the said (vendor), or any of his ancestors, to the contrary, he the said (vendor), at the time of the scaling and delivery of these presents, hath in himself full power and lawful and absolute right and title to grant, bargain, sell, and dispose of the said timber and other trees and premises hereby sold and assigned, or mentioned or intended so to be unto the said (purchaser) in the manner aforesaid. AND that he the said (purchaser), his executors, administrators, and assigns, immediately upon the sealing and delivery of these presents, and at all times and from time to time hereafter, within the space or period of Covenant by vendor that he has a right to dispose of the timber. That the purchaser shall quietly enjoy. Covenant by purchaser to calendar months next after the date of these presents, shall and lawfully may peaceably and quietly have, hold, take, receive, and enjoy all and singular the said timber and other trees and premises hereby granted, bargained, and sold, or mentioned or intended so to be, with their and every of their appurtenances, and fell, hew, saw off, cut down, and carry away the same, without any manner of hindrance, interruption, claim, or demand whatsoever, of, from, or by him, the said (vendor), his heirs, executors, or administrators, or any person or persons now or hereafter rightfully claiming any estate, right, title, charge, or interest by, from, through, under, or in trust for him, them, or any of them (1). AND the said (purchaser) doth hereby Vendor tenant in tail. If tenant in tail die before seve (1) Where the vendor is tenant in tail, the timber must be severed during his life-time; it will be proper therefore, in that case, that the following proviso should be inserted; "AND moreover, that in case the said (vendor) shall happen to |