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sd lease so far as the same affect the premes comprd in the
sd lease other than the sd premes hby demised;" Not to do
anything to forfeit the head lease. Covenant by B. with C.
for quiet enjoyment (a), see LEASES. [Acknowledgment and
undertaking by B. as to production, &c., of lease, p. 391.]
IN WITNESS, &c.

[PREC.

XLIII.

XLIV.

UNDERLEASE for effectuating the sale to a LIMITED PREC. XLIV.
COMPANY of MINING PROPERTY held under a LEASE
containing a COVENANT against ASSIGNING or UN-
DERLETTING without the LESSOR'S LICENCE, which
is refused as to an Assignment. The PURCHASE-
MONEY being payable by INSTALMENTS. ASSIGN-
MENT of FIXED MACHINERY, &c., belonging to the
VENDOR.

The

Company, Limited

PARTIES, A., vendor, 1; (hinafter called the co), 2. Recite lease of mining property, Recitals. p. 325, containing a power to the lessee to determine it on notice, and a covenant against assigning or underletting without licence: AND WHAS the sd A. has agrd with the co Agreement for the sale to them of the sd premes comprd in the sd indre of lease, and the fixed machinery and other fixtures belonging to the sd A. thereon for the sum of £— and of the movable machinery and plant and mining stock thereon

for sale.

(a) As this is a "demise at a rent," covenants for title, &c., cannot be Covenants implied by making A. and B. demise, &c., as "trustee" or "beneficial for title. owner," see the Conv. Act, 1881, s. 7 (5); but as the purchaser, although only a lessee, would have the benefit of the vendor's covenants contained in the assignment to B., see the Act, s. 7 (6), no further covenants on the part of A. are required, and the ordinary lessor's covenant by B. for quiet enjoyment will suffice.

PREC
XLIV.

The purchase

money to

which are transferable by delivery for the sum of £making with the sd sum of £ the total pchase-money of £- for the sd premes. AND WHAS it has been agrd that the sd sum of £, the purchase-money of the lease be paid by and fixtures, shall be payable as follows (that is to say), £ upon the execution of these presents, and the residue thof by four annual instalmts of £ each on the day of -, &c., with interest on the principal sum for the time being remaining unpaid at the rate of

instal

ments.

for pay

ment of

instalments.

per cent.

per annum, to commence from the date of these presents, and to be payable annually with the sd instalmts of prinSecurity cipal: AND WHAS it has been agrd that the paymt of such four instalmts of pchase-money and interest shall be secured by a lien or charge upon the sd leasehd and other premes, and by the covenant of the co as hinafter expd, (a) [or, if so intended, shall be secured by the covenant of the co, but that the sd A. shall not retain any lien or charge upon the sd leasehd premes, or the sd machinery, mining Refusal by stock and plant for the same]: AND WHAS the landlords of the premes demised by the sd hinbefore recited indre of to assign- lease have refused to consent to an assignmt thof, but have given their consent in writing to the underlease of the same premes intd to be hby made, and it has been agrd that the sale thof to the co shall be effectuated by the grant of such Moveable underlease and otherwise in mner hinafter expd: AND machinery WHAS the sd moveable machinery, and plant and mining delivered. stock are intd to be delivered by the sd A. to the co on paymt by them to him of the sd sum of £ pchase thof (b): NOW THIS INDRE WITNETH that

landlords

to consent

ment.

to be

Witnesseth.

for the

Stamps.

(a) The unpaid purchase-money would usually be secured by a mortgage. (b) The purchase-money should be apportioned and the moveable plant, &c., excluded from the assignment, to save stamp duty; as to apportioning purchase-money for duty, see the Stamp Act, 1870, s. 74 (1). The mere recital of the sale and payment of the purchase-money of the moveable plant would operate as a transfer on sale so as to render the deed liable to duty under the head " 'Conveyance in the Stamp Act, 1870, 33 & 34 Vie. c. 97, were it not for the exception under the head "Agree

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PREC.

XLIV.

in psuance of the sd agreemt, and in conson of the sum of £, pt of the sd pchase-money of £, the price of the leaseholds and fixtures, now paid by the co to the sd A., (the rect, &c.,) and of the covenant by the co hinafter contd for paymt of the residue of the sd last mentd pchase-money, and interest for the same, the sd A. doth hby demise unto Demise. the co and their assigns ALL and singular the lands, Parcels messuages, buildings, mines, minerals, liberties, licenses, powers, rights, and premes comprd in, or expd to be granted or demised by the sd hinbefore recited indre of lease, To HOLD the sd premes hby demised UNTO the co Haben. and their assigns for the residue now to come of the sd dum. term of years, except the last day thof, determinable nevertheless as hinafter mentd, SUBJT to the exceptions and reservations contd in the sd lease, and SUBJT also to and charged with the paymt to the sd A., his exs, ads, and assigns, of the sd four unpaid instalmts of the sd pchase-money of £- amounting to £ each and interest psuant to the covenant of the co hinafter contd [or, if so intended, free and discharged from any lien or charge in favour of the sd A., for the sd four unpaid instalmts of the sd pchase-money, or the interest for the same], YIELDING AND PAYING therefor unto the sd A., his Reddenexs, ads, and assigns, during the sd term hby granted, the same or the like rents and royalties as were by the hinbefore recited indre of lease reserved or made payable in respect of the sd premes, and to be paid or rendered upon or at the same or the like days or times, and in the mner thby provd: AND SUBJT to the observance and performance by the co and their assigns of the covenants on the pt of the lessees and provons in the sd lease contd (other than the respive covenants for paymt of the sd rents

ment" of "any memorandum, &c., relating to the sale of goods," Phillips v. Gibbons, 5 W. R. 527; Horsfall v. Hey, 2 Ex. 778. Although such a recital would not in this case make the deed chargeable, it is better to recite the delivery of the moveable plant, &c., and the payment of the purchasemoney for the same as intended to be done, so as to avoid any question.

dum.

PREC.
XLIV.

Declaration of trust by vendor.

To pay

rent.

Perform

covenants.

vendor.

and royalties, and restrictive of the right of the lessees to assign, underlet, or pt with the sd premes): AND THE SD A. doth hby, so far as he is authorised to do so without the lessor's consent, declare that he, his exs, ads, and assigns, will stand possessed of the sd last day of the sd term of years granted by the sd lease IN TRUST for the Covenants co and their assigns; AND THE co do hby for themselves by comand their assigns covenant with the sd A., his exs, ads, pany. and assigns, that they, the co and their assigns will, during the sd term hby granted, pay or render to the sd A., his exs, ads, and assigns, the several rents and royalties hinbefore expd to be hby reserved on or at the respive days or times, and in the mner, on at or in which the same are, or ought to be paid or rendered as afsd clear of all deductions AND ALSO WILL, during the sd term hby granted, perform and observe all the covenants and agreemts by the lessee and provons contd in the sd lease (except as hinbeIndemnify fore mentd): AND WILL at all times keep indemnified the sd A., his hrs, exs, ads, and assigns against all actions, proceedings, costs, damages, claims, demands, and liability for or in respect of any breach of any of the sd covenants, Covenants agreemts, and provons (except as afsd): AND the SD A. DOTH by vendor. hby covenant with the co and their assigns, that he, the sd A., his exs, ads, or assigns, will, during the sd term hby granted, duly pay or render the respive rents and royalties Endeavour reserved by, or payable under the sd lease: AND ALSO that to procure he, the sd A., his exs or ads will, at any time, if requested so to do by the co or their assigns, use his or their best endeavours at the expense of the co or their assigns to procure the licence of the landlords to an assignmt to or in trust for the co or their assigns of the premes hby demised: To assign. AND IN THE EVENT of such license being obtained, will execute such assignmts or instrumts as may be required by and at the expense of the co or their assigns for assigning or assuring the sd premes to or in trust for the co or their Give notice assigns: AND ALSO WILL at any time, if requested so to do on request by the co or their assigns, and at their expense, for the

To pay

rent.

license to

assign.

to determine.

66

PREC.

XLIV.

lease.

witnesseth.

ment.

ppose of determining the sd lease, give such notice to the landlords thof as is in that behalf provd by the sd lease, but except upon such request of the co or their assigns, will not give any such notice whby the sd lease may be determined: AND ALSO WILL not at any time except by giving Not to such notice upon request to determine the same as afsd, do invalidate or knowingly suffer any act or thing whby the sd lease may be invalidated or become void or liable to forfeiture: Covenants by A. for title, p. 374, substituting "demise" for assign" (c) AND THIS INDRE ALSO WITNETH Further that in further psuance of the sd agreemt and for the consons afsd, the sd A., as beneficial owner (c), doth hby assign unto the co and their assigns ALL such (if any) of Assignthe buildings, erections, furnaces, forges, foundries, rails, trams, turntables, weighing machines, waggons, steam, and Fixed machinery. other engines, gins, machinery, and fixtures, in, upon, or affixed to the sd premes comprd in the sd lease, as are the absolute ppty of the sd A., but are incapable of being transferred to the co by delivery, TO HOLD the same UNTO Habenthe co and their assigns absolutely [subject to or free from lien for unpaid purchase-money as before]: AND THE Co do Covenant hby covenant with the sd A., his exs, ads, and assigns, that by comthe co or their assigns will pay to the sd A., his exs, ads, pay unpaid or assigns, the sd sum of £, being the balance remain- money. ing unpaid of the sd pchase-money, with interest thereon at the rate of per cent. per annum, to be computed from the date of these presents, in mner following (that is to say), the sum of, pt of the sd principal sum, on the day of next, &c., and the interest on the principal sum for the time being remaining unpaid to be paid with each of such instalmts of principal [Acknowledgment by the company to A. as to production of lease, p. 391]. IN WITNESS, &c.

(c) Express covenants for title must be inserted as to the leaseholds, as this being a demise at a rent, is not within the Conv. Act, 1881, s. 7, see subsec. 5, and p. 368, note, p. 485, note; but the statutory covenants for title as to the machinery assigned may be implied.

dum.

pany to

purchase

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