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BY A MARRIED

WOMAN.

-for quiet enjoyment,

-free from incumbrances,

PRECEDENT V. C. D., his heirs and assigns; AND THAT the same premises shall at all times remain and be to the use of the said C. D., his heirs and assigns; and be quietly entered into and upon and held and enjoyed, and the rents and profits thereof received by the said C. D., his heirs and assigns accordingly, without any interruption or disturbance by the said D. B. and A. B. or either of them, or any person claiming through or in trust for them or the said G. H. and I. H., or any of them; AND THAT free and discharged from, or otherwise by him the said A. B., his heirs, executors, or administrators sufficiently indemnified against, all estates, incumbrances, claims, and demands created, occasioned, or made by the said G. H., I. H., A. B., and D. B. or any of them, or any person claiming through or in trust for them or any of them; AND FURTHER, that the said D. B. and her heirs, and he the said A. B., and every person having or claiming any estate or interest in the said premises or any of them, through or in trust for the said G. H., I. H., A. B., and D. B. or any of them, will at all times, at the cost of the said C. D., his heirs or assigns, execute and do every such assurance and thing for the further or more perfectly assuring all or any of the said premises to the use of the said C. D., his heirs and assigns, as by him or them shall be reasonably required. IN WITNESS, &c. (d).

-for further

assurance.

(d) Add a schedule, if the description of the parcels require it. The deed must be acknowledged by D. B.

VI.

CHARTER of FEOFFMENT made by an INFANT under PRECEDdent VI. the CUSTOM of GAVELKIND (a),

FEOFFMENT,

THIS INDENTURE, made, &c., between A. B., of, 1. Parties. &c., an infant, of the age of upwards of fifteen years

ments by infants.

(a) At the present day, feoffments are rarely if ever used in this Custom of country as conveyances on sales, except by virtue of the custom of gavelkind respecting feoffgavelkind tenure which prevails in Kent. By this custom every son is as great a gentleman as the eldest son is: Litt. s. 210; for in case of intestacy, lands descend not on the eldest son, but on all the sons in equal shares, and this customary descent extends to brothers and other collateral relations: Crump v. Norwood, 7 Taunt. 362; at least so far as sons of the intestate's brothers: Hook v. Hook, 1 N. R. 85. "Every one of the age of fifteen years holding or claiming to hold any land in gavelkind may give (by way of sale) his land, of which he is seised, as lawfully and freely as any other person of the age of twenty-one years his foreign tenures which are held by knight's service:" Itin. of Kent, 55 Hen. 3, cited Sandys' Consuetudines Kanciæ, 166; and the custom extends to lands which the infant has by purchase, as well as to those which he has by descent, though a contrary opinion has been held: see Robinson on Gavelkind, 277; Sandys, 165; and to a female heir in gavelkind at the age of fifteen, as well as to a male: Robinson, 249; Sandys, 168. The later resolutions and practice have added the following reasonable and proper restrictions to this customary alienation:-that it must be by feoffment, and the livery of seisin must be propriâ manu of the infant, and not by letter of attorney; nor does the custom extend to any other conveyance or assurance, for it shall be taken strictly; therefore the custom does not enable him to make a will of these lands at fifteen: Robinson, 248-250. It is said, that the custom extends only to sales for a valuable consideration: Sandys, 169, and authorities there cited; it must be evidenced by a deed or writing signed by the infant's own hand: Id. 185; and at the time of the feoffment the infant must be in the actual possession of the land, see ante, p. 171. If the dictum be well founded, that a feoffment by an infant can be made only on a sale for a valuable consideration, the custom does not enable an infant to convey a legal estate vested in him upon trust, or to reconvey a mortgaged estate,

FEOFFMENT.

2. Witnesseth : 3.-considera

tion,

4.-feoffment,

PRECEDENT VI. [vendor], of the first part, C. D., of, &c. [purchaser], of the second part, and E. F., of, &c. [attorney to receive seisin], of the third part, WITNESSETH, that, in consideration of the sum of £-upon the execution of these presents, paid by the said C. D. to the said A. B. (b) for the purchase of the fee simple in possession of the part or parts and hereditaments hereinafter described, He the said A. B., by virtue and in exercise of the custom of gavelkind tenure and of every other custom and authority enabling him, hath enfeoffed (c) and granted, and doth hereby enfeoff and grant, unto the said C. D., his heirs and assigns, ALL THAT the one equal undivided third part, and all other (if any) the part or parts, estate and interest, of him the said A. B. as one of the coheirs in gavelkind of his father the late X. Y., of, &c., or otherwise howsoever, of and in All that messuage, farmhouse, and farm, known as Farm, situate in the parish of in the county of Kent, the particulars whereof are delineated in the plan drawn in the margin. of these presents and described in the schedule hereto, AND OF AND IN all [General Words, supra, p. 208, omitting Estate Clause,] To HAVE AND TO HOLD all the said premises hereinbefore expressed to be hereby enfeoffed

5.-parcels.

6. Habendum

As to payment

money to an

infant.

(b) It would seem that an infant, as he cannot execute a release, of the purchase- cannot give a valid receipt for the purchase-money; for the general practice is to add to the memorandum of livery of seisin, an attestation that the consideration money was paid to the infant, instead of indorsing a receipt for it: Robinson, 277, note (b); but, although a purchaser may without personal risk pay the money to the infant, it is often advisable for the infant's sake that the purchaser should require it to be invested in the funds in the names of trustees, or even in the infant's name, until he attains twenty-one; and usually there is no difficulty in prevailing on the vendor to adopt this course. If the feoffment be by an adult, a receipt for the purchase-money in the usual form, supra, p. 206, should be inserted in the text.

(c) It is usual in a charter of feoffment to employ the operative words in the past as well as in the present tense, because, so far as the conveyance is concerned, the charter is only an evidence of an act previously performed, viz., the feoffment.

FEOFFMENT.

and granted, UNTO the said C. D., his heirs and assigns, PRECEDENT VI TO THE USE of the said C. D., his heirs and assigns for ever (d); AND THE SAID C. D. doth hereby appoint the said E. F. his attorney (e), for him' the said C. D., and

to purchaser in fee;

7. Appointment

kind land.

(d) By the custom of Kent, the wife, after the death of her hus- Dower of gavelband, shall have for her dower a moiety of all his lands and tenements of the nature of gavelkind; but she holds this customary dower (or, as it was formerly called, free bench) only so long as she lives chaste: Robinson on Gav. 205, 217; and it attaches not only to the lands and tenements of which the husband died seised, but to those of which he was seised at any time during the coverture for an estate of inheritance: Id. 221. The Real Property Commissioners, in their 1st Report, pp. 16-19, on which the Dower Act, 3 & 4 Will. 4, c. 105, was framed, stated that they did not propose to extend the alterations of the law of dower to gavelkind lands or borough English lands, or to copyhold or customary lands, as to all of which the right to dower or free bench is regulated by a variety of peculiar customs; and the Act does not apply to freebench in copyholds: Adams v. Smith, 5 De G. M. & G. 713; but a widow's interest in gavelkind lands, though formerly called freebench, is now always spoken of as customary dower; and is governed by the Dower Act: Farley v. Bonham, 2 Johns. & Hem. 177.

It will be observed, that the Precedent in the text does not contain any covenant for title; the reason of the omission is, that a warranty on a feoffment within the custom is void, the custom not extending to it: Robinson's Gav. 276; Sandys' Cons. Kanc. 178. In practice this defect is usually remedied by a deed executed after the feoffor has attained the age of twenty-one.

Where a feoffment is made by a person sui juris, covenants for title are inserted in the charter in the same manner as in a deed of grant: they are precisely similar to those in Precedents I. and III., supra, except that "enfeoff" will be used in addition to or instead of "grant."

of attorney to

deliver seisin.

(e) Livery of seisin of an infant's estate must, as has been stated Appointment in a previous note, be propriâ manu of the infant, and not by letter of attorney; but if a feoffment be made by an adult, the livery of seisin may be by an attorney. Where it is intended that the seisin shall be delivered by an attorney, the clause in the text should be preceded by an appointment of an attorney in the following form:

66

" AND THE SAID A. B. doth hereby appoint the said G. H. [who will have been named as a party to the charter,] his attorney, for him the said A. B. and in his name and

FEOFFMENT.

of attorney to receive seisin.

PRECEDENT VI. in his name and stead to enter upon the said messuage, farm, and hereditaments, or any part thereof in the name of the whole, and then and there to receive and take from the said A. B: possession and seisin of the said part or parts, hereditaments and premises, and such possession and seisin so taken to hold unto and to the use of the said C. D., his heirs and assigns, according to the form and effect of these presents. IN WITNESS, &c.

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8. MEMORANDUM MEMORANDUM of LIVERY of SEISIN (to be indorsed

OF LIVERY OF

SEISIN.

on the Charter).

BE IT REMEMBERED, that, on this

day of

18-, the within-named E. F., as the attorney of and for the within-named C. D., paid to the said A. B. the within-mentioned sum of £- for the purchase of the within-mentioned part or parts and hereditaments (ƒ); and that the said A. B., being in possession of the said hereditaments, did then and there deliver possession and seisin of the within-mentioned part or parts and hereditaments, and of all the estate and interest of him the said A. B. in the said hereditaments unto the within-named E. F. as the attorney of and for the withinnamed C. D., to hold the same unto and to the use of

stead to enter into and upon and take possession and seisin of the said premises, or of any part thereof in the name of the whole, and then and there to deliver possession and seisin of the said premises unto the said C. D. or to the said E. F. his attorney in that behalf hereinafter authorised, according to the true intent and meaning of these presents."

(f) See supra, p. 222, n. (b).

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