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UNDER A POWER

OF SALE.

the estates, uses, trusts, powers, provisoes, and limitations PRECEDENT IX. by and in the said last-mentioned indentures respectively limited, expressed, declared, and contained of and concerning the manor, lands, and hereditaments hereinafter 13. —and apexpressed to be hereby appointed, and doth limit, declare, points parcels. and appoint that ALL THAT manor or lordship, or reputed

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14. To use of

purchaser in fee.

15. Covenant by

manor or lordship of in the county of —; AND ALL General words. THAT mansion-house, &c. [parcels, supra, pp. 207, 210, or 215-general words, supra, p. 208, omitting the Estate Clause (i)], shall henceforth go and remain To THE USE of the said E. F., his heirs and assigns for ever; AND THE SAID A. B. doth hereby, for himself, his heirs, executors, and administrators, covenant with the said E. F., his heirs and assigns (k), that he the said A. B. hath not done, omitted, or knowingly suffered or been party or privy to anything whereby he is in anywise prevented or hindered from exercising in manner aforesaid the powers of sale, revocation, and appointment hereinbefore expressed to be hereby exercised by him, or from appointing by these presents all or any of the said

the revocation and appointment, unless the powers for the two operations are given in different terms.

The power to appoint is sometimes excepted from the revocation; but this is superfluous, for the exception is necessarily implied by the nature of the power and of the instrument.

(i) The estate clause is omitted from appointments, because the estate appointed is that of the donor and not that of the donee of the power (see ante, Vol. i., p. 89). And as to the practice of affecting to confirm by a grant such an appointment as that in the text, see supra, pp. 155, 156.

(k) When the conveyance is by appointment, as here, the covenants for title will not run with the land, because the appointees take under the instrument creating the power, and consequently there is no privity of estate between the covenantor and the covenantees. Where there is a grantee to uses, the covenants should be entered into with him and his heirs, as they will then run with the land for the benefit of the persons in whom the statute executes a use: see ante, Vol. i., pp. 110, 136. Where there is no grantee to uses the covenants should be entered into with the cestui que use his heirs and assigns.

trustee that he

has done nothing to prevent his incumber.

selling, or to

Covenants not running with

the land.

UNDER A POWER
OF SALE.

16. Covenants

tenant for life; -that he and

PRECEDENT IX. premises hereinbefore expressed to be hereby appointed to the use of the said E. F., his heirs and assigns (1); AND THE SAID C. D. doth hereby, for himself, his heirs, executors, and administrators, covenant with the said E. F., his heirs for title by the and assigns, that, notwithstanding anything by him the said C. D. or by the said [settlor] (m) done, omitted, or knowingly suffered, he the said C. D. now hath power to make such request and give such direction as aforesaid, and the said A. B. now hath power to limit and appoint the said premises hereinbefore expressed to be hereby appointed to the use of the said E. F., his heirs and assigns; AND THAT the same premises shall at all times remain and be to the use of the said E. F., his heirs and assigns, and be quietly entered into and upon and held

the trustee have right to consent and appoint;

-for quiet enjoyment;

Covenants by trustees for sale.

Covenants for title by a tenant

for life-to whose acts they extend, and how they should be restricted.

(1) Under ordinary circumstances, trustees and other fiduciary vendors only covenant that they have done no act to prevent their selling, or to incumber the property; and although there seems to be no reason why they should not also covenant for further assurance, it is settled that they cannot, as defendants, be compelled thus to covenant: Worley v. Frampton, 5 Hare, 560. It appears probable, however, that where a contract for sale, made by a beneficial owner, who agrees to enter into special covenants, has to be carried out by persons claiming under him in a fiduciary character, the purchaser might require the conveying parties to enter into the special covenants to the extent of the testator's assets: Dart, 355.

(m) A vendor claiming under a settlement covenants against the acts of the settlor and his representatives: Dart, 352; and in Re London Bridge Acts, 13 Sim. 176, 179, Shadwell, V.-C., assumed that, upon a sale under a power with the consent of the tenant for life, the tenant for life was, as a matter of course, obliged to enter into the usual covenants for title thus carried back. But it is urged with great force and reason (Dart, 353), that, although a tenant for life or other owner of a particular estate may be required so to covenant in respect of his beneficial interest, yet that as respects the reversion (in which he has no beneficial interest) his liability under the covenants should be confined to the acts of himself and parties claiming under him. The proviso at the end of the covenants in the text was framed by Mr. Dart, with the view of limiting the liability of the covenantor in accordance with these views, and its insertion was approved of by an eminent conveyancing counsel of the Court of Chancery: see Dart, pp. 353-4.

UNDER A POWER

OF SALE.

and enjoyed, and the rents and profits thereof received, PRECEdent IX. by him and them accordingly, without any interruption or disturbance by the said C. D. or any person claiming through or in trust for him or the said [settlor]; AND -free from THAT free and discharged from or otherwise by him the incumbrances; said C. D., his heirs, executors, or administrators, sufficiently indemnified against all estates, incumbrances, claims, and demands created, occasioned, or made by the said C. D. and [settlor] or either of them, or by any person claiming through or in trust for them or either of them; AND FURTHER, that he the said C. D., and every for further person having or claiming any estate or interest in the assurance. said premises, through or in trust for him or the said [settlor], will at all times, at the cost of the said E. F., 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 E. F., his heirs and assigns, as by him or them shall be reasonably required; PROVIDED ALWAYS that as respects the reversion or remainder expectant on the life estate of the said C. D. in the said premises, and the title to and further assurance of the said premises after his decease, his covenants hereinbefore contained shall not extend to the acts, deeds, or defaults of any person or persons other than or besides himself and his own heirs, and persons claiming or to claim through or in trust for him, them, or some of them. IN WITNESS, &c. (n).

THE SCHEDULE above referred to.

(n) If any special formalities regarding the execution of the deed by the appointor, or tenant for life, are required by the terms of the power, the attention of the parties should be called to the point by a note in the margin, or at the foot of the draft; and the deed should be executed either with the specified formalities, or in the presence of and attested by two or more witnesses, in the manner in which deeds are ordinarily executed and attested, a deed thus executed being by 22 & 23 Vict. c. 35, s. 12, made valid as an execution of a power of appointment by deed or by any writing not testamentary, notwithstanding other solemnities may have been required by the instrument creating the power.

19. Proviso reof tenant for life stricting liability under his cove

nants.

Formalities re

quired in execution of powers.

X.

PRECEDENT X.

RIGHT OF WAY

UNDER POWER

OF SALE OF

GRANT of a RIGHT OF WAY contemporaneous with a
CONVEYANCE under a POWER OF SALE of SETTLED
ESTATES (a).

SETTLED ESTATES. THIS INDENTURE, made the

1. Parties.

2. Recites contemporaneous conveyance by same parties of part of settled freeholds;

Conveyance

under a power of sale of an

easement annexed to land retained as well as to that sold.

day of, BETWEEN A. B., of, &c., and C. D., of, &c. [vendors, donees of power of sale], of the first part, E. F., of, &c. [tenant for life of the land sold], of the second part, and G. H., of, &c. [purchaser], of the third part: WHEREAS, by an indenture bearing even date with these presents, and made between the same persons as are parties to these presents, and in the same order, in pursuance of the contract for sale and purchase therein recited, and in consideration of the sum of £ by the said G. H. paid to the said A. B. and C. D., certain freehold lands and hereditaments, in the parishes of

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and in the county of and parts whereof are delineated on the plan drawn on these presents, have, in exercise of a power of sale contained in an indenture of settlement, dated the day of, in the said indenture in recital recited, been appointed, and also granted and conveyed to the use of the said G. H., his heirs and assigns, for ever: And by

(a) This Precedent affords an example of the manner in which an easement forming part of settled estates sold under a power of sale may be annexed in enjoyment to that portion which is sold, without being severed in enjoyment from the unsold portion of the estate. It will be observed that the revocation of the uses of the settlement containing the power of sale and the appointment of new uses were in the recited deed and are in the Precedent in the text followed by a grant by the trustees of the right of way: from which it must be inferred that either the donees of the power had the legal estate, or the power of sale authorised them expressly to grant the land and easement, for under ordinary circumstances the conveyance of an estate in settlement should be made by an exercise of the power of sale which involves and implies a power to revoke the existing and limit new uses, without any pretence to convey by grant. See supra, p. 155.

the said indenture in recital, in consideration of the PRECEDENT X. further sum of £-- by the said G. H. paid to the said A. B. and C. D., certain copyhold lands and hereditaments, situate in the parish of

and held of the manor of

in the said county of
have, in pursuance

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RIGHT OF WAY
UNDER POWER
OF SALE OF

SETTLED Estates.

and covenant

to surrender settled copy

road hitherto

for sold and

unsold lands;

of the said power of sale, been covenanted to be surrendered to the use of the said G. H., his heirs and assigns, holds. for ever, according to the custom of the said manor: AND 3. Occupation WHEREAS the occupation road delineated in the said plan used in common drawn on these presents, and running through and formerly part of the adjoining lands, has heretofore been used as a means of access by the tenants and occupiers of the lands appointed and granted and covenanted to be surrendered as aforesaid, or some of them, to and from the turnpike road leading from - to and upon 4. agreement on sale that purthe treaty for the purchase by the said G. H. of the here- chaser should ditaments comprised in the said indenture of even date have right to herewith it was agreed that the said G. H. should have such rights and easements granted to him, his heirs and assigns, in and over the said occupation-road as are hereinafter mentioned: AND WHEREAS the said E. F. is 5. Life tenant of tenant for his life in possession of the said adjoining settled estates lands and occupation-road, and has agreed to concur in these presents in manner hereinafter appearing, and to enter into the covenants on his part hereinafter con

day of

con

use it.

concurs.

tained: NOW THIS INDENTURE WITNESSETH 6. Witnesseth. that in pursuance of the said agreement in this behalf, and in consideration of the premises, They the said A. B. and C. D., in exercise of the power of sale in the said indenture of settlement of the tained, and of every or any other power enabling them in this behalf, Do by these presents, with the consent of the said E. F. (testified by his executing these presents), revoke, determine, and make void all and every of the 7. Revocation of uses, trusts, powers, and provisoes in the said indenture occupation road, of settlement limited and declared, or limited and declared so far as it is under the powers of jointuring and charging portions subsequent therein contained, of and concerning the piece of land or appointment; occupation road delineated in the said plan, and therein

settlement of

inconsistent with

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