XLI. ASSIGNMENT of a LEASEHOLD by EXECUTORS to PRECEDENT XLI. TENANTS in COMMON, the Lease not being recited (a). THIS INDENTURE, made, &c., between A. B., of, &c., and C. D., of, &c., executors of the last will and testament, dated the day of, and proved on the Court of, of X. Y., day of in the LEASEHOLDS BY JOINT TENANTS 1. Parties. late of, &c. [vendors], of the one part, and E. F., of, &c., and G. H., of, &c. [purchasers], of the other part: WIT- 2. Witnesseth: NESSETH, that, in consideration of the sum of £, -consideration, upon the execution of these presents paid by the said E. F. and G. H. to the said A. B. and C. D. for the purchase of the hereditaments hereinafter expressed to be hereby assigned (the receipt whereof the said A. B. -receipt, and C. D. hereby acknowledge), the said A. B. and C. D. do, and each of them doth hereby assign unto the said assignment, E. F. and G. H., their executors, administrators, and assigns, ALL THOSE messuages, &c. [Parcels, by their parcels. present description (b)], the site of which said messuages was by an indenture of lease, dated, &c., and expressed to be made between [parties], demised by the said [lessor] to the said [lessee], his executors, administrators, and assigns for a term of years, at the yearly rent of £, and subject to covenants by the lessee and conditions therein contained [General Words, supra, p. 208]; TO HAVE AND TO HOLD all the said premises hereinbefore expressed to be hereby assigned 3. Habendum. Unto the said E. F. and G. H., their executors, administrators, and assigns, in equal shares as tenants in common, for the residue of the said term of years, at the (a) See the notes to Precedent XL, (b) See supra, p. 199. LEASEHOLDS BY TO TENANTS IN COMMON. Covenants by purchasers with vendors. PRECEDENT XLI. rent reserved by, and subject to the covenants by the lessee and conditions contained in the said indenture of JOINT TENANTS lease, and henceforth to be performed and observed [Covenant by A. B. and C. D. with E. F. and G. H. against incumbrances, supra, p. 269; using assign instead of grant]; AND EACH of them the said E. F. and G. H., so far as relates to his one undivided equal half-share in the said premises, doth hereby for himself, his heirs, executors, and administrators, covenant with the said A. B. and C. D., their executors and administrators (c), that they the said E. F. and G. H. respectively, and their respective executors, administrators, and assigns, will henceforth pay the rent reserved by, and perform all the covenants by the lessee contained in the said indenture of lease AND WILL keep the said A. B. and C. D., their executors and administrators, and the estate and effects of the said X. Y., indemnified against all proceedings, costs, damages, claims, demands, and liability for nonpayment of the said rent or breach of the said covenants or any of them. IN WITNESS, &c. PRECEDENT LEASEHOLD BY 1. Parties. Covenants by tenants in common. XLII. ASSIGNMENT of a LEASEHOLD, by INDORSEMENT on the Lease (a). THIS INDENTURE, made, &c., between the withinnamed C. D. [vendor], of the one part, and E. F., of, &c. (c) As to these covenants, see supra, p. 203. Tenants in common covenant severally, and their covenants are restricted to their several undivided shares, ante, Vol. I., p. 114; but where the owner of a lease agrees to sell it to two persons without notice of the intention to hold it as tenants in common, it may be doubted whether he is not entitled that they shall covenant as joint tenants would covenant, viz. jointly and severally. When the covenantees are joint tenants, the covenants should be with them jointly, ante, Vol. I., p. 112. (a) In consequence of the lease being in the vendor's possession, it seldom happens that an assignment of it can be taken by indorse PRECEDENT LEASEHOLD BY consideration, -assignment, -parcels, -estate clause. [purchaser], of the other part: WITNESSETH, that, in consideration of the covenant on the part of the said E. F. hereinafter contained, the said C. D. doth hereby assign unto the said E. F., his executors, administrators, and assigns, ALL THAT the messuage or tenement, and all 2. Witnesseth: other the hereditaments demised by the within-written indenture, with the rights, easements, and appurtenances; AND ALL the estate, right, title, interest, claim, and demand of him the said C. D. in, to, and upon the same premises: To HAVE AND TO HOLD all the said premises 3. Habendum. herein before expressed to be hereby assigned Unto the said E. F., his executors, administrators, and assigns, henceforth for the residue of the term of years granted by the within-written indenture, at the rent therein reserved, and subject to the covenants by the lessee and conditions therein contained, and henceforth to be performed and observed [Covenants by vendor" with purchaser—and by purchaser with vendor, as in Precedent XL., supra]. IN WITNESS, &c. XLIII. ASSIGNMENT of PART of the PROPERTY in a LEASE at an APPORTIONED RENT, and COVENANTS and CROSS POWERS of DISTRESS for securing its Payment (a). PRECEDENT XLIII. PART OF LEASE HOLD. THIS INDENTURE, made, &c., between A. B., of, &c. 1. Parties. [vendor], of the one part, and C. D., of, &c. [purchaser], ment; but when it can be done it farms a short and convenient mode of conveyance. This Precedent may be readily altered to suit the cases of an assignment by the personal representatives of a lessee, and for a pecuniary consideration, by a reference to Precedents XL. and XLI., supra, pp. 362, 365. See the observations on the description of parties, and on recitals in indorsed deeds, ante, Vol. I., p. 56. (a) When part only of the property in a lease is sald, the conveyance is usually taken by way of unclerlease, in order that the purchaser may not incur any liability under the covenants in the ori Assignment of part only of leasehold. PRECEDENT HOLD. 2. Recites lease, 3.-and its subsequent assign of the other part [Recites lease, supra, p. 362]: AND WHEREAS, by an indenture dated, &c., and expressed to PART OF LEASE- be made between [parties], the said [lessee] assigned the said premises demised by the hereinbefore recited indenture of lease by the description of, First, all that messuage or dwelling-house, being No. 1, — Terrace, &c.; And ment to vendor; secondly, all that messuage, &c., with their appurtenances, unto the said A. B., his executors, administrators, and assigns for the then residue of the said term of 4.-contract for years: AND WHEREAS the said A. B. hath agreed with the said C. D. for the sale to him, at the price of of the said messuage, No. 1, sale; £Terrace, together with the garden thereto belonging and adjoining as aforesaid, and the appurtenances, for the residue of the said term of years, subject to the payment of one equal moiety (namely £15) of the aforesaid yearly rent of £30, and to the covenants by the lessee and conditions contained in the hereinbefore recited indenture of lease, and henceforth to be performed and observed in respect 5.-agreement to of the same premises: AND WHEREAS, upon the treaty for ginal lease, see Burton, § 855, n. Where, however, the conveyance is taken by assignment, it should contain cross covenants and cross powers of distress, as in the text. Where the conveyance is taken by way of underlease, the vendor must covenant with the sub-lessee to pay the rent and perform the covenants in the original lease, so far as relates to the residue of the property: Browne v. Paul, 26 L. T. 232. As to the indemnity to be given by an under lessee, see Penley v. Watts, 7 M. & W. 601. Even before the 22 & 23 Vict. c. 35, the assignee of part of the premises from the lessee could sue the lessor upon his covenants; Palmer v. Edwards, 1 Doug. 187, and the assignee of part of the reversion might sue the lessee of that part on his covenants; Twynam v. Pickard, 2 B. & Ald. 105. By that Act, s. 3, where the reversion upon a lease is severed, and the rent or other reservation is legally apportioned, the assignee of each part of the reversion shall, in respect of the apportioned rent or other reservation allotted or belonging to him, have and be entitled to the benefit of all conditions or powers of re-entry for nonpayment of the original rent or other reservation in like manner as if such conditions or powers had been reserved to him as incident to his part of the resertion in respect of the apportioned rent or other reservation allotted or belonging to him. PRECEDENT XLIII. PART OF LEASE- enter into special covenants. 6. Witnesseth: consideration, assignment, the said sale, it was agreed that the said A. B. and C. D. respectively should enter into the covenants hereinafter by them respectively entered into: NOW THIS INDENTURE WITNESSETH, that, in pursuance of the said agreement, and in consideration of the sum of £ &c. (the receipt, &c., supra, p. 273), he the said A. B. doth hereby assign unto the said C. D., his executors, administrators, and assigns, ALL THAT messuage or dwelling-house, being No. 1, in Terrace, &c. [Parcels -General Words, supra, p. 208]: TO HAVE AND TO HOLD 7. Habendum. all the said premises hereinbefore expressed to be hereby assigned, UNTO the said C. D., his executors, administrators, and assigns henceforth for the residue of the said term of years, subject to the payment of the yearly rent of £15, one equal moiety of the said yearly rent of £30 reserved by the hereinbefore recited indenture of lease, and to the covenants by the lessee, and conditions contained in the same indenture, and henceforth to be performed and observed in respect of the said premises herein before expressed to be hereby assigned; AND THE 8. Vendor's coveSAID A. B. doth hereby for himself, his heirs, executors, administrators, and assigns (b), covenant with the said C. D., his executors, administrators, and assigns [Ordinary covenants for title by vendor, supra, p. 363]: AND ALSO, that he the said A. B., his executors, administrators, or assigns will henceforth pay the yearly rent of £15, one equal moiety of the said yearly rent of £30 reserved by the relating thereto said indenture of lease, and perform and observe all the covenants by the lessee and conditions contained in the same indenture and henceforth to be performed and observed in respect of such of the said premises therein comprised as are not herein before expressed to be hereby assigned, AND WILL at all times keep the said C. D., his executors, and indemnify purchaser ; administrators, and assigns, and the said premises herein nants: for title, apportioned to and observe covenants (b) The assignor here covenants for his assigns in order that the burden of his covenants to pay the rent, &c., of the land he retains may run with that land: see ante, Vol. i. p. 121. As to the language of these covenants see supra, p. 203. VOL. II. B B |