PRECEDENT BY SECOND MORTGAGEE, SUBJECT TO A Declaration that the debt belongs to A. B. and C. D. on a joint account, Id., 256, and any other clauses (including, if necessary, covenants for title by G. H. with A. B. and C. D.) which may be required: See the Precedents of Mortgages, infra, Part II. IN WITNESS, &c. (ADD a Schedule, if necessary.) PRECEDENT BY MARRIED WOMAN UNDER A POWER. 1. Parties. 2. Recitals of title. LVII. CONVEYANCE in FEE by a MARRIED WOMAN under a POWER, and by GRANT to be ACKNOWLEDGED, and by her TRUSTEES and MORTGAGEES. THIS INDENTURE, made, &c., between A. B., of, &c. [vendor], and C. B. his wife, of the first part; E. F., of, &c., and G. H., of, &c. [mortgagees], of the second part; I. K., of, &c., and L. M., of, &c. [trustees], of the third part; and N. O., of, &c. [purchaser], of the fourth part: [Recites a marriage settlement, 30th September, 1850, limiting hereditaments to I. K. and L. M. in fee, on such trusts as C. B., whether covert or sole, should by deed or will appoint; and in default of appointment, in trust for her separate use during her life, with remainder in trust for her heirs and assigns, see supra, p. 290-A mortgage in fee, 10th January, 1857, by appointment and grant to E. F. and G. H.-Agreement for sale to N. O.-State of mortgage debt, and agreement to pay it off out of the 3. Witnesseth purchase-money, supra, p. 270]: NOW THIS INDENTURE WITNESSETH, that, in pursuance of the said -consideration, agreements, and in consideration of the sum of £ -receipt, upon the execution of these presents paid by the said N. O. to the said E. F. and G. H., by the direction of the said C. B., and with the approbation of the said A. B. (the receipt whereof the said E. F. and G. H. hereby acknowledge), and also in consideration of the sum of £to the said C. B. at the same time paid by the making together the said A. B. PRECEDENT BY MARRIED WOMAN UNDER A POWER. said N. O., with the approbation of the said A. B. (the payment and receipt respectively in manner aforesaid of which said sums of £- and £the aforesaid purchase-money of £and C. B. hereby acknowledge), and in exercise of the said power contained in the said indenture of the 30th day of September, 1850, and of every or any other power enabling her, she the said C. B. doth by this present deed limit, direct, and appoint that the hereditaments herein appointment, after expressed to be hereby granted, shall henceforth fee. 4. Witnesseth secondly grant and re lease, go, remain, and be To THE USE of the said N. O., his to purchaser in heirs and assigns: AND THIS INDENTURE ALSO WITNESSETH, that, in further pursuance of the said agreements, and for the considerations aforesaid, they the said E. F. and G. H., by the direction of the said C. B., and with the approbation as well of the said I. K. and L. M. as of the said A. B., do and each of them doth hereby grant, and release, and they the said I. K. and L. M., by the direction of the said C. B., and with the approbation of the said A. B., do and each of them doth hereby grant, and she the said C. B., with the concurrence of the said A. B., doth hereby grant, dispose of, and confirm, and he the said A. B. doth hereby confirm unto the said N. O., his heirs and assigns, ALL THAT mill, &c. [Parcels, supra, p. 302-General Words, p. 208]: To -parcels. HAVE AND TO HOLD all the said premises herein before 5. Habendum, expressed to be hereby granted UNTO the said N. O., his to purchaser in heirs and assigns, To THE USE of the said N. O., his heirs and assigns, Discharged from the aforesaid sum of £, and all interest for the same, and from all claims and demands under the said indenture of the day of fee; but subject to the right of way and other easements subject to ease. over and restrictions imposed upon the use of the said ments. premises by an indenture dated &c., and expressed to be made between [parties], being a conveyance of certain buildings and hereditaments adjoining the said mill, to X. Y., his heirs and assigns: [Covenant by the mortgagees 6. Covenants for and trustees against incumbrances, supra, p. 269] HE THE SAID A. B. doth hereby, for himself, his AND title: heirs, and wife binding -by husband PRECEDENT BY MARRIED POWER. her separate estate; --for right to convey subject to the easement; -for quiet enjoyment, subject, &c. executors, and administrators, and she the said C. B., in exercise of her aforesaid power, and of every or any other WOMAN UNDER A Power or authority enabling her in this behalf, and to the intent to charge and bind her separate estate, doth hereby for herself, her heirs, executors, and administrators, covenant with the said N. O., his heirs and assigns, that, notwithstanding anything by the said A. B. or the said C. B., or her late father H. D., done or knowingly suffered, the said C. B., E. F., G. H., I. K., L. M., and A. B. now have power to appoint and grant, the said premises hereinbefore expressed to be hereby appointed and granted to the use of the said N. O., his heirs and assigns, subject as hereinbefore is expressed: AND THAT the same premises shall at all times remain and be to the use of the said N. O., 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 N. O., his heirs and assigns accordingly, without any interruption or disturbance by them the said A. B. and C. B., or either of them, or any person claiming through or in trust for them or either of them, or under any appointment by the said C. B., or through or in trust for the said H. D., other than and except the said X. Y. or persons claiming through him under or by virtue of the said indenture of the day of AND THAT free and discharged from, or otherwise by him the said A. B. and C. B., his or one of them, their or one of their heirs, executors, or administrators, sufficiently indemnified against, all estates, incumbrances, claims, and demands, (other than the said easements and restrictions created by the said indenture of the day of), created, occasioned, or made by the said A. B., C. B., and H. D., or any of them, or any person claiming through or in trust for them or any of them, or under any appointment by the said C. B.: AND FURTHER, that they the said A. B. and C. B., and every person having or claiming any estate, right, title, or interest in or to the same premises, through or in trust for them, or either of them, or the said H. D., or under any appointment by the said C. B., will at all times, at -free from incumbrances except easements; for further assurance. the cost of the said N. O., 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 N. O. his heirs and assigns, subject as hereinbefore is mentioned, as by him or them shall be reasonably required. IN WITNESS, &c. PRECEDENT BY MARRIED WOMAN UNDER A POWER. LVIII. CONVEYANCE in FEE, with the RESERVATION to the PRECEDENT WITH RESERVA TION OF MINES. THIS INDENTURE, made, &c., between A. B., of, &c. Royal mines. (a) All mines of gold and silver, whether in the lands of the Rights of the Crown or of subjects, belong to the Crown by prerogative; with liberty Crown to mines. to dig and carry away the ores thereof, and with such other incidents thereto as are necessary to be used for the getting of the ore: Plowd. 336. This would have been of little practical importance, if confined to mines of gold and silver only; but, as the law formerly stood, all ores or mines which contained any portion of gold or silver were taken as mines of gold or silver: Ibid. Now, however, by the statute 1 Will. & Mary, c. 30, explained by the statute 5 Will. & Mary, c. 6, it is enacted, that no mine of copper, tin, iron, or lead shall be adjudged a royal mine, although gold or silver may be extracted out of the same, and the owners of such mines are empowered to work them. But the statute 5 Will. & Mary, c. 6, also provided, that the Crown may have the ore of such mines, paying for the same according to the rates therein expressed; and which, so far as regards lead, have been altered by the statute 55 Geo. 3, c. 134. See, further, Vin. Abr. Prerogative, E. c. 3 & K. a. ; 4 Bac. Abr. 163, 204, 213; Bainbridge on Mines, 46, and the authorities cited. The statute does not apply to gold found in quartz or other stone, and such gold can be worked in the United Kingdom only under a licence from the Crown, which is ordinarily granted reserving a royalty. Where, as in Wales, unalloyed gold is found in stone, it is under PRECEDENT WITH RESERVA- 2. Witnesseth. of the other part: WITNESSETH, that, in consideration &c. (supra, p. 206), he the said A. B. doth by these pre Minerals on and under sea-shore. Tenant in fee simple primâ facie entitled to mines; but the ownership of the mines may exist apart from that of the soil. stood to be the practice to work and get it under a lease from the landowner and a Crown licence; and it has been said that the Crown cannot license a person to go upon another man's estate, and dig for such mines; although, when they are once opened, it can restrain the owner of the soil from working them, and can either work them itself or license others to work them: Lyddal v. Weston, 2 Atk. 19. But this position is liable to considerable doubt, as being inconsistent with the Resolutions of the Judges in the Case of Mines: Plowd. 310, 336; see too 16 Ves. 392. Even if the Crown grant lands and the mines therein contained, common or base mines only will pass, and not mines of gold or silver: Plowd. 336; 1 Rep. 46 b, 52 a. The minerals found on and under the sea-shore belong to the Crown, or to the lord of the manor, in the absence of other established ownership. A grant from the Crown of mines under the waste of a royal manor passes mines under the sea-shore: AttorneyGeneral v. Hanmer, 27 L. J., Ch. 837. The sea-shore has been defined to extend, not between the highest mark of the spring-tides and low-water mark, but between the ordinary high and low-water marks. The other space between the ordinary high-water mark and the highest mark of the spring-tides belongs to the owner of the adjoining tenement: Lowe v. Govett, 3 B. & Ad. 863; Bainbridge on Mines, 9. "Ordinary high-water mark" is the limit of the shore reached by the average of the medium tides in each quarter of a lunar revolution during the whole year; and, in the absence of usage, it bounds the rights of the Crown on the sea-shore: AttorneyGeneral v. Chambers, 4 De G. M. & G. 206. Land suddenly left by the retirement of the sea, in the absence of custom, belongs to the Crown: R. v. Lord Yarborough, 3 B. & C. 91; S. C., 4 D. & R. 790; 5 Bing. 163. A tenant in fee simple of the soil is primâ facie entitled to the mines and minerals, except the royal mines of gold and silver: Plowd. 336 a, 313 a. But this primâ facie right is liable to be rebutted by evidence that the owner of the soil has not enjoyed the mines and minerals, and that they have been gotten by other persons: Rowe v. Grenfel, Ry. & Moo. 396; Rowe v. Brenton, 8 B. & C. 737, S. C., 3 Man. & Ry. 133; or by the production of documentary evidence that the mines have been excepted, conveyed, or reserved to another; for the mines may form a distinct possession and different inheritances, and there may be an ownership in fee simple, or for any less estate of the mines and minerals distinct from the ownership of the soil: Cullen v. Rich, 2 Bull. N. P. 102; S. C., Str. 1142; |