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PRECEDENT XIV. of J. B., deceased), of the first part; C. B., of, &c. (the widow of the said J. B.), of the second part; D. E., of, &c.,
FOR AN EXCHANGE BY THE INCLOSURE COMMISSIONERS.
Notice of proposed exchanges how to be given.
Mines and easements may be reserved.
Rights, ease.. ments, rents, &c.,
shall be good, valid, and effectual in the law to all intents and purposes whatsoever, and shall be in nowise liable to be impeached by reason of any infirmity of estate or defect of title of the persons on whose application the same shall have been made; and the land taken upon every such exchange shall be and enure to, for, and upon the same uses, trusts, intents, and purposes, and subject to the same conditions, charges, and incumbrances as the lands given on such exchange would have stood limited or been subject to in case such order had not been made; but no exchange shall be made of any land held in right of any church or chapel, or other ecclesiastical benefice, without the consent, testified in writing, of the bishop of the diocese and the patron of such benefice.
The 150th sect. provides that no order of exchange shall be confirmed by the commissioners until notice shall have been given by advertisement in three successive weeks of the proposed exchange, and three calendar months shall have elapsed from the publication of the last of such advertisements; and in case, before the expiration of such three calendar months, any person entitled to any estate in or to any charge upon any land included in such proposed exchange shall give notice in writing to the commissioners of his dissent from such proposed exchange, the commissioners shall not confirm an order for such exchange unless such dissent shall be withdrawn, or it shall be shown to the commissioners that the estate or charge of the party so dissenting shall have ceased. Under the 21 & 22 Vict. c. 31, sect. 3, the notices required to be given to designated persons may be given either by means of a registered letter sent by post or by delivery at the office or usual place of abode of the person.
The 10 & 11 Vict. c. 111, s. 4, provides, that, on an exchange of lands under the Act already cited, the commissioners may, in conformity with the terms of the application for such exchange, except or reserve out of the exchange the mines or minerals under the land given by both or either of the parties, together with rights and easements connected with such mines, and also (whether such mines and minerals shall or shall not be reserved) such rights of way and other easements as the parties to such application may have agreed And by sect. 6 of the same Act, the commissioners are empowered, with the consent of the lord of the manor and the parties taking copyhold lands in exchange, to declare that the same shall be held as freehold, on such terms and conditions as may be agreed on between the parties.
By the 12 & 13 Vict. c. 83, s. 7, rights of common, manorial and other rights and easements over any land, and quit rents, chief rents,
FOR AN EX
may be exchanged
and F. E., his wife (formerly F. B., spinster, another PRECEDENT XIV. of the daughters and coheirs of the said J. B.), of the third part; G. B., of, &c., spinster (another of the CHANGE BY THE daughters and coheirs of the said J. B.), of the fourth part; and H. I., of, &c., and L. I., his wife (formerly L. B., spinster, the other daughter and coheir of the said for each other or J. B.), of the fifth part: WHEREAS under the will of M. N., dated, &c., proved in the &c., and under a settlement made in pursuance of the 2. Recitals of said will by an indenture dated, &c., and made between [parties], the said A. B. is now entitled to the possession. or receipt of the rents and profits of the hereditaments specified in the first schedule hereto during her life, and subject to her life interest therein, the said hereditaments are settled on her first and other sons in tail male with
title to property
in first schedule.
tithes, and rent charges may be exchanged for any other of the said rents, easements, and things, whether of the same or a like or a different nature, or for land; and it is declared, that, when'two or more persons shall be interested jointly, severally, as a class, or in common in any rights or property proposed to be exchanged under that Act or the Acts previously referred to, the application of twothirds in value of such persons shall be deemed the application of all persons interested or having any estate therein.
The 17 & 18 Vict. c. 97, authorises the exchange of undivided Undivided shares shares, and extends the meaning of the word "land" to incorporeal may be exchanged. as well as corporeal hereditaments, and also to rights, and empowers persons in possession of land under any agreement to obtain orders of exchange, partition, or division. This Act also empowers the commissioners to apportion all rents or other fixed payments charged on land, and to determine the extent, identity, and boundaries of the land charged therewith.
Irregularities in the values of lands proposed to be exchanged, Owelty of exwhere the deficiency does not exceed one eighth part of the actual change, how provalue, may, under 20 & 21 Vict. c. 31, be compensated for by means of a perpetual yearly rent-charge of an amount to be fixed by the commissioners, and to be charged on the whole or a sufficient part of the land for the excess in value whereof the same is meant as an equivalent, but the Acts contain no provisions for the payment of money for equality of exchange.
Under these Acts gavelkind lands may be exchanged for lands in common socage; Minet v. Leman, 20 Beav. 269.
FOR AN EX
PRECEDENT XIV. remainders over: AND WHEREAS each of them the said A. B. and G. B., as two of the four coheirs at law, and CHANGE BY THE Customary coheirs of the said J. B., is seised in fee simple MISSIONERS. in possession of one undivided fourth part of the freehold 3.-to an undi- hereditaments, and is absolutely entitled for an estate of vided share of inheritance, in possession to one undivided fourth part property in second schedule. of the copyhold hereditaments specified in the second 4.-to remaining schedule hereto: AND WHEREAS under an indenture of undivided shares. settlement dated, &c., and made between, &c., the said F. E. is now entitled to the possession or receipt of the rents and profits of one other undivided fourth part of the said freehold and copyhold hereditaments specified in the said second schedule hereto during her life, and subject to her life interest therein, the said last mentioned fourth part is strictly settled by the said indenture of settlement [similar recital as to the remaining fourth of which L. I. is tenant for life in possession]: AND WHEREAS the hereditaments comprised in the said first schedule hereto, being part of the said estates devised by the said will of M. N., lie detached from and are inconvenient to be held with the residue of the said estates devised by the same will: AND WHEREAS the hereditaments comprised in the said second schedule hereto, being part of the said estates which on the death of the said J. B. descended upon his said coheirs, lie intermixed with the bulk of the said estates devised by the said will of the said M. N., and are convenient to be held therewith: AND WHEREAS the said hereditaments comprised in the ditaments in the said first schedule and the said hereditaments comprised in the said second schedule are of equal value, as appears by a survey and valuation lately made of the same premises respectively by X. and Y., surveyors and valuers appointed for that purpose by the said parties hereto (b);
5.-hereditaments in first schedule are not
a convenient part of devised estate;
6.-the hereditaments in second schedule are intermixed with the devised estate;
7.- the here
are of equal
(b) It is understood, that, in cases where lands belonging to a charity are proposed to be taken in exchange by private individuals, the Inclosure Commissioners require the valuation to be made by some surveyor of established reputation officially known to themselves, and insist that the terms of the exchange shall be pecuniarily advantageous to the charity.
FOR AN EX
AND WHEREAS it would be advantageous to all the interested therein if an exchange were effected of the said hereditaments comprised in the said first schedule CHANGE BY THE for the said hereditaments comprised in the said second schedule; Now, for effectuating such exchange, IT IS 8.—exchange
HEREBY MUTUALLY AGREED:
will be advantageous.
9. Agreement to effect an ex
1. That, as soon as the circumstances of the case will admit, an exchange shall be effected of the said hereditaments comprised in the said first schedule hereto for the said hereditaments comprised in the said second schedule hereto, and that upon the said exchange, the said here- Hereditaments in ditaments comprised in the said first schedule shall be discharged from the limitations of the said will of the certain uses. said M. N., and of the said settlement of the
respectively, and shall be limited and settled in the shares, to the uses, upon the trusts, and with and subject to the powers, provisoes, agreements, and declarations into, upon, with, and subject to which the said hereditaments comprised in the said second schedule now stand limited and settled (c), or such of them as shall then be subsisting or capable of taking effect; AND the said hereditaments comprised in the said second schedule shall be discharged from the limitations contained in the said indentures of, &c., respectively [the marriage settlements], concerning the respective undivided parts of the said F. E. and L. I. therein, and shall be limited and settled to the uses, upon the trusts, and with, and subject to the powers, provisoes, and declarations, to, upon, with, and subject to which the said hereditaments comprised in the
(c) The effect of an exchange by the Inclosure Commissioners upon the terms mentioned in the text would be to vest the lands comprised in the first schedule in undivided fourth shares in the parties previously entitled to the lands comprised in the second schedule; but under the 11 & 12 Vict. c. 99, ss. 13, 14, the parties receiving the lands in the first schedule might obtain an order of partition of those lands. And by the 15 & 16 Vict. c. 79, s. 32, persons interested in undivided shares of land, and also interested in the entirety of any land, may obtain an order of partition and exchange at one and the same time. See infra, Precedent XVI., p. 77, n. (a).
first schedule to be limited to
to be limited to certain other
PRECEDENT XIV. said first schedule now stand limited and settled under the said will of the said M. N., and the said settlement CHANGE BY THE of the day of
FOR AN EX
10. All parties to apply to the In
closure Commissioners for an order of exchange.
11. Costs to be paid in stated proportions.
2. That the said parties hereto, and all other necessary parties (if any) shall forthwith apply to the Inclosure Commissioners for England and Wales, and endeavour to obtain an order of exchange, under the seal of the said commissioners, confirming and ratifying the present agreement and effectuating the said intended exchange, under the powers and authority of "The Acts for the Inclosure, Exchange, and Improvement of Lands" (d).
3. That all the costs, charges, and expenses of the present agreement, and of the said intended application. to the Inclosure Commissioners, and all other costs, charges, and expenses incurred or to be incurred for effectuating the said exchange or in relation thereto, shall be borne and paid in the manner following; (that is to say), one fourth part thereof by the said A. B., one fourth part thereof by the said D. E. and F. E., one other fourth part thereof by the said G. B., and the remaining fourth part thereof by the said H. I. and L. I. IN WITNESS, &c.
FIRST SCHEDULE above referred to.
SECOND SCHEDULE above referred to.
PRECEDENT XV. AGREEMENT for a PARTITION of FREEHOLDS and COPYHOLDS to be effected by MUTUAL CONVEYANCES.
FOR A PARTITION
BY MUTUAL CON-
AN AGREEMENT, made, &c., between A. B., of, &c., spinster, of the first part; C. B., of, &c., spinster, of the
(d) This is the short title given by the 15 & 16 Vict. c. 79, s. 34, and 17 & 18 Vict. c. 97, s. 21, to all the Acts relating to these