occasd to the surface of such lands, or the timber, &c., by the exercise of such liberties as afsd.

to work a

quarry.

VII. EXCEPT & ALWAYS RESERVG unto the sd A., his hrs & Reservation (nonassns, the full & free rt & liberty at all times hrafter to work exclusive) the quarry situate in the sd lands hby assured at the point of right marked in the sd plan, & to take & carry away the stone thfrom over the sd lands hby assured for the ppose of, &c., but for no other ppose, doing no unnecy damage, &c., & makg compenson, &c., as in last form, & so nevs that the sd B., his hrs or assns, shl not by the reservon hinbfe contd be in any way precluded from workg the sd quarry & takg the stone thfrom to such extent as he or they may think fit.

GENERAL WORDS (c).

ESTATE CLAUSE (d).

I. TOGR with all bldgs (e), erections, fixtures, hedges, ditches, Lands. fences, ways, passages, waters, drains, water-courses, woods,

(c) General words were before the Conv. Act, 1881, usually inserted in Omission conveyances of land immediately after the parcels (and before the reserva- of general tions if any), but are now universally omitted, as they are supplied by section words. 6 of that Act, which provides that a conveyance of land, or of land with buildings thereon, or of a manor, shall imply the usual general words intended to pass the easements or other rights and appurtenances belonging thereto, unless a contrary intention is expressed or indicated. In Beddington v. Atlee, 35 Ch. D. 317, 331, the question was raised but not decided, whether express general words less extensive than those in the Act show such a contrary intention.

The clause in the Act applies to a conveyance of copyholds by surrender, As to as the definition of "conveyance" in s. 2 does not exclude conveyances not copyholds. by deed. The clause does not, except in the case of a manor, mention

estate

(d) The "the all estate" clause (see Elph. Interp. 204), which formerly Omission followed the "general words," is now implied by the Conv. Act, 1881, s. 63, of "the all in all conveyances, including appointments, unless a contrary intention is clause. expressed or is to be gathered from the terms of the instrument, so that it is universally omitted. That such a clause may be controlled by a recital, see Ex parte Dawes, In re Moon, 17 Q. B. D. 275. A short form of general words and estate clause is given in the text, as it may be of use in conveyances of land in the colonies.

town.

(e) For a house in a town add after" buildings,"" outhouses, fixtures, House in cellars, areas, ways, passages, lights, sewers, gutters, drains, rts, &c.," as in the text.

Estate clause.

Minerals.

Easements over adjoining property

of vendor.

Conveyance

not to include easements over ad

joining property of vendor.

underwoods, commons, [mines, minls (a),] rights, easemts, & appurts whatsr, to the sd hds & premes or any of them, or any pt thof belonging, or with the same now or htofore held, used, occupied, or enjoyed, or reputed or known as pt or pcel thof, or appurtenant thto.

II. AND ALL the este, intt, rt, title, claim, & demand of the sd, vendor [of the sd, conveying pties, resply], in, to, or upon the sd premes, or any pt thof; if the conveyance is made under a statutory power, add "or wch he [they or any of them] can by statute or orwise convey."

"mines and minerals," which were often included in the general words, though improperly, as they are not appurtenances, but form part of the land, and (except in the case of copyholds, and of conveyances to railway companies, from which latter they are excepted, unless expressly mentioned, by 8 & 9 Vict. c. 20, s. 77) would pass with it unless expressly excepted; in a mineral district they should be specially mentioned. As to what passes with a "manor," see the references above, p. 264, note. The statutory as well as the ordinary clause specifies "fixtures;" but this is immaterial, as a conveyance of land of any tenure would carry all fixtures belonging to the vendor without express mention, including trade or other tenant's fixtures, i.e., such as would be removable as between landlord and tenant; see 2 Dav. Prec. Pt. 2, p. 177, et seq.; see also note on Bills of Sale, post, Vol. II. If any fixtures are not intended to pass they must be excepted.

The statutory general words have reference only to easements, &c., existing "at the time of the conveyance," and omit the words, or heretofore," which were usually inserted (as in the form in the text), as to the meaning of which see Elph. Interp. 194. When such a quasi easement is known to exist, it should be expressly granted or excluded. The following is a form of exclusion intended to follow the parcels :

"BUT this assurce shl not include or operate as a grt or assurce of any ways, water-courses, or other rts or easemts whatsr over any adjoing land or ppty of the sd, vendor, wch appertain to or are reputed to appertain to or have htofore been held or enjoyed with the sd premes hby assured or any pt thof."

As to the implication of easements where there has previously been unity of ownership, see Elph. Interp. pp. 189, et seq.; Birmingham, &c., Co. v. Ross, 38 Ch. D. 295; Hood & Challis, Conv. Acts, 28.

(a) The words "mines and minerals" apply to freeholds only.

HABENDUM (b).

66

freeholds.

I. TO HOLD all the hds & premes hby assured UNTO the sd, For pchaser, or grtee to uses, his [pchasers, or grtees to uses, their] hrs & assns (c), [subjt to, &c., state or refer to the tenancies or any incumbces & liabilities subjt to wch the ppty is conveyed, see below (d)] To THE USE of the sd, pchaser, his [pchasers, their] hrs & assns for ever [if tenants in common, say, TO THE USE of the sd, pchasers, & their respive hrs & assns, as tenants in common, in eql shares," or, "in the shares follg, that is to say, as to one moiety thof to the use of the sd his hrs & assns, as to one eql fourth pt thof to the use of the sd, &c."]. II. TO HOLD UNTO & TO THE USE of the sd, pchaser, his hrs Short form. & assns, or, "in fee simple" (e), [subjt, &c., to tenancies or

incumbces].

III. TO HOLD, &c., subjt to a lease dated, &c., whby the Subject to premes were demised to K., for the term of

yrs from

tenancies.

at the yrly rent of £

-, or, "to the

(b) As to the use of the "habendum," see 1 Dav. Prec. 79, et seq.; Elph. Introd. 97, 247; Elph. Interp. 210, et seq.

(c) An estate in fee simple may now, by the Conv. Act, 1881, s. 51, if the draftsman prefers it, be limited by the words "in fee simple," without the word "heirs;" but the old form is here retained. It is not clear that if the grantor has only a base or other determinable fee, it would pass by a grant "in fee simple" under the Act, as it would if the word "heirs were used; but this is not a contingency which need usually be taken into account. The enactment does not render the words "in fee simple" appropriate in a conveyance to a company or other corporation aggregate, but they are often in practice used in such a case, and though unnecessary seem free from objection; but a conveyance to a corporation sole, with the words "in fee simple," but without the word " successors," confers the fee on the individual instead of on the corporation. As to conveyances to corporations, see Challis, R. P. 197. It should be remembered that as an equitable limitation by way of trust executed, has the same construction as a legal limitation (Elph. Interp. 276; Re Whiston, [1894] 1 Ch. 661); the words "hrs" or fee simple" must be used where it is intended to confer an equitable fee.

66

Limitation of estate in fee simple.

&c., in habendum.

(d) According to the more technically correct practice, which should be Reference adhered to in a conveyance to uses, the incumbrances, &c., subject to which to incumthe conveyance is made are stated, as in the above form before the declara- brances, tion of uses; but in a simple conveyance in fee, in which the declaration of the use is in fact usually mere surplusage, the short form No. II is preferable. (e) See note (c), above; and the forms in the fourth schedule to the Conv. Act, 1881, which have a statutory sufficiency by virtue of s. 57.

The same. Where the rent pay

tenant and

also the tithe rent is appor

leases & tenancies hinbfe, or, in the schdle hto' mentd," or, "to the subsistg leases & tenancies."

IV. TO HOLD, &c., subjt to a lease dated, &c., whby the premes (togr with other lands & hds) were demised, &c., at able by the the yrly rent of £ of wch the yrly rent of £- shl be the apportioned pt to be henceforth payable in respt of the premes hby assured, & with the benefit of such apportioned tioned (a). rent, & all powers & remedies for the recovery thof, & of the covts by the lessee, & condons contd in the sd lease, so far as the same relate to the premes hby assured, AND SUBJT to the paymt of a yrly sum of £ -, or the equivalent thof for the time being under the provons of the Acts for the commuton of tithes, as an apportioned pt of the yrly sum mentd in the apportionmt of the tithe rent-chge for the sd parish of, as payable in respt of an inclosure of wch the premes. hby assured form pt.

Subject to mortgage, rent

charge, or death duties.

Subject to

obligations and re

strictive

covenants.

Subject to

reserva

tions and restrictions

in a former

convey

ance (b).

Apportionment of rent.

Restrictive covenants.

day of

v. TO HOLD, &c., subjt to the hinbfe recited indre of mtge, & the ppal sum of £- now owing on the secy thof, & the intt due & to become due on such sum from the last, or, "to the paymt of the sd anny or rent-chge of £ - from the last," or, "subjt to the duties [succession duty] to become payable on the death of the sd X. in respt of the premes."

day of

VI. TO HOLD, &c., subjt to the obligons & restrons hinafter expd & imposed on the sd, pehaser, his hrs & assns.

VII. TO HOLD, &c., subjt to such exceptions & reservons of the & other mines & minls in & under the sd lands & premes, & rts of workg & gettg the same, & orwise in relon thto, & to such rts of way & water, & other easemts & rts, as were by the hinbfe recited indre of, &c., excepted or reserved to or in favour of the sd X., his hrs & assns, or orwise : But with the benefit (c) of the provons in the sd indre contd

(a) That a covenant to pay rent is divisible on an assignment of the reversion of part of the demised premises, see Mayor of Swansea v. Thomas, 10 Q. B. D. 48. As to the effect of the surrender of part of the premises by the assignee, see Baynton v. Morgan, 22 Q. B. D. 74.

(b) As to the right of the vendor to insert in the conveyance such a reference to restrictive covenants or obligations to which the property is, or is alleged to be, subject, see Re Monckton, 27 Ch. D. 555; Hardman v. Child, 28 Ch. D. 712.

(c) In general everything which is intended to pass by the conveyance should precede the habendum; See Elph. Interp. 212.

for compensatg the sd, vendor, his hrs & assns, in respt of land taken or occupied for the ppose of, or damage done in workg or gettg the sd mines & minls, or the exercise of the powers & liberties thby given to the sd X., his hrs & assns: AND subjt also to the covts by the sd, vendor, & provons in the same indre contd, restrictive of the rt of bldg on, or user of the sd lands & premes or orwise, To THE USE, &c. VIII. TO HOLD, &c., UNTO the sd, pchaser, his hrs & assns, dischged from all ppal moys & intt intd to be seed by, & from all claims & demands under the hinbfe recited indre of, &c. [but subjt, to leases, &c.], TO THE USE, &c.

Free from

a specified incum

brauce.

to uses

IX. TO HOLD the same UNTO the sd, grantee or grantees to Freeholds uses, & his [their] hrs [subjt, &c.] To THE USES, upon the afterwards trusts, & subjt to the powers & provons hinafter limd, decld, declared. & expd of & concerng the same.

to uses of

for disen

tail and

x. TO HOLD the same UNTO the sd, trees or grantees, & Freeholds their hrs [subjt, &c.] TO THE USES, upon the trusts, & subjt settlement to the powers, chges, & provons to, upon, & subjt to wch, or will. under or by virtue of the sd indre of settlemt of, &c., or, "the Variation sd will & codls of the sd X.," or the exercise of any power of chging thrin contd, the freehd hds [in the coy of comprd in & remaing subjt to the sd indre of settlemt [will] (e) now stand limd & settled, or as near thto as the circes of the case may permit, but not so as to increase or multiply chges or powers of chging.

-]

re-settlement (d).

form.

XI. TO THE USES, upon the trusts, & subjt to the powers The same. & provons to, upon, & subjt to wch the same premes ought Another to be held by reason of the same havg been pchased with capital moys arisg under the hinbfe recited settlemt [will] as afsd.

XII. TO HOLD, UNTO & TO THE USE of the sd, trees, their hrs & Freeholds assns [subjt, &c.] UPON THE TRUSTS, & subjt to the

upon

& powers trusts.

(d) This form is generally suitable. See also observations and proposed form in Lewin on Trusts, p. 559.

(e) If there has been a disentail and re-settlement, and any of the Variation. estates or charges, &c., under the original settlement are still in force, say, "under or by virtue of the sd, origl settlemt, & the sd, disentailg assurce, & the sd, resettlemt, or the exercise of any power of chging in the sd respive indres contd, the freehd hds comprd in & remaing subjt to the sd, origl settlemt, now, &c."