APPENDIX.

No. 1.

RELEASE AND CONVEYANCE of the Freehold Part, and Covenant to surrender the Copyhold Part, of an Estate, by a Tenant in Tail in Possession, to a Purchaser with Limitations, or a Declaration to bar Dower; the Vendor's Wife joining to extinguish her Right of Dower. (See 3 & 4 Will. 4, c. 47, ss. 15, 40, 53; ante, pp. 328, 350, 359; and 3 & 4 Will. 4, c. 105, ss. 6, 14; ante, pp. 427, 430.)

day of

THIS INDENTURE, made the in the year of our Parties. Lord between B. Adams, of, &c., Esq., (eldest son and heir of the body of A. Adams, late of, &c., Esq., deceased, by Anne, his late wife, before A. Bell, spinster, also deceased), and Mary, his wife, of the first part; [the purchaser] of the second part, and J. K., of, &c., gent. (a trustee nominated by and on behalf of the said [purchaser] of the third part. [If the purchaser should not have been married until after the 1st of January, 1834, and the declaration should be adopted (see post), there will be no necessity for a trustee.](a) WHEREAS by indentures of lease and release, bear- Recital of ing date respectively the eighth and ninth days of March, 1800, the settlement release being made, or expressed to be made between the said A. Adams, of the first part; the said Anne Adams, then A. Bell, spinster, of the second part; A. B. and C. D., of the third part; and E. F. and G. H., of the fourth part (being the settlement made previously to and in consideration of the marriage then intended to be, and shortly afterwards duly had and solemnized between the said A. Adams and A. Bell), the freehold parts of the capital messuage or tenement, farm, lands and hereditaments hereinafter described and intended to be hereby granted and released, were (amongst other hereditaments) duly conveyed and assured from

(a) A husband married on or before the 1st of January, 1834, will not be able to defeat his wife's right of dower, by the new methods, prescribed by the act for amending the law of dower. It will therefore be advisable for a purchaser who married before that time to have the estate conveyed to such uses as will enable him to defeat his wife's dower, without her future concurrence. Both Sir Edward Sugden (V. & P. 545, 11th ed.) and Mr. Hayes (1 Conv. 304, 5th ed.) agree in the propriety of adopting the old form of uses to prevent dower in the case of a husband married on or before the 1st of January, 1834.

creating the entail.

Surrender of copyholds to trustees upon

the settle

ment.

and after the solemnization of the said intended marriage, to the use of the said A. Adams and his assigns, for and during the term of his natural life, and from and after the determination of that estate by forfeiture or otherwise in his lifetime, to the use of the said A. B. and C. D. and their heirs, during the natural life of the said A. Adams, upon trust to support the contingent uses and estates thereinafter limited, and from and after the decease of the said A. Adams, To the use, intent and purpose, that the said A. Bell, in case she survived the said A. Adams, should receive and take the annual sum or yearly rent-charge of 3001. for her jointure and in bar of her dower, with the usual powers and remedies by distress and entry for recovering and enforcing the payment thereof, and subject thereto to the use of the said E. F. and G. H., their executors, administrators and assigns, for the term of 200 years, upon certain trusts for further securing the payment of the said annual sum or yearly rent-charge, and from and after the expiration or other sooner determination of the said term of 200 years, and in the meantime subject thereto, to the use of the first and every other son of the said A. Adams, on the body of the said A. Bell lawfully to be begotten, severally and successively, according to their respective seniorities, and the heirs of the body and respective bodies of all and every such sons and son issuing, with divers remainders over: AND WHEREAS at a court held in and for the manor of Dale, in the said county of —, on the ———— day of the trusts of --, the said A. Adams, in pursuance of a covenant for that purpose contained in the said recited indenture of settlement, did surrender all and every the messuages, lands, tenements and hereditaments of him the said A. Adams, holden of the said manor by copy of court roll, with their appurtenances, to the use of the said A. B. and C. D., their heirs and assigns, upon and for such trusts, intents and purposes, and with, under and subject to such powers, provisoes, agreements and declarations as (regard being had to the nature of the said estates, and the tenure by which the same were holden) would nearest or best correspond with the uses, estates, trusts, powers, provisoes, agreements and declarations expressed and contained in the said hereinbefore recited indenture of the 9th of March, 1800, of and concerning the freehold hereditaments thereby released, or expressed and intended so to be, or such and so many of the same, uses, estates, trusts, powers, provisoes and declarations as were then subsisting undetermined and capable of taking effect: And at the same court the said A. B. and C. D. were duly admitted tenants to the said copyhold hereditaments so surrendered to their use as aforesaid, TO HOLD to the said A. B. and C. D. and their heirs, according to the form and effect of the surrender so made to their use as aforesaid, at the will of the lord of the said manor of Dale, by copy of court roll, by the rents and services therefore due and of right accustomed to be paid and perDeath of te- formed: AND WHEREAS the said A. Adams departed this life on nant for life. or about the 1st day of May, 1830, leaving the said B. Adams, his eldest son and heir-at-law, who thereupon became entitled to the hereditaments comprised in the said-recited indentures for an estate of inheritance in tail general, subject to the said annuity or yearly rent-charge of 3001., and the powers, remedies and term for securing the payment of the same: AND WHEREAS the said Anne Adams departed this life on or about the 1st day of October now last past,

Death of J ointress.

sideration.

tees.

and all arrears of the said annuity or yearly rent-charge of 300l. having been paid up to the time of her decease, the term of 200 years created by the said-recited indenture of settlement has, by force of a proviso therein contained, absolutely ceased and determined: AND WHEREAS the said B. Adams has contracted and Contract for agreed with the said [purchaser] for the absolute sale to him of the purchase. fee simple and inheritance of and in the freehold parts of the messuage or tenement, farm, lands, and hereditaments hereinafter described, and of the customary estate of inheritance of and in the copyhold parts of the same hereditaments, free from all incumbrances, at or for the price or sum of 5,000l.: AND UPON the treaty Apportionfor the said purchase it was agreed that the sum of 4,1007. (part of ment of conthe said sum of 5,000l.) should be the apportioned value of the said freehold hereditaments, and that the sum of 9001. (residue of the said sum of 5,000l.) should be the apportioned value of the said copyhold hereditaments: AND WHEREAS the said A. B. departed Death of one this life on or about the 5th day of May, 1832, leaving the said of the trusC. D., his co-trustee, him surviving, and in whom the legal estate in the said copyhold hereditaments is now vested: Now THIS IN- FIRST TESDENTURE WITNESSETH, that in pursuance and part performance of TATUM. the said recited agreement, and for defeating all estates tail of the Conveyance said B. Adams of and in the messuage, farm, lands and heredita- of freeholds. ments hereby granted and released, or expressed and intended so to be, and all remainders, reversions, estates, rights, interests and powers, to take effect after the determination or in defeasance of such estates tail (b), and for extinguishing the dower, right and title of dower, and every other estate and interest of the said Mary Adams of and in the same hereditaments, and for limiting and assuring the same hereditaments and the inheritance thereof in fee simple to the uses hereinafter expressed, and for and in consideration of the sum of 4,100l. of lawful money of Great Britain (part of the said sum of 5,000l., the aforesaid purchase-money) to the said B. Adams in hand well and truly paid by the said [ purchaser] at or immediately before the sealing and delivery of these presents, the receipt of which said sum of 4,100l. in full for the absolute purchase of the freehold parts of the hereditaments hereinafter described, and intended to be hereby granted and released, and the fee simple and inheritance thereof, free from all incumbrances, the said B. Adams doth hereby adinit and acknowledge, and of and from the same and every part thereof doth acquit, release and discharge the said purchaser], his heirs, executors, administrators and assigns, and every of them for ever by these presents: He, the said B. Adams, under and by virtue and in pursuance of the powers and provisions given by and contained in the act of parliament in that case made and provided, doth by these presents,

(b) The intention to bar entails was formerly thus expressed in recovery deeds, and in deeds of covenant to levy fines:" For docking, barring and extinguishing all estates tail, and reversions and remainders thereupon expectant or depending of and in the messuages," &c. The language in the precedent is more conformable to that of the general enabling clause in the 3 & 4 Will. 4, c. 74, s. 15 (ante, p. 323), although it is conceived that the old mode of expressing the intention would be equally effectual.

General words.

Reversion, &c.

All deeds.

made in pursuance of the act passed in the session of parliament held in the fourth and fifth years of the reign of her majesty Queen Victoria, intituled " An Act for rendering a Release as effectual for the Conveyance of Freehold Estates as a Lease and Release by the same Parties" (d), grant, dispose of, alien, release and confirm, and the said Mary Adams, with the concurrence of the said B. Adams, and for the purpose of releasing and extinguishing her right and title of dower in or out of the said messuages, lands and hereditaments hereinafter described, doth by these presents intended to be forthwith duly acknowledged by the said M. Adams, and perfected in other respects with the solemnities prescribed by law for rendering deeds of married women effectual to extinguish their interests in land, doth remise, release and quit claim unto the said [purchaser] and his heirs, [All such part or parts, and so much as is or are freehold, and not copyhold, of and in] (e): All [parcels], together with all and singular houses, outhouses, edifices, buildings, barns, stables, coach-houses, cottages, yards, gardens, orchards, backsides, tofts, lands, meadows, pastures, commons, common of pasture, common of turbary, mines, minerals, quarries, furzes, trees, woods, underwoods, coppices and the ground and soil thereof, mounds, fences, hedges, ditches, ways, waters, watercourses, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances whatsoever to the said messuage, farm, lands, hereditaments and premises belonging or in anywise appertaining, or with the same or any of them respectively now or at any time heretofore demised, leased, held, used, occupied or enjoyed, or accepted, reputed, deemed, taken or known as part, parcel or member of them, or any part of them, or appertaining thereunto, with their and every of their appurtenances. AND the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits of all and singular the messuage, farm, lands and other hereditaments hereinbefore granted and released, or expressed and intended so to be: AND all the estate, right, title, interest, inheritance, use, trust, possession, property, possibility, claim and demand whatsoever, both at law and in equity, of them the said B. Adams and Mary his wife, and each of them, of, in, to, from and out of the same premises, and every part and parcel thereof: [ AND all deeds, evidences and writings relating to or concerning the said messuage, farm, lands, hereditaments and premises, or any of them, solely or together with other hereditaments of less value, now in the custody or power of the said B. Adams, or which he can obtain or procure without suit at law or in equity, together with true and attested copies of all deeds, evidences and writings relating to or concerning the same hereditaments and premises, or any of them, jointly with other hereditaments of equal or greater value; the first set of such copies to be made and delivered at the costs and charges of the said B. Adams, but all future copies to be made, written and taken at the request, costs and

(d) See ante. The words in italics had better remain when it is intended that the deeds shall operate as a release.

(e) Where the freeholds can be clearly identified, the words within brackets should be omitted.

charges of the said [purchaser] (ƒ)]. TO HAVE AND TO HOLD the HABENDUM. said messuage or tenement, farm and lands, and all and singular other the hereditaments and premises hereby granted and released, or expressed and intended so to be, unto the said [ purchaser] and his heirs. [If the purchaser should have been married on or before the 1st January, 1834, or if the time of his marriage is a matter of doubt, it will be advisable to adopt the old limitations to prevent dower; if after that time, the declaration subsequently inserted will be sufficient.] To THE USE of such person or persons, for such estate Old form of or estates, interest or interests, and to and for such uses, intents and limitation to bar dower. purposes, and under and subject to such powers, provisoes, declarations, and agreements, and in such manner and form as he the said [purchaser] by any deed or deeds, instrument or instruments in writing to be sealed and delivered by him in the presence of and attested by two or more credible witnesses, shall from time to time or at any time or times direct, limit or appoint, and in default of

(f) This clause should be omitted where the title deeds are not intended to be delivered to the purchaser. It is an established principle that whoever is entitled to the land has also a right to the title-deeds. (Harrington v. Price, 3 B. & Ad. 170; Hooper v. Ramsbottom, 6 Taunt. 12; Ogle v. Story, 4 B. & Ad. 735; May v. Harvey, 13 East, 197; Parry v. France, 2 Bos. & P. 451; Lord v. Wardle, 3 Bing. N. C. 680.) Where a vendor sells only a part of the estate, and retains the remainder, to which the deeds relate, the purchaser is not entitled to them without an express grant (Yea v. Field, 2 T. R. 708; 2 Pres. Conv. 466); and where lands held under one title are sold to two or more persons in separate parcels, the deeds are usually granted to the purchaser of the largest lot; but in cases where a purchaser cannot obtain the original deeds, he is entitled in the absence of a stipulation to the contrary (Boughton v. Jewell, 17 Ves. 176) to attested copies of all such of them as are not of record. (Campbell v. Campbell, cited Sugd. V. & P. 475, 11th ed.) A purchaser is not entitled as a matter of course to a covenant for the production of all documents contained in the abstract of title, which are not delivered to him, but only of those which are necessary to make out a good sixty years' title. (Cooper v. Emery, 1 Phil. C. C. 388.) The right of a purchaser to a covenant for the production of documents constituting part of his title, does not extend to copies of court rolls or indentures of bargain and sale inrolled, unless they are in the possession or power of the vendor. (Ib.) Although, as observed by Lord Eldon in Dare v. Tucker, 6 Ves. 460, purchasers have set a value upon attested copies which does not belong to them, they are waste paper upon an ejectment, except between the parties themselves. Therefore a purchaser should obtain a covenant from the vendor or the person having the larger portion of the estate to produce the deeds themselves, in order that the purchaser may be enabled to defend his title and possession. (Sudg. V. & P. 477, 11th ed.) But where a purchaser of a small part of an estate took a covenant for the production of the deeds of which he afterwards obtained possession as mortgagee, it was held that the assignee of the mortgage could not recover them where the assignment of the mortgage contained no grant of the deeds. (Yea v. Field, 2 T. R. 708. See Davies v. Vernon, 6 Q. B. 443; Owen v. Knight, 4 Bing. N. C. 54.) In Barclay v. Raine, 1 Sim. & Stu. 449, it was decided that where the vendor had not the custody of the original deeds, but had a covenant for the production of them, that the title was not marketable, because the covenant did not run at law with the land. (See 2 Real Prop. Rep. p. 15-17, and 3 Real Prop. Rep. 56-58, 72, pl. 11.)