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by the said warrant of attorney secured as aforesaid, be desirous of
repurchasing the same annuity, and of such his desire shall give
three calendar months' notice in writing to the said (grantee), his
executors, administrators or assigns, and shall at the expiration of
the said notice well and truly pay, or cause to be paid unto the said
(grantee), his executors, administrators or assigns, the sum of
L
of lawful money of Great Britain, as the consideration
for such repurchase, or in lieu of such notice, shall well and truly
pay or cause to be paid unto the said (grantee), his executors, ad-
ministrators or assigns, the amount of one quarterly payment, at the
consideration of the same annuity, in addition to the sum of £
as the consideration for such repurchase, together with all arrears of
the said annuity then due, including a proportionate part of the
growing payment thereof computed to the time of such repurchase;
and also do and shall pay, satisfy and reimburse all such costs,
charges and expenses as shall or may have been incurred or sus-
tained by reason or in consequence of any default in payment of the
same annuity, or in or about the exercise or execution of all or any of
the trusts, powers and authorities hereby declared and created for
securing and enforcing the payment and recovery thereof, then and
in that case the said (grantee), his executors, administrators and
assigns, shall and will accept and take the said sum or sums of
L
as and in full for the price or consideration of such re-
purchase of the said annuity or yearly sum of £
hereby
and by the said warrant of attorney secured as aforesaid, and there-
upon the same annuity and the covenants hereinbefore contained,
and the several trusts, powers and authorities hereby declared and
created for securing the payment thereof, and all other securities for
the same annuity, shall respectively thenceforth cease and deter-
mine; and the said (grantee), his executors, administrators or as-
signs shall thereupon, at the request and expense of the said (gran-
tor), acknowledge satisfaction on the record of the judgment to be
entered up under the said recited warrant of attorney, anything
hereinbefore contained to the contrary thereof in anywise notwith-
standing. IN WITNESS, &c.

CHARGE.

Annuity.

CHARGE.

Annuity.

Opinions on the

above case.

Rider (A).

Opinions on the preceding Precedent.

After the preceding charge had been made under the opinion of a gentleman at the bar, a question arose as to its validity by reason of the clause of forfeiture annexed to the bequest in the will on alienation (see ante, p. 257.) ; upon which the following opinions were given on an application by the grantor for obtaining a further sum upon the premises.

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The opinion of Mr. B.

I am of opinion Mr. cannot make a satisfactory title. The case of Doe v. Hawke, 2 Anst. 481, seems to be an authority to support a conditional limitation, like the present of a leasehold; and I infer from the case of Brandon v. Robinson, 18 Ves. 429, that where there is a gift over in abridgement of the estate first given, that may take effect, on breach of a condition against alienation. I would not, however, be understood to give a positive opinion on the subject; and see Mr. Butler's note in his edition of Fearne, p. 249. But if the question be doubtful, a mortgagee, who ought not to incur any risque, cannot be advised to accept the title.

Lincoln's Inn, Jan. 7, 1824.

The opinion of Mr. H

Two questions arise out of P. D.'s Will.

1. Whether the condition, in restraint of alienation, is valid in law; and if so,

2. Whether what is proposed to be done would be a breach of it.

I think this too doubtful a case for a prudent party to act upon. According to the letter of the text in Co. Litt. 223. a. the condition is bad; but I question whether the passage is not to be understood of an indefinite restraint of alienation, as it is elsewhere settled, that alienation may be restrained for a certain period, 2 Leon. 38 and 82. 3 Leon. 182; which is a ground for holding the condition in this case valid, because it imposes not a general and unlimited restraint on alienation, but one which is circumscribed in duration to the life of the first devisee, and it is within the limits allowed for executory devises.

If that be not so, I think that a charge of an annuity on the property would be a disposing of it within the words of the condition, and consequently a breach which would defeat the annuitant's title; 2 Leon. 82. 3 Leon. 182; and if not, that it would be a very unsafe security, and it would be no protection against an execution at the instance of a judgment creditor, who might seize the lease and sell it over the head of the grantee of the annuity.

Lincoln's Inn, 23 Jan. 1824.

CHARGE.

Annuity.

Opinion of the present Editor.

I have perused the will of Mr. P. D., the draft of annuity deed granted to Mr. R., and the opinion of Mr. B. and Mr. H. thereupon; I could have wished to have had an opportunity of perusing the opinion I formerly gave upon Mr. D.'s will, that I might have examined the authorities in support of it, which in my present state of illness I am not able to search for.

The validity of the annuity resolves itself into three points, first, generally, whether a charge upon premises can be construed into a disposal of them; secondly, if it can, whether the particular deed in question be simply a charge or an alienation of them; and thirdly (which indeed might have been first considered), whether the condition in the will be in itself good or not.

1. Upon the first of these points I am clearly of opinion, that a mere charge of lands, according to the received legal as well as common acceptation of words, cannot be interpreted to mean a disposal of themthat a mortgage of the premises would have been a disposal of them, I entirely agree with Mr. B., because a mortgage is a conveyance and actual parting with the premises to the mortgagee, subject only to a reclaimer on certain conditions; but a charge upon is not a conveyance or parting with the premises, but only the imposition of a burthen upon them in the hands of the person changing; a charge, necessarily, implying the thing charged to remain in the possession of the person by whom the charge is made; and even supposing that a charge upon lands could be construed to operate as a transfer of them, yet the transferree would (subject only to the charge) be a trustee for the person charging, and the beneficial and substantial ownership still remain in him.

2. On the second point I am equally clear, that the annuity deed from Mr. P. H. D. to Mr. R., can operate as a charge only, and not a disposal of the premises bequeathed to him. This deed, after reciting the will of the testator, and particularly noticing the clause of forfeiture (by which it evidently appears that he did not intend to commit an act of forfeiture), states it to be the agreement of the parties that a fund should be raised

CHARGE.
Annuity.

for securing the annuity by means of the premises, if default should be made personally by the grantor; that the premises should be chargeable, not absolutely and at all events but as a collateral and further security, only in case the other should fail. The purchase money for the annuity is moreover declared to be, as to a considerable part, for the purpose of putting the premises in repair. The deed then proceeds to declare that the premises shall stand, remain, and be a security for, and chargeable with, the arrears of the annuity during its continuance ; then follows the usual power of distress; but it is observable that there is no demise or parting with the premises to a trustee or otherwise, as in the common case of annuity deeds, nor is there even any power for the grantee to enter and receive the rents of the premises, should the annuity be in arrear: in what respect then can the premises be said to parted with or disposed of?

3. On the third and last point I am strongly disposed to think, that the condition annexed to the bequest in Mr. D.'s will, is in itself wholly void, for per Lit. sec. 360. "if a feoffment be made upon this condition that the feoffor shall not alien to any, this condition is void," and Lord Coke, in his commentary upon this section, adds, "and so if a man be possessed of premises for years, or of a horse or any other chattel real or personal, and give or sell his whole property therein. upon condition that the donee or vendee shall not alien the same, the condition is void;" neither of which positions has lord Nottingham, or either of the later learned editors of those commentaries, attempted to controvert: I must therefore repeat the opinion I have before given, that no forfeiture has been incurred by Mr. D. of the premises bequeathed to him, and that the annuity granted to Mr. R. is well secured upon them. Lincoln's Inn, Feb. 3, 1824.

N.B. The question was afterwards referred to one of the Masters in Chancery, on a bill filed against the annuitant, and the Master reported his opinion to be that no forfeiture had been incurred, and consequently that Mr. D. was enabled to make a good title to a new grantee; which opinion was acquiesced in.

No. CCLXXVIII.

*A Charge by Churchwardens upon the Church Rates, of a sum borrowed for Building a Chapel or Church (1).

WHEREAS his Majesty's commissioners for building new churches, acting under the authority of and in pursuance of the provisions contained in the several acts passed for the building and promoting the building of churches in populous parishes, or A. B. of

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and C. D. of
have [recite shortly the loan and circum-
stances, and terms, &c.] WE THEREFORE or I A. B.

,

being
of the church [or chapel] wardens of [describe them],
Do by these presents charge the said [describe the place or parish]
with the said sum of £
and with the re-payment thereof
according to the terms and conditions above stated; and do hereby,
in pursuance of the provisions of the said acts, or some or one of
them, declare that the said sum of £
is and shall continue

to be chargeable and charged upon the church [or chapel] rates now
raised or hereafter to be raised in the [parish, &c.] until the said
sum of £
together with the interest, is fully re-paid ac-

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cording to the terms and conditions above set forth. WITNESS,

&c.

CHARGE.

Church Rates

(building church).

(1) By stat. 3 Geo. 4. c. 72. (sect. 5.) sums lent in pursuance of that 3 Geo. 4. c. 72. act for the building of any church or chapel shall be chargeable upon the church rates of the parish or place, or upon rates to be created for that purpose; and the church or chapel wardens of such parish or place are authorised and required to declare every such loan to be chargeable and charged thereupon, by any instrument to the effect of that above given, or as near thereto as the nature of the case will admit or the circumstance of the case shall require.

It is declared by the act of 3 Geo. 4. c. 72. that "no deed of gift No stamp. or grant, security, contract, agreement, deed, conveyance, or other in

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