PURCHASES. and released, or otherwise assured or intended so to be, with their and every of their rights, members, appendants, and appurtenances, unto the said (tenant to præcipe) and his heirs, to and for the use and behoof of him the said (tenant to præcipe) (1) Estate Tail. Lands lying in different jurisdictions. Tenant for life. (1) If the lands lie within different jurisdictions, as part within the jurisdiction of a county palatine, and part within that of the courts at Westminster, &c. it will be convenient that the lands in each different jurisdiction should be conveyed to a distinct tenant to the præcipe; in which case, instead of conveying the estate to "the use of the tenant to the præcipe, and his heirs," it may be limited to (a third person) and his heirs, "To the uses and for the intents and purposes hereinafter of the said heirs, to the intent that each of them the said , and , may respectively become and be a perfect tenant and perfect tenants of the freehold of the lands, &c. so to him conveyed as aforesaid, and do and shall, as to the said lands, &c. so to him limited as aforesaid, permit and suffer the said (purchaser) to sue forth, and prosecute one or more, &c." as in the text. And if tenant for life join in the assurance, say, "Unto and to the use of the (tenant to præcipe) and his assigns, for and during the joint natural lives of the said (tenant for life), (tenant in tail), and (tenant to præcipe).” The estate is limited during the joint lives of the tenant for life, tenant in tail, and tenant to the præcipe, lest by a conveyance to the tenant to the præcipe and his heirs the estate for life might merge in the fee, and if so the incumbrances affecting the reversion would attach upon it, and the new use limited to the his heirs and assigns for ever. (1). To the in- PURCHASES. tent that he and they may become and be a per Estate Tail. tenant for life be subject to them, but by limiting it during their joint lives, the intervening estate prevents the merger, and yet a sufficient estate of freehold is conveyed to the tenant to the præcipe to support the recovery. And see Edwards v. Slater, Hard. 410, Co. Lit. 203, n. 94. whether tail or life estate. It is sometimes difficult to ascertain whether a devisee takes Where doubtful an estate tail or an estate for life only under the devise to him; in which case, to prevent a forfeiture of the life estate, a previous estate may be conveyed, To a trustee and his heirs during the life of the tenant for life, to the use of the tenant for life and his assigns, during the joint lives of him and the trustee, with remainder to the use of the trustee and his heirs, during the life of tenant for life in trust for him and his assigns. (1) If the reversion is in the tenant in tail himself, and it is in- Reversion in tended to bar the entail by a fine, the remainder of the precedent tenant in tail. as far as the covenants for the title must be omitted, and if a fine has not been previously levied, a covenant to levy it must be inserted, the form of such covenant may be as follows: "And for docking, barring, and destroying the said estate tail, and for conveying and assuring the said messuages, lands, tenements, and hereditaments, unto and to the use of the said (purchaser), and his heirs in fee simple; the said (vendor) for himself, his heirs, executors, and administrators doth hereby covenant and declare, with and to the said (purchaser), his heirs, and assigns, in the manner following, (that is to say) that he the said (vendor) and his heirs shall and will at his and their own proper costs and expense as of term now last past, or of suing, acknowledge and levy unto the said (purchaser) and his heirs, in due form of law, before the justices of his majesty's court of Common Pleas at Westminster, one or more fine or fines, sur conusance de droit come ceo, &c. with pro term now next en PURCHASES. fect tenant or tenants of the freehold of all and singular the same messuages, lands, ténements, Estate Tail. Fine must be with procla mations. Purchase money retained. clamations to be thereupon made according to the form of the statute in such case provided, of all and singular the messuages, lands, tenements, and hereditaments hereinbefore granted and released, or intended so to be, by such names and descriptions respectively as shall be sufficient to comprise and pass the same, and as the counsel in the law of the said (purchaser) shall advise for that purpose. AND it is hereby agreed and declared between and by the said parties hereto, that the said fine, so as aforesaid or in any other manner to be levied of the said messuages, lands, tenements, and hereditaments shall be and enure unto the said (purchaser) and his heirs, to and for the use and behoof of him the said (purchaser), his heirs, and assigns for ever." A fine levied for the purpose of barring estates tail must be with proclamations, according to the statute of 4 Hen. VII. c. 24, as it will otherwise work merely a discontinuance of the estate tail. See 3 Co. 86, a. If it be thought expedient from an apprehension of the decease of the vendor before a recovery can be perfected, that a fine should be levied to the tenant to the præcipe, the preceding covenant should be inserted, and instead of declaring that the fine shall enure to the use of the purchaser, declare that it shall enure, "Unto and to the use of the said (tenant to præcipe), his heirs, and assigns, to the end and intent that by virtue of these presents, and of the said fine sur conusance de droit come ceo, &c. so agreed to be acknowledged and levied by the said (vendor) unto the said (tenant) and his heirs, of the said messuages, &c. as of term now last past, as aforesaid, he the said (tenant) may become," &c. as in the text. If part of the purchase money be retained until the recovery be perfected, or for any other reason, see ante, No. XVI. p. 193, Rider (C). hereditaments, and premises, with their and every of their rights, members, appendants, and appurtenances, in order (1) that one or more good and PURCHASES. Estate Tail. If the original purchaser have parted with his interest in the Sub-purchaser. premises before the conveyance was executed to him, add here a covenant by such original purchaser, that he has not incumbered; the form of such covenant will be found, ante, No. XVI. p. 177. (1) The above form of the agreement for suffering a recovery is, for the reason given in a subsequent note, see post, p. 312, n. (3), the most approved and effectual, and should therefore be used in all purchases of considerable value; but where the purchase is very small, the following more concise form may be used in its stead: recovery. "In order and to the end that one or more common re- Shorter form of covery or recoveries, with double voucher, may forthwith, setting out the at the expense of the said (vendor) be had and suffered of the same premises by proper and sufficient names and descriptions, upon a writ or writs of entry sur disseisin en le post, in which the said (purchaser) shall demand against the said (tenant to præcipe) who shall vouch to warranty the said (vendor) who shall vouch the common vouchee in such manner as is usual in like cases, so that judgment may be given for the said (purchaser) to recover the said messuages, &c. hereby conveyed or intended so to be, against the said (tenant to præcipe) and for the said (tenant) to recover in value against the said (vendor), and for the said (vendor) to recover in value against the common vouchee, and that execution may be awarded, and seisin had, upon such recovery or recoveries, according to the usual course in like cases. And it is hereby directed, declared, and agreed, by and between the parties to these presents, as far as they respectively are interested, that after the recovery or recoveries hereby agreed to be suffered shall be suffered and perfected, the same, and all other recoveries suffered or to be suffered of the same messuages, &c. or any of them, either alone or together with other lands or hereditaments, shall as to and concerning the said messuages, &c. hereinbefore re Estate Tail. Form of recovery. PURCHASES. perfect common recovery or common recoveries, with double voucher (1), may be had and suffered of the same lands and hereditaments. And for that purpose it is hereby declared (2) and agreed, by and between the said parties to these presents, that (3) the said (tenant to the præcipe) shall permit and suffer the said (purchaser) or some other person or persons, at the costs and charges in all things of the said (vendor) his heirs, executors, or admini Voucher. Uses may be declared previously to recovery. Form of recovery. leased, or otherwise conveyed or intended so to be, with the appurtenances, be and enure to the use of the said ( purchaser) his heirs and assigns, for ever." (1) A recovery suffered for the barring an entail should be at least with double voucher, as it will otherwise bar such estates only of which the tenant in tail was actually seised at the time of the recovery suffered, whilst if it be with double or more voucher, it will bar all other estates and interests which he may then have, or ever had in the same lands. See principles of this distinction explained, 4 Elem. Conv. 2d edition, Bk. iii. par. 4, c. 2. (2) A declaration of the uses of a recovery previously to its being suffered, has been determined to be valid, see Countess of Rutland's case, 5 Co. 42, for although the declaration, being but directory, does not bind the estate or interest in the land, yet if the recovery be pursuant to the deed it cannot be averred that it was to other uses, and see Jones v. Morley, 1 Lord Raymond, 287, 2 Mod. 159, Downman's Ca. 9 Co. 7. (3) It is usual to set out the form and manner in which the recovery is intended to be suffered, in order that the deed may be given in evidence, under the 14 Geo. II. c. 20. to substantiate the recovery, in case of its being neglected to be duly entered on record; but where, on account of the smallness of the purchase or other cause, it is considered to be an object to save the additional expense which setting forth the mode of suffering the recovery at so great a length may occasion, this form may be omitted, and a shorter one subjoined, see ante, p. 31, n. (1), be substituted in its room. |