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Terms.

Against what incumbrances.

Merger.

By a sepa rate deed.

A term once as

signed must be assigned again.

What deeds to be recited.

How several terms

ought to be assigned.

in gaining the legal estate, will be left to derive all the benefit of that title in a court of law, and thus by obtaining the legal estate, a second mortgagee may obtain a preference over a first mortgagee. 3 Prest. Conv. 461. Such a term will serve as a protection against all estates, charges, and incumbrances created, intermediate between the raising of the term and the purchase or mortgage, but not against such as may exist prior to the term, nor against crown debts. Sugd. V. and P. 448, 8th ed. 3 Prest. Convey. 465.

2. Another important point of consideration in regard to terms arises from the doctrine of merger. Where a term of years and the inheritance meet in one person in the same right, the term is extinct, and merged in the inheritance. And also where a inan has a term of years in his own right, as beneficial owner, and a freehold in auter droit, as in right of his wife, or as executor or trustee, it has been held that the term is extinct, Webb v. Russell, 3 T. R. 393; 9 E. 372; but if in a case like this the union arises not by act of the party, but by acts of law, it has been decided, although not without opposition, that the term will not merge. Sugd. V. and P. 399, 8th ed. So likewise if a man have a freehold in his own right, and a term in auter droit, the term is not extinct. Plowd. 417; 3 Inst. 358; Sugd. ub. sup. So where the legal estate in the term, and the equitable estate in the inheritance, are vested in the same person, the term will not merge. 9 Ves. 509. It was formerly held, that a term for years could not merge in a term, but the contrary seems now to be the settled opinion. 3 Prest. Conv. 195, et seq. Merger is not favoured in equity. If therefore a term is merged at law, it will, notwithstanding, be revived in equity, provided that such revival shall appear to be most likely to promote the intentions of the parties.

3. Terms should be generally assigned by a separate deed, as it is frequently inconvenient to have the existence of terms disclosed in the deed conveying the inheritance.

4. It was formerly supposed that a term once assigned to attend the inheritance, would always attend, 3 Prest. Con. 462, and that a declaration of a trust of terms would supersede the necessity of an actual assignment; but it seems now to be the general opinion of the profession, that a prudent purchaser can scarcely ever dispense with such an assignment. Sugd. V. and P. 405, 8th edit.

5. If a term have been once assigned to attend the inheritance, it is not necessary to recite all the instruments affecting the fee from the time the term was created to the date of the deed of assignment, but only to recite the deed creating the term, the deed of conveyance by which the fee became vested in the person requiring the assignment, and the deed of assignment by which the term became vested in the trustee, after which the conveyance to the purchaser, or any other instruments affecting the fee subsequent to the assignment, ought to be recited. Sugd. V. and P. 457, 8th ed.

6. Where several terms are to be assigned, it has been recommended to have two trustees, and to assign to each of them two or more of the terms in alternate succession, to prevent the possibility of merger. 3 Prest. Conv. 204. As to assignments of terms by a husband, see subsequent precedents.

Assignment of a Term to attend the Inheritance
for a Purchaser.

Obs. 1. As to the effect of such an assignment, see obs. 1.
2. As to the stamp, see Pref. § 4.

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day of

Terms.

This Indre made, &c. Betn (vendor) of, &c. of the first pt (termor) of, &c. of the second pt (purchaser) of, &c. of the third pt and (trustee) a trustee named by and on behalf of the sd (P) of the fourth pt Whas (a) by indres bearing date the and days of resply and made betn (mortgagor) therein described of the one pt ard (mortgagee) also therein described of the or. pt the sd (mortgagor) Did grant bargain and sell unto the sd (mortgagee) All that pce or pcl of grd, &c. To Hold the same unto the sd (mortgagee) his exs, &c. from the day of next before the day of the date thereof for the term of 99 years subject nevss to the proviso or condon therein contd for redemption of the same pce or pcl of grd on paymt by the sd (mortgagor) his exs, &c. unto the sd (mortgagee) his exs, &c. of the sum of £ and int on the then next And whas deft was made in paymt of the sd sum of £ and int on the day apptd for paymt thof by the sd recited indre whby the este and int of the sd (mortgagee) became absolute at law (b) And whas by divers mesne assnmts and assurs in the law parlarly by an indre of assnmt bearing date the day of the pce or pcl of grd was assd to or became vested in the sd (termor) Assignment for the rest and residue of the sd term of yrs In to trustee Trust nevss for the sd (V) his hrs and ass and to attend of term. the inhance of the sd preses which preses had been conveyed or orwise assured unto and to the use of the sd (V) his hrs and ass by certain indres of lease and rele dated, &c. and made betn, &c. And whas under and Of conveyby virtue of a certain indre of rele bearing even date ance to purchaser. with these prests and grounded upon a lease for a year dated the day next before the day of the date thof and which rele is made or expssd to be made betn, &c. the sd pce or pcl of grd and preses comprised in the sd term of yrs as afd have for the conson thin mentd been granted released and conveyed or orwise assured unto and to the use of the sd (P) his hrs apptees and ass as thin mentd And whas upon the treaty for the sd purchase it was agrd that the sd term of yrs shd be assd to the sd (trustee) upon the trusts hnaftr decld Now this Indre Witnesseth That in conson of 5s. of, &c.

(a) See Obs. 5.

(b) If the term was created for securing the payment of an annuity, recite grant of annuity; if for raising portions, recite settlement; or if it be an assignment of a satisfied term, instead of this recital, add to the former recital, And that the principal and int due thereon had been long since pd off and discharged.' Or if the term was created by some settlement or deed of trust, then add to the recital of the settlement, Upon certain trusts thin decid and since performed and satisfied.' See Obs. 5.

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Terms.

No act to incumber.

Recital of loan.

Testatum.

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to the sd (termor) in hand, &c. by the sd (trustee) at,
&c. He the sd (termor) at the request and by the de-
sire of the sd (V) and at the nomination of the sd (P)
testified by their severally joining in and exting these
prests Hath bargained, &c. All that, &c. and all the
este, &c.
To Have, &c. unto the sd (trustee) his exs,
&c. for and during the residue and remr of the sd term to
attend the reversion freehd and inhance of the sd heredts
and preses intended to be hby assigned in order that the
same may be as a protection thof from all chas and
incumbrances if any such there are And the sd (termor)
for himself, &c. (covt that he has done no act to incum-
ber) In Witness, &c.

Assignment of a Term by Indorsement, to secure Mortgage
Money, and subject thereto to attend the Inheritance.

day of

now

This Indre, &c. Betn the within-named (termor) of the first pt (mortgagor) of the second pt (mortgagee) of the third pt and (trustee) of, &c. of the fourth pt Whas the sd (mortgagee) hath agrd with the sd (mortgagor) to advance to the sd (mortgagor) the sum of £ - upon the secty of (among other heredts) the tithes comprised in and expssd to be assigned by the within-written indre And by indres of lease and rele the lease bearing date the day before the rele and the rele even date with these presents and made betn the sd (mortgagor) of the one pt and the sd (mortgagee) of the or. pt the same tithes are with or. heredts assured unto and to the use of the sd (mortgagee) his exs, &c. for securing to him paymt of the sd sum of £ with int for the same after the rate of 51. per cent. per annum on the next ensuing And whas upon the treaty for the loan of the sd sum of £ it was agrd that the within mentd term of yrs shd so far as the same concerns the tithes expssd to be assigned by the within-written indre be assigned unto the sd (trustee) upon the trusts hnaftr decld Now, &c. in conson, &c. hath bargained, &c. the tithes and heredts comprised in and expssd to be assigned by the within-written indre And all the este, &c. To Have, &c. the sd preses hby assd, &c. unto the sd (trustee) his exs, &c. henceforth for and during all the residue, &c. Upon the trusts and for the intents and purps following that is to say Upon Trust in the first place for the furr better and more effectually securing unto the sd (mortgagee) his exs, &c. payment of the sd sum of £ and int at the times and in manner mentd and appted for paymt thof by the sd in pt recited indre of rele And from and after paymt thof In trust

for the sd (mortgagor) his exs, &c. to be assd and disposed as he or they shall direct or appt And in the mean time to attend the inheritance, &c. And the sd (termor) doth, &c. (covenant as in the last precedent.) In Witness, &c.

Assignment of a Term to a Trustee for several Purchasers of an Estate sold in Parcels.

Terms.

This Indre made, &c. Betn (termor) of, &c. of the first pt (vendor) of, &c. of the second pt A B of, &c. and C D of, &c. of the third pt and (trustee) of, &c. named by and on behalf of the sd A B and C D of the fourth pt Whas (recite the deed creating the term) Recitals. And whas (recite the mesne assignments as in the first precedent) And whas the sevl messes or tents lds and heredts comprised in the hnbefe in pt recited indre of release were put up to sale by public auction And whas the sd A B and C D became purchasers at the sd sale of the lots marked And whas it hath been agrd betn the sd A B and C D and the sd (vendor) that the sd sevl messes, &c. comprised in the sd hnbefe in pt recited indre of release shall be assd to the sd (trustee) for all the residue of the sd term in the manner and upon the trusts hnafter mentd Now this Indre Wit- Testatum. nesseth That in pursuance of, &c. and in conson of, &c. to the sd (termor) by the sd (trustee) in hand, &c. pd He the sd (trustee) at the request, &c. of the sd (V) and at the nomination of the sd (purchasers) testified by their sevly being pties to and signing these prests Hath bargained, &c. and the sd (V) Hath granted, bargained sold ratified and confirmed and by, &c. doth, &c. All those the sd messes, &c. and all and singr or. the preses comprised in the sd term of yrs And all the este, &c. of him the sd (termor) of, &c. in, &c. To Have, &c. the sd messes, &c. unto the sd (trustee) his exs, &c. Nevertheless upon the trusts and to the intents and for the purps hnaftr mentd that is to say As to all those, &c. (give the parcels of A B's purchase) being so much of the sd preses as were purchased by the sd AB In trust for him the sd A B his hrs and ass and In trust for to be conveyed and disposed of as the sd A B his hrs the two and ass shall direct and appt and in the mean time, &c. purchasers. And as to all those (describing the parcels of C D's purchase) being such or. pt or pts of the sd preses as were purchased by the sd C D In trust for him the sd CD his hrs, &c. and ass, &c. as above And the sd (termor) doth, &c. (covenant that he hath done no act to incumber.) In Witness, &c.

Habendum.

Terms.

Recitals.

Testatum.

Further testatum.

Assignment of several Terms.

Obs. As to the assignment of several terms, see Assignments of Terms, Obs. 6.

This Indre, &c. Betn (termors of the several terms) of the first second third and fourth pts (vendor) of the fifth pt (purchaser) of, &c. of the sixth pt (trustee of the first and third terms) of the seventh pt and (trustee of the second and fourth terms) of the eighth pt Whas (recite the terms according to their priority and creation, shewing the several deeds by which they became vested in the several termors, as in the first precedent) And whas, &c. (recite the purchase deed from the vendor which comprises the premises intended to be hereby assigned) And whas upon the treaty, &c. (see first precedent) Now, &c. in conson, &c. He the sd (termor of the first term) Hath bargained, &c. unto the sd (trustee) his, &c. All and singr the lds, &c. comprised in the sd term of yrs created, &c. and now vested in the sd (termor) Habendum. for the residue of the same term in trust as afd To Have, &c. the sd, &c. unto the sd (trustee) his, &c. for the residue, &c. but upon the trusts hnaftr decld and contd And this Indre furr Witnesseth, &c. (here assign the second term of yrs in the same manner to the second trustee, then with another witnessing part assign the third term to the first trustee, and then by a fourth witnessing part in like manner the fourth term to the second trustee) And it is hby decld and agrd by and betn the pties hereto that the sd (trustee of the first and third terms) his exs, &c. shall stand possessed of and interested in the lds, &c. hby assd or intended so to be and evy pt thof for the respive residues of the sd terms of yrs and yrs And the sd (trustee of the second and fourth terms) his exs, &c. shall stand, &c. in the lds, &c. for the respive residues of the sd terms of yrs and yrs Upon the trusts, &c. And the sd (termor of the first term) doth hby for himself, &c. as to and conthe several cerning his own acts deeds and defts and in respect only of the sd term of yrs and the preses therein comprised And the sd (termor of the second term) doth, &c. as to, &c. and in respect only of the sd term of yrs, &c. And the sd (termor of the third term) doth, &c. (as before in respect of his term only) And the sd (termor of the fourth term) doth, &c. (as before in respect of his term only) That they the sd (termors) have (done no act to incumber) In Witness, &c.

Declaration of trusts.

No act to incumber

terms.

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