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effecting the sale or sales as afd And in the next Terms. place do and shall pay or reimburse himself the sd sum of £ — with int for the same as in the covenant hereinafter is mentd and expssd And after paymt thof then in trust to pay and make over the residue and surplus (if any) unto the sd (assignor) his exs ads and ass And it is hby decld and agrd by and betn J^ssTM"^'l. the pties to these prests that for the purpe of carrying assignor. into exon the trust afd it shall be lful for the sd (assignee) to make do and exte all contracts agrts acts Contracts matters and things as shall be necessy without any furr au.l1 re" ,
ccii)ts to uo
consent or concurrence of the sd (assignor) And that the rects of the sd (assignee) his exs, &c. for all and evy sum and sums of money which shall be pd and paye for the sd crops by virtue of these prests shall be valid and sufficient dischas to the psn or psns paying the same And furr it is hby decld and agrd that no Not anneglect or deft shall be imputable to the (assignee) his f"TM^., exs ads or ass for not proceeding to the sale of the sd trust preses unless he or they shall be required so to do by some writing under the hand of the sd (assignor) his exs, &c. and that the sd (assignee) his exs, &c. shall not be answe for any loss or damage which may happen to the sd crops or the sevl pieces of ld whereon they shall be growing unless occasioned by his or their wilful deft and that he and they shall be resply answe for such sum or sums of money only as he or they shall actually rece And the sd (assignor) for himself and his hrs exs Covenant and ads doth hby covt, &c. with the sd (assignee) his to Wi &cexs ads and ass that he the sd (assignor) his hrs, &c. shall and will well and truly pay unto the sd (assignee) his exs, &c. on or before the day of next ensuing the sd sum of £ — and int And shall and will well and truly pay and discharge all taxes rates tithes and chas now due or which shall hraftr become due and paye for or in respect of the sevl pieces of ld whereon the sd crops of corn hby assd or intended so to be arc now growing or for or in respect of the tillage or management of the same crops.
Assignment of Terms.
Obs. 1. Terms are assigned to attend the inheritance by way of Assignment protection to a purchaser against mesne incumbrances. But iu of terms a order to entitle a purchaser to this protection, he must he a pur- protection. chaser for valuable consideration, not affected with any fraud or collusion. Willoughby v. WMmighby. 1 T. R. 763; But. Co. Lit. 21i0 b. u. 1, 3, 5. In this case a mortgagee or a lessee is a purchaser pro tanlo. The term which is to afford such protection must be a legal, not an equitable term. In courts of equity all incumbrancers have equal claims, and he who succeeds
Terms. 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 seeond mortgagee may obtain a preference over a first mortgagee.
Against 3 Prest. Conv. 461. Soch a term will serve as a protection against what all estates, charges, and incumbrances created, intermediate be
incuin- tween the raising of the term and the purchase or mortgage, but brances. not against such as may exist prior to the term, nor against crown
debts. Sngd. V. and P. 448, 8th ed. 3 Prest. Convey. 465. Merger- 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 it extinct, and merged in the inheritance. And also where a man has a term of years in his own right, as beneficial owner, and a freehold in outer droit, as in right of his wife, or as executor or trustee, it has been held that the term is extinct, Wtbh v. Ru^ell, 3 T. K. 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, 8tb ed. So likewise if a man have a freehold in his own right, and a term in outer droit, the term is not extinct. Plowd. 417; 3 Inst. 338; 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. 9Ves. 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. By a sepa- 3. Terms should be generally assigned by a separate deed, as it rate deed. is frequently inconvenient to have the existence of terms disclosed
in the deed conveying the inheritance. A term 4. It was formerly supposed that a term once assigned to at
once as- tend the inheritance, would always attend, 3 Prest. Con. 462, and signed must that a declaration of a trust of terms would supersede the necessity be assigned of an actual assignment; but it seems now to be the general opiagain. nion of the profession, that a prudent purchaser can scarcely ever
dispense with such an assignment. Sugd. V. and 1'. 405, 8th edit. What deeds 5. If a term have been once assigned to attend the inheritance, to be re- it is not necessary to recite all the instruments affecting the fee cited. 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.
How seve- 6. Where several terms are to be assigned, it bas been rccomral terms mended to have two trustees, and to assign to each of them two oustht to be or more of the terms in alternate succession, to prevent the possiassigned. bility of merger. 3 Prest. Conv. 204. As to assignments of terms by a husband, see subaequent precedents.
Assignment of a Term to attend the Inheritance
Obs. 1. As to the effect of such an assignment, see obs. 1.
This Indre made, &c. Betn (vendor) of, &c. of th« Terms. 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 and (mortgagee) also therein described of the or. pt the sd (mortgagor) Did grant bargain and sell unto the sd (mortgagee) All that pee or pel 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 pee or pel 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 day of 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 pee or pel 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 tcrmthe 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 t0 with these prests and grounded upon a lease for a year Purchaserdated the day next before the day of the date thof and which rele is made or expssd to be made betn, &c. the sd pee or pel 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 hnaf'tr decld Now this Indre Witnesseth That in conson of 5s. of, &c.
(a) SeeObs. 5.
(4) If the terra 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 decld and since performed and satisfied.' See Obs. 5.
to the sd (termor) in hand, &c. by the sd (trustee) at,
Assignment of a Term by Indorsement, to secure Mortgage
This Indre, &c. Betn the within-named (termor) of the first pt (mortgagor) of the second pt (mortgagee) of Recital of the third pt and (trustee) of, &c. of the fourth pt Whas loao. 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 6/. per cent. per annum on the day of now 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 Testatum- 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
No act to incumber.
for the sd (mortgagor) his exs, &c. to be assd and dis- Terms. posed 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.
This lndre 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 fVhas (recite the deed creating the term) Recitals. And w has (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 Habendum. 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 A B 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 tQc two and ass shall direct and appt and in the mean time, &c. P(lrchas,;r!'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 C D his hre, &c. and ass, &c. as above And the sd (termor) doth, &c. (covenant that he hath done no act to incumber.) In Witness, &c.