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third and fourth yr of his Maj. William the Fourth Convey
entitled 'An Act for the Abolition, &c.' (see last prece- ance of
dent) Hath bargained sold ordered and disposed of Leasv
and by these prests to the extent of the power vested holds.
in him as such commissioner as afd Doth bargain sell
order and dispose of and the sd (O A) and (G A) and
(B) Have and each and evy of them so far as he
Ifully can or may Hath granted bargained sold and
confirmed unto the sd (P) his hrs and ass for ever All
that undivided fourth pt or share now or late of him
the sd (B) of or in all those, &c. and of and in all
houses, &c. (see Release) And all the este, &c. now or
late of him the sd (B) of in to or out of that undivided
fourth pt or share of the sd heredts hby bargd and sold
and of and in evy pt and pel of the same fourth pt
To Have and to Hold the sd undivided fourth pt of and Habendum.
in the sd heredts and all and singr or. the preses hby
bargained and sold and of and in evy pt and pel of the
same fourth pt with the apts unto and to the use of the
sd (P) his hrs and ass for ever (a) To the intent that
the sd (P) as the purchaser thereof or his hrs may be
admitted tenant thof at the will of the lord of the sd
manor and by and under the rents suits and services
therefore due and of right accustomed to be pd done
and performed And the sd (C) (0 A) and (G A) for
themselves, &c. (covenant that they have done no act
to encumber) And the sd (C) (0 A) (G A) and (fl) for
themselves, &c. (covenants for title, as in last precedent)
In Witness, &c.
Assignment of a Leasehold by Assignees of a Bankrupt, and the Bankrupt to a Mortgagee (by Indorsement.)
Obs. 1. The 49 G. III. c. 121, s. 19, discharges the bankrupt from the payment of rent and performance of the covenants of a lease which has been accepted by the assignees, and if they decline, the bankrupt may, by 6 G. IV. c. 16, s. 75, discharge himself by delivering up the lease to the lessor.
2. Assignees may abandon that portion of the bankrupt's Assignees effects which the law calls a damnuia horreditas, an interest pro- ma>' reject ducing nothing to the bankrupt's estate, per Lord Kenyan, in tne llankIStMTdUUm v. Dalton, 1 Esp. 233. But if they shall not elect, the rupt's es - Lord Chancellor may, by the 6 G. IV. c. 16, s. 76, upon petition, tateorder them to make their election ; and in Ex parte Scull, 1 Rose, 446, the Lord Chancellor allowed the assignees ten days to consider what would be most beneficial for the creditors. If the assignees do any act manifesting an intention to adopt the property, they will be liable to the covenants in the lease, Welch v. Myers, 4 Campb. 368; Thomas v. I'emberton, 7 Taunt. 206; Hanson vStevenson, 1 B. and A. 303.
(li) As to the declaration to bar dower, sec Release.
3. Assignees may assign without the consent of the lessor, although the bankrupt is restrained by his covenant from assigning, because they are assigns at law, and not by the act of the party, Goodbthert v. Bevan, 3 M. and S. 353. On the same principle, assignees may discharge themselves of their liability, by assigning to another person, although he may be a pauper or have left the country, Taylor v. Shum, 1 B. and P. 21; Oiulowv. Corrie, 2 Madd. 330. For this reason it has been held, that they cannot require an indemnity from the purchaser, Wilkin s v. Fry, 1 Mer. 244, S. C. 2 Rose, 370.
This Indre made, kc. Betn (official assignee) of, Sec. the official assignee of the estate and effects of (bankrupt) of, &c. appted by the commissioner acting under a fiat of bankruptcy issued against the sd (bankrupt) on the day of of the first pt (general assignees) of, &c. assignees of the, &c. duly choseii at a meeting of the creditors of the sd (B) on the day of last past of the second pt the sd (B) of the third pt and (mortgagee) of, &c. of the fourth pt Whas the sum of £ — secured to the sd (mortgagee) by the withinwritten indre is still due and owing with int And whas at the time and date of suing for the sd fiat agst the sd (bankrupt) he the sd (B) was also indebted to him the sd (M) in the sum of £ — for, &c. And Xdiuis the sd (M) has called upon the sd (A) for the principal mos and int due to him on the secty of the leasehold preses assd to him by the within-written indre And the sd
(A) have had u conference and meeting with the sd
(B) and his creditors on the steps to be taken by the sd (A) and it has been concluded and agrd by the sd (B) and his creditors of the one pt and the sd (M) of the or. pt that an assignment and rele shall be given to the sd (M) of the equity of redemption of the sd mortgd preses And that the same shall be a discharge of the sd mtge money And the sd (M) doth hby agree to accept the same in discharge and full satisfaction of the principal mos and int due to him upon his sd secty And also of all right to any divds out of or upon the produce of the estate and effects of the sd (B) for or in respect of the sd debt of £ — And the sd (B) hath agrd to join in such assnment and rele as afd
Testatum. None this Indre Witnesseth That in pursuance and performance of the sd agrt on the pt of the sd (A) and (B) and in conson satisfaction and discharge of the money due to the sd (M) And also in conson of the sum of 10s. of, &c. to each of them the sd (A) and (B) resply, &c. pd by the sd (M) the rect, &c. They the sd (A) Have and each of them Hath bargd sold and assd and by these prests Do and each of them Doth bargain, &c. and the sd (B) Hath granted bargd sold assigned remised released and confirmed Aud by, &c.
Conveyance of Leaseholds.
Assignments by assignees.
Doth grant, &c. unto the sd (M) All those the pees or Letter of pels of ground which by the within indre were resply Attorney. assd or orwise assured by the sd (B) to the sd (A/) And all the este of them the sd (A) as assignees under the sd fiat of bankruptcy and the sd (B) and (M) resply of in to and out of the sd preses Togr with the withinwritten indres of lease and assnmt To Have and to Habendum. Hold to the sd (M) the sd pees or pels of ground and all and singr or. the preses hby assd or intended so to be and evy pt thof with their and evy of their respive rights members and apts unto the sd (M) his exs ads and ass henceforth for and during all the residue and remr of the sd term of yrs in and by the withinwritten indre of assnmt assd to the sd (M) freed and absolutely discharged of and from the proviso or agrt for redemption or orwise But subject nevss to the paymt of the yrly rent and taxes and to the performance of the covts and agrts which under or by virtue of the within-written indre of lease or any counterpt of the same are to be pd done performed and kept by and on the pt of the lessee therein-named his exs, &c. And Covenants. the sd (A) for themselves sevly and resply and for their sevl and respive hrs exs, &c. do and each of them doth covt, &c. with the sd (M) that they, &c. [have done no act to encumber, also covenants for title, see Assignments (a) ] In Witness, &c.
Letter of Attorney from the Assignees to empower Another to receive the Rents of a Bankrupt's Estate.
Know all men by these prests That we A B of, &c. and C D of, &c. assignees of the este and effects of E F of, &c. a bankrupt Have made ordained constituted and appted and by, &c. Do make, &c. G H of, &c. our true and lful atty for us and in our names to rece from A L and N D, &c. of afd all such rents and arrears of rent which now are or shall hraftr grow due and paye from them the sd A L, N D, &c. resply for the sevl lds messes and tents they are in posson oi" at afd in the sd co. of late the este of the sd E F or any future tenant of the sd preses or of any pt thof and upon rect thof or of any pt thof for us and in our names sufficient discharges to give for the same but in deft of paymt thof the sd sevl lds to enter and to distrain for the sd rents and the distresses there found to dispose of according to law as the sd G H shall think most proper for the recovery thof they the sd A B and C D allowing and hby ratifying and confirming all and whatsr the sd
(n) As to the omission of the other covenants usually inserted in such assignments, see Obs. 1, 2, 3.
Release. G H shall lfully act and do in and about the preses by virtue of these prests In Witness, &c.
Letter of Attorney to receive the statutable Allowance of a Bankrupt.
Obs. There must be an affidavit of this letter of attorney.
Know all men by these prests That I (bankrupt) of, &c. Have made, &c. and by, &c. do make, &c. (attorney) of, &c. my true, &c. for me, &c. to ask demand and rece of and from the Accountant-General of the Ct of Ch. [or, in country bankruptcies, 'of and from the assignees of the este and effects of me the sd (B)' ] all and evy such sum and sums of money as now is or are or which shall hraftr become due and paye to me the sd (B) for all or any allowance or allowances I may be entitled to out of the net produce of my sd este or effects as a certificated bankrupt and on paymt of the sd mos or any of them or any pt thof for me and in my name to sign seal and deliver all and evy such good and sufficient rects and discharges to the sd AccountantGeneral [or, 'the sd assignees'] as shall and may be given and generally to do all and evy such furr acts and deeds for the better exting and discharging the power and authy hby given as fully and amply to all intents and purps as 1 might or could do I hereby ratifying, &c. In Witness, &c.
Release to be given by a Bankrupt before he can give
Know all Men by these Prests That I (bankrupt) of, &c. who have been duly adjudged a bankrupt Have remised released and for ever quitted claim and by, &c. Do remise, &c. unto A B and C D the assignees of my estate and effects their and each of their hrs exs and ads all and all manner of allowances sum and sums of money due owing or paye unto me out of my sd este and effects by virtue of any Act of Parliament or orwise howsr And also all the residuum or surplus of my sd este and effects which are or hraftr shall be owing or become due or paye to me as well before as after the payment or satisfaction to my sevl crs seeking or to seek relief under my bankptcy of their full and whole respive debt or debts and all or. int claim or demand that I now have or hraftr may have from and out of my sd este and effects And also all and all manner of action and actions cause and causes of actions suits bills bonds writings obligatory debts dues duties accts sum and sums of money judgmts exons extents controversies trespasses and dams whatsr both at law or in equity or orwise howsr which the sd A B and C D as assignees of my este and effects or either of them under the sd bankptcy or orwise howsr or I ever had and which I and my hrs exs or ads shall or may hraflr have claim challenge or demand for or by reason or means of any matter cause or thing whatsr from the beginning of the world unto the day of the date of these prests In Witness, &c.
BARGAINS AND SALES.
§ 1. A Bargain and Sale, is denned to be a contract in consi- Definition deration of money passing an estate, in lands, tenements, and hereditaments, by deed indented and enrolled, 2 Inst. 672. The conveyance of lands by bargain and sale, derives its operation, partly from the doctrine of uses at common law, but more particularly from the Stat. of Uses, 27 Hen. VIII. c. 10, which executes all uses that are raised. As a use is the basis of the deed, no person can make a bargain who is incapable of being seised to a use. A corporation cannot bargain and sell, because, no use can be raised on their seisin, 10 Rep. 24 Gilb. Us. 285. The use cannot be limited on a bargain and sale, to any but the bargainee, as the effect of the bargain and sale is only to raise a use, and a use cannot be limited to a use, Dy. 155. Poph. 81. The estate of the bargainee, when executed, may be made subject to trusts, but if it be intended that a use should be executed to any other person than the vendee, some other mode of conveyance should be adopted. The conveyance by bargain and sale is now seldom used, except by commissioners or others under an Act of Parliament, or trustees under a will or otherwise.
2. By this kind of instrument, any freeholds of inheritance, whether in possession, reversion, or remainder, may be conveyed; so likewise whatsorer is capable of being limited to a use, as advowsons, tithes, commons, rents, profits of courts, &c. But no property can be bargained and sold which is not in cue. So if a man convey his lands to another in fee with a right of a way over other lands, the right of way docs not pass. Cro. Jac. 190; 2 Co. 74; Saund. Us. 74. A man possessed of a term for years, cannot bargain and sell it so that it may be executed by the statute; but a man seised of a freehold, may bargain and sell it for years, Gilb. Us. 85. (See jirtctdtnt as to Copyholds and also Relcau.)
3. To raise a use upon a bargain and sale, there must be some consideration of money; Cro. Eliz. 31i4; 1 Co. 176; but the smallest consideration, as 5s., or even a penny is sufficient. Sheph. Touchst. 222. The operative words in a bargain and sale are, 'granted, bargained and sold.' But any other words, which upon valuable consideration, would have raised a use of lands, &c. at common law, the same amount to a bargain and sale within the Statute. as if a man covenant to stand seised to the use of another. Cro. Eliz. 161; 2 Inst. 672; 2 Saund. Us. 47.
4. By the 27 Hen. VI11. c. 16, a bargain and sale must be by deed indented, and not by deed poll, nor by print or stamp; and the writing must be upon parchment. 2 Inst. 672; 3 Leon. 16. The
What passes by a bargain and sale.