assigns for ever. gainor, -for right to con vey, - for quiet enjoy. ment, from incum And the said [bargainor], for himself, his heirs, executors and administrators, hereby covenants with the said [bargainee], his heirs and assigns, That notwithstanding Covenants by bar any act, matter or thing done or permitted by the said [bargainor] or any of his ancestors to the contrary, the said [bargainor] has in himself good right by these presents to bargain and sell the said hereditaments and premises, with their appurtenances, unto and to the use of the said [bargainee], his heirs and assigns for ever. And also that the said hereditaments and premises, with their appurtenances, and the rents, issues and profits thereof, shall or may at all times hereafter be peaceably and quietly held, received and enjoyed by the said [bargainee], his heirs and assigns, without any eviction, interruption or denial from or by the said [bargainor], or any person or persons rightfully claiming or to claim under or in trust for him, or under any of his ancestors. Free and clear, -for freedom or by the said [bargainor], his heirs, executors or adminis- brances, trators, effectually kept indemnified from or against all former or other estates, right, titles, charges and incumbrances created or occasioned by the said [bargainor] or any of his ancestors, or any person or persons claiming or to claim under or in trust for him, or under them, or any of them. And for further assu lastly, that the said [bargainor], and every person rightfully claiming or to claim under or in trust for him, or under any of his ancestors, will at any time or times, at the request and costs of the said [bargainee], his heirs or assigns, make and execute every such act, deed, or assurance for more effectually or satisfactorily assuring the said hereditaments and premises, or any part of the same, with the appurtenances, unto or to use of the said [bargainee], his heirs or assigns, as by the said [bargainee], his heirs or assigns, or his or their counsel in the law, shall be reasonably advised and required, and as shall be tendered to be made or executed. IN WITNESS, &c. rance, No. 18. BARGAIN and SALE for a long Term of Years, by way of Mortgage. THIS INDENTURE, made the Parties. of our Lord TESTATUM. Between [mortgagor], of, &c. of the one part, and [mortgagee], of, &c. of the other part, WITNESSETH, that in consideration of the sum of £-, of lawful British money, lent by the said [mortgagee] to the said [mortgagor], immediately before the execution of these presents, the receipt of which sum the said [mortgagor] hereby acknowledges, and therefrom releases and discharges the said [mortgagee], Operative words. his executors, administrators and assigns, The said [mortgagor] Hath bargained and sold,(61) And by these presents Doth bargain and sell, unto the said [mortgagee], his executors, administrators and assigns,(62) All [parcels], Of which said hereditaments and premises the said [bargainor] is now seised in fee simple in possession, Together with all easements, rights, members and appurtenances to the said heredi Parcels. Mortgage by bar. gain and sale for years. Words of limitation-estates pur auter vie. (61) Mortgages for years are commonly called mortgages by demise, but when the mortgagor is seised, they take effect as bargains and sales. The consideration raises the use, and the mortagee is presently in possession under the statute of uses, without entry, and (the statute of 27 Hen. 8, c. 16, not extending to the creation of terms of years,) without enrolment. The operative words generally used are, "grant, bargain, sell and demise." (62) It seems more correct to omit the words of limitation in the testatum, it being the proper office of the habendum to limit the estate. Words of limitation are not essential to the creation of a term of years, nor, indeed, to the creation of any estate less than an estate of inheritance; though in a late case it was inadvertently held, that for want of words of limitation, or equivalent words, in the devise of an estate pur auter vie, the devisee took only an estate for the joint lives of herself and the cestui que vie. Doe v. Robinson, 8 Barn. & C. 296, and 4 Mann. & Ryl. 249. But see Mr. Manning's note, ib. 263, in which the decision is shown to be utterly inconsistent with the common law and statute law relating to estates pur auter vie. a term of 1000 years. taments and premises in anywise belonging.(63) And also Deeds, &c. all deeds and writings relating to the title of the said [bargainor] to the said hereditaments and premises, or any part thereof, TO HAVE AND TO HOLD the said hereditaments and HABENDUM, premises hereby bargained and sold, or intended so to be, with their appurtenances, unto the said [mortgagee], his exe--to bargainee for cutors, administrators and assigns, henceforth for the term of 1000 years, without impeachment of waste, nevertheless. subject to the proviso for redemption hereinafter contained, (that is to say,) Provided always, That if the said [bargainor], Proviso for redemption. his heirs, executors, administrators, or assigns, shall pay or cause to be paid unto the said [bargainee], his executors, administrators, or assigns, the sum of £, of lawful British money, with interest for the same after the rate of £5 per cent. per annum, in Lincoln's Inn Hall, in the county of Middlesex, between the hours of eleven and twelve o'clock in the forenoon, on (64) the next, without deduction, Then these presents shall be void. And the said Covenants by [bargainor], for himself, his heirs, executors, administrators and assigns, hereby covenants with the said [bargainee], his executors, administrators and assigns, that the said [bargainor], his heirs, executors, administrators or assigns, will pay, or cause to be paid unto the said [bargainee], his executors, administrators or assigns, the said sum of £, with interest for the same after the rate aforesaid, at the place and time and in manner hereinbefore appointed for the payment_there day of (63) The "all estate" clause is omitted, because the bargainor departs only with a limited interest. bargainor, (64) The condition must be strictly complied with to defeat the legal Mortgage con effect of the deed. The money must therefore be paid on, and not before dition. or after the appointed day. If the money were made payable on or before the day, then the lender would be exposed to the inconvenience of having it tendered without notice. If the mortgagor makes default in payment, he cannot afterwards, according to the rule of equity, oblige the mortgagee to accept the money without giving six calendar months previous notice. U -for right to bargain and sell, ment after default in payment of the money, of: And also that (65) the said [bargainor] has good right, by these presents, to bargain and sell, or otherwise assure the said hereditaments and premises unto the said [bargainee], his executors, administrators and assigns for the said term of -for quiet enjoy. 1000 years in manner aforesaid: And also that if default shall be made in payment of the said sum of £, or the interest thereof, at the place and time and in manner hereinbefore appointed for payment thereof, it shall be lawful for the said [bargainee], his executors, administrators, or assigns. thenceforth during the residue of the said term of 1000 years, quietly to enter upon and enjoy the said hereditaments and premises, and to take the rents and profits thereof, without any eviction, interruption or denial whatsoever, Free and clear, or by the said [bargainor], his heirs, executors or administrators, effectually kept indemnified from or against all former or other estates, rights, charges and incumbrances whatsoever: And (66) that the said [bargainor], and every person having or rightfully claiming or to claim any estate, right or interest in or to the said hereditaments and premises, or any part thereof, will at any time or times, at the request of the said [bargainee], his executors, administrators or assigns, but at the costs of the said [bargainor], his heirs, executors, administrators or assigns, make, do and execute -for freedom from incumbrances, -for further assurance. Covenants for title in mort gages. Covenant for further assurance in mortgages, (65) It will be observed that the qualifying words " notwithstanding any act, &c. by the mortgagor," &c. are omitted, and that the other covenants are likewise unqualified, for a mortgagee, though he takes the estate merely as a pledge, may of course demand covenants amounting to a warranty of title. (66) The words "in case default shall be made in payment of the said sum of £, or the interest thereof, at the time hereinbefore appointed for payment thereof." should not be inserted here. The consequence of their insertion would be, that if the mortgagee were to discover a defect in his security before the day of payment, he could not immediately call upon the mortgagor under his covenant to remedy it, but must wait till it was perhaps no longer remediable. The mortgagor might be tenant in tail and die before the day of payment. every such act, deed, conveyance or assurance for more effectually or satisfactorily assuring the said hereditaments and premises, or any part thereof, unto the said [bargainee], his executors, administrators or assigns, for the residue which shall be then unexpired of the said term of 1000 years (67), according to the true intent of these presents, as by the said [bargainee], his executors, administrators or assigns, or his or their counsel in the law shall be reasonably advised and required. Provided nevertheless, that until default shall be Proviso for enmade in payment of the said sum of £, or the interest bargainor till thereof, at the time and in manner hereinbefore appointed for payment thereof, it shall be lawful for the said [bargainor], his heirs or assigns, to continue in the possession and receipt of the rents and profits of the said hereditaments and premises, without any interruption or denial by the said [bargainee], his executors, administrators or assigns, IN WITNESS, &c. joyment by default. No. 19. BARGAIN and SALE for a Year. (68). THIS INDENTURE, made the day of in the year Parties. of our Lord Between [bargainor], of, &c. of the one part, and [bargainee], of, &c. of the other part, WITNESSETH, TESTATUM. demption. (67) Sometimes the words "freed and discharged from the aforesaid -discharge from old equity of reproviso for redemption, and all equity of redemption, by virtue thereof," are introduced in this place; but they are wholly nugatory, for the equity of redemption cannot be excluded by any prospective stipulation. (68) The bargain and sale upon which the release is founded, when Lease for a year. land is conveyed by lease and release, is commonly called a lease for a year. It is properly a bargain and sale, entitling the bargainee to the use for a year; the statute instantly converts the use into a legal estate for a year, and then the bargainee, as tenant in possession, is in a condition to accept a common law release of the reversion. |