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IV. In consideration that the said purchase money or Where several sum of £— of lawful money of Great Britain, (including way of mortthe said sum of £— for the purchase of the hereditaments gage (under two comprised in the first schedule to these presents), was well deeds) made a and truly paid to the said A. B. &c., or some of them, by the joint contract said C. D., to be held and applied by them in such propor- tiguous lands at
one price for tions as aforesaid (a), Upon the trusts respectively declared by the said several indentures of release of the money which should arise by the sales which were authorized or directed by the same indentures respectively, and in full for the absolute purchase of the said pieces or parcels of land and hereditaments comprised or described in the said several schedules to these presents, and hereby released or intended so to be, with their rights, members, and appurtenances, and of the fee-simple and inheritance thereof, discharged of land-tax and free from incumbrances; the receipt of which said sum of £ the said A. B. &c. do hereby acknowledge, and of and from the same and every part thereof, Do, and each and every of them Doth, by these presents, acquit, release, and for ever discharge the said E. F. [the heir of the contractor), and all other the real and personal representatives of the said C. D.; and also in consideration of, &c.
V. In consideration that the sum of £ of lawful Consideration
and receipt of money of Great Britain is to be paid (6) to the said A. B.
money from Aco countant-Gene
ral. (a) This refers to the following recital :
“ And whereas it is understood and agreed, by and between the several persons parties to these presents, that the sum of £ part of the said sum of £ shall be considered as the consideration for the purchase of the hereditaments comprised in the first schedule to these presents, and that the sum of £- residue of the said sum of £ shall be considered as the consideration for the purchase of the hereditaments comprised in the second schedule to these presents.” Recital Book, tit. Apportionment, art. 77, p. 92.
(6) Or, “ In consideration of the said sum of £ paid into the Bank of England as aforesaid.”
and C. D., immediately after the sealing and delivery of these
In a partition VI. In pursuance and performance of the said herein-
before recited agreement, as far as the same relates to or ing his share by concerns the messuages &c. hereby released, or otherwise a separate deed.
assured or intended so to be, and for carrying the same
pleted or carried into effect by mutual conveyances to each of them, the said C. D. and E. F., his heirs and assigns ; or whether the sums payable for equality of partition have been paid (a).
in the pro
VII. In pursuance and part performance of the said When paid by agreement, and in order to effectuate the said partition, and parceners in
certain proporfor and in consideration of the said sum of £- of lawful tions. money of Great Britain, to the said A. B. and C. D. in hand well and truly paid by the said E. F. and G. H., in the manner and proportions hereinbefore mentioned (6), at or immediately before the sealing and delivery of these presents, the receipt of which said sum of £portions hereinbefore mentioned, the said A. B. and C. D. do hereby respectively admit and acknowledge, and of and from the same, and every part thereof, Doth acquit, release, and discharge the said E. F. and G. H., their respective heirs, executors, and administrators, for ever, by these presents; and for and in consideration of the sum of 10s. of like lawful money, to each of them the said A. B., C. D., E. F., and G. H. paid by the said I. K., at immediately before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, they, &c.
VIII. In pursuance and performance of the said agree- Nominal consiment, and in consideration that the said manors, messuages, lease of part of lands, and hereditaments so contracted to be sold as afore- land from rentsaid to the said A. B. are to be and remain a fund for the charge. payment of the said annuity or rent-charge of £—(c);
(a) As to titles derived under a partition at common law, see Vol. I. book i, chap. ii. sect. 3, art. 48.
(6) Vide Recital Book, tit. Partition, p. 308.
(C) As to the operation of a release of part of land from a rent-charge, see St. Germyn's Doct. & Stud. book ii. c. 16, p. 85, (ed. 1604); Littl. sect. 222; Co. Litt. 147; Shepp. Touch. 345, by Preston. The following opinion, given by the late Mr. Butler, in 1784, fully elucidates the subject :-“When a rent-charge is granted out of lands, it is supposed to issue out of every part of the lands, and that every part of the lands is subject to a distress for the whole rent. When the grantee purchases, or
and in consideration of 10s., of lawful money of Great Britain, to the said C. D. paid by the said E. F. immediately
aliens, part of the land, it can no longer have this, its original operation; and it seems upon this ground to have been considered by the old lawyers as totally extinguished by such purchase or alienation: besides, according to the old feudal principles, nothing against common right could be apportioned. Now, a rent-charge was supposed to be against common right, the grantee of the rent-charge being subject to no feudal services, and being in fact a burthen on the tenant, who had to perform them. The consequence of this doctrine would be, that Lady M.'s releasing a part of the lands from payment of her jointure would be an extinguishment of her whole jointure. Supposing this to be so, the power inserted to remedy it, (power of distress and entry), would not be a complete security. Lord Coke says, it would amount to a new grant;—then, if the estate should have been incumbered subsequent to the grant of the original rent-charge, but prior to the release and proviso, these incumbrances would be let in against the rent-charge: and though such proviso might undoubtedly be so worded as to make it operate in equity as a continuation of the rent-charge, yet, as the incumbrancers would have the legal estate, and an equal right in equity with the grantee of the rent-charge, they would of course be preferred to him in equity.
" But the principles on which such a release is supposed to operate as an extinguishment are called in question by many modern counsel of the first eminence. Considering these exclusively of their dependence on the doctrine of the old law books, they may seem to have little weight; for
may be said that no good reasons can be given why the grantee of the rent-charge should not lessen, or weaken, or give up, any part of his security, if he thinks proper. And as the old law seems in this respect to be solely grounded on the feudal principles, which the abolition of the feudal tenures must have considerably undermined, there appears to be some reason to think, that, if the principles that I have mentioned ever existed in the above extent, they are now superseded. On these or other grounds, many modern conveyancers of the first eminence have not scrupled to let jointresses release, and join in sales of, a part of the estate charged with their jointures, but with the caution of inserting a proviso to continue the remaining lands subject to the payment of it. But there are others who consider it unsafe, or, at least, as an hazardous experiment; and if the jointress has notice of any incumbrances subsequent to the grant of her rent-charge, which affects the lands not released ; but, which do not affect the lands released, the value of their security is so much lessened as to be a real injury to them; and equity might, perhaps, relieve them against it, at the expense of the jointress who occasioned it. Upon the whole, therefore, it does not appear advisable for the jointress to release any part of the lands charged with her jointure; and all that
before the execution of these presents, the receipt whereof is hereby acknowledged, she the said C. D., &c.
IX. In consideration of the sum of ten shillings of law. Nominal consiful money of Great Britain to each of them the said A. B. and C. D. paid by the said E. F., at or immediately before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, the said C.D., at the request and by the directions of the said A. B., testified by his being a party to and sealing and delivering these presents, Hath &c.
X. For defeating and destroying all estates tail of and In conveyance in the messuages &c. hereby released or otherwise assured
of an estate tail
to a purchaser or intended so to be, and all reversions and remainders in fee-simple. espectant or dependent on the same estates tail, and all conditions and collateral limitations annexed thereto (a),
can be expected from the jointress upon this occasion is, that she should enter into a covenant or agreement not to distrain upon or claim any part of her jointure from the lands released, or the owners or occupiers thereof. This, as it may be pleaded as an absolute release, will equally serve the benefit of the owner of the inheritance; and I have altered the draft accordingly.”
In 1806, Mr. Butler, Mr. Preston, and two other learned counsel gave a joint opinion that, when it is wished to release part of an estate charged with rent, the only safe and correct practice is, for the owner of the rent to assign the rent to a trustee of his nomination, with the consent of the owner of the estate; upon trust to receive the rents out of certain part of the hereditaments, (being those intended to be made liable), and to permit the other lands to be held as if the same were discharged of and from the rent-charge; with a grant or agreement by the owner of the land, that the land intended to remain charged with the rent shall remain and be charged with the full amount of the rent, without any deduction or ahatement whatsoever; and the term of years, when there is any in the lands intended to be exonerated, may be assigned in trust for the purchaser to attend the reversion, or be surrendered, and by that means extinguished.
A much simpler mode, and equally effectual, is for the annuitant to execute an equitable release, accompanied with an express declaration that the release shall not operate at law. A precedent for this purpose will be given in a subsequent part of the present work.
(a) As to alienation by tenant in tail, by force of the stat. 3 & 4 Will. IV. c. 74, s. 15, see Vol. I. book iii. chap. 1.