Debt due on mortgage. Where pur chase money is collaterally secured. When part is secured by bond. these presents, in full for all principal money, interest, and costs, due and owing to the said A. B. on the mortgage or security made or given to him by the within-written indenture, the receipt of which said sum of £ the said A. B. doth hereby acknowledge, and of and from the same sum of £, and of and from all principal money, interest, and costs due on the security of the within-written indenture, the said A. B. doth acquit &c., [vide Art. I.]; And also in consideration of 10s. of like lawful money, to the said E. F. paid by the said C. D. &c. SO XXXVII. In consideration of the said sum of £ due and owing to the said A. B. by the said C. D., upon or by virtue of the said hereinbefore mentioned security, and of the release hereinafter contained, He the said C. D. hath &c. XXXVIII. In consideration of the said sum of £ the purchase money aforesaid, so secured to the said A. B. as hereinbefore is mentioned, and for and in consideration of the sum of 10s. of lawful money of Great Britain, to the said A. B. paid by the said E. F., at or immediately before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, He the said A. B. hath &c. (a). XXXIX. In consideration that the said bond (b) of the said A. B., bearing even date with these presents, hath (a) To rebut the presumption of lien, insert the following clause in the deed: "And it is hereby expressly declared, that the said A. B. shall not have any lien on the premises hereinbefore granted and conveyed, or expressed and intended so to be, for the purchase money aforesaid, or any part thereof, any rule of equity to the contrary thereof in anywise notwithstanding." The recital that payment has been collaterally secured, may be thus expressed : "And whereas the payment of the said sum of £ (b) The bond ought to be recited in the usual form. See Recital Book, p. 145. C. D. and in of law been given and entered into to and with the said as aforesaid, for securing the principal sum of £terest, and also in consideration of the sum of £ful money of Great Britain, to the said C. D. in hand well and truly paid by the said A. B., at or immediately before the sealing and delivery of these presents, making, together with the said principal sum of £, so secured by the said bond of the said A. B. as aforesaid, the sum of £ being the full consideration for the purchase of the said messuages &c., and all the estate and interest of the said C. D. therein, discharged (a) from any lien or claim, at law Extinguishment or in equity, by reason that part of the said consideration of lien for mois secured by the said bond, the receipt &c., He the said bond. &c. XL. In consideration of the sum of £money of Great Britain, to the said A. B. in ney secured by (a) Prest. Conv. ii. 424. If the lien is not to be discharged, say, "but all liens for and in respect of all sums secured by the said bond doth hereby reserve.' In connection with this subject, it may be useful to observe, that "where conveyance is made prematurely, before money paid, the money is considered as a lien on the estate in the hands of the vendee; so, where money is paid prematurely, the money is considered as a lien on the estate in the hands of the vendor, for the personal representatives of the purchaser." Per Sir Thomas Clarke, in Burgess v. Wheate, 1 Black. 123, 1 Eden, 211. And this rule holds, whatever be the tenure of the estate, whether freehold, copyhold, or leasehold, Winter v. Lord Anson, 3 Russ. 493; or into whose hands soever it may pass, (with the exception of a purchaser for valuable consideration without notice), Mackreth v. Symmons, 15 Ves. 329, and the cases there cited by Lord Eldon; even although the consideration is, upon the face of the instrument, or by an indorsed receipt, expressed to be paid. Coppin v. Coppin, 2 P. Wms. 291; Ryle" v. Haggie, 1 Jac. & W. 234, 15 Ves. 337, 1 Sim. & Stu. 444. To extinguish this lien, there must be "evidence clear and convincing," or, as it is sometimes expressed, "declaration plain" or "manifest intention," of a purpose to rely not any longer on the estate, but solely upon the personal credit of the vendee, or upon some other independent security. 15 Ves. 342, 348; 3 Russ. 491. It is a question, therefore, of "intention," depending entirely on the circumstances of each case. Vide Vol. I. book ii. chap. iii., and the cases there cited. cured by a demise of the estate and the purchaser's bond. Where part of consideration is secured to be time. and truly paid by the said C. D., at or immediately before the execution of these presents, the receipt of which said sum of £he the said A. B. doth hereby acknowledge, and of and from the same, and every part thereof, doth hereby acquit, release, and for ever discharge the said C. D., his heirs, executors, administrators, and assigns, and any of them; And also, in consideration that the sum of £, the residue of the said purchase money, is secured by the said A. B., his executors, administrators, and assigns, by the term of years hereinafter limited in use to him of and in the said messuages, lands, and hereditaments, and by the bond of the said C. D., bearing even date with these presents, He the said A. B. hath &c. XLI. In consideration that the sum of £ › part of the money agreed to be given by the said A. B. to the paid at a future said C. D. for the purchase of the said freehold and copyhold lands &c., hath been left in the hands of the said A. B., to be paid according to the proviso or agreement for redemption hereinafter contained, and for securing the payment of such sum of £- and interest thereon, in manner hereinafter mentioned, and also in consideration of &c., [nominal consideration], He the said A. B. hath &c. When paid to avoid the ex pense of proving will in Chancery. XLII. In consideration of the sum of £ of lawful money of Great Britain, to the said A. B. in hand well and truly paid by the said C. D., at &c., the receipt &c.; and to avoid the charges and expenses of proving the will of the said C. D. in Chancery by the witnesses thereto (a), and in order to ratify, confirm, and establish the said will, and the said devise thereby made of the said copyhold and freehold lands, tenements, and hereditaments, and for divers other good causes and valuable considerations the said A. B. thereunto moving, He &c. (a) A purchaser cannot now, it is conceived, insist upon the vendor's establishing a will against the heir. Colton v. Wilson, 3 P. Wms. 190; Morrison v. Arnold, 19 Ves. 673, 8 Bro. P. C. 145; and sec Bellamy v. Livesidge, Sugd. Vend. & Pur. i. 370. XLIII. In consideration of the rent and covenants hereinafter reserved and contained, and which by and on the part of the said A. B., his executors, administrators, and assigns, are to be paid, observed, and performed, and to the end and intent that during the term hereby granted the said A. B. may possess the same right of sporting, hunting, coursing, shooting, fishing, and appointing a gamekeeper, and preserving game and fish within the said manor, as are now possessed by the said C. D., He &c. Rent and covenants in lease, conferring a right of sporting, &c. of stock and property of wife of husband. XLIV. In pursuance and performance of the said agree- Consideration ment on the part of the said A. B., and in consideration thatthe money, stocks, funds, and other personal estate of becoming that the said C. D., to which she is now entitled, are immediately after the solemnization of the said intended marriage to become the absolute property of the said A. B., notwithstanding his death in the life-time of the said C. D., and before he shall obtain the possession of the same respectively (a), and for the purpose of making a provision for the said E. F., and the issue, if any, of the said intended marriage, He the said A. B. hath &c. XLV. In pursuance of the said proposals, and of the said report thereon, and of the said order confirming the same, and in consideration of the said intended marriage, to which said marriage the said A. B. doth signify her consent in writing by signing and sealing these presents, It is hereby declared and agreed, &c. Marriage of with consent of guardian. ward of Court, covenant. XLVI. In consideration of the said intended marriage, Marriage and and of the covenant hereinafter contained on the part and behalf of the heirs, executors, and administrators of the said A. B. to be performed, and in pursuance and part perform (a) This form, it will be remarked, applies to the case of a settlement before marriage. If after marriage, the wife's title by survivorship could not be thus bound. Stamper v. Barker, 5 Madd. 157. As to wife's choses en action, see Vol. I. book iii. chap. vi., where the subject is treated of at large. Marriage-money paid and secured to be paid. Natural love. Marriage had and solemnized, and intended dismissal of bill in Chancery. Marriage nant. ance of the said agreement, and in order to make a provision for the said C. D. and the issue of the said intended marriage, It is hereby agreed &c. XLVII. In consideration of the said intended marriage, and of the sum of £— of lawful money of Great Britain, to the said A. B. by the said C. D. in hand well and truly paid at or before the sealing and delivery of these presents, the receipt of which said sum of £ the said A. B. doth hereby acknowledge, and from the same sum of £ doth acquit, release, and discharge the said C. D., his heirs, executors, administrators, and assigns, and in consideration of the sum of £ by the said C. D. secured to be paid to the said A. B. at the decease of the said C. D., He &c. XLVIII. In consideration of the natural love and affection which the said A. B. hath and beareth towards the said C., his wife, It is hereby agreed, &c. XLIX. In pursuance and performance of the said agreement, so far as the same, by reason of the infancy of the said A. B., can now be carried into effect, and in consideration of the marriage had and solemnized between the said C. B. and A. his wife, and of the intended dismissal of the said bill as aforesaid, It is hereby agreed, &c. L. In consideration of a marriage agreed upon and ingrant and cove- tended to be shortly had and solemnized between the said A. B. and C. D., and of the grant, release, and confirmation hereinafter made, and the covenant hereinafter entered into by the said D. D., the father of the said C. D., and in consideration of the sum of 10s. &c., He &c. Nominal consi LI. In pursuance and performance of the said agreederation in set- ment to carry into effect the intention of the said testator, tlement, pursuant to testator's and to make a settlement on and provision for the said A. B., and for and in consideration of the sum of 10s. of lawful money of Great Britain, to the said C. D. in hand paid by intention. |