the said E. F., at or immediately before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, He the said &c. even date. LII. In pursuance and performance of the said agreement Marriage, and with respect to the sum of £, appointed to the said A. settlement of B. as aforesaid, and of the said sum of £, secured by the bond of the said C. D., and in consideration of the said intended marriage, and of the settlement to be made by the said C. D. of the manors, messuages, lands, tenements, and hereditaments in the county of H., with their appurtenances, to certain uses in favour of the said C. D. and A. B., and the issue of the said intended marriage, by indentures of lease and release, the lease bearing date the day next before the day of the date of the release, and the release bearing or intended to bear even date with these presents, and made or expressed to be made between &c. He &c. 66 TITLE II. Feoffment. Variation where trustees join. OF OPERATIVE WORDS. I. 1. HATH given, granted, enfeoffed, and confirmed, and by these presents Doth (a) give, grant, enfeoff, and confirm, unto the said A. B. and his heirs, All &c. 2. The said A. B. and C. D. at the request and by the direction of the said E. F., testified by his being a party to and sealing and delivering these presents, Have, and each of them Hath, bargained, sold, and enfeoffed, and by these presents Do, and each of them Doth, bargain, sell, and enfeoff (b); and the said E. F. Hath given, granted, en (a) “The best way," says the author of the Touchstone, i. 232, “is to grant by words in the present tense as well as in the preterperfect. But a grant by words of the preterperfect tense only, as by dedi et concessi only, without words of the present tense, is good." In a feoffment, certainly, both tenses are rightly used; for since the Statute of Frauds, 29 Car. II. c. 3, the estate passes by the united force of the livery of seisin and the deed of feoffment. Before that act, livery of seisin was alone sufficient. On the subject of "Operative Words," see Vol. I. book ii. chap. iv. In most of the Forms given under the present title, several words are introduced, not peculiarly appropriate to the assurances in which they occur, but belonging to others. This practice is commonly justified on the ground, that if the deed cannot operate, e. g., as a feoffment, it may as a grant. In the present day, the Courts look rather to the intention of the parties, without much regard to the technical propriety of the operative words, and construe the deed accordingly. (b) Persons not beneficially interested, e. g. trustees, usually object to convey by the word "grant," on the ground that it may be held to amount to a warranty of title. As to this, see Vol. I. book ii. chap. iv. If an incorporeal hereditament is the subject of conveyance, the word "grant" is the appropriate term, and ought to be used. In such a case, trustees (if scrupulous) may grant not in or for any warranty of title." by way of conveyance only, and It may be here remarked, that the feoffed, and confirmed, and by these presents doth give, grant, enfeoff, and confirm, unto the said G. H., his heirs and assigns, All &c. III. Hath given, granted, bargained, sold, aliened, Exchange. released, and confirmed, and by these presents Doth give, grant, bargain, sell, alien, release, and confirm, unto the said A. B. (in his actual possession &c.), and his heirs, in exchange for the ground and land, soil and hereditaments, hereinbefore mentioned to be given, granted, and confirmed by the said A. B. unto the said C. D., his heirs and assigns as aforesaid, All &c. IV. 1. Have, and each of them Hath [granted], demised, Lease. and to farm letten, and by these presents Do, and each of them Doth [grant], demise, and to farm let (a), unto the said A. B. &c. 2. Hath granted, bargained, sold, and demised, and by Underlease in these presents Doth &c. mortgage. 3. Doth grant, limit, appoint, and to farm let (b), unto Lease under a the said A. B. &c. 4. He the said A. B., on the nomination and at the instance and request, and by the direction and appointment of the said C. D., testified by his executing these presents, and writ of warrantia chartæ, along with thirty or forty other writs, whose uncouth names hardly ever reached the ears of a modern student, was abolished by the stat. 3 & 4 Will. IV. c. 27, s. 36. (a) Ad firmam tradidi. Farm, or feorme, is an old Saxon word, signifying provisions. "It came to be used," says Blackstone, ii. 317, "instead of rent or render, because anciently the greater part of rents were reserved in provisions-in corn, in poultry, and the like; till the use of money became more frequent. So that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme; though at present, by a gradual departure from the original sense, the word farm is brought to signify the very estate or lands so held upon farm or rent." (b) As in all other appointments, the terms of the power ought to be used either alone, or jointly with the usual technical words. F 2 power. In demises of freehold and co pyhold. Surrender. Surrender of term briefly introduced into the granting part of the conveyance of the inheritance. IJ or authority for that purpose obtained from the lord or lords, lady or ladies of the manors of which the same copyhold lands are respectively parcel, Hath &c. V. 1. Hath surrendered and yielded up, remised and released, and also assigned. [Or-Hath released, surrendered and yielded up, granted, bargained, sold, assigned, transferred, and set over, and by these presents Doth &c. 2. In consideration &c., and to the end and intent that the residue now to come and unexpired of and in the said term of &c., created by the said hereinbefore in part recited indenture of the &c., may merge in and be consolidated with the freehold and inheritance therein comprised, and hereinafter granted and released, or intended so to be, the said A. B., at the request and by the direction as well of the said C. D. as of the said E. F., and upon the acceptance of the said G. H. and I. K., testified by their severally being parties to and sealing and delivering these presents, Hath released, surrendered and yielded up, bargained, sold, assigned, transferred, and set over, and by these presents Doth &c.; and the said E. F. Hath granted, bargained, sold, aliened, released, and confirmed, and by these presents Doth &c., unto the said G. H. and I. K. (in their actual possession &c.), and their heirs, All &c. (a) Unless by special custom, a copyholder cannot grant a lease of his copyhold tenement for more than one year, without the licence of the lord of the manor. Vide Vol. I. book iii. chap. iii., and the cases there cited. The power of licensing is not customary, but annexed to the person of the lord in respect of his estate in the manor. Coke's Copyh. sect. 44, p. 122. Accordingly, it is considered in practice to be perfectly clear, (such at least was the opinion of Mr. Butler and other eminent counsel), that a purchaser of copyhold held by lease under a licence granted by the lord, cannot be compelled to complete his contract without evidence of the lord's title to license the lease; shewing that he was either seised in fee-simple, or was authorized by a specia power to grant the licence. There is no method, however, of enforcing the lord to produce his title. with consent of VI. 1. In consideration &c., they the said A. B. and Assignment C. D., according to their respective estates and interests, third person. and with the privity, consent, and approbation of the said E. F., testified as aforesaid, [or, testified by his executing these presents], Have, and each of them Hath &c., and by these presents Do, and each of them Doth bargain, sell, assign, transfer, and set over unto the said G. H., his executors, administrators, and assigns, All &c. term by trustee at the request of mortgagor, and of mortgagee. on nomination 2. He the said A. B., at the request and by the direction In assignment of of the said A. B., and upon the nomination and appointment of the said C. D., testified by their severally being parties to and sealing and delivering of these presents, Hath bargained, sold, assigned, transferred, and set over, and by these presents Doth &c., unto the said E. F., his executors, administrators, and assigns, All &c. VII. Hath given and granted, and by these presents Grant. VIII. They the said A. B. and C. D., according to their respective estates, rights, and interests, and without prejudice as to the said E. F. to any other security which he hath for the said annuity, and as to the said G. H. and I. K., without prejudice to their right to resort to the other lands and hereditaments or property charged with the said legacies of &c. respectively, for the payment of the same legacies, or to be admitted as creditors, under the said commission of bankrupt, against the said J. G., for the value of the same annuities, Have, and each of them Hath remised, released, acquitted, and quit-claimed, and &c. IX. And the said A. B. and C. D., at the instance and request of the said E. F., and without prejudice to their said mortgages or other securities, as far as the same relate (a) As to the operation of the words "give and grant," see Vol. I. book ii. chap. iv. |