Sheriff's re turn. Return. Demand against the tenant. Count. Esples. Defense of the tenant. Voucher. A COMMON RECOVERY OF LANDS WITH DOUBLE* SECT. 1. WRIT OF ENTRY SUR DISSEIZIN IN THE POST; OR, EORGE the Second, by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, and so forth, to the Sheriff of Norfolk, greeting. Command David Edwards, Esquire, that justly and without delay he render to Francis Golding, clerk, two messuages, two gardens, three hundred acres of land, one hundred acres of meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances, in Dale, which he claims to be his right and inheritance, and into which the said David hath not entry, unless after the disseizin, which Hugh Hunt thereof unjustly, and without judgment, hath made to the aforesaid Francis, within thirty years now last past, as he saith, and whereupon he complains that the aforesaid David deforceth him. And unless he shall so do, and if the said Francis shall give you security of prosecuting his claim, then summon by good summoners the said David, that he appear before our justices at Westminster, on the octave of Saint Martin, to show wherefore he hath not done it; and have you there the summoners and this writ. Witness ourself at Westminster, the twenty-ninth day of October, in the twenty-first year of our feign. Pledges of John Doe. prosecution, Richard Roe. Summoners of the John Den. within-named David, Š Richard Fen. SECT. 2. EXEMPLIFICATION OF THE RECOVERY ROLL. GEORGE the Second, by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, and so forth, to all to whom these our present letters shall come, greeting. Know ye, that among the pleas of land enrolled at Westminster, before Sir John Willes, knight, and his fellows, our justices of the bench, of the term of Saint Michael, in the twenty-first year of our reign, upon the fifty-second roll it is thus contained. Entry returnable on the octave of Saint Martin. Norfolk, to wit: Francis Golding, clerk, in his proper person, demandeth against David Edwards, Esquire, two messuages, two gardens, three hundred acres of land, one hundred acres of meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances, in Dale, as his right and inheritance, and into which the said David hath not entry, unless after the disseizin, which Hugh Huat thereof unjustly, and without judgment, hath made to the aforesaid Francis, within thirty years now last past. And whereupon he saith that he himself was seized of the tenements aforesaid, with the appurtenances, in his demesne as of fee and right, in time of peace, in the time of the lord the king that now is, by taking the profits thereof to the value [† of six shillings and eight pence, and more, in rents. corn, and grass]: and into which [the said David hath not entry, unless as aforesaid] and thereupon he bringeth suit [and good proof]. And the said David, in his proper person, comes and defendeth his right, when [and where it shall behoove him], and thereupon voucheth to warranty "John Barker, Esquire, who is present here in court in his proper per *Note, that if the recovery be had with single voucher, the parts marked "thus," in sect. 2, are omitted. The clauses between hooks are no otherwise expressed in the record than by an &c. 4 66 No. V. "against the "voucher. common vouchee. son, and the tenements aforesaid, with the appurtenances, to him freely "warranted, [and prays that the said Francis may count against him]: "Warranty. "And hereupon the said Francis demandeth against the said John, tenant "Demand by his own warranty, the tenements aforesaid, with the appurtenances, chee. "in form aforesaid, &c. And whereupon he saith that he himself was "Count. "seized of the tenements aforesaid, with the appurtenances, in his de"mesne as of fee and right, in time of peace, in the time of the lord the "king that now is, by taking the profits thereof to the value, &c. And "into which, &c. And thereupon he bringeth suit, &c. And the afore- "Defense of "said John, tenant by his own warranty, defends his right, when, &c., and "the vouche "thereupon he further voucheth to warranty" Jacob Morland, who is "Second present here in court in his proper person, and the tenements aforesaid, with the appurtenances, to him freely warranteth, &c. And hereupon "Warranty.” the said Francis demandeth against the said Jacob, tenant by his own war- Demand ranty, the tenements aforesaid, with the appurtenances, in form aforesaid, against the &c. And whereupon he saith, that he himself was seized of the tene- vouchee. ments aforesaid, with the appurtenances, in his demesne as of fee and Count right, in time of peace, in the time of the lord the king that now is, by taking the profits thereof to the value, &c. And into which, &c. And thereupon he bringeth suit, &c. And the aforesaid Jacob, tenant by his Defense of own warranty, defends his right, when, &c. And saith that the aforesaid the common Hugh did not disseize the aforesaid Francis of the tenements aforesaid, Plea, nul dis as the aforesaid Francis, by his writ and count aforesaid above, doth sup- seizin. pose: and of this he puts himself upon the country. And the aforesaid Francis thereupon craveth leave to imparl; and he hath it. And after- Imparlance. ward the aforesaid Francis cometh again here into court, in this same term, in his proper person, and the aforesaid Jacob, though solemnly call- Default of the ed, cometh not again, but hath departed in contempt of the court, and common maketh default. Therefore it is considered that the aforesaid Francis do Judgment for recover his seizin against the aforesaid David of the tenements aforesaid, the demandwith the appurtenances; and that the said David have of the land of the aforesaid "John to the value [of the tenements aforesaid]; and further, Recovery in "that the said John have of the land of the said" Jacob to the value [of Amercement. the tenements aforesaid]. And the said Jacob in mercy. And hereupon Award of the the said Francis prays a writ of the lord the king, to be directed to the writ of seizin, sheriff of the county aforesaid, to cause him to have full seizin of the tenements aforesaid, with the appurtenances; and it is granted unto him, returnable here without delay. Afterward, that is to say, the twenty-eighth day of November, in this same term, here cometh the said Francis in his proper person; and the sheriff, namely, Sir Charles Thompson, knight, now sendeth, that he, by virtue of the writ aforesaid, to him directed, on the twenty-fourth day of the same month, did cause the said Francis to have full seizin of the tenements aforesaid, with the appurtenances, as he was commanded. All and singular which premises, at the request of the Exemplificasaid Francis, by the tenor of these presents, we have held good to be ex- tion continuemplified. In testimony whereof, we have caused our seal, appointed for sealing writs in the bench aforesaid, to be affixed to these presents. Witness, Sir John Willes, knight, at Westminster, the twenty-eighth Teste. day of November in the twenty-first year of our reign. COOKE. vouchee. ant. value. and return. ed. No VI Parties. Recital of conveyance to mortgagor to uses to pre vent dower. Recital of agreement for loan. Testatum. No. VI. A MODERN MORTGAGE IN FEE, BY APPOINTMENT AND T HIS Endenture, made the first day of September, in the year of our Lord 1844, Between John Smith, of Thorpe, in the county of Rutland, Esquire, of the one part, and Charles Green, of the same place, banker, of the other part. Whereas, by indentures of lease and release, the latter bearing date on or about the second day of March, 1839; and being expressed to be made between James Foot, of the first part; the said John Smith, of the second part; and Thomas Jones, of the third part, the messuage and hereditaments hereinafter described were conveyed and assured to such uses, for such estate or estates, upon such trusts, and for such intents and purposes, as the said John Smith, at any time or times thereafter, or from time to time, by any deed or deeds, to be signed, sealed, and delivered by the said John Smith, in the presence of, and to be attested by one witness or more, should direct or appoint; and, in default of such direction or appointment, to the use of the said John Smith and his assigns, during his natural life, without impeachment of waste; with remainder to the use of the said Thomas Jones, his executors and administrators,* during the life of the said John Smith, in trust for him and his assigns; with remainder to the use of the said John Smith, his heirs and assigns, forever. And whereas the said John Smith, having occasion for the sum of £900, hath requested the said Charles Green to lend and advance to him the said sum at interest, on security of the said hereditaments, which the said Charles Green hath agreed to do. Now this Endenture witnesseth, that, in pursuance of the said agreement, and in consideration of the sum of £900 sterling, paid by the said Charles Green to the said John Smith, at or before the execution of these presents (the receipt whereof the said John Smith doth hereby acknowledge, and from the same sum, and every part thereof, doth acquit, release, and forever discharge the said Charles Green, his heirs, executors, administrators, and assigns), the said John Smith, by virtue and in exercise and execution of the above-recited power or authority, and of every other power and auAppointment thority enabling him in this behalf, Ďотн, by this deed in writing, execuby mortgagor ted by him in the presence of the person whose name is hereupon indorsed as an attesting witness of the execution thereof by him, absolutely and irrevocably direct, limit, and appoint, that all and singular the messuage, lands, and hereditaments hereinafter described, with their rights, members, and appurtenances, shall thenceforth remain, continue, and be To the only proper use of the said Charles Green, his heirs and assigns, forever; subject, nevertheless, to the proviso for redemption hereinafter Further testa contained. And this Endenture further witnesseth, that, for the consideration aforesaid, the said John Smith, by these presents, made in pursuance of an act of Parliament passed in the fourth year of the reign of Queen Victoria, entitled "An Act for rendering a release as effectual for the conveyance of freehold estates as a lease and release by the same parties," doth grant, bargain, sell, and release, unto the said Charles Green, and his heirs, all that messuage or tenement [description of the parcels], together with all out-houses, edifices, buildings, ways, waters, water-courses, trees, woods, underwoods, hedges, ditches, fences, com tum. Mortgagor releases to mortgagee. General words. * An estate pour autre vie may be limited to the heir; but when it is vested in a trustee, it is better that it should be limited to the executors, in order to avoid the inconvenience which might occur from its vesting in an infant heir on the death of the trustee. (Vide ante, p. 260, n. 2.) The limitations here recited are the common limit. ations to prevent dower. (Vide ante, p. 136, n. 49.) No. VI. mons, rights, profits, privileges, easements, advantages, rights, members, and appurtenances whatsoever, to the said messuage, lands, and premises, or any part thereof, respectively belonging, or in any wise in fact or reputation appertaining, or now, or at any time heretofore, usually held, occupied, or enjoyed therewith; And also all the estate, right, title, interest, All the estate benefit, claim, and demand whatsoever, both at law and in equity, of the said John Smith, in, to, out of, or upon the said hereditaments and premises, and every part thereof; And also all deeds, papers, and writings All deeds. relating to or in any wise concerning the title of the said hereditaments and premises, or any part thereof, either alone, or together with any other hereditaments of less value, now in the custody or possession of the said John Smith, or which he can procure without suit at law or in equity: To have and to hold the said messuage, hereditaments, and premises Habendum. unto the said Charles Green and his heirs: To the only proper use of the Use. said Charles Green, his heirs and assigns, forever; SUBJECT, NEVERTHELESS, to the proviso or agreement for redemption of the said hereditaments next hereinafter contained: (that is to say), Provided always, and Proviso for it is hereby agreed and declared, that if the said John Smith, his heirs, ex- redemption. ecutors, administrators, or assigns, shall pay, or cause to be paid, unto the said Charles Green, his executors, administrators, or assigns, the sum of £900 sterling, with interest for the same after the rate of £5 per centum per annum, on the 1st day of December now next ensuing, without making any deduction out of the same sum and interest respectively for taxes, or on any other account whatsoever, then immediately thereupon the said Charles Green, his heirs or assigns, shall, at the request, costs, and charges of the said John Smith, his heirs or assigns, reconvey or reassure the said messuage, hereditaments, and premises unto and to the use of the said John Smith, his heirs or assigns, or in such other manner as he or they shall direct, free from all charges and encumbrances to be made or occasioned by the said Charles Green, his heirs and assigns, in the mean time. Provided also, and it is hereby agreed and declared, that in case Power of sale default shall be made in the payment of the said principal and interest after defaul: moneys, or any part thereof respectively, at the time and in manner aforesaid, and if the said Charles Green, his heirs, executors, administrators, or assigns, shall give to the said John Smith, his heirs or assigns, or leave at his or their usual or last known place or places of abode in England three calendar months' previous notice in writing, under the hand or on giving hands of the said Charles Green, his heirs, executors, administrators, or three calenassigns, or some or one of them, of his or their intention to proceed to a previous nosale of the said messuage, hereditaments, and premises, unless the princi- tice. pal and interest moneys hereby intended to be secured shall be paid at the expiration of the said notice, then it shall be lawful for the said Charles Green, his heirs or assigns, immediately thereupon, or at any time thereafter, so long as any part of the moneys hereby intended to be secured shall remain unpaid, notwithstanding the acceptance of interest after such notice as aforesaid, and whether he or they shall or shall not have entered into the possession or receipt of the rents and profits as aforesaid, without the necessity of any consent or concurrence on the part of the said John Smith, his heirs or assigns, to sell and absolutely dispose of the said messuage, hereditaments, and premises, or any part of the same, either together or in parcels, and either by public auction or by private contract, and under and subject to such special or other conditions and stipulations, relative to title or otherwise, as he or they shall think proper, with liberty to buy in the said hereditaments, or any part thereof, at any auction or auctions, and to resell the hereditaments so bought in at any future auction or by private contract, without being answerable for any loss, expense, or diminution of price which shall be consequent thereupon, and also (if deemed expedient) to rescind or vary the terms of any contract for sale which shall have been entered into, and to convey or assure the same herVOL. II.-S s dar months' No. VI. Application of moneys arising from the sale, &c. To pay expenses, and principal and interest mon. eys. gagor. charge pur chasers. editaments, when sold, unto the purchaser or purchasers thereof, or as he, she, or they shall direct or appoint, free, and discharged of and from, all right and equity of redemption whatsoever. And it is hereby agreed and declared, that the said Charles Green, his heirs or assigns, shall stand and be possessed of the money which shall arise from such sale or sales, and the rents and profits (if any) which shall have come to his or their hands by virtue of these presents, upon trust, in the first place to pay or retain and satisfy unto himself and themselves, the said Charles Green, his heirs or assigns, the costs and expenses attending the said sale or sales, or the receipt or recovery of such rents and profits, or which shall have been incurred by him or them in obtaining the possession of, or enforcing any contract or contracts for the sale of, the said hereditaments, and all other expenses arising or incurred in the execution of the powers and trusts herein-before contained, and in the next place to retain or pay and satisfy unto him, the said Charles Green, his executors, administrators, or assigns, the said principal sum of £900, with interest for the same after the rate aforesaid, or so much of the same sum and interest respectively as shall then remain unpaid, clear of all deductions as aforesaid; and in case, after full payment and satisfaction thereof, any sum or sums of money shall remain in the hands of the said Charles Green, his heirs or assigns, then To pay sur- Upon trust to pay such residue or surplus unto the said John Smith, his plus to mort- heirs or assigns, or as he or they shall direct. Provided also, and it is Mortgagee's hereby further declared and agreed, that every receipt which shall be receipt, to dis- given by the said Charles Green, his heirs or assigns, or his or their agent or agents, to the purchaser or respective purchasers of the said hereditaments and premises, so to be sold as aforesaid, for his, her, or their purchase-money, or respective purchase-moneys, or any part of the same respectively, shall effectually discharge the person or persons paying the same from all responsibility in respect of the application thereof; and that the purchaser or purchasers of the said hereditaments and premises shall not obliged to not be obliged to inquire whether such default has been made, or whether inquire into the propriety such notice has been given as is herein before required, or into any other matter or thing connected with the propriety or regularity of any sale or sales made by the said Charles Green, his heirs or assigns, and shall not be affected by express notice from the said John Smith, his heirs or assigns, or any other person or persons, that no such default has been made or notice given as aforesaid, or that such sale or sales is or are unnecessary and improper. Provided also, and it is hereby further declared and sale, &c., to agreed, that the power of sale, and other the powers and authorities herein contained, are not intended, and shall not be deemed to be personal unalienable trusts, but shall and may, from time to time, vest in and be exercisable by the person or persons in whom the legal ownership of the said hereditaments and premises shall or may for the time being be vested by descent, devise, conveyance, or otherwise, nor shall the power of sale herein before contained be construed to extend to destroy, prejudice, or affect the rights or remedies of the said Charles Green, his heirs or assigns, as a mortgagee or mortgagees of the said hereditaments and premises, under or by virtue of these presents, but that it shall be lawful for him or them to proceed to a foreclosure of the equity of redemption of the said premises, or otherwise to enforce his or their said rights and remedies as a mortgagee or mortgagees, in the same manner, and as effectually, to all intents and purposes, as if no such power of sale had been herein contained. And the said John Smith, for himself, his heirs, executors, and administrators, doth hereby covenant and agree with the said Charles Green, his heirs, executors, administrators, and assigns, in manner following (that is to say), that the said John Smith, his heirs, executors, adminto pay princi- istrators, or assigns, will duly pay or cause to be paid unto the said Charles pal and inter- Green, his executors, administrators, or assigns, the said sum of £900, with interest for the same after the rate aforesaid, at the time and in the man Purchasers of sale. Powers of run with the land Mortgagee's right of fore closure, &c., not to be af fected. Mortgagor Lovenants est moneys; |