PURCHASES.

Undivided Moiety, &c.

(A) Variation where part of the purchase money is retained by the purchaser on account of the minority of either of the vendors, see ante, p. 383.

If either of the persons entitled to an undivided part of the premises sold, or to a part of the purchase money, be a minor, and the purchaser is willing to complete his purchase notwithstanding this circumstance, upon being permitted to retain the claimant's portion of the money in his hands, a declaration of trust should be executed by the purchaser on a separate instrument, to remain in the hands of the vendor or other person on the part of the minor; but as such trusts, to save expense, and from a full confidence subsisting between the parties, are often included in the purchase deed, I shall here insert a form adapted to the case which most usually occurs, i. e. the minor being entitled to a part of the purchase money, without having any legal estate in the premises sold.

After reciting the title and minority of the infant, proceed,

"AND WHEREAS the said (vendor) is entitled to onefourth part of the said purchase money, or sum of £ but by reason of his being under the age of twenty-one years, cannot at present execute an effectual release or discharge for the same, it has been agreed that the said sum shall be retained by the said (purchaser) out of his said purchase money, upon his entering into a bond or obligation for securing the payment thereof, with interest, at the times, and in the manner hereinafter mentioned, and the said (purchaser) by his bond or covenant in writing, bearing even date with these presents, has accordingly become bound to the said (vendor) in the penalty of £ with a condition thereunder

written, for making void the same, on payment by the said (purchaser) his heirs, executors, or administrators, of the sum of £ being one equal fifth part (or as the case may be) of the said sum of £

after the rate of £
day of

,

and interest for the same per cent. per annum, on the next ensuing the date thereof, and in the

Undivided Moiety, &c.

meantime stand possessed thereof, upon the trusts and for the PURCHASES. intents and purposes, and subject to the provisions and agreements declared or expressed, concerning the same, in and by a certain indenture intended to bear even date therewith, and to be made between the said (vendor) of the WITNESS. one part, and the said (purchaser) of the other part, (referring to and (meaning this present indenture): Now THIS INDENTURE FURTHER WITNESSETH, that in consideration of the premises, and in pursuance of the said agreement in that behalf, it is hereby declared and agreed, by and be tween the said parties to these presents, and particularly by the said (purchaser) that he the said (purchaser) his executors, administrators, and assigns, shall and will stand possessed of and interested in the said sum of £

and the interest thereof, so retained by him as aforesaid, upon
the trusts for the intents and purposes, and subject to the
provisoes and agreements following (that is to say), in trust
for the said (minor) until he shall attain the age of twenty-
one years, or shall depart this life under that age, or on
his attaining that age, shall neglect or refuse to execute
such deed or deeds as shall be necessary or expedient
for effectually releasing and discharging the said premises,
and the said (purchaser) his heirs and assigns, and the
several tenants, proprietors, and occupiers thereof, of, and
from the payment of the said sum of £
to which
the said (minor) is entitled as aforesaid, and of, from, and
against all claims and demands in respect of the same, upon
tender being made by the said (purchaser) his heirs or as-
signs, unto him the said (minor) of such deed or deeds for exe-
cution, and of the said sum of £
and of the interest
accrued due thereon; and in case the said (minor) shall
attain his age of twenty-one years, and shall execute such
deed or deeds as aforesaid, then upon trust to pay the said
sum of £
and all interest accrued due in respect
of the same, to the said (minor) his executors, admini-
strators, or assigns, for his or their own use and benefit;
and in case the said (minor) shall depart this life under
the age of twenty-one years, then that he the said (pur-
chaser) his executors, administrators, and assigns, shall

"

No. XXVII.

Conveyance by a Vendor to a Purchaser where the
Title is subject to an Outstanding Term.

The Term to be assigned to attend the Inheritance by
the same Deed (1).

Variations where it is surrendered to merge.
Where there are two or more Outstanding Terms.
Where the Premises are part of Lands, &c. sold in Lots.
Where the Purchaser takes to Uses to prevent Dower,
&c. &c. as in margin below.

THIS INDENTURE OF

parts, made the

day of

in the

year of the reign, &c.

PURCHASES.

Vendor and

Termor to

Purchaser.

(1) Although outstanding terms are frequently assigned to Term should be attend the inheritance in the same deed by which such inhe- assigned by separate deed. ritance is conveyed (wherefore a form for this purpose is here given) yet the most convenient and proper mode in general is to assign the term by a separate instrument, by which means an ejectment may be maintained by the trustee without the necessity of his exhibiting his title to the inheritance; or the purchaser may himself support an ejectment in the absence of the trustee, provided care be taken not to let it appear on the face of the conveyance that the legal estate is vested in a termor; but "if the purchaser should have occasion to bring an ejectment against a tenant, &c. and the term be assigned to trustee for him by his 'purchase deed, and no count in the declaration on a demise by such trustee, the purchaser could not recover the possession, as it would appear on the face of his own deed, that the ejectment

VOL. I.

DD

What term should be assigned.

Several terms.

was not brought by the person who had the first estate in possession;" and see 2 Bridg. Conv. 392; also Doe v. Sybourne, 7 Durnf. and E. 2, Goodtitle v. Jones, ib. 47, Evans v. Bicknell, 6 Ves. jun. 174, 184. Doe v. Wroot, 5 East, 132.

For the form of such an assignment, see WILDE's Sup. No. XXX. p. 240.

An assignment of outstanding terms to attend the inheritance is required for the purpose of obtaining the legal estate during the term, in order to protect the purchaser against intermediate incumbrances of which he has no notice, and also against dower; such terms only, therefore, need be so assigned as the purchaser can avail himself of in ejectment,`see Co. Lit. 290, b. n. (2), s. 13, but all other terms which are outstanding, should likewise be gotten in and merged at the time of the purchase, lest they should afterwards be required by a future purchaser or mortgagee, when the purchaser may be obliged to obtain them at his own expense; and see more fully on this subject the observations, post, p. 430.

Where there are several trust terms, it will generally be proper to merge them all except the two oldest, unless the deeds by which such elder terms were created or assigned be lost, in which case it may be eligible to preserve a more modern one; and vide Brad. P. Bk. 60; where the state of the title renders it proper that more terms than one should be kept on foot, they may all be assigned, or rather demised, to the same trustee, reserving one day of the whole residue of each term, in order to prevent their merging in each other, "or every alternate term, as the first, third, and fifth, may be assigned to one trustee, and the second, fourth, and sixth to another trustee." 2 Prest. Conv. 127, 129, and see Scott v. Fenhoulet, 1 Brow. Ch. Rep. 69.

It sometimes happens that where there are several terms, the one of them is found to have been carved out of the other, in which case the latter or under term is that which it is more requisite should be assigned to attend, as it is this and not the original term which confers on the lessee the immediate right of possession, vide 2 Prest. Conv. 130; and for the forms of such assignments see post, INDEX voce TERMS.