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Vendor and
Termor to
Purchaser.

equal in equity, both being purchasers in a legal sense for a PURCHASES. valuable consideration, the creditor is preferred in law as being the elder purchaser, because his claim is founded on the judgment had against the ancestor of the lands, before they descended to the heir, et qui prior est tempore potior est jure. But if there be a term of years subsisting in the estate upon trust to attend the inheritance, the equitable right of the heir being absorbed by the accession of the legal interest in the land, during the continuance of the term, it will be a bar to the execution of the judgment; for although the trust or benefit of the term is annexed to the inheritance, the legal interest of the term remains distinct and separate from it at law, in which its protective quality consists; and see Co. Litt. 290, b. and Sugden's Law of Vendors and Purchasers, p. 371.

A term which has been once assigned to attend the inheritance must, if required again to be assigned, (as we have observed in a prior note), be at the purchaser's expense; the reason of which is, that when it has been once so assigned by the direction of the person for whose benefit it was created, it is by that means discharged of the charge upon it, and is, so far as concerns the title, just in the situation it ought to be. And if, therefore, the purchaser, for his own satisfaction, chooses to have it taken from the old trustee and placed in one of his own naming, this being a matter of desire and convenience only, and not of necessity, it is reasonable it should be at his own expense. It is nevertheless right to have it assigned to his own proper trustee, not only because such trustee is more likely than a stranger to be accommodating to his wishes in the disposition of the term, but because if the term is left too long outstanding, and not from time to time brought forward, it may get so far behind

VOL. I.

F F

Vendor and
Termor to
Purchaser.

PURCHASES. that it may be difficult to discover in whom it is; in which case a prerogative administration must be obtained for the express purpose, which arising from the neglect of the owner of the inheritance who has a right at all times to call for it must be obtained at his expense. And a prerogative assignment, moreover, is not to be depended upon, because the administrator of such term is at best but a factitious representative of the real termor, and who or his bona fide representatives may have already administered to and disposed of the term, and such administration and disposition would of course give a prior, if not a more rightful title than that given by the ordinary, whose letters of administration can only extend to such of the termor's chattels, &c. as remained undisposed of by his will, or unadministered to by his termor or the original administrator.

Assignment of judgments.

And as lands may be extended by elegit under a judgment obtained against the owner, if on a purchase there be any such, a competent part of the purchase money should be applied to satisfy them, and the judgment should, in like manner as a term, be assigned to a trustee, as a protection against incumbrances. An example will show how judgments afford such protection. Suppose a judgment be obtained against the owner of an estate, who afterwards confesses other judgments, or mortgages his land, if a purchaser pays off the first judgment without notice of the subsequent incumbrances, and takes an assignment of it to a trustee (not to himself, for then it would merge in the lands), as a protection to the purchased premises, and the mortgagee or other incumbrance should afterwards make a claim upon him, he would be entitled to stand in the place of the creditor whose judgment he had paid off, and would be protected in his purchase, as to the amount

of the money he had paid upon it; whereas if the judgment be PURCHASES. released instead of assigned, the purchaser might be left exposed to the claims of other incumbrances (1).

Vendor and

Termor tu Purchaser.

(1) Those who have attended my Lectures on Conveyancing will probably perceive that the above observations were extracted from thence, and for which I ought perhaps to apologise. This is, however, the only instance (except as to part of the Introduction) in which I have taken or intend to take the same liberty, and which has originated from the reason with which I commenced the extract, combined with want of time to give it a new form.

PURCHASES.

Vendor to Purchaser to

uses to bar Dower.

No. XXVIII.

Conveyance by a Vendor to a Purchaser to Uses to
bar Dower; with various Forms of Limitation
for that Purpose.

Variations where the Limitation is to prevent Curtesy.
Also where part of the Premises are Copyhold.

Where the Conveyance is of a Moiety or other undivided Part of the Estate.

Where of a Remainder or Reversion, &c. &c. as below (1).

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Tail.

Life.

Reversion.

Equity of redemption.

Moiety, &c.

Wife.

(1) If the vendor be tenant in tail, see ante, No. XXII.

If tenant for life, see ib. No. XXIII.

If he be entitled in remainder or reversion, see ib. No. XXIV. If the conveyance be of an equity of redemption only, see ib. No. XXV.

If a moiety or other undivided part, see ib. No. XXVI.

(2) If the vendor be married, and his wife be entitled to dower, make her a party with her husband, as post, Vol. II. No. XXXI.

If the vendor took the estate with limitations to a trustee to prevent dower, make such trustee a party of the second part, as post, Vol. II. No. XXXIV.

(the purchaser) of, &c.

part, and (the trustee) of, &c.

of the second PURCHASES.

(a trustee

Vendor to Purchaser to

uses to bar

Dower.

Recitals.

named and appointed by and on the behalf of the said (purchaser) for the purposes hereinafter expressed) of the third part. WHEREAS (1), the said (vendor) is seised in his demesne as of fee of the several messuages, lands, and hereditaments hereinafter described. AND WHEREAS, the said (purchaser) hath contracted with (2) the said (vendor) for the absolute purchase thereof; free from incumbrances (other than as hereinafter is mentioned) at the sum of £ ; and hath requested that the same may be conveyed and assured to him to the uses, and in the manner hereinafter expressed. Now THIS INDENTURE WITNESSETH (8), that in pursuance and execution of the said con- deration of the tract, and in consideration of the sum of £ of lawful money (4) of that part of the United Kingdom of Great Britain and Ireland, called England, to the said (vendor) in hand well and truly paid by the said (purchaser) at or imme

WITNESS,

purchase
money.

6

(1) For the form of recitals of different species of deeds and Recitals. other events and transactions, see INDEX voc. Recitals..

(2) If the premises were sold by public auction or otherwise Auction. than by private contract, see ante, No. XVI. p. 163. n. (4).

(3) For the construction and reason of the different parts of Construction. the deed upon which no remarks are subjoined, see the notes in No. XV. ante, (p. 122. et seq.)

If the vendor took the estate to uses to prevent dower, insert here the witnessing part in Vol. II. No. XXXIV. marg.*. (4) If the consideration be paid otherwise than in money, or at any other time than at the execution of the conveyance, tee ante, No. XVI. p. 165. n. (6). et seq.

Vendor taking

to prevent dower. Consideration.

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