Purchasers. alone or together with other hereditaments or pro- PURCHASES. perty of inferior value, now or hereafter in the pos- Vendor to Jointsession or lawful power of the said (vendor) his heirs, executors, or administrators, or of any other person or persons from whom he or they can or may procure the same, without action or suit at law or in equity; and true and attested copies And copies. at the request of the said (purchaser) his heirs or assigns (1) (duly stampt); of all other deeds, muniments, writings, and evidences, (not being of record) now or hereafter in his or their custody or power, as aforesaid, in anywise relating to the same hereditaments and premises, or any part thereof, jointly with other hereditaments or property of greater or equal value; such copies, when first required to be made and delivered at the expense of the said (vendor) his heirs, executors, or administrators; but all future copies to be made and taken at the expense of the person or persons requiring the same.] TO HAVE AND TO HOLD the said messuages, To HOLD to the purchaser as lands, tenements, hereditaments, and premises joint-tenants in fee-simple. hereinbefore described, and hereby granted and released, or otherwise assured, or intended so to be, with their and every of their rights, members, appendants, and appurtenances, unto the said (purchasers) and their heirs, to the use and behoof of (1) If the title deeds are not to be delivered to the purchaser, Schedule. but a covenant entered into for the production of them, as contained in an underwritten schedule, add, "Whether mentioned in the schedule here underwritten or not." PURCHASES. them the said (purchasers) their heirs and assigns for ever (1)." AND the said (vendor) for himself, his heirs, executors, and administrators, DOTH Vendor to Joint- Covenant by vendor that he is seised in fee. Uses to prevent dower. To joint-tenants and the survivor. Joint-tenants must take an unity of interest. (1) If the conveyance is intended to be taken by either of the purchasers to uses to prevent dower, omit the words within inverted commas, and add the limitation inserted, ante, No. XXVIII. p. 443, or ib. n. (1). The student will find many of the printed forms of limitation to two persons as joint-tenants, run, "To the use and behoof of the said (joint tenants) and the survivor of them, and the heirs and assigns of the survivor for ever." But this is improper, as it gives but a present life interest to each of them in the joint-estate, with a contingent remainder in fee to the survivor. A species of fee which it is difficult to convey satisfactorily to a scrupulous purchaser, and see Co. Lit. 191, a. n. (78). If it be intended to convey an estate to two or more persons as joint-tenants, it is necessary that an unity of interest be given to them, which must be coeval in point of ereation, as in the above limitation, which is the proper form where both parties are in esse at the time; but where this is not the case, or where the capacity of the persons intended to take as joint-tenants, may possibly not occur at the same instant of time, (as if it be wished to limit an estate in joint-tenancy, to the children or heirs of A. B. and C. D. none of whom may yet be born), the limitation must be to a trustee or trustees to the use of such heirs, &c. in which case as all the cestui que uses would take under the conveyance to the trustee, each of them would by retrospection be in as from the same period, although by the death of their respective ancestors, they might become actually entitled at different times. Whereas if the estate were limited immediately to the heirs of A. B. and C. D., and A. B. and C. D. should (as in all human probability they would), die at successive times, their respective heirs by succeeding at different times would take as tenants in common, and see 3 Elem. Conv. p. 421, et seq. hereby covenant, declare, grant, and agree, with PURCHASES. Vendor to Joint Purchasers. If the intent be that the purchasers shall take as tenants in common, say, "To have and to hold the said messuages, &c. unto the Tenants in said (purchasers) and their heirs, to the use and behoof of common. them the said (purchasers) as tenants in common, and of the several and respective heirs and assigns of them the said (purchasers) for ever;" Or the limitation may be, "Unto the said (purchasers) and their heirs, as to and in respect of one moiety or full half part (the whole into two equal half parts being considered as divided) of and in the said messuages, &c. to the use and behoof of the said (one of the purchasers) his heirs and assigns for ever; and as to and in respect of the other or remaining moiety or half part of the same messuages, &c. to the use and behoof of the said (other purchaser) his heirs and assigns for ever." Real estate, although purchased by copartners for the pur- Copartners. poses of their business, will not be considered as part of the stock in trade, Smith v. Smith, 5 Ves. 189; Bell v. Phyn, 7 ib. 453; Balmain v. Shore, 9 ib. 500; unless it be expressly declared by the parties that it shall be so, in which case it will be treated in all respects as personalty, Thomson v. Dixon, 3 Brow. C. C. 199; Ripley v. Waterhouse, 7 Ves. 435. If therefore the purchasers are copartners, and the premises be bought for the purposes of the joint-trade, the limitation may be, "Unto and to the use of the said (trustee) and his heirs, but nevertheless in trust for the said (co-partners) their executors, administrators, and assigns, to and for such ends, intents and purposes, and subject to such covenants, provisos, articles, and agreements as in and by a certain indenture or deed of co-partnership bearing (or intended to bear) date the day of , and made (or intended to be made) between them the said (purchasers) are or shall or may be de VOL. I. H H PURCHASES. and to the said (purchasers) (1) their heirs and Vendor to Joint assigns, in the manner following (2) (that is to Purchasers. say) that for and notwithstanding any act, deed, Tenants in common. Tenants in common. Wife. clared concerning the same, or such other ends, intents, and purposes, as shall or may at any time, and from time to time hereafter be expressed, by any writing under their respective hands; and to be had and holden as or in the nature of personal estate, and to the end and intent that the same may be and be taken and considered as part of the copartnership stock and effects of the said (co-partners).” (1) The covenants for the title with joint-purchasers should be joint and not severally with each of them, for such words will be nugatory, Slingsby's Ca. 5 Co. 18; Jenk. Cent. 262; Johnson v. Wilson, Willis, 248; for a covenant with two or more persons, although followed by words of severance as "and every of them," and although they are made of separate parts in the deed, will be a joint covenant; Southcote v. Hoare, 3 Taunt. 87. If therefore the purchasers are intended to take as tenants in common say, "with each of them the said A. and B. severally and not jointly;" or, "With and to the said (one of the purchasers) his heirs and assigns, as to and concerning one undivided moiety or equal half part of all and singular the said messuages, lands, tenements, hereditaments, and premises, with their respective rights, members, appendants, and appurtenances, and with and to the said (other purchaser) his heirs and assigns, as to and concerning one other moiety or equal half part of the same messuages, lands, tenements, hereditaments, and premises, with their respective appendants, &c. in the manner following," (that is to say), as above. (2) If the wife of the vendor be a party, add here a covenant to levy a fine, as in Vol. II. No. XXXI. making the covenant with the purchasers and their heirs to levy the fine to them and the heirs of A. (i. e. one of the purchasers only) and not to "their heirs." Purchasers. matter, or thing whatsoever (1), made, done, exe- PURCHASES. cuted, or knowingly occasioned, or suffered by Vendor to Jointhim the said (vendor) (2) to the contrary, he the said (vendor) at the time of the sealing and delivery of these presents is lawfully, rightly, and absolutely seised in his demesne as of fee, in his own right, and to his own use, of all and singular the messuages, lands, tenements, hereditaments, and premises hereinbefore granted and released, or otherwise assured, or intended so to be, and every part thereof, as of, in, and for a good, clear, absolute, and indefeasible estate of inheritance in fee-simple, in possession, and in severalty, without the said estate or hereditaments being subject or liable to any [condition, proviso, power of revocation, or of limiting or declaring any new or other use or uses, or any other power, trust], qualification, restriction, matter, or thing whatsoever, which can or may determine, revoke, qualify, alter, charge, incumber, or prejudicially affect the same in any manner howsoever, (leases (1) If the vendor took the estate to himself and a trustee, see Vendor taking Vol. II. No. XXXIV. marg. (t). to trustee. If part of the lands be copyhold, make such additions to this Copy hold. and the subsequent covenants as will be found in those ante, No. XX. p. 269. (2) If the vendor became entitled to the estate by devise, Vendor taking add, "Or the said (devisor) deceased.” If by descent, add, "Or any of his ancestors," and see ante, No. XV. p. 141, n. (39); and No. XVI. p. 178, et seq. in notes. by devise, or descent. |