have in themselves, or one of them now has in himself, good right by these presents to assign or otherwise assure the said for right to assign, premises hereby assigned or intended so to be, with the appurtenances, unto the said [assignee], his executors, administrators and assigns, for the residue now unexpired of the said term of years in manner aforesaid, according to the true intent of these presents. And further, that it shall be lawful for quiet enjoyfor the said [assignee], his executors, administrators and assigns, henceforth during the continuance of the said term of

ment,

from incum

brances,

years, peaceably and quietly to hold and enjoy the said premises, and to take the rents and profits thereof, subject to the said rent, covenants and conditions, without any eviction or denial from or by the said [assignors and legatees], or any of them, or any person or persons rightfully claiming or to claim through, under or in trust for them or any of them, or through or under the said [deceased assignee], deceased; Free and clear, or by the said [legatees], or some or one of them, for freedom their or some or one of their heirs, executors or administrators, kept indemnified from or against all former and other estates, rights, titles, charges, and incumbrances, created or occasioned by the said [assignors and legatees], or any of them, or by the said [deceased assignee], deceased, or any person or persons, claiming or to claim, through, under or in trust for them, or any of them, or through or under him; And also that the said [assignors and legatees] respectively, for farther as and every person having or rightfully claiming through, under or in trust for them or any of them, or through or under the said [deceased assignee], deceased, (except the person or persons for the time being entitled to the benefit of the said rent, covenants and conditions in respect only of such benefit,) will, at any time or times, at the request and costs of the said [assignee], his executors, administrators or assigns, make, do or execute every such act, deed, assignment or assurance for more effectually assuring the said premises hereby assigned or intended so to be, or any part thereof, unto the said [assignee], his executors, administrators or assigns, for the residue which

surance.

nee to pay rent

and perform covenants,

nors.

and

years, ac

shall be then unexpired of the said term of cording to the true intent of these presents, as by the said [assignee], his executors, administrators or assigns, or his or their counsel in the law, shall be reasonably advised and required, and as shall be tendered to be done or executed. Covenant by assig. And the said [assignee] for himself, his heirs, executors, administrators and assigns, hereby covenants with the said indemnify assig- [assignors], their executors and administrators, That the said [assignee], his executors, administrators or assigns, will henceforth pay the said rent, and observe and perform the said covenants and conditions respectively reserved and contained in the said recited indenture of lease, and will also effectually keep indemnified the said [assignors], as such executors as aforesaid, their heirs, executors and administrators, and the heirs, executors and administrators, and the real and personal representatives for the time being of the said [deceased assignee], deceased, from all actions, suits and other proceedings, and all costs, losses, damages and expenses by reason of the non-payment of the same rent, or the non-observance or non-performance of the same covenants and conditions or any of them, or by reason of any matter or thing relating thereto. IN WITNESS, &c.

Assurances operating under the Statute of Uses.

1. BY TRANSMUTATION OF POSSESSION.

1. Where the Seisin and the Use are created by the same Instrument.

No. 13.

SETTLEMENT, by Feoffment, after Marriage, to Uses in Favour

of the Feoffor, his Wife and Children.

THIS INDENTURE made the

day of in the year

of our Lord,, Between [feoffor], of, &c. of the one part, Parties. and [feoffees to uses], of, &c. of the other part, WITNESSETH, TESTATUM. that in consideration of the marriage heretofore solemnized between the said [feoffor] and [Christian name,] his wife, formerly [maiden name] spinster, and in consideration of the love and affection which the said [feoffor] bears towards his said wife and for divers other good causes and considerations (42) him the said [feoffor], hereunto moving, and in

(42) As the settlement in this case is supposed to be made after mar- Voluntary deeds. riage, the words" for divers other," &c. are used for the purpose of letting in the averment of considerations not appearing upon the deed, and of deterring purchasers and mortgagees from dealing with the feoffor on the assumption that the settlement is voluntary within the stat. 27 Eliz. c. 4. As very slight inducements, and even matter extrinsic or matter ex post facto, may supply a sufficient consideration to take a settlement out of that statute, the purchase of an estate in defiance of a post-nuptial, or other apparently voluntary settlement, must always be a hazardous speculation.— The general doctrine of equity, in regard to voluntary deeds, was understood to be, that where the transaction was completed by an actual transfer of the property, the court would enforce an execution of the trusts, although the claimants were mere volunteers; but that where it rested in contract, the

Voluntary provisions for payment of debts.

Voluntary restrictions on proprietory rights.

consideration of 10s. (43) paid by the said [feoffees] to the [feoffor] immediately before the execution of these presents,

court would not act without the inducement of at least a meritorious consideration, (18 Ves. 99,) as the moral obligation to provide for a wife and children; and it was an established principle that voluntary conveyances, although void as against purchasers under the above statute, were yet binding on the grantor and his heirs, who could not recall them. According to some recent decisions, however, it should seem that conveyances made by a debtor of his own accord to trustees for the payment of his debts, may be revoked or varied at his pleasure. Walwyn v. Coutts, 3 Mer. 707; 3 Sim. 14; Garrard v. Lord Lauderdale, 3 Sim. 1. Unfortunately these decisions do not furnish the practitioner with such distinct and satisfactory tests as enable him to determine in what cases, (with reference to the fact of creditors being parties or not-to dealings or communications, contemporaneous or subsequent, by or with creditors,-and to other circumstances,) the deed, on being repudiated by the maker, may be safely treated as a nullity. The result of the authorities, so far as it can be collected, appears to be, that the trusts of a deed of this kind must be considered as created by the debtor for his own benefit and convenience, and as liable, like directions given to an agent respecting the application of funds belonging to his principal, to be countermanded at pleasure.

The law of England has provided no means by which a weak or profligate man, not mentally incapacitated, may place himself or be placed by others in a state of tutelage, or may so fetter his dominion as to protect his property from being dissipated by his own facility, infirmity or vice. We have nothing analogous to the interdiction of the Scotch law, which, on the application of the connections of the party, or at the instance of the party himself, conscious of his imbecility, imposes certain restraints on the expenditure of his heritage. Here it is not legally possible for even a donor to create an unalienable trust in favour of the donee (not being a married woman) for personal maintenance, (supra, 83); much less can the proprietor create a trust of that nature in favour of himself. Dispositions, with whatever solemnities perfected, by which the owner of property as his own voluntary act, professes to renounce his proprietary rights and to vest them in trustees, with the view of remedying or averting the consequences of his past or future improvidence, are to be considered, in point of legal construction and effect, merely as the wise resolutions of to-day liable to be recalled and annulled by the returning folly of to-morrow. But though the purposes of such dispositions cannot in strictness of law be secured, yet by removing the property, under the sanction of legal forms, from the immediate posses

the receipt whereof is hereby acknowledged, the said [feoffor] Operative words. Hath given, granted and enfeoffed, and by these presents Doth give, grant, enfeoff and confirm unto the said [feoffees] and their heirs, All [parcels] (of which said hereditaments Parcels. the said [feoffor] is seised in fee simple in possession), Together with all the rights, members and appurtenances thereunto belonging: And also all the estate, right, title and All estate, &c. interest at law or in equity of the said [feoffor], in or to the said hereditaments and premises and every part thereof, with their appurtenances, And all deeds and muniments in his Deeds, &c. possession or power relating thereto, TO HAVE AND TO HOLD HABENDUM. the said hereditaments and premises hereby granted and enfeoffed or intended so to be, with their appurtenances, unto To Uses, viz. the said [feoffees] and their heirs (44); NEVERTHELESS, To feoftor and wife

-such uses as

shall by deed appoint,

ations.

Conveyances to

uses, operating as

bargains and sales,

sion of the owner, they are found capable of interposing a considerable check, and are, therefore, not unfrequently adopted in practice. (43) It is not necessary to the validity of a conveyance at common law Nominal consider that any consideration should be given or expressed. The only use of the nominal consideration expressed in the text is to render the deed capable of operating as a bargain and sale, if inrolled within six lunar months from the date, pursuant to the stat. 27 Hen. 8, c. 16. But in most cases the intention would be defeated by giving that operation to assurances designed to take effect by transmutation of possession. Thus the precedent in the text, operating as a bargain and sale of the use, instead of a feoffment of the land, would vest the legal fee in the persons named as feoffees, and the limitations purporting to be uses would confer only equitable interests. Besides, although the use may be bargained and sold to A. for life, with remainder to B., it cannot be bargained and sold to such persons, and in such manner, as A. shall appoint; so that, for example, the power of appointment which forms part of the ordinary limitations to prevent dower, could not be created by way of bargain and sale.

serve uses.

(44) By this conveyance the possession of the land is transferred to the Of the seisin to feoffees, to hold to them and their heirs; they have consequently the legal seisin of the fee as joint tenants. The words" and their heirs," are used to denote the quantity of estate (viz. the fee) requisite to supply the uses, as these, in point of legal effect, can only be commensurate with the seisin, so that if the conveyance were made to A. (without words of inheritance) to the use of B. and his heirs, then, as A. would be seised for life only, the use would

R