signees release. And bankrupt confirms. Actual possession clause. also the said [bankrupt], by virtue of all powers and authorities vested in or given to him, Doth direct, limit and appoint to the uses hereinafter expressed (103). And the And creditors' as said [assignees, cred. & off.] Have and every of them Hath bargained, sold and released, and by these presents Do and each of them Doth bargain, sell and release, And the said [bankrupt] Hath granted, bargained, sold, released, ratified and confirmed, And by these presents Doth grant, bargain, sell, release, ratify and confirm unto the said [purchaser], his heirs and assigns (in the actual possession of the said [purchaser], now being, by virtue of a bargain and sale made to him by the said [assignees, cred. & off. and bankrupt], in consideration of 5s. a-piece, by indenture bearing date the day next before the day of the date of these presents, for one year, commencing from the day next before the day of the date of the said indenture of bargain and sale, and by force of the statute made for transferring uses into possession), All [freehold parcels], Together with all the rights, members and appurtenances to the said hereditaments and premises belonging. And also all the estate, right, title and interest of the said [assignees, cred and off. and bankrupt, respectively in or to the said hereditaments and premises, with their appurtenances. And also all deeds and writings relating to the title to 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 same parties or any of them. TO HAVE AND TO HOLD the said messuages or tenements, hereditaments and premises hereby released or otherwise assured or intended so to be, with their appurtenances, unto the said [purchaser], his heirs and assigns, To such uses, upon such trusts and in such manner as the said [purchaser], shall, by any deed or deeds, Parcels. All estate, &c. All deeds, &c. HABENDUM. To such uses as purchaser shall appoint, in de. fault of appointment to him in fee. Appointment to uses. (103) It is more accurate to appoint thus, "to the uses," &c.; but if these words were omitted, the appointment would still be applied, in construction, directly to the uses; see Wynne v. Griffith, 3 Bing. 179; 5 Barn. & C. 923; 1 Russ. 283. TATUM. appoint, And in default of appointment, (104) To the use FURTHER Tesof the said [purchaser], his heirs and assigns for ever. AND Consideration. This IndenturE FURTHER WITNESSETH, that in pursuance of the said contract, so far as concerns the said copyhold hereditaments, and in consideration, &c. the receipt, &c. [state the consideration for the copyholds and the receipt, &c. as in the former testatum], The said [commissioner] Hath bargained and sold, and by these presents Doth bargain and sell, And the said [assignees, cred. & off.], Have remised, released and quit-claimed, and by these presents Do remise, release and quit-claim, And the said [bankrupt] Hath ratified and confirmed, and by these presents Doth ratify and confirm unto the said [purchaser], his heirs and assigns, All [copyhold parcels], Together with, &c, and also all the estate, &c. TO HAVE AND TO HOLD the said copyhold pieces or parcels of land, hereditaments and premises hereby bargained and sold or intended so to be, with the appurtenances, unto and to the use of the said [purchaser], his heirs and assigns for ever, at the will of the lord, according to the custom of the said manor, by the rents, suit and services therefore due and accustomed. And the said [commissioner] Doth hereby entitle and authorise the said [person to surrender], at the next or any susequent court baron to be held for the said manor, or out of court, as soon as may be, to surrender into the hands of the lord of the said manor, according to the custom thereof, the said copyhold pieces or parcels of land, hereditaments and premises hereby bargained and sold or Appointment by commissioner of a person to sur render the copy. holds. (104) Even if limitations to prevent dower should be rendered wholly Utility of the power of appoint(suprà, 140,) unnecessary by the legislature, the power of appointment ment in uses to should still be retained, on account of the facilities which it affords for prevent dower. acting on the ownership by a simple instrument, and for conferring a title unaffected by the judgment debts (suprà, n. 79,) of the appointor. It should be observed, that an execution of the power over-reaches dower attaching on the fee vested in the purchaser previously to the appointment. Moreton v. Lees, Sugd. Pow. 5th ed. 350; Ray v. Pung, 5 Barn. & Ald. 561; 5 Madd. 310. Covenant by creditors' assignees against incumbrances. intended so to be, with their appurtenances, To the use of the said [purchaser], his heirs and assigns, at the will of the lord, according to the custom of the said manor, by the rents, suit and services therefore due and accustomed. And each of them the said [creditors' assignees], (so far only as concerns his own acts and defaults), for himself, his heirs, executors and administrators, hereby covenants with the said [purchaser], his heirs and assigns, that he (the covenanting party) has not done or permitted any act, matter or thing by which the said freehold and copyhold hereditaments and premises respectively, or any part thereof respectively, are, is, shall or may be aliened, charged or prejudicially affected (105). IN WITNESS, &c. Mortgages. MORTGAGE in Fee, by APPOINTMENT and LEASE and RELEASE, with Power of Sale. (106). THIS INDENTURE, made the day of in the year of the one WHEREAS of our Lord Between [mortgagor], of, &c. and days of in the year 18—, (105) The bankrupt is not compellable to enter into covenants for title, nor indeed to join in the conveyance. If he should be willing to covenant, here may be added covenants similar to those in No. 22, suprà. But the act, 6 Geo. 4, c. 16, s. 78, authorises the Chancellor, on the petition of the assignees or purchaser, to order the bankrupt to join in the conveyance, and on his non-compliance, gives to the order the effect of a conveyance by him. (106) This precedent exhibits a concise example of a mortgage in fee with power of sale, framed, for the most part, according to the ordinary forms. The points arising upon these forms are fully considered in the annotations to No. 26, infrà. to mortgagor, to uses to prevent dower, for mortgage. the Indenture of Release being made between, &c. the fee- of conveyance simple in possession of the hereditaments hereafter described, stands limited To such uses as the said [mortgagor] shall by any deed or deeds appoint; And in default of such appointment, To the use of the said [mortgagor] and his assigns for his life, without impeachment of waste, with remainder To the use of the said [a trustee to prevent dower], his executors and administrators, during the life of the said [mortgagor], upon trust for the said [mortgagor], and his assigns, with remainder To the use of the said [mortgagor] his heirs and assigns for ever. AND WHEREAS the said [mortgagee] has, of agreement at the request of the said [mortgagor], agreed to lend to him the sum of £————, on having the repayment thereof, with interest, secured in manner hereinafter expressed: Now THERE- TESTATUM. FORE THIS INDENTURE WITNESSETH, that in consideration of Consideration. the sum of £- of lawful British money, paid by the said [mortgagee] to the said [mortgagor], on the execution of these presents, the receipt whereof the said [mortgagor] hereby acknowledges, and therefrom hereby releases the said [mortgagee], his heirs, executors, administrators and assigns, The said [mortgagor], in execution of the aforesaid power given to him by the said recited Indentures, and of every other power enabling him in this behalf, DоTH appoint that ALL Mortgagor apthe hereditaments hereinafter described, with their appurtenances, shall henceforth remain To the use of the said [mortgagee], his heirs and assigns for ever, subject as hereinafter is expressed. AND THIS INDENTURE FURTHER WIT- FURTHER NESSETH, that for the consideration aforesaid, The said [mortgagor] HATH granted, bargained, sold and released, and by Mortgagor these presents Doth grant, bargain, sell and release unto the said [mortgagee], (in his actual possession now being by virtue Actual possession of a bargain and sale thereof, made to him by the said [mortgagor] in consideration of 5s. by Indenture dated the day next before the day of the date of these presents, for one year, computed from the day next before the day of the date of the said Indenture of Bargain and Sale, and by force of the points. TESTATUM. releases. clause. Parcels. All estate, &c. HABENDUM. To mortgagee in fee. Proviso for re demption. Power of sale. statute for transferring uses into possession,) and to his heirs, next, |