fee. Covenant by heir not incumbered. for ever. -to purchaser in the use of the said [owner of base fee], his heirs and assigns And the said [heir in tail], for himself, his heirs, in tail that he has executors and administrators, hereby covenants with the said [owner of base fee], his heirs and assigns, that the said [heir in tail] has not done or permitted any act, matter or thing whatsoever by which, or by means of which, the said messuage or tenement, hereditaments and premises hereby bargained and sold, or intended so to be, or any part thereof, with their appurtenances, are, is, or may be aliened, incumbered or prejudicially affected. IN WITNESS, &c. Parties. RECITALS, -of settlement No. 35. ASSIGNMENT by the Tenant in Tail of a protected Settlement, THIS INDENTURE made the on marriage of the release bearing date respectively the father and mother of tenant in tail, in the year, the indenture of release being made between [father of tenant in tail, and protector of the settlement], of the first part, [mother of tenant in tail], of the second part, [trustees to preserve contingent remainders], of the third part, and [trustees of term], of the fourth part, and being a settlement in contemplation of the marriage afterwards solemnized between the said [protector] and [mother], divers freehold hereditaments were limited, from and after the solemnization of the said then intended marriage, to the use of the said [protector] for his life, with remainder to the use of the said [trustees to preserve], and their heirs, during the life of the said [protector], upon trust to preserve the contingent remainders thereinafter limited, and after his decease To the use and intent that the said [mother], if she should survive the said [protector], might, during the remainder of her life, receive out of the rents and profits of the said hereditaments, a yearly rent-charge of £— for her jointure and in bar of dower, with the usual powers of distress and entry for enforcing payment thereof, with remainder to the use of the said [trustees of term], their executors, administrators and assigns, for the term of 500 years, to be computed from the day of the date of the now reciting indenture of release, without impeachment of waste, upon the trusts therein declared for securing the said rent-charge, and for raising such gross and annual sums of money as therein are mentioned for the portions and maintenance of the younger children of the said then intended marriage, and from and after the determination of the said term of 500 years, and in the mean time subject thereto, to the use of the first and every other son successively of the said then intended marriage, in tail male, with reversion to the use of the said [protector], his heirs and assigns for ever; And which indenture of release contains a containing power enabling the said [trustees to preserve], with the consent in writing of the said [protector], to sell or exchange the said hereditaments or any of them, and to receive money for equality of exchange, and also contains a direction to invest the money to arise from sales, or to be received on exchanges, made under the said power, in the purchase of real estates to be settled to the uses limited by the same indenture concerning the said hereditaments thereby settled, and in the mean time to invest the same money in the names of the said trustees in or upon the public stocks or funds or other government securities, or on real securities in the United Kingdom, and also contains a declaration that the dividends, interest and yearly produce of the stocks, funds and securities in or upon which such investment should be made, should be paid and applied to the same persons and for the same purposes as the rents and profits of the estates directed to be power of sale and exchange; and directing monies arising from sales and exchanges to be laid out in lands same uses, and in to be settled to the meantime to be invested in stock or on mortgage; -that tenant in tail is the first son of marriage, and of age; vestment of money. purchased therewith as aforesaid, would, if so purchased, be payable or applicable. AND WHEREAS the said [tenant in tail] is the first son of the said marriage between the said [protector] and the said [mother] now his wife, and attained the age of twenty-one years, on the last, day of and there are several younger children of such marriage. of sales and ex- AND WHEREAS several sales and exchanges have been made changes, and inin pursuance of the aforesaid power contained in the said recited indenture of release, and the monies received from such sales and for equality of exchange upon such exchanges have been invested in the names of the said [trustees], partly in the public stocks or funds and partly on real securities; (165) And the investments thereof now consist of the Mode of assurance (165) The fund applicable to the purchase of land to be entailed may consist either of ready money, or money invested on securities &c., or of money to arise under a trust for sale impressed on real estate. If it consist of mouey invested, it matters not what is the nature of the investment. The same form will apply to stock, bonds, mortgages, whether for years or in fee, &c. The assignment operates, not upon the legal interest in the fund or security, but merely upon the equity created by the direction to purchase and settle the land; substituting for the equitable right to an estate tail in the land, an equitable right to the absolute property in the fund. If the fund consist of unsold real estate, not being copyhold or leasehold for years, then it must be operated upon by one or other of the modes of assurance adapted to unfetter freehold lands; if it consist of unsold real estate, being copyhold, the mode prescribed for barring the entail of copyhold lands must be pursued; and if it consist of chattels real, i. e. leasehold for years, an assignment is the appropriate assurance. The assignment, as well in the case of the money as in the case of the leaseholds for years, must be by deed inrolled within six calendar months after the execution. (3 & 4 Wm. IV. c. 74, s. 71.) These distinctions are attended with some complexity, but probably more difficulties presented themselves on considering the subject in all its bearings, than occur upon a cursory view, to the simple course of acting upon the fund, in every case, as if it were equitably converted into lands of freehold tenure, and conveying it under the denomination (employed by an eminent conveyancer) of "moneyland," by an assurance adequate to pass freehold estates. Whether there is or is not a protector of the settlement, the tenant in tail must, in order to surance. particulars mentioned in the schedule hereunder written; unsettle the fund, adopt the same mode of assurance.-With respect to a quasi entail of leaseholds for lives, it may still be barred as heretofore by an ordinary deed; and with respect to leaseholds for years destined to attend, so far as the law will permit, the devolution of freeholds in strict settlement, since the absolute vesting cannot, by force of the limitations per se, be postponed beyond a life or lives in being and twenty-one years, no act is necessary to defeat the settlement. The act has, of course, no application to these improper entails (if they may be so termed) which were either destructible by a common conveyance or incapable from their own nature of exceeding the limit fixed by the rule against perpetuities: leaseholds for lives and for years are contemplated by the section in question only as constituting a fund devoted to the purchase of lands susceptible of a proper entail. (166) In point of fact nothing passes by the assignment—no legal interest, for the assignor has a mere equity-no equitable interest, for the assignee is not intended to take beneficially. Indeed, if the assignee were intended to take beneficially, still the assignment would be merely formal, since all dispositions of equitable rights operate by way of contract, and not of conveyance. The act says an assignment by deed," and the form of assignment commonly adopted in practice for the transfer of personal estate is proper to be observed; but as the term "assignment" is very indefinite, (see 2 Black. Comm. 326,) the act seems to admit of considerable latitude in point of form. " Tenant in tail with tector, assigns. consent of pro Estates pur autre real, how dissettlement. vie and chattels charged from The assignment of an entailed fund is purely formal. HABENDUM, -to assignee, as personal estate, -upon trust to re-assign. The assignment of entailed fund inoperative upon a fund to arise in futuro. Entailed fund subject to prior interests. Assignment and re-assignment of entailed fund recommended. trators and assigns, All the moneys which have been received (167) The assignment cannot be made to embrace the produce of future sales, &c. of the settled estate; but it may extend to the produce of sales, &c. for which contracts binding on the persons claiming under the settlement have been entered into. (168) The fund must, of course, remain in the hands of the trustees to answer the purposes of the prior limitations, and the operation of the assignment will be merely to acquire the absolute reversionary or expectant interest. (169) Though a re-assignment is clearly unnecessary for the purpose of discharging the fund from the entail, yet, by facilitating the receipt of the fund, the re-assignment may ultimately be attended with a saving of expense. If the fund were assigned in trust for the tenant in tail, the trustee of the fund would probably require a discharge from the assignee or his personal representatives. The expense of the re-assignment is trifling, and excludes |