SALE. estate of inheritance in fee simple (or other use at pleasure (1)), BARGAIN AND and to or for no other use (2), intent or purpose whatsoever (3). IN WITNESS, &c. Sealed and delivered, &c. Tenant to the præcipe. roborate and confirm the several uses and estates, in or by the said in part recited indenture [or will devised] or limited unto or for the benefit of the first and other sons, if any, of the body of the said (tenant for life), and the heirs male of their bodies successively, according to the true intent and meaning of the said indenture [or will,] and subject to the said several uses, estates, and interests so mentioned or intended to be hereby corroborated and confirmed, and as and when the same shall respectively determine, to the use of the said (remainder-man) his heirs and assigns for ever," &c. &c. (1) If the uses are intended to be declared to a purchaser, mortgagee, Uses by sepa or other person taking under a conveyance by a separate deed, say, “To such uses, upon such trusts, and for such ends, intents, and purposes, as are declared and expressed concerning the same, in or by a certain indenture of release already prepared and engrossed, bearing or intended to bear date the day next after the date hereof, and made or expressed to be made between," &c. If it be intended that uses should be declared to bar dower, say, "To the use of such person or persons, and for such estate or interest and intents and purposes, as the said (tenant in tail) shall by any deed, will, or other sufficient writing, direct or appoint, and in default thereof, to the use of him the said (tenant in tail) during the term of his natural life, with remainder to the use of [(a trustee) his executors or administrators during the life of the said (tenant in tail), but in trust for him and his assigns, with remainder to the use of] the right heirs of him the said (tenant in tail) for ever." See various other forms of limitation for barring dower, ante, MOD. PREC. Vol. I. No. XXVIII. p. 442. in notis. (2) It has been observed in a preceding part of this work, that no use can be declared on a bargain and sale but to the bargainee himself; but this doctrine does not apply to a bargain and sale made for the purpose of suffering a recovery, as the seisin upon which the uses are declared is not in the bargainee, but in the recoveror or demandant; and see Webb v. Hill, Cro. Eliz. 21. rate deed. Uses to bat dower. uses in a bargain and sale. (3) If tenant for life join, a proviso is sometimes added to prevent £100,000 any incumbrances of the remainder-man being let in upon his estate (and clause. see 1 Prest. Conv. 107), but the mode pointed out in the preceding notes (see ante p. 35. n. (1)) is more simple, and equally efficacious. The proviso alluded to is as follows. * Provided always, and these presents are upon this express con BARGAIN AND Tenant to the præcipe. Execution. Enrolment. dition nevertheless, and it is hereby declared to be the true intent day of now next en Britain and Ireland, on the (1) The tenant of the præcipe usually executes the recovery deed, in order to shew his agreement to the declaration of uses; but this is not necessary; neither is it material that the demandant should execute; but it must be under the hand and seal of the bargainor. *** Where the deed to make a tenant to the præcipe is made by bargain and sale, operating as such, care must be taken that it be enrolled in due time, i. e. within six months after the date, or the recovery will be voidable, see 27 Hen. 8. c. 16. *This enrolment may be either in Chancery, the King's Bench, Common Pleas, or Exchequer, 2 Inst. 674, or before the Custos Rotulorum, and two Justices of the Peace, of the county where the lands lie, or any two of them, the Clerk of the Peace being one. And although the lands lie in several counties, one enrolment will be sufficient, if it be made in one of the King's Courts at Westminster; but if before the Custos Rotulorum, &c. there must be a distinct enrolment for each county in which the lands are situated.' The six months limited for the time of enrolment, must be accounted according to the computation of twenty-eight days to the month; a month, in its proper and original signification, being the space of time measured by the complete course of the moon, as the year is the time measured by the complement of the course of the sun; see 2 Inst. 674; Shep. Touch. 223; and from the date and from the day of the date in this case is taken as all one; the deed, therefore, may be enrolled either on the day it bears date, Clayton's Ca. 5 Co. 1; 2 Inst. 674; Norris v. Hundred of Gawtry, Hob. 140; Ex parte Fallon, 5 Durnf. and E. 287; or on the last day of the sixth month after; for though, when an interest passes from the day of the date, the day itself is excluded, Anon. 1 Ld. Raym. 480; yet, when a time is stinted in which an act is to be done, it is in order to hasten the doing of that act; and therefore the doing of it is on the day from whence the period is first reckoned within the time appointed, and the last day of the sixth month is within the words of the time given; see Rex v. Adderly, 2 Dougl. 463; Castle v. Burditt, 3 Durnf. and E. 625; Glassington v. Rawlins, 3 East, 406; and if the deed have no date, the six months are to be reckoned from the delivery, but not otherwise, 2 Inst. 676; Norris v. Hundred of Gawtry, Hob. 140. *If the lands be situated in any city, borough, or town corporate, having authority, or being lawfully accustomed to enroll deeds and evidences, it seems the deed need not be enrolled either at the Courts of Westminster, or in such city or borough; for lands lying in those places are exempted out of the stat. of 27 Hen. 8. c. 16. without any provision being made for enrolment elsewhere. See 2 Inst. 676. Prest. Abst. vol. iii. p. 94. and see Rex a. Reed v. Hopper, 3 Price, 495. sup N.B. As a recovery will be a revocation of a will previously made, and as this is a matter of which the generality of testators must be posed to be ignorant, it is the duty of the solicitor concerned in suffering a recovery to apprize his client of this circumstance, and remind him of the propriety of republishing his will. BARGAIN AND Tenant to the pracipe. Town corporate. Recovery revokes previous will. BARGAIN AND SALE. House, &c. (for incumbent). No. CLXXV. *A Bargain and Sale to an Incumbent of a Resident Dwellinghouse, under Act of Parliament (1). Variations where Land is also conveyed. Also where it is made by way of exchange for other lands, &c. (2) Recitals. c. 115. THIS INDENTURE made the year of the reign, &c. day of in the BETWEEN A. B., of and in the year of our Lord of the one part; C. D. ordinary of the rectory, vicarage, chapelry, or perpetual cure [as the (1) By 51 Geo. 3. c. 115. the powers given by former acts for the encouragement of building churches, &c. are extended, and it is enacted that the King as to crown lands, and all persons whatever as to other land, may by deed enrolled in Chancery grant to the rector, vicar, or other Vide 51 Geo. 3. minister of any church or chapel (of the Church of England service), land, not exceeding five statute acres, part of the waste of any manor, for the purpose of rebuilding or enlarging of such church or chapel, or for a burial-ground thereto; or for augmentation of the glebe land, or building or enlarging the house of residence of the vicar, &c. notwithstanding the statute of mortmain. See also 58 Geo. 3. c. 45. 59 ib. c. 134. 3 and 4 Geo. 4. c. 72. and 6 ib. c. 8. relative chiefly to the exchange of lands for the above purpose; by the last of which acts the power of exchange is extended to any number of acres. (2) See also post. "EXCHANGE." Exchange. yards from the rectory, &c. ap .rectory, &c. BARGAIN AND SALE. House, &c. the said A. B., and lying within the distance of church [or chapel as the case shall be] of the said pears to the said ordinary, patron, and incumbent proper and con- (for incumbent). venient for the habitation and use of the minister of the said [and more commodious than the present house and building upon the glebe of the said rectory, &c. (in cases where there are any)] and a contract hath been made by the direction and with the approbation and consent of the said ordinary, patron, and incumbent, with the said A. B., which is hereby ratified and confirmed by the said ordinary, patron, and incumbent, for the absolute purchase of the said messuage, house, or tenements and buildings, for the price or sum of £ pursuant to the directions of an Act past in the year of the reign of His Majesty King intituled an Act, &c. [set forth the title of the Act. (1)] NOW THIS INDENTURE WITNESSETH that the said A. B., for and in consideration of the said sum [or several sums] of ](2) to him in hand paid for the purchases aforesaid [if both the buildings and lands are purchased for money], the receipt of which said sum [or sums of money [and the WITNESS. Bargainor sells house. (1) If land also be conveyed by the same person conveying the Land also conhouse, &c. add, veyed. "AND WHEREAS a contract has likewise been made with the said A. B. by the like direction, approbation, and consent, which is hereby likewise ratified and confirmed by the said ordinary, patron, and incumbent, for the absolute purchase of the inheritance of a certain yard, garden, orchard, and piece or parcel of land, [describing them particularly as the case shall be] lying near or convenient to the said messuage, house, tenement, and buildings, containing by admeasurement , for the price or sum of £ which have been agreed by the said ordinary, patron, and incumbent, to be raised by the sale (or exchange) of certain lands or tithes [as the case shall be ] belonging to the said rectory, &c. herein-after described, pursuan to the powers given by the said act; that is to say [here give a full description of the lands agreed to be sold]. If the equivalent to be given is to be by exchange, then, after the Exchange. word "incumbent" last-mentioned, insert "[And the said A. B. to be exchanged for certain lands or tithes, &c.]" (as above.) (2) If the equivalent for the lands is to be by exchange, say, "In consideration of the said sum of £ for the purchase of the said messuage, house, or tenement and buildings, and in consideration of the land [or tithes as the case shall be], so agreed to be exchanged |