Vendor and force of the statute made for transferring uses PURCHASES. into possession) and the reversion and reversions, remainder and remainders of and in the said hereditaments and premises; and the rents, issues, and proceeds thereof, to arise or become payable from the day of now last past. (w) deeds. AND all the estate, right, title, interest, use, trust, property, possession, possibility, claim and demand whatsoever, both at law and in equity, of them the said (vendor) and his wife, respectively, in, to, out of, upon, or respecting the said hereditaments and premises, or any part thereof: [TOGETHER with all deeds, muniments, Grant of title and writings and evidences whatsoever, in anywise relating to the same premises, or any part thereof, either alone or together with other hereditaments or property of inferior value, which now are, or hereafter shall or may be in the possession or lawful power of the said (vendor) his heirs, executors, or administrators (1), 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. (duly stamped) when and as the said (purchaser) his heirs or assigns, shall require the same, of all (1) If the estate be the wife's, say "Of the said (vendor) and Wife's estate. his wife, or either of them, or his heirs, or any other person or persons from whom they, or any or either of them can," &c. Wife. PURCHASES. other deeds, muniments, and writings (1), (not Vendor and being on record,) so in his, their, or any of their custody or power, or which can or may be procured as aforesaid, in anywise relating to the same hereditaments and premises, or any part thereof, together with other hereditaments or property of equal or greater value; such copies, when first required, to be made and delivered at the expense of the said (vendor) (2) 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 (3) the messuages, lands, tenements, hereditaments, and all and singular other the premises, hereinbefore, and in the said indenture of bargain and sale 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 (purchaser) and his heirs, to and for the use and behoof of him the said (purchaser) his heirs and TO HOLD to the purchaser in fee-simple. Schedule of deeds. Wife's estate, Habendum. (1) If the title deeds are not to be delivered to the purchaser, 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 hereunto annexed or not." (2) If the estate be the wife's, say, "Of the said (vendor) and his wife, or one of them, their, his, or her heirs, executors, or administrators." (3) of the habendum in a deed, see Vol. I. No. XVI. p. 136; also 4 Elem. Conv. 2d Ed. p. 112. assigns, for ever(1)." And (2) for the more effec- PURCHASES. tually and satisfactorily conveying and assuring the aforesaid hereditaments and premises unto the (1) If the premises are intended to be conveyed to uses to prevent dower, add the limitation, post, p. 31, instead of the words within inverted commas. (2) It has from a very early period been held, that if a husband covenant that his wife shall levy a fine or make a surrender of his lands to preclude herself of dower, he may be decreed in equity to procure her consent, see Berry v. Wade, Finch. 180. Griffin v. Taylor, ib. 106. And this doctrine has since been frequently corroborated, see Barrington v. Horne, 5 Vin. Ab. 547. pl. 45. 2 Eq. Ca. Ab. 17. pl. 7. Hall v. Hardy, 3 P. Wms. 187. Sedgwick v. Hargrave, 2 Ves. 57. Morrison v. Stephenson, 7 ib. 475, and where the husband has died before this has been done, the court has considered her conscience bound, and held her to a specific performance, on the presumption that her voluntary consent had been previously obtained, Baker v. Child, 2 Vern. 61. This doctrine seems, however, totally to defeat those benevolent provisions of the common law in favour of the wife, which vacate all conveyances made by her of her interest, during coverture, lest they should have been occasioned by an undue influence on the part of her husband, and it was accordingly disapproved by Eld. Ch. in the late case of Emery v. Wase, 5 Ves. 846. 8 ib. 505. who observed the policy of the law to be, "that the wife is not to part with her property but by her own spontaneous and free will;" and his Lordship proceeded to declare, that " if the matter were res integra, he should hesitate long before he should admit of the presumption that her consent had been previously obtained in preference to the principle of the policy of the law; for," he added, " if a man chooses to contract for the sale of the estate of a married woman, or an estate subject to dower, he knows the property to be hers either wholly or to a certain extent, and is therefore bound to regard the policy of the law; what right then has he to complain if she refuse to concur? and why is he not to take his chance of damages against the husband?" and concluded in expressing his doubts whether it would not be proper to have the judgment of the House of Lords upon the point, and see accordingly Gilb. Lex. Præt. 245. Otread v. Round, 4 Vin. Ab. 203. Ca. 4. 2 Eq. Ca. Ab. Vendor and PURCHASES. Said (purchaser) and his heirs, "and for barring and extinguishing all estate, right, and title to dower of the said the wife of the said (vendor) (1)” and all other estates, rights, and titles Vendor and Fine already acknowledged. Wife's estate barrable only by fine or recovery. 145. Morris v. Stephenson, 7 Ves. 478. Hence it seems now to be prudent in every case to have the wife's acknowledgment taken before the contract with the husband be completed, lest on the death of the husband, where the estate is his, or of the wife, where it is hers, she, or her heir, should refuse to concur. And as the vendor is to deduce a clear title in himself at his own expense, and the expense of the purchase deed, taking such clear title from the vendor, is borne by the purchaser, and is lengthened by the covenant for levying the fine, it should seem that he might in all cases require the acknowledgment to be first taken. When this has been done, recite, "And WHEREAS for the more, &c. as in the text, it was agreed on the contract for the said purchase, that previously to the execution of the conveyance of the said hereditaments a fine should be levied thereof by the said (vendor) and ( ) his wife to the use of the said (purchaser) and his heirs, And whereas in pursuance of the said agreement a fine sur cognizance de droit come ceo, &c. has been acknowledged, as of term now last past, and the same is intended to be forthwith perfected with all due despatch, and proclamations to be thereupon had, according to the form of the statute in such case made and provided. Now it is hereby declared, &c. proceed as in the text, p. 17, marg. But when this precaution is considered to be unnecessary, add the covenant to levy a fine, as in the text. (1) If the estate be the wife's, omit the words within inverted commas. As a wife during the lifetime of her husband has not any vested estate or interest in the land, but merely a title to dower, it cannot be made the subject of a conveyance, and can only be barred or stopped from growing into a right on her husband's death by fine or recovery, except of lands within the city of London, which may be exonerated from the wife's claim by bargain and sale enrolled in the court of Hustings. whatsoever, of, in, to, or out of the said heredita- PURCHASES. ments and premises, he the said (vendor) for himself, his heirs(1), executors, and administrators (2), Vendor and Wife. And where a wife is not expressly barred of her dower by Fine generally settlement made previous to her marriage, or by the mode in necessary. which the husband took the estate, a fine can seldom be dispensed with. For although an outstanding legal term created previously to the marriage, or time of the inheritance vesting in the husband, and assigned to a trustee to attend the inheritance of the purchaser, is sometimes relied upon-see Maundrell v. Maundrell, 7 Ves. jun. 567. 10 ib. 246. and will often be an effectual bar, Wynn v. Williams, 5 Ves. jun. 180.; yet as the term will not prevent her recovering her dower at law, with a cesset executio during the term, which would make the purchaser liable to costs at law (although otherwise it is presumed in equity) a fine is a more efficacious remedy, and in practice is generally required. (1) The person covenanting to levy a fine should always Covenant to be covenant for his heirs, who, unless expressly named, will not in with heirs. this any more than in other cases be bound. This covenant to levy a fine should be entered into with some person who is at the time, or who will upon the execution of the deed be possessed of the seisin of the lands, &c. of which the fine is levied, in order that it may be annexed to the land, and give the benefit of it to future proprietors, to whom the estate may be conveyed before the fine is perfected. Covenant should be with person having the seisin. (2) The above form, it will be perceived, differs a little from Husband covethat which is found in the printed forms of precedents (and nants for wife. ordinary drafts), which usually make the husband covenant" for himself and the said () his wife," as if the intent were to bind her, by the covenant of her husband, to do the act required, whilst the intent and legal effect of the covenant is to bind himself only and his heirs for her performance, and to make him and them answerable in damages should she refuse. The old form is therefore improper, as expressing in terms what in law cannot be enforced, namely, the obligation on the part of the wife to perform the covenants entered into on her behalf by her husband. This inaccuracy is noticed by Mr. Preston, who ex |