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PURCHASES. acknowledged (and levied] before His Majesty's Husband and
Justices of the Court of Common Pleas at WestWife by Fine. minster (1) unto the said (purchaser) and his heirs,
a fine, sur conusance de droit come ceo, &c. with warranty, and with proclamations (2) thereupon had or to be had, according to the form of the statute in that behalf made and provided, and
the common course of fines in such cases accusWitness, de- tomed, by the names of All, &c. (3). Now THIS
INDENTURE WITNESSETH, that for and in consideration of the sum of £.
(4) of lawful
claration of uses of fine.
fine, see Jones v. Morley, 1 Ld. Raym. 287 ; çare should therefore be taken that the deed should be accurate in the recital of the term of which the fine is levied.
(1) The fine must be levied in a court having jurisdiction over the land affected by it. The court of common pleas has jurisdiction to this purpose over all lands in England, except they be situated in a palatinate, viz. Lancaster, Chester, and Durham, 2 Roll. Abr. 15, 2 Inst. 557, whether they be freehold or copyhold, or it should seem ancient demesne ; but not over lands in Wales, Ireland, or the colonies ; and by special custom, particular cities, &c. have the privilege of levying fines.
(2) It is usual to have a fine proclaimed under the stat. of 4 Hen. 7, c. 24, (and vide 32 Hen. 8. C. 36, and 4 and 5 Ann. c. 16), but this is necessary only where the purpose of the fine is to bar an entail or to operate as an estoppel, see 3 Co. 86, a. and also 1 Prest. Conv. 109.
(3) As to the description of the parcels, see ante, No. XXX. p. 6. n. (2). .
(4) Unless there is a consideration moving from the cognisee, the use of a fine will, upon the presumed intention of the parties, result to the cognisor ; but where the use is expressly declared to the cognisee, no consideration is requisite for the purpose of its so enuring; it is however proper as a protection against creditors, &c.not only that a consideration should be paid, but that it should be expressed in the deed. This is also required by the late stamp acts.
money of that part of the United Kingdom of PURCHASES. Great Britain and Ireland called England, to the Husband and said (vendor) and Mary his wife in hand, well and Wife by Fine. truly paid by the said (purchaser), at or before, &c. the receipt, &c. (1) it is hereby granted, declared, and agreed by and between the said parties hereto, that as well the said fine so as aforesaid, or in any other manner, or at any other time acknowledged, had and levied of the said premises, as also all and every other (2) fine and fines, and other assurances in the law whatsoever, heretofore, or hereafter to be acknowledged, had, made, levied or executed of the said hereditaments and premises or any part thereof, either separately or together with any other hereditaments by and between the parties to these presents, or any of them, either alone or jointly with any other person or persons, or whereunto they or any of them was, were, are, is, or shall or may be parties or privies, or party or privy, shall from and after the levying and perfecting thereof, be and enure, and be construed, deemed, adjudged, and taken to be and enure, and is and
(1) State the payment and acknowledgment of the consideration, as in a deed of conveyance, see ante, No. XXXI. Other fincs, &c. p. 3.
(2) It is sufficient to direct or declare the uses of the particular fine levied, but experience and the information derived from the decided cases, have dictated the caution that the declaration should extend to all other fines, &c. levied, or to be levied, of which the uses are or shall be in an executory state, so as to be reached by this declaration, and see 1 Prest. Conv. 117.
PURCHASES. are hereby declared to have been, and to be at the
Wochend or time of the making, levying, suffering, and exeWife by Fine. cuting the same, meant and intended to be, and
enure, and the cognisee or cognisees in such fine or fines, or other assurance or assurances named, or to be named, or any of them, or to whom the same have or hath been, or shall or may be so levied, made or executed, and his and their heirs, shall stand and be seised of such and so many of the said hereditaments and premises comprised in the said fine or fines, or other assurance or assurances as are hereinbefore particularly described or intended so to be, with their and every of their appurtenances. “ To the use and behoof of the said (purchaser), his heirs and assigns for ever(1).” IN WITNESS, &c.
Signed, sealed, and delivered, &c. (2).
(1) If no uses are declared of a fine, nor any consideration expressed, to carry the use to the cognisee, the use will, as has been before observed, result to the cognisor; but as this rule of law arises only from a presumption that such was the intent of the parties, and may therefore be rebutted by other evidence, it is proper that the use should be expressly declared, even though it be intended to enure to the cognisor himself, and see 2 Bla. Com. 363.
Where other uses are to be declared than those to the cognisee,
Uses to bar dower.
“ Unto the said cognisee and his heirs, to the use,” &c.
And if the use of the fine be intended to be declared for preventing dower in the wife of the purchaser, insert the form of limitation for that purpose contained in No. XXXI. ante, p. 31. instead of the words within inverted commas, and
(2) See ante, p. 52. 11. (1.)
when it is intended that the fine should have a further ope- PURCHASES. ration than enuring to the use of the cognisee or others, as to bar an entail to bar by non-claim or the like, and particularly Husband and
Wife by Fine. in cases where the fine will have that particular operation or not, accordingly as it is or is not the intent of the parties that it should; Ulterior uses. such intent should be expressed,
“ And to the further intent and purpose that by reason and means of the said fine, and by virtue of the statute in such case made and provided, a certain legal interest now outstanding in, &c. (as the case may be) and all and every latent and other estates, rights, titles, and interests whatsoever, if any such there be affecting the said premises, shall and may be henceforth and for ever barred and destroyed and utterly extinguished.”
See further on a declaration of uses of a fine, ante, No. XXXI.
Joint-tenants, &c. to Purchaser.
Conveyance by two or more Joint-tenants to a Pur
Variations where they are Coparceners.
THIS INDENTURE of parts, made the
. BeTWEEN (1) (the vendors) of, &c. of the one part, and the purchaser) of, &c.
of the other part. WHEREAS (2), &c. AND WHEREAS
(1) If the vendors be tenants in common, or coparceners, and the wife or wives of either or both of them have a title to dower out of the land to be conveyed (which may in some cases happen even with respect to coparceners) make her a party, and vary the draft agreeably to No. XXXI. margin (w, w, &c.); but if they be joint-tenants, this title cannot arise.
If the conveyance be intended to be made to uses to bar a title to dower, see ante, No. XXXI. margin (d, d, &c.).
If the vendors be tenants in common, and either or both of them took the estate to a trustee or trustees for preventing dower, see post, No. XXXIV. margin (t, t).
(2) Recite the deed or will by which the vendors became entitled. For forms or recitals of different kinds of deeds, &c. see Index voce Recitals.
Tenants in common.