thereto; and as to such part or parts of the same PURCHASES. messuages, lands, tenements, and hereditaments, Vendor and

and all such estate and estates, interest and inte- Dower-Trustee, (Modern Form.) rests therein respectively, of which no direction, limitation, or appointment should be effectually made, to the use of the said (vendor) and his assigns, during the term of his natural life, with remainder to the use of the said (trustee) his executors and administrators, during the life of the said (vendor), but in trust for the said (vendor) and his assigns, with remainder to the absolute use and behoof of the said (vendor) his heirs and assigns for ever. AND WHEREAS the said Contract for (purchaser) hath contracted with (1) the said purchase. (vendor) for the absolute purchase of the said lands and hereditaments, [or the lands and hereditaments hereinafter described, being part and parcel of the lands and hereditaments comprised in the said in part recited indentures, as the case may be], free from incumbrances (other than as hereinafter is mentioned) at the sum of £ and hath requested that the same may be conveyed to him in the manner hereinafter expressed. Now THIS INDENTURE WITNESSETH (2), that in pur- WITNESS, suance and execution of the said agreement, and of the purchase in consideration of the sum of £ (3) of money.

;

in consideration

(1) If the premises were sold by public auction, see ante, No. Auction. XXXI. p. 4. n. (1).

If by order of court, see Vol. I. No. XVI. p. 163. n. (4).

Order of court.

(2) Of the WITNESSING part of a deed, see notes, Vol. I. No. WITNESS.

XV. p. 123. et seq. also 4 Elem. Conv. 2d edit. p. 98.

(3) If the consideration be paid otherwise than in money; or Consideration. at any other time than at the execution of the conveyance, see

Vol. I. No. XVI. p. 165. n. (6.) et seq.

Vendor and

(Modern Form.)

PURCHASES. lawful current money of that part of the United Kingdom of Great Britain and Ireland, called Der-Trustee, England, to the said (vendor) in hand well and truly paid by the said (purchaser) at or immediately before the sealing and delivery of these presents, the receipt whereof, [and that the same is in full for the absolute purchase of the feesimple in possession, of the messuages, lands, and hereditaments, intended to be hereinafter appointed, or otherwise assured], the said (vendor) doth hereby acknowledge, and [of and from the same and every part thereof, doth acquit, release, exonerate, and for ever discharge, the said ( purchaser) his heirs, executors, administrators, and assigns, and also the said messuages, lands, and hereditaments by these presents.] He [*] the said (vendor) pursuant to and in exercise of the power (1) or authority given or reserved to him in or by the hereinbefore in part recited indenture of

The vendor

limits and appoints.

"Pursuance of power."

Omission of appointment.

(1) Where the vendor has an interest in the subject of the conveyance, as well as a power to appoint it should be expressly mentioned that the appointment is made in pursuance of his power, lest it should be construed to operate as a conveyance of his interest, and not as an appointment of the use.

But as the covenants for the title in conveyances run with the land for the benefit of subsequent owners, only where there is a privity of estate between the person entering into the covenant and the covenantee, and there being no such privity where the purchaser takes the estate paramount the vendor (as where he takes under the vendor's power to appoint, in which case he takes from the donee of the power and not from the vendor), some practitioners are accustomed to omit the execution of the power of appointment, and make the vendor convey by grant and release only under his seisin, even though the trustee's concurrence cannot be obtained, preferring that the legal remainder in the trustee during the vendor's life

(Modern Form.)

release, and by virtue thereof, [and of all and purchases. every or any other power or powers, authority Vendor and or authorities, in any wise enabling him here- Dower-Trustee, unto (1)], HATH directed, limited, and appointed (2), and by this deed or instrument in writing, by him sealed and delivered in the presence of and attested by two or more credible persons, whose names are, or are intended to be, hereupon indorsed, as witnesses thereto (3), DOTH, absolutely and irrecoverably direct, limit, and ap

should be left outstanding, rather than that the possible benefit to be derived from the covenants of the former proprietors should be lost (and see ante, Vol. I. p. 444. notes.) This practice is not however very generally adopted-nor are there many cases, I apprehend, in which the neglect of this precaution can be important. When, indeed, the trustee joins in the conveyance, there appears to be little or no use in the vendor's exercising the power; and it may perhaps often be preferable to omit the appointment, where the conveyance is made by a vendor who took to uses to bar dower in the present mode to a purchaser taking to the like uses; in which case omit from the asterisk, ante, p. 90, to that post, p. 95.

(1) The words within brackets are usually inserted in "Other appointments under a power, in order that the use may pass powers." by virtue of any other power or appointment which may happen to be vested in the appointor, should it fail to take effect as an execution of the particular power expressly intended to be exercised; but when the intent is to exercise such particular power distinctly and exclusively of all others, they should be omitted.

(2) The operative words in the instrument of appointment, Operative should be correspondent with those used in the power, to which words. also, for the purpose mentioned in a subsequent note, the words "and for further assurance HATH also granted and released," may be added, see post, p. 92, n. (1); but see also post, p. 93, n. (1).

(3) This is in conformity to the power recited, and in exercising a power of appointment, great care should be taken that the formalities required by the power to attend its execution be

Vendor and

PURCHASES. point, that ALL and singular the messuages, lands, tenements, and hereditaments, hereinafter deDer-Trustee, scribed, and granted and released, or mentioned, (Modern Form.) or intended so to be, with their and every of their appurtenances, shall be and remain "unto and to the use and behoof of the said (purchaser) his heirs and assigns for ever (1)." AND (2) THIS INDEN

FURTHER WITNESS. The vendor grants and releases.

Uses to bar dower.

Conciseness.

Limitation to

bar dower.

strictly complied with-see Kibbet v. Lee, Hob. 312, Scrope's Ca. 10 Co. 144. Dormer v. Thurland, 2 P. Wms. 506. Hawkins v. Kemp, 3 East Rep. 410.

(1) If the conveyance is to be to uses to bar dower, say, (instead of the words with inverted commas),

"To the uses, upon the trusts, and for the ends, intents, and purposes hereinafter declared or expressed concerning the same (+)."

(2) If it be wished that the deed should be very may omit this separate witnessing part, and add,

concise, you

"And for the considerations aforesaid, and in consideration of the sum of 10s. of like lawful and current money as aforesaid, at the same time in hand paid by the said (purchaser) to the said (vendor's trustee) the receipt whereof is hereby acknowledged, He the said (vendor) HATH granted, bargained, sold, aliened, and released, and by these presents DOTH grant, bargain, sell, alien, and release, and the said (trustee), with and by the privity and direction of the said (vendor), testified by his sealing and delivering these presents, HATH bargained, sold, and released, and by these presents, Doтн bargain, sell, and release, and by way of conveyance only, and not for or by way of warranty of title, doth also grant and confirm unto the said (purchaser) and his heirs. ALL," &c.

And go to the asterisk in the margin, post, p. 95.

(+) As an appointment under a power is not a conveyance of the estate itself, but only the limitation or direction of a use,

TURE FURTHER WITNESSETH (1), that for the better, PURCHASES.more perfectly, and satisfactorily conveying and

Vendor and Dower-Trustee. (Modern Form.)

raised by the deed creating the power, it is necessary, in order to give the appointee the legal estate, that the appointment should be immediately to the person intended to take, for the use vesting in the appointee immediately on the execution of the power, any ulterior limitation would be construed to be a trust or equitable estate only, as an use cannot by the rules of law be limited to arise out of a use. When, therefore, an estate has been taken by the vendor to such uses as he may appoint (as in the case supposed in the above precedent) and he sells to a purchaser who is desirous of taking the conveyance in like manner; the limitation must not be to the purchaser in the first instance, to such uses, &c. as he shall appoint, because under such a limitation, the use would vest in the purchaser himself; the use must therefore be at once carried over to such uses as the purchaser shall appoint, without any previous limitation to the purchaser himself. By this means the statute will execute the use in the purchaser's appointee, who is the first person on whom the limitation rests. But some have questioned whether this power of appointment can be delegated by the donee, to be exercised by another, on the principle that delegatus non potest delegare; but this reason applies only to cases of personal trust, confidence, or discretion; and not (as in this case) to an actual beneficial ownership and dominion over the estate; and in all the cases which have determined that a power of appointment cannot be transferred to another, it will be found that the power involved a discretion or personal judgment in the donée. See Ingram v. Ingram, 2 Atk. 88. Alexander v. Alexander, 2 Vez. 640. Attorney Gen. v. Berryman, cited ib. 643. Bristow v. Ward, The grant and 2 Ves. jun. 336, which are the cases nearest in point.

(1) To guard against failure in the appointment by any defect in the creation, continuance, or exercise of the power, by reason of its previous extinction or suspension, or by an inattention to the circumstances required to be observed in the execution of it, it is usual, where the appointor has a legal interest in, as well as a power over the land, to make him grant and release the estate itself, as well as appoint the use under the

release.