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transactions which have taken place in regard to the inheritance since the execution of that deed ; and such assignment may be effected by way of deed. poll, or indenture; but they should in general not be assigned in the conveyance of the fee, for the owner of the fee would thereby be precluded from recovering in ejectment on his own demise, for the production of the conveyance to himself would
show that the legal estate was vested in another. As to the As one term will merge in another which is
one immediately reversionary to it, 6 even though it term in another which should be for a longer duration of time than such is reversion reversionary one, it is the practice, when a number
of terms in the same estate are to be assigned, to assign them alternately to two trustees; one trustee takes the first, third, and fifth, &c., according to the priority of their creation, and the other trustee the second, fourth, sixth, &c.h By these means none of the terms vested in either of the trustees are immediately reversionary to any of the others vested in the same trustee, which, so long as the terms are subsisting, prevents the merger, and by this plan two trustees are sufficient for any number of terms. (See Notes to Morley, Coote, and Coventry's edition of Watk. Conv. p. 42_93. Butter's edition of Co. Litt. 208, a. n. 1, and cases there referred to. See mode of assignment, ante, p. 255.) In practice, it is the general rule for a purchaser or mortgagee to require an assignment or surrender of all terms, which have been previously assigned, to attend the inheritance, also of all outstanding terms, which have never been so assigned, as the doctrine of a presumed surrender is not to be relied on, and cannot be main. tained against an actual assignment procured by another person. (Doe v. Hilder, 2 Barn. and Ald. 710; and see 6 Madd. 542; Brod. and Bing. 671.)
A purchaser for a valuable consideration can, by
& Hughes v. Robothan, Cro. Eliz. 302.
having a term held in trust for him, protect himself from all titles and incumbrances, except specialty debts to the crown, created since the commencement of the term of which he had not notice at the time he purchased, and this protection he is entitled to, though he may had notice at the time he procured the assignment of the term.k
By neglecting to procure the assignment of a term, a purchaser not only loses the benefit of its protection, but may find it—in the hands of another, who has taken advantage of his neglect a formi. dable weapon against his own title.'
Though in general a purchaser cannot avail him. self of a term as a protection against an incumbrance of which he had notice at the time he purchased, yet this rule is not applicable to dower for a purchaser, notwithstanding he had notice of the marriage at the time he purchased, may defend himself by a term against the widow's claims. A mortgagee, or party claiming under a marriage settlement, as well as a purchaser in the common sense of the word, are entitled to the protection of a term ; but a volunteer, though he must prevail at law, would not be permitted in equity to set up a term against a purchaser for value.
A declaration of trust is sometimes with a view to avoiding some little expense, adopted instead of an assignment; but such a plan can never be recommended; for, if the trustee should be so inclined, he might, notwithstanding such declaration of trust, make a valid legal assignment of the term, to
a person claiming an adverse title, who, if he had no notice, could avail himself of it, but where the term is assigned to a trustee, he cannot make out his title to it without producing the assignment to himself which would at once show that he was a trustee, and thereby destroy the equitable title of his assignee.
Assignment of a Leasehold for years.
This indenture, made, &c., between, &c. [Recite the instrument creating the term, setting out the parcels fully, and also the several assignments if not numerous, otherwise, that by divers mesne assignments, &c., and ultimately by the last assignment the term became vested in the assignor, and recite the contract for purchase.] Now, this indenture witnesseth, that, in pursuance of the said agreement, and in consideration, &c., he, the said , hath granted, sold, assigned, and transferred, and by these presents doth, &c., all and singular the said messuage, lands, and premises hereinbefore described,' and which premises are now in the occupation of , and all other the premises comprised in and demised by the hereinbefore in part recited indenture, of and all and singular the rights, members, and appurtenances to the said premises, or any part thereof belonging or appertaining, and all the estate, right, title, interest, benefit, claim, and demand whatsoever, both at law and in equity, of him the said [assignor] in, to, and out of the said premises, and every part thereof, to have and to hold the said messuage, lands, and other the premises hereby assigned, or intended so to be, unto the said
his executors, administrators, and assigns henceforth, for all the residue and remainder, now to come and unexpired, of the said term of
• Where the term is created by a will or other instrument, in which the parcels are not set out fully, then the parcels must be described here.
years, granted by the hereinbefore in part recited indenture, of the day of as aforesaid, and for all other the estate, term, and interest of him, the said [assignor,] in the said premises, or any part thereof, subject, nevertheless, to the payment of the rent, and the observance and performance of the covenants, conditions, and agreements reserved and contained in and by the said last mentioned indenture, and which, on the part of the lessee, his executors, administrators, or assigns, ought henceforth to be paid, observed, and performed. [Add covenants on the part of the assignor that the lease is valid, that he hath power to assign, for quiet enjoyment, free from incumbrance, and for further assurance, and a covenant by the assignee, that he will pay the rent and perform the covenants.]? In witness, &c.
Variations. If in the assignment of a lease a policy of insur- When a policy
is assigned in ance be included, the same may be recited, and in 1
1 thesame deed. the testatum part, immediately after the parcels, say, "and the said policy of insurance ;" and in the habendum of the premises for the residue of the term, say, “ together with all benefit and advantage to accrue from the said policy of insurance ;” and if fix. When fix
tures are tures are assigned, the same may be done at the end
assigned. of the covenants, with another witnessing part, after reciting, “ that the said fixtures and things mentioned in the schedule hereunder written, have been agreed to be taken to by the said” [assignee,] then assign all and singular the fixtures, matters, and things mentioned and set forth in the schedule thereunder written, to hold unto the said [assignee,] his executors, administrators, and assigns, for his and their own proper goods and effects.
p This covenant cannot be required by assignees of a bankrupt; Wilkins v. Fry, 1 Mer. 244; nor, it would seem, on any assignment subsequent to that by such assignees.
Observations on the Assignment of long Lease
holds. It should be seen that the original lease is valid, and that there has been a regular series of legal assignments, or other transmissions ; that the administrations and probates have been granted by the proper court, and that the purchaser can have the possession of the original deed creating the term, or that he can avail himself of it. whenever he may have occasion for its production. A bond may be given by the assignee for payment of the rent and performance of the covenants, or the assignor should have a counterpart of the assignment. In tracing a line of representation it should be remembered, that the administrator of an executor, or the executor of an administrator, does not represent the original testator or intestate, the intervention of an administration destroying the power of transmission of the representative character, and making necessary the grant of an administration de bonis non. Upon the death of one of several executors, the representative character does not devolve upon his representatives, but vests solely in the survi. vors, even though they should not have proved ; but if the survivor dies without having proved, his executor will not represent the original testator, and an administration of the goods unadministered, or de bonis non, as it is generally called, must be taken out.
ASSIGNMENTS OF CHOSES IN ACTION.
An Assignment of a Debt. This indenture, made, &c., between A. B., of, &c., of the one part, and C. D., of, &c., of the other part. Whereas, E. F., of, &c., is indebted unto the said A. B. in the sum of, &c., for, &c. And whereas the said A. B. hath agreed with the said C. D. to assign