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[Recitem the contract for the purchase.] Now, Parties. this indenture witnesseth, that, in pursuance of Witnessing the said agreement, and in consideration of the sum part. of, &c., by, &c., to the said, &c., the receipt, &c., he, the said (vendor,) hath granted, bargained, and sold, Grant. and by these presents doth grant, bargain, and sell, unto the said (purchaser) and his heirs, all that seal or pew, being No. 15, situate at the top of the east aisle of the parish church of Saint George in W., in the county of S., late the property, and in the possession of, &c., and his family ;” and all the estate, right, title, interest, property, claim, and demand whatsoever of him, the said (vendor,) of, in, and to the same; to have and to hold the said seat or pew Habendum. above-mentioned, and hereby granted, or intended so to be, with the appurtenances, unto the said (purchaser) and his heirs, to be used and enjoyed with the inessuage or dwelling-house of him, the said (purchaser,) situate in a certain street there, called the R. street, in S. aforesaid, within the said parish of St G. [Add covenants from the vendor, that he Covenants,
m If the seat was allotted by virtue of an act of Parlia. When allotted ment, the same may be recited : “ Whereas, by an act, &c., by act of par
:'liament. entitled, &c., it was enacted that the trustees therein nomi. nated, or such person or persons, &c., after allotting such public seats or galleries as therein directed should allot.unto the several persons, &c.; and whereas the seat or pew situate on the east side of the said church, being No. 15, was, conformably to the said act, allotted to the said,” &c.
If the act be not recited, the same may be referred to thus : “ And which said seat or pew was allotted unto, &c., by the commissioners acting under and by virtue of an act of Parliament made and passed in, &c., entitled,” &c. But if the act has been recited, add after the description, “and allotted as aforesaid.”
If allotted or sold under a special act, it will not be necessary to add the above words of annexation of the pew to the house ; but in the absence of such local act, there can be no seisin of a pew unless the same be annexed to a house, and then seisin of the house would be seisin of the pew, as seisin of the principal that of the accessary; therefore the
hath good right to grant, for quiet enjoyment, free from incumbrances, and for further assurance. And add a covenant from the purchaser to well and truly pay all dues, rates, and contributions which may be hereafter lawfully made in respect of the said pew; and to do and perform all needful repairs at his own costs and charges, and wholly indemnify the said vendor therefrom.] In witness, &c.
BARGAIN AND SALE (ENROLLED.)
This indenture, made, &c., between the vendor) of the one part, and (the purchaser) of the other part. [Recite the seisin of the vendor, and the contract for sale.] Now, this indenture witnesseth, that, &c., he, the said (vendor,) hath granted,' bargained, and sold,
seat or pew does not belong to the person, but to the house, inasmuch as in an action on the case for disturbance of the pew, it must be laid in the declaration as appurtenant to a messuage in the parish; as a bare possession is not sufficient to maintain the action, but the plaintiff must prove a prescriptive right or faculty. (Stocks v. Booth, I T. R. 428; Griffin v. Matthews, 5 T. R. 296; and see Mainwaring v. Giles, 5 B. and Al. 356; Clifford v. Wicks, 1 B. and Ald. 493.)
A prescriptive right (which presumes a faculty) must be shown by an uniform and exclusive possession of the owners or inhabitants of a particular messuage, and that the same has been repaired by them; and to exclude against the ordinary, such occupation must have been from time immemorial, (1 T. R. 428; 1 Phil. R. 325 ;) but against a wrong-doer, an uninterrupted possession for twenty years affords presumptive evidence of a legal title. (Darwin v. Upton, 2 Wms. Saund. 175, c.)
When a pew is appurtenant to a messuage, it may descend with the inheritance by immemorial custom, (3 Inst. 202; 12 Rep. 105;) and in such case it cannot be severed from the occupation of the house, and, therefore, it is conceived, the same cannot be sold or let without a special act of Parliament, (1 Hagg. Eccl. R. 29-34.) . ? When trustees join in a dced of this description, restrain.
and by these presents doth, &c., unto the said (pur-
This indenture, made, &c., [recite the title of both parties. the parties exchanging.) And whereas the said Recital. A. B. and C. D. have mutually agreed to exchange their said several pieces or parcels of land for the land of each other, and the same exchange, intended to be effected by these presents, shall be made in manner hereinafter mentioned. Now, this indenture Operativo witnesseth, [if the exchange is to be effected by two part. decds, say, “ that, in pursuance and part performance of the said agreement, by and on the part of the said A. B., and for and in consideration of the convey. ance of the lands and hereditainents intended to be
ing words should be added, such as, “So far as they lawfully can or may, and not by way of covenant or warranty.”
? The use cannot be limited in this deed to any but the bargainee, but it may be made subject to trusts.
? This must be on parchment, and enrolled within six lunar months, according to the stat. 27 H. 8, c. 16; and by 10 Ann. c. 18, s. 3, an examined copy of the enrolment, proved on oath, is made evidence. The statute of Henry does not extend to bargains and sales for terms of years. As to the operation of a bargain and sale, and of the inrolment thereof, (see Bac. Abr. Bargain and Sale, K. to N.; Inrolment, E.; Com. Dig. Bargain and Sale, B. 7.)
'Properly speaking, there can be but two parties, (see 2 Wills, 240;) the meaning of which is, that there can only be two exchanging parties, and only two separate estates conveyed in exchange; it is immaterial how many consenting parties are added.
made by the said in part recited indentures of lease and release." But if the exchange be effected by one deed, say, “ For and in consideration of the lands and hereditaments secondly hereinafter described and intended to be by these presents conveyed and assured to him, the said A. B. by the said C. D, a hereinafter is expressed."] And also for and in consideration of the sum of 5s., of, &C., to, &e, paid by C. D., the receipt, &c., he, the said A. B, bath granted, bargained, sold, aliened, released, and 008firmed, and, &C., (in his actual• possession, &c.) and to his heirs and assigns, all, &c., (the hereditamente of A. B.) [Add the general words, and the rerer sion, &c., and all the estate, &c.; (Habendam to bar dower, or otherwise, see pp.45 and 52.)] In lieu of, and IN EXCHANGE for, all, &c. [If the exchange be effected by two deeds, say, " for all the messuages, &c, here inbefore referred to, and intended to be conveyed and assured to him, the said A. B., and his beirs, by the said C. D, by the said indentures of, &c, as aforesaid;" but if the exchange be effected by one deed, say, "for the lands, &C., with the appurtenances hereinafter described, and by these presents conveyed and assured unto the said A. B. and his heirs by the said C. D., as hereinafter is expresssed.] Then add the usual covenants for quiet enjoyment by C. D. 59 long as the lands and hereditaments (intended to be so granted and conveyed to him, the said A. B, bir
"If a sum be given for equality of exchange, add, * and in consideration of the sum of, &c., to, &e., by, &e., the receipt whereof; (and that the same is by way of, and in fall for, equality of exchange for and in respect of the lands and be reditaments conveyed unto the said C. D., as hereinafter is expressed, he, the said A. B., doth hereby acknowledge, &c.
"If the exchange be perfected by one assurance, by the lease for a year, A. B. will first bargain and sell his lands to C. D., to hold in the usual way, and by a further witnessing part, C. D. will bargain and sell his lands to A. B. in Eke manner.
the said C. D., in exchange for the same, as afore. said ; [or, “as hereinafter mentioned,"] shall remain and continue to the use of the said A. B., his heirs and assigns; and also that the hereditaments are free from incumbrances ; and for further assurance, (see Covenants, p. 85.) And add a proviso for re-entry in case of eviction from the lands given in exchange. If the exchange be intended to be effected by one deed, add a further witnessing part,
"The covenants, as also provisos for re-entry, may be Proviso for omitted, as the word exchange implies a warranty; some re-entry. conveyancers think the deed better without them. The following is the form of the proviso: “ Provided always, and it is hereby declared and agreed by and between the said parties to these presents; and the said A. B. doth hereby for himself and his heirs declare and agree, that if the said C. D., his heirs or assigns, or any person or persons lawfully or equitably claiming by, from, under, or in trust for him, them, or any of them, shall at any time hereafter happen to be lawfully evicted or turned out of possession of the said, &c., hereinbefore granted and released in exchange as aforesaid, contrary to the true intent and meaning of these presents, by any person or persons having or claiming any former right or title thereto, or by the heirs or assigns of the said A.B., so that the said exchange shall be defeated; that then and in such case the said hereinbefore recited indenture of lease and release, by way of exchange, bearing even date with these presents as aforesaid, and all the estate thereby granted and released, shall cease, determine, and be utterly void; and then, and in such case, it shall and may be lawful to and for the said A. B., his heirs or assigns, to enter into the lands so thereby mentioned to be granted and released to him, the said A. B., and his heirs, in exchange for the lands and hereditaments as aforesaid, and the same to have again, repossess, and enjoy, as in his or their former estate, any thing hereinbefore contained to the contrary thereof in anywise notwithstanding.” If money be given for equality of exchange, add, “and that he, the said A. B., shall and will repay to the said C. D., his executors, &c., the sum of L.
upon request made for that purpose, any thing hereinbefore contained to the contrary thereof in anywise notwithstanding."