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.< 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 formidable weapon against his own title.1 Though in general a purchaser cannot avail himself 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 The King v. Smith, Sugd. V. and P. App. xvii. Goodtitle v. Jones, 7 T. R. 43; Maundrell v. Maundrell, 10 Ves. 271. 1Goodtitle v. Morgan, 1 T. R. 755. TM Maundrell v. Maundrell, 10 Ves. 270; Mole v. Smith, 1 Jac. and Walk, 665. "Bond v. Hopkins, 1 Sch. and Lef. 429; White v. Sansome, 3 Atk. 412; Pulvertoft v. Pulvertoft, 18 Ves. 90; Buckle v. Mitchell, idem, 110. 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 of 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 Variations. is assigned in the same deed. tures are assigned. If in the assignment of a lease a policy of insur- When a policy ance be included, the same may be recited, and in 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 fixtures are assigned, the same may be done at the end 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. 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 Leaseholds. 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 survivors, 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. Parties. Recital. ASSIGNMENTS OF CHOSES IN ACTION. An Assignment of a Debt. This indenture, made, &c., between A. B., of, &en 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 to him the said debt, in consideration of the sum of, &c. Now, THIS INDENTURE WITNESSETH, that, in Operative pursuance of the said agreement, and in considera- part. tion, &c., the receipt, &c., he, the said A. B., hath bargained, sold, assigned, transferred, and set over, and by these presents doth, &c., unto the said C. D., his executors, administrators, and assigns, all that the said debt or sum of L. so now due and owing unto him the said A. B. by the said E. F., and all the estate, right, title, interest, claim, and demand whatsoever, both at law and in equity, of him the said A. B., of, in, or to the same or any part thereof; to have, hold, receive, and take the said debt or sum of, &c., and other the premises hereby assigned, or mentioned, or intended so to be, unto and by him the said C. D., his executors, administrators, and assigns, to and for his and their own proper use and benefit. And for the better and more effec- Letter of attually enabling the said C. D., his executors, admi- torney. nistrators, and assigns, to enforce the payment of, and receive the said assigned premises, he, the said A. B., hath made, deputed, constituted, and appointed, and by these presents doth irrevocably make, depute, constitute, and appoint the said C. D., his executors, administrators, and assigns, his true and lawful attorney and attorneys, for him, the said A. B., and in his name, and in the name or names of his executors or administrators, but for the sole and proper use and benefit of the said C. D., his execu "The habendum, with a short power of attorney in regard to any personalty, may run thus: "To have and to hold, &c., together with full power and authority, (which the said A. B. doth hereby give and grant to and for the said C. D., his executors, administrators, and assigns,) in the name of the said A. B., to ask, demand, sue for, recover, receive, sign, and give full and absolute acquittances and discharges in writing for the said, &c., and other the premises hereby assigned, as and when the same shall become due or payable." (Debt.) |