Assignment of terms a pro. tection. Against what incumbrances. Merger. ASSIGNMENTS OF TERMS. 1. Assignment of Terms a protection. 2. Merger. 3. Assignment by a separate Deed. 5. What Deeds to be recited. SECT. 1. Terms are assigned to attend the inheritance by way of protection to a purchaser against mesne incumbrances. But in order to intitle a purchaser to this protection, he must be a purchaser for valuable consideration, not affected with any fraud or collusion, Willoughby v. Willoughby, 1 T. R. 763; But. Co. Lit. 290, b. n. 1, 3, 5. In this case a mortgagee or a lessee is a purchaser pro tanto. The term which is to afford such protection must be a legal, not an equitable term. In courts of equity all incumbrancers have equal claims, and he who succeeds in gaining the legal estate, will be left to derive all the benefit of that title in a court of law, and thus by obtaining the legal estate a second mortgagee may obtain a preference over a first mortgagee, 3 Prest. Conv. 461. Such a term will serve as a protection against all estates, charges, and incumbrances created, intermediate between the raising of the term and the purchase or mortgage, but not against such as may exist prior to the term, nor against crown debts, 3 Sugd. V. & P. 10th ed. 68; 3 Prest. Convey. 465. The expence of the assignment of any terms of years, which a purchaser may require, must be borne by himself, but the title to them must of course be borne by the vendor, 3 Sugd. V. & P. 10th ed. 9. 2. Another important point of consideration in regard to terms arises from the doctrine of merger. Where a term of years and the inheritance meet in one person in the same right, the term is extinct, and merged in the inheritance. And also where a man has a term of years in his own right, as beneficial owner, and a freehold in auter droit, as in right of his wife, or as executor or trustee, it has been held that the term is extinct, Webb v. Russell, 3 T. R. 393; 9 East, 372; but if in a case like this the union arises not by act of the party, but by acts of law, it has been decided, although not without question, that the term will not merge, 3 Sugd. V. & P. 10th ed. 20. So likewise if a man have a freehold in his own right, and a term in auter droit, the term is not extinct, Plowd. 417; 3 Inst. 338; Sugd. ub. sup. So where the legal estate in the term, and the equitable estate in the inheritance, are vested in the same person, the term will not merge, 9 Ves. 509. It was formerly held, that a term for years could not merge in a term, but the contrary seems now to be the settled opinion, 3 Prest. Conv. 195, et seq. Merger is not favoured in equity. If therefore a term is merged at law, it will, notwithstanding, be revived in equity, provided that such revival shall appear to be most likely to promote the intentions of the parties. Terms. a separate deed. 3. Terms should be generally assigned by a separate deed, as it is Assignment by frequently inconvenient to have the existence of terms disclosed in the deed conveying the inheritance. A term once assigned must be assigned again. be recited. 4. It was formerly supposed that a term once assigned to attend the inheritance would always attend, 3 Prest. Con. 462, and that a declaration of a trust of terms would supersede the necessity of an actual assignment; but it seems now to be the general opinion of the profession, that a prudent purchaser can scarcely ever dispense with such an assignment, 3 Sugd. V. & P. 10th ed. 11, et seq. 5. If a term have been once assigned to attend the inheritance, it is What deeds to not necessary to recite all the instruments affecting the fee from the time the term was created to the date of the deed of assignment, but only to recite the deed creating the term, the deed of conveyance by which the fee became vested in the person requiring the assignment, and the deed of assignment by which the term became vested in the trustee, after which the conveyance to the purchaser, or any other instruments affecting the fee subsequent to the assignment, ought to be recited, 3 Sugd. V. & P. 10th ed. 76. 6. Where several terms are to be assigned, it has been recom. How several terms ought to mended to have two trustees, and to assign to each of them two or be assigned. more of the terms in alternate succession, to prevent the possibility of merger, 7. As to the stamp on assignments, when not otherwise charged, Stamp. see ante, Pref. sect. 4. No. CLXXXVI. Assignment of a Term to attend the Inheritance for a Purchaser. This Indre made &c. see ante, No. LXXXV. Betn (vendor) of &c. of the first pt (termor) of &c. of the second pt (purchaser) of &c. of the third pt and (trustee) a trustee named by and on VOL. I. D D No. CLXXXVI. Terms. No. CLXXXVI. Terms. Recital of creation of term. Assignment to trustee of term. Of conveyance to purchaser. behalf of the (P.) of the fourth pt Whas (a) by indres bearing date the and days of resply and made betn (mortgagor) therein described of the one pt and (mortgagee) also therein described of the or. pt the sd (mortgagor) Did grant bargain and sell unto the sd (mortgagee) All that pce or pel of grd &c. To Hold the same unto the sd (mortgagee) his exs &c. from the day of next before the day of the date thereof for the term of ninety-nine years Subject nevss to the proviso or condon therein contd for redemption of the same pce or pel of grd on paymt by the sd (mortgagor) his exs and ads unto the sd (mortgagee) his exs ads and ass of the sum of £ and int on the then next And whas deft was made in and int on the day apptd for day day of paymt of the sd sum of £ (a) See sect. 5. (b) If the term was created for securing the payment of an annuity, recite grant of annuity; if for raising portions, recite settlement; or if it be an assignment of a satisfied term, instead of this recital, add to the former recital, “ And that the principal and int due thereon had been long since pd off and discharged." Or if the term was created by some settlement or deed of trust, then add to the recital of the settlement, "Upon certain trusts thiu deld and since performed and satisfied." See sect. 5. No. CLXXXVI. Terms. upon the trusts hnaftr decld Now this Indre witnesseth That in conson of 5s. of &c. to the sd (termor) in hand &c. by the sd (trustee) at &c. He the sd (termor) at the request and by the desire of the sd (V.) and at the nomination of the sd (P.) testified by their severally joining in and exting these prests Hath bargained &c. All that &c. and all the este, &c. To Have &c. unto the sd (trustee) his exs &c. for and during the residue and remr of the sd term to attend the reversion freehd and inhance of the sd heredts and preses intended to be hby assigned in order that the same may be as a protection thof from all chas and incumbrances if any such there are And the sd (termor) for No act to inhimself &c. (covt that he has done no act to incumber) In witness &c. see ante, No. XLVI. cumber. No. CLXXXVII. Assignment of a Term to secure Part of Purchase-Money for an This Indre made &c. see ante, No. LXXXV. Between (assignor) of &c. of the one pt and (assignee) of &c. of the or. pt Whas by a decree of the High Court of Chancery made and pronounced in a cause then and there depending wherein (creditors) and ors. creditors by bond of J. C. of &c. were pltffs and the sd J. C. and E. his wife and J. R. C. by the name of J. C. the younger their eldest son and hr apparent W. C. and H. C. infts by their guardian R. C. and the sd R. C. were defts It was ordered and decld that the estes late of the sd J. C. and amongst ors. an este called F. situate &c. with the sevl rights privileges and appts thto which sd estes had been lately conveyed by the sd J. C. to (trustees) by deeds of rele dated &c. upon the trusts thin mentd should be sold to the best bidder and that the mos arising by such sale shd be applied as the sd decree directs And whas the sd trust estes called F. with the sevl rights &c. thto belonging or therewith used have pursuant to the sd decree been put up to sale before (master) one of the masters of the High Court of Chancery and the sd (assignor) has by the master's report dated &c. been reported to be the best bidder for the No. CLXXXVII. Terms. No. CLXXXVII. Terms. same and has contracted for the same together with the manor was due for principal money on mtge of pt of the sd purchased estes to continue the sd sum on the secty on which it then stood and still stands charged And whas the sd (assignor) hath applied to the sd (assignee) to advance him the sum of £ of &c. to upon the secty of the D. pt of the este so purchased by the sd (assignor) in order to enable him to complete the purchase, which the sd (assignee) hath consented to do Now this Indre witnesseth that the sd (assignor) in conson of the sum of £ him lent by the sd (assignee) for the purpose afd Hath bargd &c. and by &c. Doth bargain &c. unto the sd (assignee) his exs &c. all his este right title and int in and to the said farm called D. part of the este so purchased by him under the sd decree of the sd court To Have and to Hold the same to the sd (assignee) his exs &c. for and during the term of yrs hence next ensuing and fully to be complete and ended yielding and paying therefore yrly and every yr the rent of one peppercorn at &c. if required upon condon nevss that if the sd (assignor) his hrs exs ads or ass do and shall well and truly pay or &c. unto the sd (assignee) his exs &c. at &c. the full and just sum of £ togr with int for the same after the rate &c. without any abatement or deduction whatsvr in respect of any taxes &c. to be charged or imposed upon the preses or any pt thof by authty of Parliament or orwise howsr then and in such case these prests and the term and este thby created shall cease determine and be utterly void to all intents and purps whatsor And the sd (assignor) doth for himself &c. (covenant to pay mortgage money, see post, MORTGAGES) And the sd (assignor) doth hby |