NOTES. 1. An assignment should not authorize the assignee to sell on credit (Barney v. Griffin, 2 Comst. 365. Nicholson v. Leavitt, 2 Seld. 510. Porter v. Clark, 5 How. Pr. Rep. 445. S. C., 5 Seld. 142. Willard's Eq. Jur. 246.) 2. Assignment may provide for the payment of the costs and commissions of the trustee. (Meacham v. Sternes, 9 Paige, 398. Barney v. Griffin, supra.) 3. An assignment may give preference amongst creditors. (Boardman v. Halliday, 10 Paige, 223. Griffin v. Barney, 2 Comst. 371.) 4. But an assignment cannot vest the assignee with power to give future preferences. (S. Cases.) They must be declared by the assignor at the time. 5. A clause requiring the assignee to return the surplus to the assignor, after paying debts and charges, is useless and unnecessary, though it would not probably invalidate the assignment. The law would return the surplus. (Bogert v. Haight, 9 Paige, 297, 303. Beck v. Burdett, 1 id. 305.) 6. It is probably unnecessary to have a schedule annexed to the assignment, giving a full description of the real estate of the assignor. The general description in the assignment is enough to pass the title. But it will be found convenient, where there are different pieces of land assigned, to have them specified, so that the purchaser from the assignee can more easily trace back his title. 7. A clause, excepting such articles as are exempt by law from execution, is valid, and does not tend to defraud the creditors. It takes nothing from them which the law has made applicable to debts. The exemption is a personal privilege, which the debtor may insist on or waive. (Mickles v. Tousely, 1 Cowen, 114. Earl v. Camp, 16 Wend. 571. 3 R. S. 450, 646, 647, 5th ed. Carpenter v. Herrington, 25 Wend. 370. Hall v. Penny, 11 id. 44.) 8. The assignor may empower the assignee to compromise such of the debts assigned as are doubtful, by receiving a part of the sum due, and discharging the residue. (Dow v. Platner, 16 N. Y. R. 562.) If this is intended, a clause to that effect should be added in the assignment. 9. By the act of April 13, 1860, (L. of 1860, p. 594,) the debtor is required to annex an inventory of his estate to the assignment, and within twenty days thereafter deliver it to the county judge of the county in which such debtor resides. (See the act for various other matters.) CONVEYANCES BY DEED AND MORTGAGE. No. 33. BARGAIN AND SALE WITHOUT COVENANTS OF WARRANTY. ........ This indenture, made the eight hundred and ...... between of the second part, witnesseth, that the said part.... of the first part, for and in consideration of the sum of ........ lawful money of the United States of America, to ..... in hand paid, by the said part.... of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha.... granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents do.... grant, bargain, sell, alien, remise, release, convey and confirm unto the said part.... of the second part, and to and assigns forever, all ............. Together with all and singular the tenements. hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and prof day of........, in the year one thousand of the first part, and........ ..... its thereof. And also, all the estate, right, title, interest,.. .. property, pos session, claim and demand whatsoever, as well in law as in equity, of the said part.... of the first part, of, in or to the above described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said part.... of the second part, ... and assigns forever. In witness whereof, the said part.... of the first part ha.... hereunto set hand.. and seal.. the day and year first above written. Sealed and delivered in presence of No. 34. BARGAIN AND SALE, WITH THE COVENANT OF WARRANTY. This is the common warranty deed used in this state. (1 R. S. 739, § 142.) This indenture, made the ........ day of. eight hundred and ..... between .. ......., in the year one thousand of the town of ....... in of the town of ...... the county of. in the county of........, of the second part, witnesseth, that the said part.... of the first part, for and in consideration of the sum of ........ lawful money of the United States of America, to ..... in hand paid by the said part.. of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha.. granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents do.. grant, bargain, sell, alien, remise, release, convey and confirm unto the said part.. of the second part, and to ........ heirs and assigns forever, all .... Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also, all the estate, right, title, interest, ........ property, possession, claim and demand whatsoever, as well in law as in equity, of the said part.. of the first part, of, in or to the above described premises, and every part and parcel thereof, with the appurtenances; to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said part.. of the second part, heirs and assigns forever. ........ And the said heirs, the said premises, in the quiet and peaceable possession of the said part.... of the second part, ...... heirs and assigns, against the said part.. of the first part, ....... heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant, and by these presents forever defend. In witness whereof, the said part... of the first part, ha.. hereunto set hand.. and seal.., the day and year first above written. Sealed and delivered in presence of No. 35. QUIT-CLAIM DEED. To all to whom these presents shall come, greeting: Know ye, that for and in consideration of the sum of ........ dollars, lawful money of the United States of America, to ........ in hand paid by ..... at or before the ensealing and delivery of these presents, the receipt whereof is hereby aaknowledged, have remised, released and forever quit-claimed, and by these presents do remise, release and forever quit-claim unto...... and to........ heirs and assigns forever, all To have and to hold the said released premheirs and assigns to ', own proper use and ises unto the said behoof forever. ..... ........ ha.... hereunto set ........ hand.. in the year of our Lord one thousand presence of No. 36. QUIT-CLAIM DEED, WITH A COVENANT AGAINST THE ACTS OF THE GRANTOR. The same as No. 35 to*, and then proceed-And the said ........ doth covenant with the said his heirs and assigns, that he hath not done or suffered any act or thing whereby the estate hereby released may be impeached, charged or incumbered, in any manner whatsoever. No. 37. A GRANT OF AN ESTATE IN FEE, UNDER THE STATUTE, WITHOUT COVENANTS OF TITLE. (1 R. S. 738, § 137.) ..... in the year one thousand of the first part, and to him in hand This indenture, made the ....... day of..... eight hundred and sixty-...., between A. B. of C. D. of .........., of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of ........... paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, hath granted, and by these presents doth grant, unto the said party of the second part, and to his heirs and assigns forever-all that certain, &c., [here describe the premises,] together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also, all the estate, right, title, interest, property, claim and demand whatsoever of him the said party of the first part, either in law or equity, of, in and to the same, and every part thereof. † In witness whereof, &c. [as in No. 33.] No. 38. A GRANT UNDER THE STATUTE WITH COVENANTS OF WARRANTY. The same as in No. 37 to †, and then add the covenants intended to be given, as in a full covenant deed, or such of them as are required. NOTE. A statute grant may be drawn still shorter than the above; but most parties prefer the form of conveyances to which they have been accustomed. No. 39. FULL COVENANT DEED-A SHORT FORM. This indenture, made the and ........, between ....... ... second part, witnesseth: That the said part.... of the first part, in consideration of .. dollars to ........ duly paid, ha.... sold, and by these presents do.... grant and convey, to the said part.... of the second part, and to heirs and assigns, forever, all ...... with the appurtenances, and all the estate, right, title and interest of the said part.... of the first part therein.* And the said............ do.... hereby covenant and agree to and with the said part.... of the second part, that at the time of making this conveyance the lawful owner.. of the premises above granted and .... ... seised of a good and indefeasible estate of inheritance therein, and that they are free aud clear of inchoate dower rights, and of all incumbrances whatsoever,.. ....., and the above granted premises in the quiet and peaceable possession of the said part.... of the second part, ...... heirs and assigns, against every person whomsoever, will warrant and forever defend. In witness whereof, the said part.... of the first part, ha......... hereunto set .... hand.. and seal.. the day and year first above written. Sealed and delivered in presence of No. 40. FULL COVENANT DEED-USUAL FORM. The same as in No. 39 to the *, and then as follows: To have and to hold the above granted, bargained and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit and behoof, forever. And the said party of the first part, for himself, his heirs, executors and administrators, doth covenant, grant and agree to and with the said party of the second part, his heirs and assigns, that the Covenant of said party of the first part, at the time of the sealing and delivery of seisin. these presents, is lawfully seised, in his own right, of a good, absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular, the above granted and described premises, with the appurtenances, and hath good right, full power and lawful authority, to grant, bargain, sell and convey the same in manner aforesaid. And that the said party of the second part, his heirs and assigns, shall and may, at all times hereafter, peaceably and quietly have, hold, use, Covenant for occupy, possess and enjoy the above granted premises, and every part quiet enjoyand parcel thereof, with the appurtenances, without any let, hindrance, ment. Covenant Covenant for ance. molestation or disturbance of the said party of the first part, his heirs or assigns, or of any other person or persons lawfully claiming or to claim the same; and that the same and every part thereof are now free, clear and discharged of against incum- and from all former and other grants, titles, charges, estates, judgments, brances. taxes, assessments and incumbrances of what nature or kind soever. And also, that the said party of the first part, and his heirs, and all and every person or persons whomsoever, lawfully or equitably deriving any estate, right, title or interest, of, in or to the herein granted premises, by, from, unfurther assur- der or in trust for him or them, shall and will at all time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said party of the second part, his heirs and assigns, make and execute, or cause to be made and executed, all and every such further and other lawful and reasonable acts, conveyances and assurances in the law, for the better and more effectually vesting and confirming the premises hereby granted, or so intended to be, in and to the said party of the second part, his heirs and assigns forever, as by the said party of the second part, his heirs and assigns, or his or their counsel, learned in the law, shall be reasonably advised, devised or required. And the said party of the first part, for himself and his heirs, the above described Covenant of and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns, against the said party of the first part and his heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend. warranty. In witness, &c. (as before in No. 39.) Sealed and delivered in presence of Acknowledgment, or proof, &c. As to the form of deeds and their effect, see 1 R. S. 738 et seq. A conveyance is good to pass the title without any covenants. (Nixon v. Hyserott, 5 John. 58. Jackson v. Fish, 10 id. 456. Beddoe v. Wadsworth, 21 Wendell, 120.) No. 41. If the deed be given, subject to the payment by the purchaser, of a mortgage or other incumbrance, insert a clause like the following, before the habendum clause at the * in No. 39, to wit: in book of at.... o'clock Subject, however, to the payment and performance by the party of the second part, his executors and assigns, of the conditions contained in a certain indenture of mortgage, executed by ...... on the ........ day of ........, to and recorded in the clerk's office, of the county of mortgages... . . . pages...., on the ...... day of ..... A. M., and which said mortgage was given to secure the payment of the sum of at the time and in the manner therein mentioned, and upon which there is now due and payable, [or to become due and payable,] the sum of ....... ......... ... And at the close of the several covenants respectively, add "except as against the incumbrance above mentioned." (See post, under "Covenants.") |