would have been defeated if it had been construed as a bargain and sale. (Haggerston v. Hanbury, 5 B. & C. 101; 7 D. & Ry. 723. See Miller v. Green, 1 Cr. & J. 142; 8 Bing. 192; Pascoe v. Pascoe, 3 Bing. N. C. 898; Pentland v. Healey, 1 Alc. & Nap. 65; Avery v. Cheslyn, 5 Nev. & M. 372; 3 Ad. & Ell. 75; Nash v. Ash, 1 H. & Colt. 160.)

Fine levied by tenant in tail in remainder.

Death of tenant for life.

TESTATUM.

Owner of base fee conveys for the

purpose of enlarg

ing it into a fee simple absolute.

No. II.

CONVEYANCE by the Owner of a Base Fee for the purpose of enlarging it into a Fee Simple absolute. See 3 & 4 Will. 4, c. 74, s. 19, ante, p. 343 (x).

day of

THIS INDENTURE, made the
in the year of our Lord
18-, between Edward Evans, of &c. esq. the [owner of the base fee,]
(the eldest son and heir of the body of William Evans, of &c. esq. de-
ceased), of the one part, and A. B., [the releasee,] of the other part:
WHEREAS [recital of will creating the entail and death of testator,
ante, pp. 728, 729]: AND WHEREAS, under and by virtue of an in-
denture bearing date on or about the 1st day of May, 1832, and made,
or expressed to be made, between the said Edward Evans of the one
part, and C. D. of the other part, and by a fine sur conuzance de droit
come ceo, &c. acknowledged and levied by the said Edward Evans
before his majesty's justices of the Court of Common Pleas at West-
minster, in or as of Trinity Term, 1832, in pursuance of a covenant or
agreement contained in the same indenture, and a declaration of uses
of the same fine therein contained, the messuages, lands and heredita-
ments expressed to be hereby granted and released were duly limited
and assured (subject and without prejudice to the estate for life of
the said William Evans in the same hereditaments), unto and to the
use of the said Edward Evans, his heirs and assigns for ever. AND
WHEREAS the said William Evans departed this life on or about
the 1st day of June, 1834, whereupon the said E. Evans became
entitled to a base fee in possession in the said hereditaments; and
the said E. Evans is desirous of enlarging such base fee into a fee
simple absolute: Now THIS INDENTURE WITNESSETH, that in order
to enlarge the base fee of the said E. Evans in the messuages, lands and
hereditaments expressed to be hereby granted and released, into a fee
simple absolute, and to defeat and destroy all estates tail, remainders,
reversions, rights, titles, interests and powers, to take effect after
the determination or in defeasance of the base fee into which the
estate tail of the said E. Evans has been converted as aforesaid;
and in order to limit and assure the inheritance in fee simple in pos-
session in the same hereditaments to the use of the said E. Evans, his
heirs and assigns for ever, he the said E. Evans doth by these presents
grant, alien, dispose of, release and confirm unto the said A. B., All
that, &c. [parcels, general words, and the reversion of all the estate,
&c. ante, pp. 711, 712]: TO HAVE AND TO HOLD the said messuages,
lands, tenements, hereditaments, and all and singular other the premises
hereby granted and released, or expressed and intended so to be, with

(a) Where there is a protector of the settlement creating the entail which has been converted into a base fee, the owner of it cannot acquire the fee simple absolute without the consent of such protector. (See 3 & 4 Will. 4, c. 74, s. 35, ante, p. 359.)

their and every of their rights and appurtenances, unto the said A. B. and his heirs, TO THE ONLY USE AND BEHOOF of the said E. Evans, his heirs and assigns for ever, and to and for no other use, intent or purpose whatsoever. [If the party was not married on or before 1st January, 1834, and it is intended to bar dower, the declaration, ante, p. 713, should be added.] IN WITNESS, &c. (y).

(y) This deed must be inrolled within six calendar months after its execution in Chancery. (Ante, p. 365, s. 41.)

No. IV.

CONVEYANCE by Bargain and Sale (to be inrolled in Chancery by a
Tenant in Tail in Remainder, without the Consent of the Protector
of the Settlement, with a Covenant to complete the Title at a future
Period.

THIS INDENTURE, made the day of -, in the year of our Lord
18-, between Edward Evans, of &c. esq. (the eldest son and heir of
the body of William Evans, of &c. esq.) of the one part, and [the pur-
chaser] of the other part. WHEREAS [recital of will creating the
entail and death of the testator, ante, pp. 728, 729]: AND WHEREAS Recitals of ven-
the said E. Evans, as the eldest son and heir of the body of the said dor's title.
W. Evans, is seised or entitled to an estate tail in the messuage, lands
and hereditaments hereby bargained and sold, or expressed and in-
tended so to be, in remainder expectant upon the decease of the said W.
Evans, and the said E. Evans has issue six children now living, namely,
[names of children] (2): AND WHEREAS the remainder in fee simple of sale by auc-
expectant upon the decease of the said W. Evans, in the messuage,
lands and hereditaments expressed to be hereby bargained and sold,
was, on the day of March now last past, put up to sale by
public auction at the Crown Inn, situate at in the county of

tion.

in one lot, and at such sale the said [purchaser] was the highest bidder for and declared to be the purchaser of the same hereditaments at or for the price or sum of 1,000l. (a): AND WHEREAS the said Refusal of pro

(z) A tenant in tail in remainder, without the consent of the protector of the settlement, can only convey a base fee, which will endure so long as such tenant in tail has issue of his body, on the failure of which, unless the base fee be subsequently enlarged, the remainders over will take effect. It would not therefore be prudent for a purchaser to take a conveyance from a tenant in tail in remainder, without the protector's consent, unless there is issue, which will probably live until the title can be perfected, and reliance can be placed on the covenant of the vendor for securing to the purchaser the damage he will sustain by the non-performance of the covenant to complete the title. Hence, in cases of this kind, it will often be necessary to invest the purchase-money in the names of trustees until the title shall be completed.

(a) It must be remembered, that expectant heirs and the owners of reversionary interests are entitled for mere inadequacy of consideration to have the contract rescinded upon terms of redemption. (See 2 Swanst, 139, n. (a), and the numerous cases there cited.) But the rule does not extend

tector to consent.

TESTATUM.

Tenant in tail in remainder con

in fee.

W. Evans, as the protector of the settlement made by the said recited will, has refused to consent to the disposition of the said hereditaments by the said E. Evans, but the said [purchaser] has consented to accept in the first instance a conveyance from him without such consent, on his entering into such covenant for completing the title of the said [purchaser] to the fee simple absolute in the same hereditaments as is hereinafter contained: Now THIS INDENTURE WITNESSETH, that for carrying the aforesaid sale and agreement into effect, and in consideration of the sum of 1,000l. of lawful money of veys to purchaser Great Britain to the said E. Evans in hand paid by the said [purchaser] at or before the sealing and delivery of these presents, in full for the absolute purchase of the fee simple and inheritance of the hereditaments expressed to be hereby bargained and sold, subject only to the estate for life of the said W. Evans therein, but free from all other incumbrances, the receipt of which said sum of 1,000l. the said E. Evans doth hereby admit and acknowledge, and from the same and every part thereof doth acquit, release, and for ever discharge the said [purchaser], his heirs, executors, administrators, and assigns, and every of them, by these presents, and in order to defeat the estate tail of the said E. Evans under the said recited will in the same hereditaments, and to convey a base fee therein in remainder immediately expectant upon the decease of the said W. Evans unto the said [purchaser], his heirs and assigns, He, the said E. Evans, doth by these presents grant, bargain, sell, dispose of, and confirm unto the said [purchaser] and his heirs, All [parcels, general words, remainder, &c. all the estate, &c. ante, pp. 711, 712]: TO HAVE AND TO HOLD the said messuage, lands, hereditaments, and all and singular other the premises expressed to be hereby bargained and sold, with their and every of their appurtenances, unto and to the use of the said [purchaser], his heirs and assigns, subject to the estate for life of the said W. Evans, and the remainders, estates, rights, interests and powers to take effect after the determination, or in defeasance of the base fee into which the estate tail of the said E. Evans is converted by these presents, [if the vendor has the ultimate remainder or reversion, add these words, "except the ultimate remainder or reversion so limited to or vested in the said [vendor], his heirs and assigns, as aforesaid."] AND the said E. Evans for himself, his heirs, executors and administrators, doth hereby covenant with the said [purchaser], his heirs and assigns, in following manner; (that is to say,) that notwithstanding any act or deed by him the said E. Evans or the said [the testator] committed or executed to the contrary, he the said E. Evans, at the time of the execution of these presents, is lawfully and absolutely seised of and in, or well and sufficiently entitled to the said messuage, lands, and other hereditaments herein before expressed to be hereby bargained and sold, and every part thereof, with their appurtenances, for a good and sole estate of inheritance in tail general in remainder immediately

Covenants for title.

to sales by auction, (Shelley v. Nash, 3 Madd. 232,) nor to the sale by a father, tenant for life, and his son, tenant in tail in remainder, who form a vendor with a present interest, and meet a purchaser with the same advantages as if a single person had the whole power over the estate. (Wood v. Abrey, 3 Madd. 417; see Fox v. Wright, 6 Madd. 111; Marsack v. Reeves, 6 Madd. 109; Wethered v. Wethered, 2 Sim. 183; Harwood v. Tooke, Id. 192; Earl Portmore v. Taylor, 4 Sim. 182; King v. Hamlet, Id. 223; 2 My. & K. 456; Wardle v. Carter, 7 Sim. 490; Sugd. V. & P. 314-324, 11th ed.; Earl of Aldborough v. Trye, 1 West, 221; 7 Cl. & Fin. 436.)

expectant upon the decease of the said W. Evans, with such remainders
over as aforesaid. AND that notwithstanding any such act or deed as
aforesaid, he the said E. Evans now hath in himself good right, full
power, and lawful and absolute authority to grant, bargain, sell, dis-
pose of, and confirm the messuage, lands and other hereditaments here-
inbefore expressed to be hereby bargained and sold, with the appurte-
nances thereunto belonging, unto the said [purchaser], his heirs and
assigns, in manner aforesaid, according to the true intent and meaning
of these presents: and that it shall be lawful for the said [purchaser],
his heirs and assigns, immediately from and after the determination of
the estate for life of the said W. Evans, and from time to time and at
all times thereafter, peaceably and quietly to enter into and upon, and
to hold, occupy, possess, and enjoy the said messuage, lands and other
hereditaments herein before expressed to be hereby bargained and sold,
with their appurtenances, and to have, receive and take the rents, issues
and profits thereof, and of every part thereof, for his and their own use
and benefit, without any let, suit, trouble, denial, eviction, interruption,
claim or demand whatsoever of or by him the said E. Evans, his heirs
or issue in tail, or of or by any other person or persons lawfully or
equitably claiming or to claim, by, from or under or in trust for him,
them or any of them, or by, from or under the said [the testator].
AND that freely, clearly, and absolutely acquitted, released, and for
ever discharged or otherwise by the said E. Evans, his heirs, executors brances.
or administrators, well and sufficiently kept harmless and indemnified
from and against all former and other gifts, grants, bargains, sales,
estates, troubles, charges and incumbrances whatsoever, either already
or hereafter to be made, executed, occasioned or suffered by the said
E. Evans, or his heirs or issue in tail, or by any person or persons
lawfully or equitably claiming or to claim by, from or under or in
trust for him, them or any of them, or by the said [the testator] or
any person claiming under him, except in respect of the estate for

Free from incum

life of the said W. Evans. AND FURTHER, that the said E. Evans, For further ashis heirs and issue in tail, and all and every other person and per- surance. sons having or claiming, or who shall or may have or claim any estate, right, title, interest, inheritance, use, trust or property, either at law or in equity, of, in, to or out of the said messuage, lands and other hereditaments hereinbefore expressed to be hereby bargained and sold, or any of them, or any part thereof, by, from, or under or in trust for the said E. Evans, his heirs, or issue in tail, or any of them, or by, from, or under the said [the testator], (except the said W. Evans or his assigns, in respect only of his estate for life, and as protector of the settlement made by the said recited will,) shall and will, from time to time and at all times hereafter, upon every reasonable request, and at the proper costs and charges in the law of the said [purchaser], his heirs or assigns, make, do, acknowledge and execute, or cause and procure to be made, done, acknowledged and executed, all and every such further and other lawful and reasonable acts, deeds, things, devices, conveyances, and assurances in the law whatsoever, for the further, better, more perfectly and absolutely granting, releasing, conveying, confirming or otherwise assuring the said messuage, lands and other hereditaments herein before expressed to be hereby bargained and sold, and every part thereof, with their appurtenances, unto and to the use of the said purchaser], his heirs and assigns, or otherwise, as he or they shall direct or appoint, as by the said [purchaser], his heirs or assigns, or his or their counsel in the law, shall be reasonably devised or advised and required, and as shall be tendered to be done and executed. AND MOREOVER, that the said E. Evans, and every other Covenant to perperson lawfully claiming by, from, or under him, shall and will, imme- fect the title.

diately after the decease of the said W. Evans, or as soon as circumstances will permit, and the said E. Evans shall be able and competent so to do, at the costs and charges of the said E. Evans, bis executors or administrators, make, do and execute all such acts, deeds, conveyances and assurances as shall be necessary, and as the said [purchaser], his heirs and assigns, or his or their counsel in the law, shall reasonably advise or require, for effectually barring, discharging and defeating all remainders, reversions, estates, rights, interests and powers, to take effect under and by virtue of the said recited will after the determination or in defeasance of the base fee of the said [purchaser], his heirs and assigns, or the estate tail of the said E. Evans in the said messuage, lands and hereditaments herein before expressed to be hereby bargained and sold, and for enlarging the base fee of the said [purchaser], his heirs or assigns, in the same hereditaments, into a fee simple absolute, and for perfecting his or their title to the same: AND that in case the said E. Evans shall happen to depart this life before such acts, deeds, conveyances and assurances as last aforesaid shall be made and perfected, then and in such case the executors or administrators of the said E. Evans shall and will, at their own costs and charges, cause or procure the issue (b) in tail of the said E. Evans, or other the person or persons who shall be entitled in remainder or reversion immediately expectant upon the determination of the base fee hereby created or intended so to be, when and so soon as circumstances will permit, in like manner to make, do and execute all such acts, deeds, conveyances and assurances as shall be necessary, and as the said [purchaser], his heirs or assigns, or his or their counsel in the law, shall reasonably advise or require, for effectually barring, discharging and defeating all remainders, reversions, estates, rights, interests and powers, to take effect under and by virtue of the said recited will, after the determination or in defeasance of the base fee of the said [purchaser], his heirs and assigns in the said hereditaments, and for enlarging such base fee of the said [purchaser], his heirs and assigns into a fee simple absolute, and for perfecting his or their title to the same, or for conveying and assuring the remainder or reversion in the said hereditaments expectant upon the base fee, into which the estate tail of the said E. Evans is intended to be converted by these presents, unto and to the use of the said [purchaser], his heirs and assigns; but it is hereby agreed and declared, that no further or other consideration shall be payable by the said [purchaser], his heirs or assigns, in respect of any estate or interest to be conveyed and assured in pursuance of the covenant lastly hereinbefore contained: IN WITNESS, &c.

(b) It is to be observed, that a covenant of this kind will not bind the issue in tail, (see ante, s. 40, p. 363, n. (i),) nor those in remainder; and in case of their refusal to perform it, the only remedy of the purchaser will be an action on the covenant against the representatives of the vendor. It is advisable, when practicable, to obtain a demise from the vendor of another estate to a trustee upon trust to raise the purchase-money for the benefit of the purchaser, in the event of his title not being perfected within a limited time.