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Sale of Reversion.

XVIII. For agreement shall be wholly void to all intents and purposes whatsoever, and for this purpose time shall be of the essence of the contract (n).

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10. The death of the said [tenant for life] shall not in anywise affect this agreement.

AS WITNESS, &c.

XIX. AGREEMENT for the Purchase of GROWING

TIMBER.

day of

18-;

AN AGREEMENT made the
BETWEEN [vendor] (0), of &c., of the one part; and
[purchaser], of &c., of the other part; WHEREBY IT IS
AGREED, as follows, that is to say :—

1. The said [vendor] shall sell, and the said [purchaser]

(n) A similar provision to the above should never be omitted, unless the agreement of the parties be otherwise; although, in the absence of any express stipulation, if on an agreement for the sale of a reversionary estate, part of the terms is, that the purchase-money shall be paid by a certain time, and it be not so paid, by default of the purchaser, the vendor is discharged from his contract; because it is of the essence of justice that such a contract should be executed immediately, and without any delay; as no man sells a reversion who is not distressed for money; and it is ridiculous to talk of making him a compensation by giving him interest on the purchase-money during the delay: Newman v. Rogers, 4 Bro. C. C. 393; 1 Price, 298. See Hipwell v Knight, 1 Y. & C. Ex. 416. As to specific performance of contracts for the purchase of a reversion, see Spurrier v. Hancock, 4 Ves. 667; Britton v. Twining, 1 Madd. Ch. 417.

(0) As a tenant in tail was, until recently, restrained from aliening the estate without an enrolled conveyance, now substituted for a fine or recovery, so he was restrained from charging it, or disposing, by contract or agreement, of the lasting improvements after his death. Therefore, if tenant in tail agreed for sale of the trees growing on the inheritance, the vendee must have severed them during the life of tenant in tail; for if he died before they are cut down, his issue should have them as part of the inheritance, and the vendee should not be permitted, after the death of tenant in tail, to fell one tree, though it be half cut down; for, as the tenant in tail had power over the inheritance only during his own life, he could not delegate that power to another for a longer time: and consequently, whatever remained part of the inheritance at the death of tenant in tail, when his power over it ceased, must necessarily have gone to the heir to whom the inheritance belonged: Bro. Abr. Contract, &c. 26; Liford's case, 11 Co. 50 a; Poph. 194; Hob. 173; 1 Pow. Contr. 127; 3 Bac. Abr. 64, n; Com. Dig. Biens (H).

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XIX. Pur-
chase of
Growing
Timber.

;

all which pre

2. The purchase-money shall be paid by the said [pur- Power to cut

chaser], as follows (that is to say), £

upon the execution of these presents, and £ remainder thereof, on or before the

next.

and carry

part thereof, away (p).

the

day of

3. The said [purchaser] shall have full liberty for himself and his servants, agents and workmen to enter upon the said demesne and other lands, and cut down the said trees, at all reasonable and convenient times, and to lay and place the bark of the oak trees in convenient parts of the premises to dry AND the said trees and wood, with the bark of the oaks, and the boughs, lops, and tops, of the whole of the said trees, to draw, remove, carry off, and take away in lots in and by the most usual and convenient ways and parcels,

Now, however, by the stat. 45 & 46 Vict. c. 38, s. 35, it is enacted that:

"(1) Where a tenant for life is impeachable for waste in respect of timber, and there is on the settled land timber ripe and fit for cutting, the tenant for life, on obtaining the consent of the trustees of the settlement, or an order of the Court, may cut and sell that timber or any part thereof.

"(2) Three-fourth parts of the net proceeds of the sale shall be set aside and be capital money under this Act, and the other fourth part shall go as rents and profits."

Where the tenant for life (which term includes tenants in tail, and other limited owners, sect. 58), is an infant this power may be exercised by the "trustees of the settlement," or other persons appointed by the Court for that purpose. See as to the exercise of the powers of the Act by or on behalf of infants, married women, and lunatics, ante, pp. 412 n., 413 n.

66

Tenants for life may also, for the purpose of the execution, or repair of improvements" (as to which see sect. 25 of the Act), "cut down and use timber and other trees not planted or left standing for shelter or ornament," without the necessity of obtaining any consent or order of Court (sect. 29). See further, as to the cutting of timber by limited owners, and generally as to waste, tit. SETTLEMENTS.

As to succession duty on timber, see tit. PURCHASES.

(p) Although, on a grant or sale of trees, a right to cut them down and carry them away is implied by law, Noy's Maxims, 55, 9th ed; Plow. Com. 16; 11 Co. 52 a; yet it is prudent to insert this provision, as it gives greater powers than the law would imply.

B.-VOL. I.

ΙΙ

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XIX. Pur

chase of Growing Timber.

Power to dig pits, to saw timber on premises.

Timber, &c. not removed by times

agreed on to be forfeited.

Purchaser to fill up saw pits,

and repair hedges.

Disputes to be referred to

arbitration, or umpirage.

before re

moval pur

allowance.

at any time on or before the twenty-ninth day of September next And also for himself and his servants, agents, and workmen, and other person and persons to whom they shall sell and retail the said timber and wood, or any part thereof, to dig saw-pits and break up and saw the said timber in proper and convenient parts of the said premises in and upon which the said timber and wood stand and grow, at any time before the said twenty-ninth day of September next, without paying or making any satisfaction to the said [vendor], his heirs, assigns, or under-tenants.

4. All the said oak, ash, and other trees, with the boughs, lops, tops, and bark thereof, as shall not have been removed within the time before limited and agreed on for that purpose shall thenceforth be forfeited to the said [rendor].

5. The said [purchaser] shall, within one month next after the said twenty-ninth day of September next, at his own costs and charges, fill up all such saw-pits as shall for the purposes aforesaid have been made by him or his servants, on any of the said lands: And also fence, amend, and repair all the hedges and fences in and about the said lands, in all such places as shall be broken, or otherwise damaged or destroyed, in felling, hewing, or carrying away the said timber, on being allowed by the said [vendor] hedge-wood for that purpose. 6. If any dispute should arise between the said parties touching any clause, matter or thing relating to the sale of the said timber, the same shall be referred to and finally settled by two indifferent persons, one of whom to be chosen by each of the said parties; and if such two persons should not agree, then by an umpire to be chosen by them (2). IN WITNESS, &c.

(2) If the vendor be tenant in tail (unless the case falls within the provisions of the Settled Land Act, 1882, stated in the last page), add the following clause:

If vendor die "If the said [vendor] should die before the said twentyninth day of September next, and the said [purchaser] chaser to have should be prevented from felling, sawing, or carrying away the said timber, as aforesaid, then the executors or administrators of the said [rendor] shall pay or allow unto the said. [purchaser], such sum of money, by way of damages, as he shall thereby sustain; the same to be ascertained by arbitration, or arbitration and umpirage, as aforesaid.”

For other stipulations as to sale of timber, see tit. CONDITIONS OF SALE.

XX. AGREEMENT between two Vendors and a
Purchaser, where MONEY to be paid on a Valuation
of Timber is to be INVESTED in the Funds in the
Names of Trustees, until a TITLE can be made to a
PART of the ESTATE sold, and Title Deeds found;

and in the meantime, as an INDEMNITY to the
PURCHASER.

ARTICLES OF AGREEMENT, made the

day

of -, 18-, BETWEEN [one of the vendors], of &c., Parties. widow, and sole executrix appointed by the last will of [tes

tator], late of the same place.

deceased, and [the

other vendor], of &c., and which [vendors] are the devisees in trust, named in the same will, of the one part; and [purchaser], of &c., of the other part.

fee by hus

trustees of his

their trans

WHEREAS by an indenture of mortgage, dated the Recital of day of - 18-, and expressed to be made be- mortgage in tween the said [testator], of the one part; and [mortgagees], band to the of &c., of the other part; the said [testator], in consideration marriage of the sum of £- -, paid to him by the said [mortgagees], settlement, on out of moneys belonging to them on a joint account, granted ferring to him unto and to the use of the said [mortgagees], their heirs and the trust assigns, a certain manor and hereditaments, situate, &c., Recital of subject to a proviso for redemption on payment by the said declaration, [testator], his heirs, executors, or administrators, unto the said [mortgagees], or the survivor of them, or the executors or administrators, or such survivors, or their or his assigns, of the sum of £- and interest thereon, at the rate of five

day of

funds.

that mortgage money was

trust money,

and settled on the marriage of mortgagor with his late

wife.

pounds per centum per annum, on the 18-; which indenture contains a declaration by the said [mortgagees] that the said mortgage money was produced by the sale of £ Consolidated £3 per cent. Annuities, transferred to them by virtue of an indenture, dated the day of -, 18-, being a settlement made previous to the marriage of the said [testator] deceased, with [wife] his former wife, and that the said mortgage money was subject to the several trusts in the same indenture of settlement contained respecting the said sum of £ Consolidated £3 per cent. Annuities: AND WHEREAS, the Recital of

said [testator] died on the

and

day of

his former wife died on the

18-,

transfer of mortgage

day of from trustee

to two

18—. AND WHEREAS the said [deceased mortgagee] daughters,

XX. On a Purchase with a Defective Title.

the only children of the marriage.

Recital of contract for purchase. Parcels.

Recital of agreement that timber should be valued.

died on the

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day of

18-. AND WHEREAS by an indenture endorsed on the said indenture of mortgage, and expressed to be made between the said [surviving mortgagees] of the one part, and [daughters of testator] of the other part, reciting that the said [daughters] as the only children of the said testator by his former wife A. B. were entitled in equal shares to the said sum of £secured by the said mortgage, the said [mortgagee], at the request of the said [daughters], transferred and assigned to them the said mortgage debt or sum of £ —, and conveyed the mortgaged premises unto them and to their use in fee simple as tenants in common, subject to such equity of redemption as was contained in the said indenture of mortgage. AND WHEREAS the said [vendors], as such devisees in trust as aforesaid, lately agreed with [purchaser], of &c., for the sale to him of the fee-simple and inheritance of all that the then lately newly-erected capital messuage or dwelling-house, with the garden and outhouses thereto belonging; and also all that the manor and demesne and other lands, tenements, and hereditaments, to the said messuage, belonging, or in anywise appertaining; together also with the portion of two-thirds of tithes in and upon certain parts of the said demesne lands, containing about

acres;

Which tithes were described to be then lately purchased by the said [testator], deceased, of A. B.; And which messuage, manor, hereditaments, and premises, were, by a printed particular, annexed to, and referred to by the contract now in recital, described to be situated in the county of———————————, with the appurtenances, free from incumbrances (except a yearly rent of shillings, payable by way of fee-farm rent), at the price of £ : And it was thereby further agreed, that the said [purchaser] should further pay to the said [vendors], for all the timber, including the bark, and tops and lops, growing upon the whole of the estate and premises, as the same should be valued by two indifferent persons or their umpire, one of such indifferent persons to be chosen by the said [vendors], and the other by the said [purchaser] ; in which valuation all timber trees and saplings growing on the said premises, which were of the value of one shilling, or Recital, that above that value, were to be estimated. AND WHEREAS the the premises said manor, newly-erected capital messuage, and other mesbe purchased suages, lands, hereditaments, and premises, contracted to be

contracted to

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