XX. On a with a Defec Purchase sold as aforesaid, comprised all the said manor, hereditaments, and premises, so mortgaged by the said [testator] as aforesaid, Except such part of the lands belonging to the same as had tive Title. been conveyed or agreed to be conveyed by the said [testator], comprised all deceased, in his lifetime, and after making the above-recited the premises mortgaged by mortgage as aforesaid to the said A. B., in exchange for the the testator, said portions of tithes included in the above-recited contract except such for sale; and also for all those several pieces or parcels of afterwards arable land, situate, lying, and being dispersedly in the com- exchange for mon fields of and within the manor of said, containing by estimation and acres, part as he had conveyed in afore- tithes and roods, perches (more or less), then or then lately in the possession of roods, and acres, lands. perches, were likewise included in such contract for sale. AND WHEREAS upon investigating the Recital of title to the said two-third parts of tithes, and the said acres, roods, and defect in title to tithes and lands taken in veyance made of the veyance to be perches of commonable land, it appears that the same is defective or cannot at present be exchange; made good; And therefore it has been agreed between the of agreement, parties hereto, that a conveyance shall now be taken of the that a consaid manor, or reputed manor, newly-erected capital messuage, should be and other messuages, lands, hereditaments, and premises, other parts; comprised in the said indenture of mortgage, and being the whole of the premises thereby mortgaged (except as aforesaid), unto and to the use of the said [purchaser], his heirs and assigns: But that no conveyance shall now be but no con taken of the said portion of tithes and commonable land so made of tithes had in exchange as aforesaid, on account of the title thereto and lands not being at present made good as aforesaid; But it has been change; agreed that the said [purchaser] shall immediately enter into yet purchaser and be entitled to the rents, issues, and profits, and become to the benefipossessed of the same respectively. AND WHEREAS it has cial enjoybeen agreed by and between the said [vendors], and the said of agreement [purchaser], that the sum of £ mentioned in the that purchasemoney should above-recited contract, shall be immediately paid, pur- be paid, and suant to the terms thereof; And that the timber and wood timber valued, and paid for; thereby agreed to be valued, shall be valued accordingly, next; and the amount day of taken in ex to be entitled ment thereof; before the of the valuation paid as hereinafter mentioned. AND that part of WHEREAS it likewise appears that an indenture of XX. On a with a Defec- be indemni fied on that account; day of between, &c., and divers assignments thereof, which had been made and executed between the said date of such mortgage and the 18-, when an assignment of the same was made to the said [testator], deceased, are not amongst the title-deeds belonging to the said manor and estate of but are alleged to have been lost or mislaid, and therefore cannot now be delivered to the said. [purchaser]; on which account it has been agreed that the said [purchaser] shall be indemnified as hereinafter mentioned: of conveyance AND WHEREAS, by an indenture bearing even date with these to purchaser. presents, and expressed to be made between the said [daughters], therein described, of the first part; the said [vendors], of the second part; and the said [purchaser], of the third part; the said manor or reputed manor, newly-erected capital messuage, and such of the said hereditaments comprised in the above-recited indenture of mortgage, of the Testatum. Agreement that timber shall be valued and the money invested; and if a good title be made to tithes and lands taken in - day of -, 18-, as were, with the said portion of tithes acres, day of (a) The Court will not enforce the specific performance of an agreement to sell at a valuation, if the price fixed appears to be considerably below the real value: Parken v. Whitby, Turn. & Russ. 366. perches of commonable land, by the said day of XX. On a Purchase next, and the same premises should by that time be with a Defecconveyed to him the said [purchaser], his heirs or assigns, or tive Title. as he or they should direct: And also in case the said mort- exchange by a gage deed of the day of -, 18-, and all the given day;" missing assignments thereof be found and delivered to the and mortsaid [purchaser], his heirs or assigns, or proper and effectual missing releases, or acknowledgments, or other evidence be produced to be delivered; show that the debt secured by the said indenture of mortgage or evidence produced to of the day of 18—, was paid off and dis- show that charged: And that the said assignment of the 9 day of gage deed and assignments incumbran chaser to pay day of they are no 18-, was made and executed by the persons entitled ces; to assign such mortgage, and was for the absolute use and then purbenefit of him or them, by or before that time: Then he the the amount of said [purchaser], shall, on such next, such valuation to the venpay the full amount of such valuation to the said [rendors], dors. without any deduction whatsoever: But in case the said title But in case all to the said portion of tithes and commonable lands should not cleared by not clearly, and to the satisfaction of the said [purchaser], the given day, be made out and perfected by the said next; Or the same mortgage deed of the day of day of the defects are invest the purchaser to valuation of names of tees to accu -, 18-, and all missing assignments, should not be delivered to the said [purchaser], as aforesaid; Or such sufficient releases or acknowledgments as aforesaid, or the evidence before mentioned, should not be produced; Then and in each, or any, of such cases, he the said [purchaser], shall lay out or invest the amount of the said valuation of timber, in the purchase of £3 per cent. Consolidated Bank Annuities in the names of mutual trustees; who shall from time to time lay out and accumulate the dividends and interest thereof, And stand possessed of and interested in the stock so to be purchased, and the accumulations so to be made as aforesaid; UPON THE TRUSTS following, that is to say, Upon trust, in case the said title to the said portion of tithes and commonable land should be so as aforesaid made out by the day of 18-, and the said [purchaser], should have been suffered to hold and enjoy the same, and to receive should peacethe rents and profits thereof, in the meantime, for his and the meantime, their own use and benefit, and should have had the said mortgage of the -, 18-, and the missing assignments thereof, or the releases or acknowledgment before mentioned, delivered over to him, or such legal day of upon trust, in case defects are cleared by an extended certain day, and purchaser ably enjoy in XX. On a with a Defec tive Title. to transfer the stock and the dividends to vendors; but otherwise, transfer to purchaser so much of the stock as the tithes and valued at, with pur chaser's expenses; evidence produced as aforesaid; To transfer the said stock so to be bought, and the dividends in the meantime arising therefrom, unto them the said [vendors]: But if such title should not be made out and perfected by the said day of 18-; Then upon trust, to transfer to the said [purchaser], so much of the said stock and dividends as will produce such a sum as the said portion of tithes and upon trust to commonable lands shall be valued at, by two indifferent persons, who are to estimate the value according to the relative situation of the same, and considering that the said [purchaser] is owner of the said manor and estates: one of lands shall be such indifferent persons to be named by the said [rendors], and the other by the said [purchaser]: And in case of such two persons not agreeing, then by a third person, to be chosen by the two persons so first chosen for that purpose; Together with any expenses that the said [purchaser], may be in the meantime put unto, in consequence of his not and the resi- having his title now completed thereto; And the residue of the said stock and dividends (provided the missing deeds or releases, or acknowledgments, should be previously delivered as aforesaid, or such evidence as aforesaid produced), shall be thereupon immediately transferred to them the said [vendors]: But, if it should happen that the said mortgage deed of the 18-, and the missing assignments thereof, or any or either of them, or the releases or acknowledgments before mentioned, should not be delivered to the said [purchaser], or such evidence produced as aforesaid, on the said due of the stock and dividends, if title should be cleared, paid to vendors. But if not, of stock to remain in trustees, as an day of day of then residue 18-, Then such residue to remain vested in the trustees to be named as aforesaid, as an indemnity to the said [purchaser] against any loss or damage which he or they might or may otherwise sustain, by reason or in consequence of the said mortgage deed of the day of -, 18-, indemnity to purchaser. 18—, or any subsequent assignments, not being now delivered to the said [purchaser] as a satisfied security, or otherwise on account thereof, until all the same missing deeds, or the releases, acknowledgments, or evidences before mentioned, shall be delivered or produced as aforesaid: And upon those things being severally done, Then upon the said [purchaser], being reimbursed all damages and expenses, if any, which he or they may have sustained by reason of the transfer stock non-delivery of the same missing deeds upon the execution When pur chaser reimbursed all damages on account of defect, to to vendors. XX. On a Purchase of these presents, or in any manner respecting the same deeds, such trustees may lawfully, and are hereby authorized with a Defecto, transfer the same stock and dividends to the said [rendors]. AND if it should happen that a good and indefeasible title shall be made out and perfected to the two-third parts of tithes, and the said roods, and acres, said tive Title. If the first defect be cleared, still the whole funds to be invested as an against the other defects. perches of commonable land, by the said day of 18-, but the said missing deeds, or indemnity any of them, shall not be delivered as aforesaid; or the releases, acknowledgments, or evidences, shall not be delivered or produced as aforesaid; Then the said stock and dividends shall, notwithstanding such title being made as aforesaid, remain vested in the trustees to be named as aforesaid, as an indemnity to the said [purchaser], against any loss or damage which he or they might or may otherwise sustain, in consequence of the said mortgage deed of the- day of 18-, or any subsequent assignment thereof, not being now delivered to the said [ purchaser], as a satisfied security, or otherwise on account thereof, until all the same missing deeds, or the releases, acknowledgment, or evidence before mentioned, shall be delivered or produced as aforesaid. AND upon those several things being done, and the said [purchaser], being reimbursed all damages and expenses, if any, which he or they may have sustained, by reason of the said mortgage of the day of 18-, and any assignments not being delivered as aforesaid as satisfied securities, such trustees may lawfully, and are hereby authorized to, transfer the same to the said [vendors]. AND Covenant by THE SAID [vendors] do hereby, jointly and severally, covenant and agree with the said [purchaser], That they the said utmost endea[vendors], or one of them, or the person or persons claiming the deeds under them, will forthwith use their utmost endeavours to missing, and find the said mortgage of the day of 18-, to purchaser. and all missing assignments thereof, and upon the same deeds, or any of them, being found, will immediately deliver them to the said [purchaser], or the person or persons claiming under him, for his or their own use and benefit. (a) IN WITNESS, &c. (a) This and the two following precedents, which may be found useful under special circumstances, are taken almost verbatim from the third edition of this work, with the omission of obsolete clauses and superfluous words. vendors to use their vours to find deliver them |