or where they are to be the basis of uses to be engrafted by way of reference, may be introduced in language to the following or the like effect," To the

use of A and his heirs, till the solemnization of the in"tended marriage, and from and immediately thereafter 'to the use of A and his assigns for his life, with re"mainder to trustees and their heirs for his life, for the “usual trusts of supporting contingent remainders, with "remainder to the use of [intended wife] and her assigns "for her life for her jointure and in lieu of dower, with re"mainder to the first and other sons of their intended mar"riage successively, according to their priority of birth "in tail (or in "tail male," if so, or otherwise according to "the fact), with remainder to the use of the daughters of "the then intended marriage as tenants in common in tail, "with ultimate remainder to A. B in fee," (or "with the "ultimate reversion to A. B in fee," if such be the fact.) This mode of reciting the limitations, embraces the full import of the language, and expresses them, and also a conclusion of law (namely, that which relates to the ultimate remainder or reversion,) in a form of words at once concise and unequivocal.

It will sometimes happen that a particular power, or certain clauses of the deed in recital, independent of the limitations, is that part of it which is material in the transaction to be recorded in the deed in preparation. For example, the transaction in question may be an exchange or partition; powers of exchange or partition may be given to the tenant for life, &c., and, consequently, in such a case, the only part of the deed which it is necessary to recite, is that which shews who is tenant for life in possession and the power of exchange, partition, &c., as the case may be.

СНАР. І.

BEC. II.

CHAP. I.
SEC. II.

It may be that the transaction to be effected, is authorized by a particular proviso, which is quite independent of the uses, and is given to some particular person by name. In such a case the uses may be passed over without any notice, and the proviso will be the only material recital in the draft, and must be given either at length or so fully as completely to shew the nature of its operation and the acts which it authorizes; for of course there is no occasion to introduce more of the proviso than is relevant to the title to be deduced under it. What parts of it may or may not be omitted in any given instance, will depend entirely on the particular circumstances of the case, and must be left to the discretion of the draftsman, with this general caution,—a caution that applies to every part of a deed,— that where a question arises as to whether or not a given passage of an instrument should be recited more or less closely to its language, more or less in detail, the safe practice is, to err on the side of excess rather than that of defect. One or two illustrations of this point may, however, be useful.

A term having been created many years ago for raising portions, and the trusts of the term having been performed, or having become unnecessary, on an assignment of the term it will be quite sufficient to recite the creation of the term, and refer to the trusts in this brief manner,- Upon divers trusts which "have long since been performed, satisfied or discharged;" or, if such be the fact, "which have be"come unnecessary," or "incapable of taking effect." But if the trusts be subsisting, and are still to be acted upon, then the practice is to recite the trusts pretty fully, stating all the facts which are immediately connected

66

CHAP. I.

SEC. II.

trusts have been

&c.

with them, and which disclose the rights of the celles que trust to receive the money, and give discharges, &c. Where the trusts are numerous and expressed at Recital when great length, and many of them have been satisfied, or partly fulfilled, become incapable of taking effect, and are no longer relevant to the title, it will, in general, be proper to pass the latter over without notice, reciting only those which still subsist and affect the title under consideration. Thus, as frequently happens in marriage or family settlements, where a term, created for raising portions, is introduced after several estates for life, or estates tail, and there is nothing which renders it material to make any reference to these preceding estates, on an assignment of the term to attend the inheritance the preceding uses may be referred to in this manner," To divers uses in the said indenture of release declared and li"mited, and which have become incapable of taking effect, "remainder to the use of the said [trustees] for a term "of 500 years, &c. ;" or, " To divers uses limiting estates "for the lives of, &c., respectively, with remainder in tail "to the use of, &c., remainder to trustees for a term of "1000 years to be computed, &c." Then stating that the term was upon divers trusts, which have been performed, or become unnecessary, or incapable of taking effect, as the case may be in some cases, indeed, it may be judicious, though it is seldom necessary, to state the trusts shortly. In cases like these, what course may or may not be the best is a point which no general rules can prescribe, but must be left to the taste and discretion of the draftsman. Where uses are limited by reference, the deed to which reference is made should be recited fully, at least as to the uses, but not as to the powers, which are in no respect necessary to be noticed in the recital, for they

CHAP. I.

SEC. II.

Recital of provisos, conditions, &c.

are not actual limitations, but mere possibilities, and may never affect the title.

With respect to provisoes for redemption, conditions, &c., the general rule is, that, when they are material to the title under consideration, they should be given fully, or even totidem verbis; but, in other cases, as briefly as is compatible with the accurate expression of their legal effect. When the intention is to give the proviso very shortly, it may be done even without any express reference to it, as "by a mortgage for securing to [mortgagee], his executors, &c., payment of the sum of of lawful money, &c. with interest thereon," because the word "mortgage" necessarily implies a proviso for redemption, this clause being the peculiar chạracteristic of this species of deed. Where the proviso is to be given at some length, it may be introduced in these words," And in the same indenture it was pro❝vided, &c. then, &c." Where it is to be given totidem verbis, then thus, " And in the indenture now in recital "is contained a proviso or declaration in the words or to "the tenor and effect following (that is to say), &c." But this last mode can never be necessary, except there be some peculiarity in the wording of the proviso, or some dispute concerning the construction of it.

In reciting the proviso for redemption in a mortgage, and that the money was not paid at the given day, the expression "that the estate thereby became absolute at law, subject only to redemption in equity," should be used only in those cases where the effect of the proviso, both in form and from the relative situation of the parties, will be to cause the actual determination of the estate of the mortgagee. Hence, where the mortgagor has only an equitable estate, or the legal estate passes

from his trustee, or from a former mortgagee, this expression should not be used, except where a term of years is created by the legal owner, and the proviso upon the assignment of the mortgage stipulates that, upon payment to the second mortgagee, the term shall cease, for in this case the proviso operates by way of defeazance of the estate; but such a defeazance cannot be annexed to an estate of freehold, as no one but the person from whom the legal estate passes can take advantage of a condition annexed to that estate.

&c.

CHAP. I.

SEC. II.

Powers of sale, of leasing, for appointment of new trus- Recital of tees, and the other powers usually contained in settle- powers of sale. ments, trusts, deeds, &c., are never recited unless the deed in preparation is to depend on the power, and then it should be recited very fully: nor is any notice to be taken of clauses of regulation, such as those of shifting and springing uses, taking the name and arms of a family, &c.; nor covenants, as those for title, &c., unless the deed in preparation is made in pursuance of these clauses, or for carrying the covenants into effect.

The following instances will sufficiently illustrate the language of recitals.

AND WHEREAS the said testator departed this life without having revoked or altered his said hereinbefore in part recited will, except by his said codicil, and without having revoked his said hereinbefore in part recited codicil.

and

did mu

AND WHEREAS the said
tually agree to make partition of and divide in severalty
between themselves all and singular the said
and all other the hereditaments in the said county of
which they are now entitled to in undivided
and herein before is

moieties, as in the said
mentioned, and for that purpose they employed

Recital of a will, partly revoked.

Recitals and limitations of

uses in a deed

of partition.