the law whatsoever, heretofore or already, or to be at any time or times hereafter, had, made, done, acknowledged, levied, suffered, or executed of the said messuage or tenement, hereditaments and premises, or any part thereof, by or between the said parties to these presents, or any of them, or whereunto they or any of them are, is, or shall be parties or party, privies or privy, shall be, and enure and shall be deemed, adjudged, construed, and taken to be, and enure, and is, and are hereby declared to have, at the time of the levying, making, suffering, and executing thereof, been meant, and intended to be, and enure to the only proper use of the said A B (first party,) her heirs and assigns for ever. AND the said the C D (second party,) for himself, his heirs, executors, and administrators, and for the said E, his wife, doth covenant, promise, and agree to and with the said A B (first party,) her heirs and assigns, by these presents, in manner following,-that is to say:that they the said C D, and E his wife, or either of them have not, nor hath at any time or times heretofore, made, done, committed, executed, or wittingly or willingly occasioned or suffered any act, deed, matter, or thing whatsoever, whereby, or by reason or means whereof the said messuage or tenement, hereditaments, and premises hereinbefore mentioned to be hereby granted and released, or any part or parcel thereof, are, is, or can, or shall, or may be in any wise impeached, charged, affected, or incumbered in title, charge, estate, or otherwise, howsoever. AND FURTHER, that she the said A B (first party,) her heirs and assigns, shall and lawfully may, from time to time, and at all times hereafter, peaceably and quietly have, hold, occupy, possess, and enjoy all and singular the said messuage or tenement, hereditaments and premises hereinbefore mentioned to be hereby granted and released, with their and every of their appurtenances, and have, receive, and take the rents, issues, and profits thereof, and of every part thereof to and for her and their own proper use and benefit in severalty, according to the true intent and meaning of these presents, without any let, suit, hindrance, interruption or denial whatsoever, off, from, or by the said C D, and E his wife, or either of them, their, or either of their heirs, or any other person or persons whomsoever, having or lawfully or equitably claiming, or who shall or may hereafter have, or lawfully claim any estate, right, title, trust, or interest in, to, or out of the same premises, or any of them, by, from, or under, or in trust for the said C D, and E his wife, or either of them, or the said F G, deceased (save under the

said A B,) or by, from, through, or under their or either of their right, title, estate, or interest, save as aforesaid. AND that free and clear, and freely and clearly acquitted, exonerated, and for ever discharged or otherwise by the said C D, and E his wife, or one of them, their, or one of their heirs, executors, or administrators, well and sufficiently defended, saved, and kept harmless, and indemnified of, from, and against all and all manner of former and other gifts, grants, bargains, sales, mortgages, jointures, dowers, uses, entails, rents, and arrears of rents, statutes, judgments, recognizances, titles, charges, and incumbrances whatsoever, made, done, occasioned or suffered by them the said C D, and E his wife, or either of them or the said F G, deceased, or by, with, or through their or any or either of their acts, means, procurement, consent, privity, or default. AND MOREOVER, that they the said CD, and E his wife, and each of them, and their and each of their heirs, and all person or persons whomsoever lawfully or equitably claiming, or to claim, by, from, or under them, the said CD, and E his wife, or either of them, or by, from, or under the said A B, deceased, save under the said AB (first party), shall and will, from time to time, and at all or any times hereafter, at and upon the reasonable request, and at the proper costs and charges of the said A B (first party,) her heirs or assigns, make, do, acknowledge, levy, suffer, and execute, or cause and procure to be made, done, ackowledged, levied, suffered, and executed, all and every such further and other act and acts, deed and deeds, devises, conveyances and assurances in the law whatsoever, for the further, better, more perfect and absolutely conveying and assuring all and singular the said messuage or tenement, hereditaments and premises hereinbefore respectively mentioned to be hereby granted and released, as aforesaid, with their and every of their appurtenances to the use of the said A B (first party,) her heirs and assigns, or as she or they shall direct and appoint, to be held in severalty, according to the true intent and meaning of these presents, be the same by fine or fines, common recovery or common recoveries, or other matters of record, or otherwise howsoever, as by the said A B (first party,) her heirs or assigns, or her, their, or any of their counsel, shall be lawfully and reasonably devised or advised, and required, so as such further assurance or assurances contain in them no further or other covenants, or warranty, than against the person or persons who shall be so required to make and execute the same, his and their own heirs,

executors, and administrators, and his and their own acts, deeds and defaults respectively, and the acts, deeds, and defaults of his, her, and their ancestors; and so as no such person or persons be compelled or compellable to travel, or go from his, her, or their usual place or places of abode for the doing thereof. AND THIS INDENTURE FURTHER WITNESSETH, that as well in pursuance of the said agreement, and for further effectuating the same, and for conveying to the said CD, and E his wife, (second parties,) and her heirs, the said messuage or tenement distinguished, &c. being her purparty and share in the aforesaid partition, to be held in severalty; and in consideration of the premises, and for and in consideration of the sum of £

of lawful money of Great Britain, by them the said C D, and E his wife, (second parties,) to the said A B, (first party,) in hand paid at or before the sealing and delivery of these presents, the receipt whereof she the said A B (first party,) doth hereby acknowledge, and of and from the same and every part thereof, doth acquit, release, and discharge the said CD, and É his wife (second parties,) and each of them, their and each of their heirs, executors, administrators and assigns, and every of them for ever by these presents: SHE, the said A B, (first party,) HATH granted, bargained, sold, aliened, released and confirmed, and by these presents DOTH grant, bargain, sell, alien, release, and confirm unto the said C D, and E his wife, (second parties) in their actual possession now being, by virtue of a bargain and sale to them thereof made by the said (first party) for 5s. consideration, by. indenture, bearing date the day next before the day of the date of these presents for one whole year, commencing, from the day next before the day of the date of the same indenture of bargain and sale, and by force of the statute for transferring uses into possession: ALL, &c. And the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits of all and singular the said premises, and all the moiety share, purparty, estate, right, title, interest, use, trust, possession, property, benefit, claim, and demand whatsoever, both at law and in equity, of her the said A B (first party,) in, to, or out of the said premises: To HAVE AND TO HOLD the said messuage, or tenement, hereditaments and premises lastly before-mentioned to be hereby granted and released, with their and every of their appurtenances unto the said C D, and E his wife, (second parties,) and her heirs in severalty, freed and discharged of and from all right, title, interest, purparty, share, claims, and demands

whatsoever, of or by her the said AB( first party,) and her heirs of, in, and to the same premises, every or any part or parcel thereof, but nevertheless to the uses following-that is to say: To THE USE of such person or persons, and for such estate and estates upon such trusts, and for such ends, intents, and purposes, and with, under, and subject to such conditions, powers and provisoes, limitation, charges, and declarations, as the said C D, and E his wife, (second parties,) at any time or times during their joint lives, by any deed or deeds, instrument or instruments in writing, with or without power of revocation, to be sealed and delivered by them both, in the presence of, and attested by two or more credible witnesses, shall jointly direct, limit, or appoint, and as well in default of such direction, limitation, or appointment, as in the mean time, until such direction, limitation, or appointment shall be made, or shall take effect, and subject to any such direction, limitation, or appointment as shall not be a complete and entire disposition of the said messuage, or tenement, hereditaments and premises, or of the whole estate and interest therein, to the only proper use and behoof of them the said C D, and E his wife, and the heirs of the said E for ever. [Here covenants were inserted from the first party similar to those entered into by the husband and wife, with the execution of the covenant to levy a fine.] IN WITNESS, &c.

Sometimes the course is to convey the whole of the estate to a trustee, instead of conveying the several parts separately to the use of each other, in which case the HABENDUM must be as follows:

or tene

TO HAVE AND TO HOLD the said messuages ments, &c. unto the said (trustee,) his heirs and assigns, to and for the uses, ends, intents, and purposes hereinafter expressed and declared of and concerning the same respectively, that is to say-AS TO AND CONCERNING all those the said (the part intended to be conveyed to A B,) To THE USE AND BEHOOF of the said A B, his heirs and assigns for ever. AND AS TO AND CONCERNING all that the said (the part intended to be conveyed to C D,) TO THE USE AND BEHOOF of the said C D, his heirs and assigns for ever.*

* Or the uses may be limited so as to prevent dower

CHAP. IX.

OF A DEFEAZANCE.

A DEFEAZANCE is a collateral deed made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate thus created may be defeated or totally undone. 2 Bl, Com. 327. Shep. Touch. 396. Shep. Pr. 74.

And in this manner mortgages were, in former times, usually made; the mortgagor enfeoffiing the mortgagee, and he at the same time executing a deed of defeazance, whereby the feoffment was rendered void, on payment of the money borrowed on a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law, and therefore indulged. 2 Bl. Com. 327. Co. Lit. 236.

A defeazance is now, however, seldom resorted to, as it is much preferable to make the conditions apparent in the deed, so that the deed shall be complete in itself.* Pr. 196.

Watk.

This is certainly correct; for whatever the ancient practice may have been, it ought never to have been adopted, as all secret defeazances must be contemplated with suspicion; and if resisted, can only be made available in a court of equity, upon evidence that the transaction between the parties was a fair transaction, and not executed with a fraudulent design to prejudice others. In the case of a separate defeazance on a mortgage security, great inconvenience might also ensue; for if the instrument should be lost, the mortgagor might have some difficulty to prove his right to redeem,