ajnrnpU ICam ^rl^nnl fCtbtata Cornell University Library KF 170.T56 l-egal and business forms : other than co 3 1924 022 834 554 a Cornell University J Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022834554 LEGAL AND BUSINESS FORMS (OTHER THAN COURT FORMS AND FORMS PECULIAR TO CORPORATIONS) INCLUDING FORMS OF DEEDS, WILLS, MORTGAGES, LEASES, BILLS OF SALE, PLEDGES, COLLATERAL SECURITIES, CHATTEL MORTGAGES, ACKNOWLEDG- MENTS, RELEASES, POWERS OF ATTORNEY, BONDS, BUILDING CONTRACTS, AND OTHER INSTRUMENTS WITH EXPLANATIONS AND NOTES FRANCIS B. TIFFANY BY ^ o^'^ KANSAS CITY, MO. VERNON LAW BOOK COMPANY 1915 COPTBIGHT, 1915 BY VERNON LAW BOOK COMPANY (TrFF.FOEMS) PREFACE Thb object of this volume is to provide a collection of prac- tical forms rekting to conveyances, contracts, wills, and other instruments which a lawyer in general practice may have occa- sion to prepare. Forms relating to the formation and manage- ment of corporations, and with some exceptions to matters which are peculiar to the business of corporations, court forms, and forms relating to proceedings before officers, are not in- cluded. The forms are grouped in chapters under titles which in- dicate the general subject tc^whickkhey relate. For exam- ple, contracts and agreements are distributed under various titles, such as Building Agreements, Pjirty Walls, Sale and Purchase of Land, Sale of Goods, etc. Each chapter is pre- ceded by a note defining its subject-matter. The chapters on Acknowledgments, Chattel Mortgages, Deeds, and Wills con- tain synopses of such of the related statutory provisions of the several states as it may be desirable for the draftsman to have in mind. The statutory provisions for deeds are gen- erally applicable to real estate mortgages and, where neces- sary, are supplemented in the chapter on Real Estate Mort- gages by further reference to the statutes. Where forms are provided by statute, they have been included. The longer forms are divided into short numbered para- graphs, each preceded by catchwords in brackets indicating its scope, thus enabling the draftsman to see at a glance what matters are covered by the particular form, and to select and discard according to his needs. The parentheses in the body of the forms indicate that the words included between them are either alternative or may be describable as additional. Ex- cept in the case of the more stereotyped forms, like deeds, a form or precedent can seldom be used as a whole, but serves (iii) IT PKEFACE rather by way of suggestion of matters which it may be desirable to cover, and as a repository from which the drafts- man may draw, and a number of forms relating to one sub- ject may thus contribute to the desired end. The catchwords also co-operate with the index. They will, of course, be omit- ted by the draftsman. Many forms have been drawn from the Encyclopedia of Forms and Precedents, in seventeen volumes, London, Butter- worth & Co. To the publishers of this work the editor desires to express his indebtedness and his thanks for permission to draw therefrom. Where these forms have been followed, care has been taken to make such changes as may be demanded by differing rules of law and business usages prevailing in this country. The standard forms of building contract and of the related documents of the American Institute of Architects are included by permission of the Institute and of the publisher, E. G. Soltman. 1? R T St. Paul, July 30, 1915. * TABLE OF CHAPTERS Chapter Page I. Acknowledgments 1 II. Agreements 120 III; Appointments of Property under Powers 123 IV. Apprenticeship 130 V. Arbitration and Award 135 VI. Assignments 161 VII. Assignment for Benefit of Creditors and Composi- tions with Creditors 176 VIII. Auctions 224 IX. Bills of Exchange, Checks, ajid Promissory Notes. . 229 X. Bonds 242 XI. Building Agreements 261 XII. Chattel Mortgages 324 XIII. Copyright 456 XIV. Deeds 466 XV. Easements and Licenses 644 XVI. Fire Insurance 665 XVn. Gifts 674 XVIII. Goodwill 678 XIX. Guaranties 687 XX. Hire of Goods 695 XXI. Husband and Wife 703 XXII. Indemnities 720 XXIII. Landlord and Tenant 726 ■ XXIV. Mortgages (Real Estate) 834 — XXV. Novation 1007 XXVL Partnership 1011 XXVIL Party Walls 1063 XXVIII. Patents and Inventions 1074 XXIX. Pledges and Collateral Securities 1118 XXX. Powers of Attorney 1131 XXXI. Receipts and Acknowledgments 1154 XXXn. Releases 1160 XXXIII. Sale and Purchase of Land — ^Agreements for 1167 XXXIV. Sale of Goods 1191 XXXV. Service and Agency Contracts 1206 XXXVI. Ships and Vessels 1225 XXXVII. Stocks and Stockholders 1257 XXXVIII. Trusts 1275 XXXIX. Warehouse Receipts 1287 XL. Wills 1292 TnT.FoBMs (v)t FORM BOOK CHAPTER I ACKNOWIvEDGMENTS Acknowledgment is a proceeding provided by statute where- by a person who has executed an instrument declares it to be his act before a competent officer, who certifies thereto, and the term is also used to designate the certificate itself. The usual effect of an acknowledgrnent is to entitle the instrument to be received in evidence without further proof of execution, and, in case of a deed of land or other instrument proper for record, to entitle it to be recorded. Under some statutes proof of execution made by a subscribing witness before a compe- tent officer, who certifies thereto, is given the effect of an ac- knowledgment. Usually an acknowledgment is not essential to the validity of an instrument, even of instruments which must be acknowledged before record, but by some statutes an acknowledgment is made essential, more particularly in cases of conveyances by married women and conveyances of homestead. When a deed is executed without the state where the land lies, the requirements of acknowledgment of that state must of course be complied, with. The requirements of the different states differ in respect to : (1) Who must acknowledge, usually all the grantors being re- quired to acknowledge, while in a few states acknowledgment by one is sufficient ; (2) the officers who may take acknowledg- ments ; (3) the form of the certificate ; and (4) the authentica- tion of the official character of the officer. As a rule, the cer- tificate may be upon a separate paper attached to the instru- ment, but in some states it must be written upon the instru- ment itself. Usually the certificate of acknowledgment should state or contain: (1) The venue; (2) the date; (3) the official char- TlFF.FOKMS — 1 2 FORM BOOK (Ch. 1 acter of the person taking the acknowledgment, which may generally be stated either in the body of the instrument or in the subscription; (4) the fact that the person executing the iustrumeni appeared before the officer and acknowledged it to be his free act and deed ; (5) the signature of the officer ; and (6) his seal, if any. Other formal requirements which may be prescribed, such as a requirefnent that it be stated that the person appearing was personally known to the officer, that such person was proved on satisfactory evidence to be the person who executed the instrument, that the grantor was informed of the contents of the instrument, etc., should be exactly followed, although substantial compliance is ordi- narily sufficient. Under some statutes, an acknowledgment by a married woman being essential to the validity of the instru- ment, the certificate must affirmatively show that all the statu- tory requirements have been complied with. The requirement of the different states in respect to ac- knowledgment and the statutory or customary forms are given in this chapter. The requirements in respect to the execution of conveyances are given under the title of Deeds. Post, p. 466. I Forms Recommended by Commissionbes on Uniform State Laws Page 1. Forms of acknowledgment 6 (1) By natural persons in own right 6 (2) By attorney 7 (3) By corporation or joint-stock association 7 2. Form of authentication of proof or acknowledgment 8 II STAitriORY Provisions and Forms and Other Forms in Use in the States Alabama, statutes 9 General form of acknowledgment 10 Acknowledgment by corporation ,10 Proof by subscribing witness 11 Acknowledgment by wife in conveyance of husband's home- stead 11 Alaska, statutes 12 Acknowledgment 12 Arizona, statutes 14 Acknowledgment 15 Ch. 1) ACKNOWLEDGMENTS 3 Page Arkansas, statutes 15 Acknowledgment — By one grantor 16 Deed executed by single man or married or single woman 17 By husband and wife with relinquishment of dower and homestead 18 Proof of deed by subscribing witness 18 Proof of handwriting of grantor and subscribing witness ... 19 California, statutes 20 General form of acknowledgment 21 Acknowledgment — By corporation 22 By attorney in fact 22 Colorado, statutes 23 General form of acknowledgment 24 Wife's separate acknowledgment 25 Connecticut, statutes 25 Acknowledgment — By husband and wife 26 Delaware, statutes 26 Acknowledgment — By husband and wife 28 By corporation 28 District of Columbia, statutes 29 General form of acknowledgment 30 Florida, statutes 30 General form of acknowledgment 31 Acknowledgment by husband and wife 32 Georgia, statutes 32 Acknowledgment by married women 33 Proof by subscribing witness 34 Hawaii, statutes 34 Acknowledgment 35 Idaho, statutes 36 Ordinary acknowledgment 37 Acknowledgment — By corporation 38 By attorney in fact 38 Illinois, statutes 38 Acknowledgment 42 By corporation 43 Proof of subscribing witness 43 Indiana, statutes 44 Acknowledgment by husband and wife 45 Iowa, statutes 45 Acknowledgment 46 Kansas, statutes 47 Acknowledgment by husband and wife 47 Kentucky, statutes 48 Acknowledgment by husband and wife 48 Acknowledgment by corporation 49 i FORM BOOK (Ch. 1 Page Louisiana, statutes 49 Acknowledgment 50 Maine, statutes 50 General form of acknowledgment 51 Maryland, statutes 51 , Acknowledgment taken within state 52 By husband and wife 5S Taken out of state 53 Massachusetts, statutes 53 Acknowledgment 54 Michigan, statutes 54 Acknowledgment 55 Minnesota, statutes 55 Acknowledgment _. 57 Mississippi, statutes 57 Acknowledgment by natural persons in own right 58 Proof by subscribing witness 58 Acknowledgment by married women 59 Missouri, statutes 59 Acknowledgment 59 Proof of subscribing witness 60 Montana, statutes 61 General form of acknowledgment 62 Acknowledgment — By corporation 62 By attorney in fact 63 Nebraska, statutes 63 Acknowledgment by husband and wife 64 Nevada, statutes 65 Acknowledgment — By individual 66 By corporation 66 By attorney in fact 67 When grantor is unknown to officer 67 New Hampshire, statutes 67 Acknowledgment by husband and wife 68 New Jersey, statutes 68 Acknowledgment — By husband and wife 70 By corporation 71 New Mexico, statutes 71 Acknowledgment 72 New York, statutes 72 General form of acknowledgment 76 Acknowledgment by corporation 76 North Carolina, statutes 77 Acknowledgment by grantor or maker 78 Acknowledgment and private examination of wife 78 Acknowledgment — By husband and vi^ife 79 By corporation 80 Ch. 1) ACKNOWLEDGMENTS 5 Page North Dakota, statutes 82 General form of acknowledgment 84 Acknowledgment — By corpox'ation 84 By attorney in fact 84 Ohio, statutes 85 General form of acknowledgment 85 Oklahoma, statutes 86 Acknowledgment — By individuals 86 By corporation 87 Oregon, statutes 87 Acknowledgment by husband and wife 88 Pennsylvania, statutes 89 Acknowledgment — By individuals 90 Appointment by coiiDoration of attorney 90 Acknowledgment of corporation by attorney 91 Rhode Island, statutes 91 Acknowledgment by husband and wife 92 South Carolina, statutes 92 Affidavit of subscribing witness 93 In case of corporation 93 Certificate of renunciation of dower 94 Certificate Indorsed on release 95 South Dakota, statutes 95 Acknowledgment — By individual 96 By attorney in fact 96 By corporation 97 Tennessee, statutes 97 Acknowledgment before clerk of county court 98 Acknowledgment — By husband and wife 99 By corporation lOO Proof by subscribing witness lOO Texas, statutes 101 Ordinary acknowledgment 102 Acknowledgment by married woman 103 Certificate of proof by witness 103 Utah, statutes 104 Acknowledgment — By Individual 105 By corporation 105 Where grantor unknown to officer 105 Certificate of proof by subscribing witness 106 Vermont, statutes 106 Acknowledgment — By husband and wife 107 By corporation 107 Virginia, statutes 107 Acknowledgment 109 Before commissioner ■ 109 In behalf of corporation, etc 109 6 FORM BOOK (Ch, 1 Page Washington, statutes 110 Acknowledgment — By Individual Ill By corporation Ill West Virginia, statutes / 112 Acknowledgment 112 By married woman 113 By corporation 115 Wisconsin, statutes 116 Acknowledgment 117 Wyoming, statutes ; 117 Acknowledgment 118 Wliere wife joins in conveyance of homestead 119 Forms Recommended by Commissioners on Uni- form State Laws In view of the diversity of the law in the different states, the Commissioners of Uniform State Laws in 1892 adopted a draft of an act relating to acknowledgments, and recom- mended it for adoption in all the states and territories. The forms of acknowledgment recommended have been substan- tially adopted in Hawaii, Iowa, Massachusetts, Michigan, Minnesota, Missouri, and New Mexico, and the form of au- thentication has been adopted in several of those states. The proposed act provides as follows : Section 1. Either the forms of acknowledgment now in use in this state, or the following, may be used in the case of conveyances or other written instruments, whenever such ac- knowledgment is required or authorized by law for any pur- pose: 1. Forms of Acknowledgment (Begin in all cases by a caption specifying the state and place where the acknowledgment is taken.) (1. In the case of natural persons acting in their ^ own right i) On this day of , 19 — , before me personally appeared A. B. {or, A. B. and C. D.), to me known to be the 1 Several of the states which have adopted these forms require that, if husband and wife join in the instrument, they be described as such in the certificate of acknowledgment. Ch. 1) ACKNOWLEDGMENTS ^ person (or, persons) described in and who executed the fore- going instrument, and acknowledged that he (or, they) exe- cuted the same as his (or, their) free act and deed. (2. In the case of natural persons acting by attorney:) On this day of , 19 — , before me personally appeared A. B., to me known to be the person who executed the foregoing instrument in behalf of C. D., and acknowledged that he executed the same as the free act and deed of said C. D. (3. In the case of corporations or joint-stock associations:') On this day of , 19 — , before me appeared A. B., to me personally known, who, being by me duly sworn (or, affirmed), did say that he is the president (or, other officer or agent of the corporation or association) of (describing the corporation or association), and that the seal affixed to said instrument is the corporate seal of said corporation (or, as- sociation), and that said instrument was signed and sealed in behalf of said corporation (or, association) by authority of its board of directors (or, trustees), and said A. B. acknowledged said instrument to be the free act and deed of said corpora- tion (or, association). (In case the corporation or association has no corporate seal, omit the words "the seal affixed to said instrument is the corporate seal of said corporation [or, association], and that," and add at the end of the affidavit clause the words "and that said corporation [or, association] has no corporate seal.") (In all cases add signature and title of the officer taking the acknowledgment.) The recommended act further provides as follows : Sec. 2. The acknowledgment of a married woman when re- quired by law may be taken in the same form as if she were sole and without any examination separate and apart from her husband. Sec. 3. The proof or acknowledgment of any deed or other written instrument required to be proved or acknowledged in order to enable the same to be recorded or read in evidence, when made by any person without this state, and within any other state, territory or district of the United States, may be 8 FORM BOOK (Ch. 1 made before any officer of such state, territory or district au- thorized by the laws thereof to take proof and acknowledgment of deeds, and when so taken and certified as herein provided, shall be entitled to be recorded in this state and may be read in evidence in the same manner and with like effect as proofs and acknowledgments taken before any of the officers now authorized by law to take such proofs and acknowledgments and whose authority so to do is not intended to be hereby af- fected. Sec. 4. To entitle any conveyance or written instrument, acknowledged or proved under the preceding section to be read in evidence and recorded in this state, there shall be sub- joined or attached to the certificate of proof or acknowledg- ment, signed by such officer, a certificate of the secretary of state of the state or territory in which such officer resides, under the seal of such state or territory or the certificate of the clerk of a court of record of such state, territory or dis- trict, in the cotinty in which said officer resides, or in which he took such proof or acknowledgment, under the seal of such court, stating that such officer was, at the time of taking' such proof or acknowledgment, duly authorized to take ac- knowledgments and proofs of deeds of lands in said state, ter- ritory or district, and that said secretary of state, or clerk of court, is well acquainted with the handwriting of such officer, and that he verily believes that the signature attached to suchs certificate of proof or acknowledgment is genuine. Sec. 5. The following form of authentication of the proof or acknowledgment of a deed or other written instrument when taken without this state and within any other state, territory or district of the United States, or any form substantially in compliance with the foregoing provisions of this act, may be used. 2. Form of Authentication (Begin with a caption specifying the state, territory, or dis- trict and county or place where the authentication is made.) I, , clerk of the in and for said county, which court is a court of record, having a seal {or, I, , the secretary of state of such state or territory), do hereby certify that , by and before whom the foregoing acknowledg- ment {or, proof) was taken, was at the time of taking the same Ch. 1) ACKNOWLEDGMENTS 9 a notary public (or other officer) residing (or, iauthorized to act) in said county, and was duly authorized by the laws of said state (territory or district) to take and certify acknowl- edgments or proofs of deeds of land in said state (territory or district), and, further, that I am well acquainted with the handwriting of said — , and that I verily believe that the signature to said certificate of acknowledgment {or, proof) is genuine. In testimony whereof, I have hereunto set my hand and affixed the seal of the said court {or, state) this day of , 19—. Sec. 6. The proof or acknowledgment of any deed or other instrument required to be proved or acknowledged in order to entitle the same to be recorded or read in evidence, when made by any person without the United States may be made before any officer now authorized thereto by the laws of this state, or before any minister, consul, vice consul, charge d'affaires, consular or commercial agent, vice consular or vice commercial agent, of the United States, resident in any foreign country or port, and when certified by him under his seal of office it shall be entitled to be recorded in any county of this state and may be read in evidence in any court of this state, in the same manner and with like effect as if duly proved or acknowledged within this state. II Statutory Provisions and Forms and Other Forms in Use in the States ALABAMA In General Acknowledgment dispenses with the necessity of witnesses. Civ. Code 1907, § 3357. Other provisions with respect to conveyances, post, p. 514. Before Whom Taken Within state : Acknowledgments and proofs of conveyances may be taken by judges and clerks of the supreme and cir- 10 FORM BOOK (Ch. 1 cuit courts, chancellors, registers in chancery, Judges of the courts of probate, justices of the peace, and notaries public. Ibid. § 3358. Elsewhere within United States: By judges and clerks of any federal court, judges and clerks of any court of record in any state,- notaries public, or commissioners appointed by the Governor of Alabama. Ibid. § 3359. Without United States: By the judge of any court of rec- ord, mayor, or chief magistrate of any city, town, borough, or county, notaries public, or by any diplomatic, consular, or ' commercial agent of the United States. Ibid. § 3359. Forms The following forms are given by statute. The form of the wife's separate and apart acknowledgment of homestead is sufficient to relinquish or pass her dower right. Ibid. § 3818. General Form of Acknowledgment The State of County. I (name and style of the officer) hereby certify that , whose name is signed to the foregoing conveyance, and who is known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, he executed the same voluntarily on the day the same bears date. Given .under my hand, this day of , A. D. . A. B., Judge, etc. (or as the case may be). Ibid. § 3361. Acknowledgment for Corporation The State oe AivAbama," County. I, , a in and for said county in said state, hereby certify that , whose name as of the , a corporation, is signed to the foregoing conveyance, and who is known to me, acknowledged before me on this day Ch. 1) ACKNOWLEDGMENTS 11 that, being informed of the contents of the conveyance, he, as such officer and with full authority, executed the same volun- tarily for and as the act of said corporation. Given under my hand this day of , 19 — . Ibid. § 3361. — Proof by Subscribing Witness The State of County. I (name and style of the officer) hereby certify that , a subscribing witness to the foregoing conveyance, known to me, appeared before me this day, and, being sworn, stated that , the grantor, voluntarily executed the same in his pres- ence, and in the presence of other subscribing witness, on the day the same bears date ; that he attested the same in the pres- ence of the grantor, and of the other witness ; and that such other witness subscribed his name as a witness in his presence. Given under my hand this day of , A. D. A. B., Judge, etc. (or as the case may be). Ibid. § 3362. Acknowledgment by Wife in Conveyance of Husband's Homestead State oe Alabama, County. I, , judge of (or other officer, as the case may- he), do hereby certify that on the day of , 19 — , came before me the within-named , known to me (or, made known to me) to be the wife of the within-named , who, being examined separate and apart from the husband touching her signature to the within , acknowl- 12 FORM BOOK (Ch. 1 edged that she signed the same of her own free will and ac- cord, and without fear, constraints, or threats on the part of the husband. In witness whereof I hereto set my hand this ^ day of , 19—. , Judge {or other officer, as the case may be). Ibid. § 4161. ALASKA Other provisions with respect to conveyances, post, 517. Execution and Acknow^ledgment of Deeds Within district : Deeds executed within the district of lands therein must be executed in the presence of two witnesses, who shall subscribe their names as such ; and the persons executing may acknowledge the execution before any judge, clerk of the district court, notary public, or commissioner within the district, and the officer taking such acknowledgment shall in- dorse thereon a certificate of the acknowledgment and the true date of making the same under his hand. Civ. Code, § 82. Elsewhere within United States : A deed executed in any state, territory, or district of the United States may be exe- cuted according to the laws thereof, and the execution may be acknowledged before any judge of a court of record, jus- tice of the peace, or notary public or other officer authorized by the laws thereof to take the acknowledgment of deeds there- in, or before any commissioner appointed for such purpose. Ibid. § 83. Unless the acknowledgment be before a commis- sioner appointed for that purpose, or a notary public cer- tified under his notarial seal, or the clerk of a court of record certified under the seal of the court, such deeds shall have at- tached a certificate of the clerk or other proper certifying of- ficer of a court of record of the county or district within which such acknowledgment was taken, under the seal of his office, that the person whose name is subscribed to the certificate was at the date thereof such officer as he is therein represented to be, and that he believes the signature of such person sub- scribed thereto to be genuine, and that the deed is executed and acknowledged according to the laws of such state, terri- tory, or district. Ibid. § 84. Without United States : A deed executed in a foreign coun- try may be executed according to the laws of such country, Ch. 1) ACKNOWLEDGMENTS 13 and the execution may be acknowledged before any notary public therein, or any minister plenipotentiary, minister extraor- dinary, minister resident, charge d'affaires, commissioner, or consul of the United States, appointed to reside therein, which acknowledgment shall be certified thereon by the officer taking the same under his hand; and, if taken before a notary pub- lic, his seal of office shall be affixed to such certificate. Ibid. § 85. The officer must know or have satisfactory evidence that the person making the acknowledgment is the individual de- scribed in and who executed the conveyance. Ibid. § 88. Acknowledgment by Married Woman When a married woman residing in the district joins with her husband in a deed of conveyance she must acknowledge that she executed such deed freely and voluntarily. Ibid. § 86. When a married woman not residing in the district joins with her husband, the conveyance shall have the same effect as if she were sole,, and the acknowledgment or proof of the exe- cution of such conveyance by her may be the same as if she were sole. Ibid. § 87. Proof of Execution by Subscribing Witnesses Proof of the execution of any conveyance may be made be- fore any officer authorized to take acknowledgment of deeds by a subscribing witness, who shall state his own place of resi- dence, and that he knew the person described in and who exe- cuted such conveyance ; and such proof shall not be taken unless the officer is personally acquainted with such witness or has satisfactory evidence that he is such. Ibid. § 89. Form No forms of acknowledgment are prescribed. Those recom- mended by the Commissioners on Uniform Laws (ante, p. 6) would doubtless be sufficient 14 FORM BOOK (Ch. 1 ARIZONA Before Whom Taken Within state : Clerks of a court having a seal ; notaries pub- lic; county recorders; and justices of the peace. Civ. Code, Rev. St. 1913, par. 2070. Elsewhere within United States : A clerk of some court of record having a seal ; a commissioner of deeds duly appointed under the laws of Arizona ; or a notary public. Ibid. par. 2071. Without United States : A minister, commissioner, or charge d'affaires of the United States, resident and accredited in the country where the acknowledgment is made; a consul gen- eral, consul, vice consul, commercial agent, vice commercial agent, deputy consul or consular agent of tlie United States, resident in the country where the acknowledgment is made; or a notary public. Ibid. par. 2072. Form The acknowledgment of an instrument for the purpose of being recorded shall be made as follows: (1) If by a natural person or persons, by such person or persons appearing be- fore some officer authorized to tal?e such acknowledgment, and stating that he or they executed the same for the purpose and consideration therein expressed. (2) If by an executor, administrator, guardian, trustee, or other person acting in a representative capacity, by such person appearing before such officer, and stating that he, as such executor (or in such other representative capacity), executed the same for the purpose and consideration therein expressed. (3) If by a sheriff, dep- uty sheriff, commissioner or other person acting in an official capacity, by such person appearing before such officer and stating that he, as such sheriff (or in such other official ca- pacity), executed the same for the purpose and consideration therein expressed. (4) If by a person acting under a power of attorney, by such person appearing before such officer and stating that he, as attorney in fact for his principal, executed such instrument for the purpose and consideration therein ex- pressed. (5) If by corporation, by the authorized officer or officers of such corporation appearing before such officer, stat- ing that he or they executed such instrument on behalf of such corporation, for the purpose and consideration therein expressed. Ibid. par. 2073. Ch. 1) ACKNOWLEDGMENTS 15 No acknowledgment shall be taken unless the officer knows or has satisfactory evidence on the oath or affirmation of a credible witness that the person making such acknowledgment is the individual who executed and is described in the instru- ment. Ibid. par. 2074. An officer taking an acknowledgment must place thereon his official certificate, signed by him and given under his seal of office substantially in form as hereinafter described. Ibid. par. 2075. The acknowledgment of a married woman may be in the same form as if she were sole, and without examination sep- arate and apart from her husband, and no separate certificate of acknowledgment is required. Ibid. par. 2069. The form of an ordinary certificate of acknowledgment shall be substantially as follows : Ordinary Acknowledgment State of Arizona, ss. County of This instrument was acknowledged before me this day of , 19 — , by (if by a natural person or persons here insert name or names; if by a person acting in a representa- tive or official capacity, or as attorney in fact, then insert name of person as executor, attorney in fact, or other capac- ity; if by an ofHper or officers of a corporation, then insert name or names of such officer or officers as the president or other officer of such corporation, naming it). A B , Notary Public (or other officer). Ibid. par. 2076. ARKANSAS Before Whom Taken, Etc. The proof or acknowledgment of every deed or instrument of writing for the conveyance of any real estate shall be taken by some one of the following courts or officers : Within the state: Before the Supreme Court, the circuit 16 FORM BOOK (Ch. 1 court, or either of the judges thereof, or the clerk of any court of record, or before any justice of the peace or notary public. Elsewhere within or in any of the colonies or possessions or dependencies of the United States : Before any court of the United States, or of any state or territory, or Indian Territory, or colony, possession, or dependency, having a seal, or the clerk of any such court, or any notary public, or mayor or chief officer of any incorporated city, or town having a seal, or commissioner appointed by the Governor of Arkansas. Without United States : Before a United States consul, or court of any state, kingdom, or empire having a seal, or mayor or chief officer of any city or town having an official seal, or any officer of any foreign country who by its laws is author- ized to take probate of the conveyance of real estate of his own covmtry, if he has an official seal. Kirby's Dig. 1904, § 743. Forms The following forms are prescribed. Ibid. pp. 1672, 1673. See, also, Ibid. §§ 741, 747-751, 3901. They must, of course, be varied where the acknowledgment is before an officer other than a justice of the peace. Within the United States or territories thereof the official character of the officer must be attested under his seal of office, if he have one, and, if he have none, then under his offi- cial signature. Ibid. § 744. Without the United States his official character must be attested under his official seal. Ibid. § 745. See, also, Ibid. § 746. Acknowledgment by One Grantor (Ibid. § 748.) State of Arkansas, County of On this day of , 19 — , before me a justice of the peace within and for the county of in the state of Arkansas, appeared in person to me personally well known as the person ^ whose 2 If tlie grantor is unknown to the justice, instead of the words "to me personally well known as the person," say, "who, being un- Ch. 1) ACKNOWLEDGMENTS IT name appears upon the within and foregoing deed of convey- ance as the party grantor, and stated that he had executed the same for the consideration and purposes therein mentioned and set forth, and I do hereby so certify. In testimony whereof I have hereunto set my hand as such justice of the peace, in the county of , on the day of , 19 — . Sam Edmundson, J. P. Acknowledgment of Deed Executed by Single Man, or Married or Single Woman (Ibid. §§ 748, 740.) Statb of Arkansas, County of Miller. ^ ^^' Before me, J. O. Reeves, a justice of the peace within and for said county and state, personally appeared on this eight- eenth day of May, 1904; Ursula Halifax, to me well known {or, made known, ay in preceding formY as the party grantor in the foregoing deed, and acknowledged that she (or, he) exe- cuted the same for the consideration and purposes therein men- tioned and set forth. And I do so certify. Given under my hand this eighteenth day of May, 1904. J. O. Resves, J. P. known to me, was proven to my satisfaction to be the identical , whose name appears upon the within and foregoing deed as the party grantor, by the oath of and , witnesses, sworn and examined by me as to such identity, and stated," etc. Se& Ibid. § 747. 3 See note, p. 16, supra. TiFF.FOEMS — 2 18 FORM BOOK (Ch. 1 Acknowledgment by Husband and Wife with Relinquish- ment of Dower and Homestead * (Ibid. §§ 748, 751, 3901.) State of Arkansas, ] gg County of Miller. J Be it remembered that on this day came before me, the un- dersigned, a justice of the peace within and for the county aforesaid, duly commissioned and acting, Josiah Allen, to me well known as the grantor in the foregoing deed, and stated that he had executed the same for the consideration and pur- poses therein mentioned and set forth. And on the same day also voluntarily appeared before me the said' Samantha Allen, wife of the said Josiah Allen, to me well known, and in the absence of her said husband declared that she had, of her own free will, executed said deed and signed and sealed the re- linquishment of dower and homestead in the said deed for the consideration and purposes therein contained and set forth, without compulsion or undue influence of her said husband. Witness my hand as such justice of the peace on this fifth day of November, 1904. W. J. Smithe;r, J. P. Proof of Deed by Subscribing Witness (Ibid. § 749.) Statb of Arkansas, County of Be it remembered that on this day of , 19 — , before me, , a justice of the peace in and for the county aforesaid, personally appeared , one 4 Same form of acknowledgment for relinquishment of dower to be used in all cases, but the joining in the execution of the deed and acknowledging the same, except as to dower, is unnecessary, unless the property conveyed is the homestead of the grantor. Post, p. 521. Ch. 1) ACKNOWLEDGMENTS 19 of the subscribing witnesses to the foregoing deed, to me per- sonally well known," who, being by me first duly sworn, on his oath stated that he saw , grantor in said deed, subscribe said deed on the day of its date {or, that the said , grantor in said deed, acknowledged in his presence, on the day of , 19 — , that he had subscribed and executed said deed), for the uses, purposes, and consideration therein expressed, and that he and , the other subscribing witness, subscribed the same as attesting witnesses at the request of said grantor. In testimony whereof I have hereunto set my hand as such justice of the peace, at the county aforesaid, this day of , 19—. James Hutchins, J. P. Proof of Handwriting of Grantor and Subscribing Witness (Ibid. § 750.) State oe Arkansas, County of Be it remembered that on this third day of May, 1904, be- fore me, Timothy Kavanaugh, a justice of the peace in and for the county aforesaid, came and , and upon their oaths stated that the signatures of — '■ , the grantor in the within and foregoing deed, and of , a witness thereto, are genuine, and are in the handwriting of the said and , respectively. In testimony whereof I have hereunto set my hand as such justice of the peace, at the county aforesaid, this third day of May, 1904. Timothy Kavanaugh, J. P. s See note ante, p. 16. 20 FORM BOOK (Ch. 1 CALIFORNIA Before Whom Taken, Etc. The proof or acknowledgment of an instrument may be made : Within the state : Before a justice or clerk of the supreme court, or judge of a superior court, and within the city, county, city and county, or township for which the officer was elected ■or appointed before either a clerk of a court of record, county recorder, court commissioner, notary public, or justice of the peace. Civ. Code, §§ 1180, 1181. Elsewhere within United States : Within the jurisdiction of the officer, before a justice, judge, or clerk of any court of record of the United States; or a justice, judge, or clerk of any court of record of any state ; or a commissioner appointed by the Governor of Cahfornia for that purpose; or a notary public; or any other officer of the state where the acknowl- edgment is made authorized by its laws to take such proof or acknowledgment. Ibid. § 1182. Without United States: Before a minister, commissioner, or charge d'affaires of the United States, resident and ac- credited in the country where the proof or acknowledgment is made; or a consul, vice consul, or consular agent of the United States, resident therein; or a judge of a court of record of such country; or commissioners appointed for such purposes by the Governor of California pursuant to special statutes; or a notary public. Ibid. § 1183. When any such officer is authorized by law to appoint a ■deputy, the acknowledgment or proof may be taken by such deputy in the name of his principal. Ibid. § 1184. Forms An officer taking the acknowledgment of an instrument must indorse thereon or attach thereto a certificate substantially in the forms hereafter set forth (Ibid. § 1188); but an acknowl- edgment taken without the state is sufficient if in accordance with the laws of the place where it is made. The certificate of the clerk of a court of record of the county or district where such acknowledgment is taken that the officer certify- ing is authorized by law to do so, that the signature of such officer is his true and genuine signature, and that such ac- Ch. 1) ACKNOWLEDGMENTS 21 knowledgment is taken in accordance with the laws of the place where made, is prima facie evidence of the facts stated in the certificate of said clerk. Ibid. § 1189. The acknowledgment must not be taken, unless the officer knows or has satisfactory evidence, on the oath or affirmation of a credible witness, that the person acknowledging is the individual described in and who executed the instrument, or, if executed by a corporation, that the person making such ac- knowledgment is the president or secretary of such corpora- tion, or other person who executed it on its behalf. Ibid. § 1185. The officer must authenticate his certificate by his signature, the title of his office, and his seal of office, if by the laws of the state or country where the acknowledgment or proof is taken, or by authority of which he is acting he is required to have an official seal. Ibid. § 1193. The certificate of a justice of the peace, when used in any county other than that in which he resides, must be accom- panied by a certificate under the hand and seal of the clerk of the county in which the justice resides that such justice, at the time of taking such proof or acknowledgment, was au- thorized to take the same, and that the clerk is acquainted with his handwriting, and believes that the signature to the orig- inal certificate is genuine. Ibid. § 1194 General Form of Acknowledgment State; of — , County of ^ ^^' On this day of , in the year , before me (here insert name and quality of the officer) personally appeared , known to me {or, proved to me on the oath of ) to be the person whose name is subscribed to the within instrument, and acknowledged that he (she or they) executed the same. Ibid. § 1189. 22 FORM BOOK (Ch. 1 Acknowledgment by Corporation State oif , >, County of . | ^^• On this day of , in the year , before me (here insert the name and quality of the officer), person- ally appeared , known to me {or, proved to me on the oath of ) to be the president {or, the secretary) of the corporation that executed the within instrument {where, how- ever, the instrument is executed in behalf of the corporation by some one other than the president or secretary, insert, known to me, or proved to me on the oath of , to be the person who executed the within instrument), on behalf of the corporation therein named, and acknowledged to me that such corporation executed the same. Ibid. § 1190. Acknowledgment by Attorney in Fact State of , County of On this day of , in the year , before me {here insert the name and quality of the officer) personally appeared , known to me {or, proved to me on the oath of ) to be the person whose name is subscribed to the within instrument as the attorney in fact of , and ac- knowledged to me that he subscribed the name of thereto as principal, and his own name as attorney in fact. Ibid. § 1192. Ch. 1) ACKNOWLEDGMENTS 23 COLORADO Before Whom Taken Within state: Before any judge of a court of record, or the clerk of any such court or his deputy, such judge, clerk, or deputy clerk certifying such acknowledgment under the seal of such court ; before the clerk and recorder of any county, or his deputy, such clerk or deputy certifying under the seal of such county; before any notary public, certifying under his notarial seal; or before any justice of the peace within his county: Provided, that if the conveyance be of lands situate beyond such county, there shall be afifixed to his certificate a certificate of the county clerk and recorder of such county, under his hand and the seal of such county, to the official capacity of such justice, and that the signature to such cer- tificate of acknowledgment is the true signature of such jus- tice. Elsewhere within United States or any territory thereof : Before the secretary of any such state or territory, he certify- ing such acknowledgment under the seal of such state or ter- ritory; before the clerk of any court of record of such state or territory, or of the United States therein, having a seal, such clerk certifying the acknowledgment under the seal of such court; before any notary public of such state or terri- tory, he certifying the same under his notarial seal ; before any commissioner of deeds for any such foreign state or ter- ritory appointed under the laws of Colorado, he certifying such acknowledgment under his hand and official seal ; before any other officer authorized by the laws of any such state or territory to take and certify such acknowledgment : Provided, there shall be affixed to the certificate of such officer, other than those above enumerated, a certificate by the clerk of some court of record of the county, city, or district wherein such officer resides, under the seal of such court, that the person certifying such acknowledgment is the officer he assumes to be, that he has the authority by the laws of such state or ter- ritory to take and certify such acknowledgment, and that the signature of such officer to the certificate of acknowledgment is the true signature of such officer. Without United States : Before any court of record of any foreign republic, kingdom, empire, state, principality, or prov- ince having a seal, the acknowledgment being certified by the judge or justice of such court to have been made before such 24 FOEM BOOK (Ch. 1 court, and such certificate to be attested by the seal of such court ; before the mayor or other chief officer of any city or town having a seal, such mayor or other" chief officer certify- ing such acknowledgment under such seal; before any consul of the United States within such foreign country, he certify- ing the same under the seal of his consulate. Rev. St. 1908,. §§ 684, 685. Forms A certificate substantially in accordance with the following general form before a proper officer is prima facie evidence of the proper execution of a deed or other instrument affecting the title of real property. No mortgage or other conveyance of a homestead is binding against the wife of any married man who may be occupying the premises with him, unless she shall "freely and voluntarily, separate and apart from^ her husband, sign and acknowledge the same, and the officer taking the ac- knowledgment shall fully apprise her of her rights and the effect of signing the said mortgage or other conveyance." If the owner of the homestead be the wife of a man occupying the premises with her, no such mortgage or conveyance is binding against him, unless he sign and acknowledge the same. Ibid. § 2955. The form given for the wife's separate acknowl- edgment should be used when it is not known that the property is not homestead. General Form of Acknowledgment State! op , County of '' ^^" I (name and official character) in and for said county, in the state aforesaid, do hereby certify that , who is per- sonally known to me to be the person whose name is sub- scribed to the foregoing deed {or other instrument), appeared before me this day in person and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act and deed, for the uses and purposes therein set forth. Given under my hand and seal this day of , A. D. 19—. •Ch. 1) ACKNOWLEDGMENTS 25 Wife's Separate Acknowledgment :Statb op , 1 County of . J ^^■ I (name and official character), in and for said county, in the state aforesaid, do hereby certify that , who is per- sonally known to me to be one of the persons whose name is :subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed, sealed, and delivered the said instrument as his free and voluntary act for the uses and purposes therein specified. And I do fur- ther certify that on this day personally appeared before me , personally known to me to be the wife of the said , and to be one of the persons who signed the foregoing deed (or other instrument), and, being by me duly sworn, and separate and apart from her husband, fully apprised of her rights in the premises and of the effect of signing the fore- going instrument, did then and there, so separate and apart from her husband, sign the same and acknowledge that she signed, sealed, and delivered the said instrument of writing as her free and voluntary act and deed, for the uses and pur- poses therein set forth. Given under my hand and seal this day of 19—. Ibid. § 692. CONNECTICUT Before Whom Taken Within state : Before a judge of a court of record of the state or of the United States, a clerk of the superior court, ■court of common pleas or district court, justice of the peace, commissioner of the school fund, commissioner of the superior •court, notary public, either with or without his official seal, town clerk, or assistant town clerk. Elsewhere within United States: Before a commissioner 26 FOEM BOOK (Ch. 1 appointed by the Governor of Connecticut and residing in the state or territory, or any officer authorized to take the acknowl- edgment of deeds in such state or territory. Without United States : Before any ambassador, minister, charge d'aiifaires, consul, vice consul, deputy consul, consul general, vice consul general, deputy consul general, consular agent, vice consular agent, commercial agent, or vice commer- cial agent of the United States, representing or acting as agent of the United States in such foreign country, or before any notary public, or justice of the peace, in such foreign country; but no officer shall have power to take such acknowledgment, except within the territorial limits in which he may perform the proper duties of his office. Gen. St. 1902, § 4029, as amend. Pub. Acts 1905, c. 63. Forms None are provided by statute. Conveyances of real estate situated in the state, and powers of attorney therefor, execut- ed and acknowledged in any other state or territory in con- formity with its laws relative to the conveyance of lands there- in situated, are valid. Ibid. § 4031. Acknowledgment by Husband and Wife Statb op Connecticut, n County of . J ^^■ Personally appeared and , his wife, signers and sealers of the foregoing instrument, and severally acknowl- edged the same to be their free act and deed before me. {Signature and title.) ' DELAWARE Before Whom Taken Within state : In the superior court, or before the chancellor, or any judge or notary public, or before two justices of the peace for the same county. A deed may also be acknowledged in the superior court by attorney, by virtue of a power con- tained in it or separate from it ; the power being first proved in the said court. Also such deed may be proved in the said Ch. 1) ACKNOWLEDGMENTS 27 court by one or more of the subscribing witnesses. Rev. Code 1852, amend, to 1893, c. 83, § 3. Without state : Before any consul general, consul, vice con- sul, consular agent, or commercial agent of the United States, iluly appointed in any foreign country at the places of their respective official residence; or before the judge of any dis- trict or circuit court of the United States, or the chancellor or any judge of a court of record of any state, territory, or coun- try, or the mayor or chief officer of any city or borough, and certified under the hand of such chancellor, judge, mayor, or officer and the seal of his office, court, city, or borough, or in any such court, and certified under the hand of the clerk and seal of the court ; or before a commissioner of deeds appointed by the Governor; or before a notary public of any state or territory or of the District of Columbia. Ibid. § 10, as amend. Laws 1901-1903, c. 82 ; Laws 1883, c. 212 (Rev. Code 1852, as amend, to 1893, p. 627, c. 83). Forms The certificate, when the acknowledgment is before two justices of the peace, may be according to the form given below. Rev. Code 1852, as amended to 1893, c. 83, § 3. It must, of course, be varied when the acknowledgment is before another officer, and his seal should be affixed. The deed of a married woman is valid and effectual as if she were sole, if she, upon private examination, apart from her husband, acknowledge that she executed said deed willingly, without compulsion or threats, or fear of her husband's dis- pleasure ; but such deed shall not bind her to any warranty except a si>ecial warranty against herself and her heirs, and all persons claiming by or under her ; and no covenant on her part, of a more extensive or different effect in such deed, shall be valid against her. Nor shall such conveyance by her divest, abrogate, or in any manner interfere with the husband's es- tate by the courtesy should such estate attach. Ibid. § 4, as amend. Laws 1901-1903, c. 443. 28 FORM BOOK (Ch. 1 Acknowledgment by Husband and Wife The State of Dei.aware,1 County of ' ®^* Be it remembered that on the day of , in the year of our Lord one thousand nine hundred and per- sonally came before the subscribers two of the justices of the peace for , county aforesaid (or, before the subscriber^ adding title), and his wife, parties to this in- denture, known to us (or, me) personally (or, proved on the oath of ) to be such, and severally acknowledged said indenture to be their act and deed respectively, and that the said , being at the same time privately examined by us (or, me), apart from her husband, acknowledged that she executed the said indenture willingly, without compulsion or threats, or fear of her husband's displeasure. Witness our hands (or, my hand and official seal) the day and year afore- said." (Signature and title.) Rev. Code 1852, as amend, to 1893, c. 83, § 3. Acknowledgment by Corporation State op County of ' ^^• Be it remembered that on this day of , in the year of our Lord , personally came before me (title), , president (or, vice president) of the Company, a corporation of the state of Delaware, party to the foregoing indenture, known to me personally (or, proved on the oath of ) to be such, and acknowledged the said in- 6 If tlie instniment be not under seal, the words "and deed" must be omitted. If an acknowledgment only, or private examination, only,, be taken, the form must be varied according to the case : and so of other cases requiring a variance, the form being given for general direction. Ch. 1) ACKNOWLEDGMENTS 29 denture to be his free act and deed and the act and deed o£ the said company; that the signature of the said president (or, vice president) is his own proper handwriting; that the seal affixed is the common or corporate seal of the said com- pany ; and that his act of sealing, executing, and acknowledg- ing and delivering the said indenture was duly authorized by resolution of the directors {or, trustees, or other managers) of the said company. Witness my hand and official seal the day and year afore- said. (Signature and title) DISTRICT OF COLUMBIA Before Whom Taken Within district: Before a judge of any of the courts, the clerk of the Supreme Court of the District, a justice of the peace or notary public, or the recorder of deeds. Code 1901, as amend, to 1911, § 493. Elsewhere within the United States: Before any judge of a court of record and of law, or any chancellor of a state, any judge or justice of the Supreme, circuit, or territorial courts of the United States, any justice of the peace or notary public. The certificate of acknowledgment made by any officer not having a seal shall be accompanied by the certificate of the register, clerk, or other public officer that the officer taking the acknowledgment was, in fact, the officer he professed to be. Ibid. §495. An acknowledgment may also be before a commissioner ap- pointed by the President of the United States. Code 1901, as amend, to 1911, § 557. Without United States: Before any judge or notary public, or any secretary of legation or consular officer or acting con- sular officer of the United States, as such consular officer is described in section 1674 of the Revised Statutes of the United States. When the acknowledgment is before any other officer than a secretary of legation or consular officer or acting con- sular officer of the United States, the official character of the person taking the acknowledgment shall be certified in the manner prescribed in the last preceding section. Ibid. § 496. 30 FORM BOOK (Ch. 1 Acknowledgment by Attorney — Corporation No deeds of conveyance by individuals can be executed or acknowledged by attorney. Ibid. § 498. The deed of a cor- poration shall be executed by having the seal of the corpora- tion attached and being signed with the name of the corpora- tion, by its president or other officer, and acknowledged as the deed of the corporation by an attorney appointed for that pur- pose, by a power of attorney embodied in the deed or by one separate therefrom, under the corporate seal, to be annexed to and recorded with the deed. Ibid. § 497. Forms A general form is given by statute. Ibid. § 493. It is suffi- cient for a wife's release of dower. Ibid. § 494. General Form of Acknowledgment I, A. B., a justice of the peace (or other officer authorized) in and for the District of Columbia, do hereby certify that C. D., party to a certain deed bearing date on the day of , and hereto annexed, personally appeared before me in said District, the said C. D. being personally well known to me as {or, proved by the oath of credible witnesses to be) the person who executed the said deed, and acknowledged the same to be his act and deed. Given under my hand and seal this day of . Ibid. .§ 493. A. B. {Seal) FLORIDA Other provisions with respect to conveyances, post, p. 534. Acknowledgment or Proof, Before Whom Taken Within state: Before any judge, clerk, or deputy clerk of any court of record, or a United States commissioner, notary public, or justice of the peace. Elsewhere within United States : Before a commissioner of deeds appointed by the Governor of Florida, or before a judge Ch. 1) ACKNOWLEDGMENTS 31 or clerk of any court of the United States or of any state, ter- ritory, or district having a seal, or before a notary public or justice of the peace of such state, territory, or district having an official seal. Without United States : Before any commissioner of deeds appointed by the Governor of Florida to reside in such country, or before any notary public of such foreign country having an official seal, or before any minister, charge d'affaires, consul general, consul, vice consul, commercial agent, or vice com- mercial agent of the United States appointed to reside in such country. Gen. St. 1906, § 2481. In all such cases the cer- tificate of acknovifledgment or proof shall be under the seal of the court or officer, as the case may be. Ibid. § 2481. Forms The particular forms are not prescribed. The certificate of the officer before whom the acknowledgment or proof is taken shall contain and set forth substantially the matter required to be done or proved to make such acknowledgment of proof effectual. Ibid. § 2482. No acknowledgment or proof shall be taken by any officer unless he shall know, or have satis- factory proof, that the person making the acknowledgment is the individual described in and who executed such instrument, or that the person offering to make proof is one of the sub- scribing witnesses to such instrument. Ibid. § 2486. To ren- der a sale, conveyance, mottgage, or relinquishment, whether of separate estate or of dower, effectual to pass a married woman's estate or right, she must acknowledge, separately and apart from her husband, that she executed the same freely and voluntarily and without compulsion, constraint, apprehen- sion, or fear of or from her husband, and the officer's certifi- cate shall set forth all the foregoing requirements. Ibid. § 2462. General Form of Acknowledgment Stats op , County of ' I (name and designation of officer) hereby certify that on this day personally appeared before me , to hie well known and known to be the person described in and who exe- 32 POEM BOOK (Ch. 1 cuted the foregoing instrument, and acknowledged that he ex- ecuted the same. Witness my hand and official seal this day of , A. D. 19—. (Signature and title of oMcer.) (Seal.) Acknowledgment by Husband and Wife State of , County of ss. I (name and designation of officer) hereby certify that on this day personally appeared before me A. B. and C. B., his wife, to me well known and known to be the persons described in and who executed the foregoing instrument and severally acknowledged that they executed the same; and the said C. B., on a private examination before me, separately and apart from her said husband, did acknowledge that she executed the same for the purpose of relinquishing, alienating, and convey- ing all her right, .title, and interest, whether of dower, home- stead, or of separate property, statutory or equitable, in and to the lands described therein, and that she executed same freely and voluntarily and without any compulsion, constraint, apprehension or fear of or from her said husband. Witness, etc. GEORGIA In General A deed to lands must be in writing, signed by the maker, and attested by at least two witnesses. Civ. Code 1910, § 4179. One of the witnesses may be one of the officials mentioned below, and otherwise the execution should be acknowledged before such official, and his attestation or Certificate of ac- knowledgment, as the case may be, entitles the deed to record. Ibid. §§4202, 4203. As to other provisions in respect to con- veyances, post, p. 536. Ch. 1) ACKNOWLEDGMENTS 33 By or Before Whom Attested or Acknowledged When executed in state: A judge of a court of record of the state, or a justice of the peace, or notary pubHc, or clerk of the superior court, in tlie county in which the three last mentioned officers respectively hold their appointments. Ibid. § 4202. When executed out of state : A commissioner of deeds for Georgia, or a consul or vice consul of the United States (the certificate of these officers under their seal being evidence of the fact), or a judge of a court of record in the state where executed, with a certificate of the clerk under the seal of such court of the genuineness of the signature of such judge, or a clerk of a court of record under the seal of the court, or a notary public of the state and county where executed, with his seal of office attached, and, if such notary has no seal, then his official character shall be certified by a clerk of any court of record in the countv of the residence of such notary. Ibid. § 4203. Probate by Witness If a deed is neither attested by nor acknowledged before such official, it may be admitted to record upon the affidavit of a subscribing witness, before any such official, testifying to the execution of the deed and its attestation according to law. Ibid. § 4205. Forms General forms for certificates of attestation and acknowl- edgment are not specifically provided. "Signed, sealed and delivered in the presence of," followed by the name and official title of the witness, is sufficient in case of attestation. A form of declaration or acknowledgment for a married woman who ioins with her husband in a conveyance is provided. Ibid. § 4204. Acknowledgment of Married Woman I, A. B., the wife of C. D., do declare that I have freely and without any compulsion signed, sealed, and delivered the above instrument of writing, passed between D. E. and C. D. ; and I do hereby renounce all title or claim of dower that I might claim or be entitled to, after the death of C. D., my TlFF.FORMS — 3 34 FORM BOOK (Ch. 1 said husband, to or out of the lands or tenements therein con- veyed. In witness whereof I have hereunto set my hand and seal.'' Ibid. § 4204. Proof by Subscribing Witness Before me {name' and title) personally came , to me known to be the individual whose signature is affixed to the foregoing deed as one of the witnesses thereto, who, being sworn, says that he was present at the time when said deed was executed; that he saw the same signed, sealed, and de- livered by , whose signature is thereto affixed as gran- tor; that , the other subscribing witness thereto, was likewise present at said time and witnessed said execution of said deed ; and that he, the said , and the said , then and there signed the same as attesting witnesses. (Signature of affiant.) Sworn to and subscribed before me this day of , 19 — . (Signature and title.) HAWAII Before Whom Taken Within territory: Before the registrar of conveyances, or his deputy, or a judge of a court of record or a notary public. Elsewhere within United States : Before any officer of the state, territory, or district authorized by the laws thereof to take proof and acknowledgments of deeds. There must be indorsed, subjoined, or attached to the certificate of acknowl- edgment or proof, signed by such officer, a certificate of the secretary of state or territory in which such officer resides, under the seal of such state or territory, or a certificate of the clerk of a court of record of such state, territory, or district in the county in which such officer resides or in which he took 7 The said officer shall indorse upon the deed the acknowledgment of the said feme covert made before him, and sign the same. Ibid. § 4204. Ch. 1) ACKNOWLEDGMENTS 35 such proof or acknowledgment, under the seal of such court, stating that such officer was at the time of taking such proof or acknowledgment duly authorized to take acknowledgments and proofs of deeds of land in such state, territory, or district, and that such secretary of state or clerk of court is well acquainted with the handwriting of such officer, and that he verily be- lieves that the signature affixed to such certificate is genuine. The form of authentication is the same as that recommended by the Commissioners on Uniform State Laws. Ante, p. 8. Without United States : Before any officer now authorized thereto by the laws of Hawaii, or before any minister, consul, vice consul, charge d'affaires, consular or commercial agent, vice consular or vice commercial agent. of the United States, resident in any foreign country or port, certified by him under his seal. Laws 1909, Act 69. Forms Forms of acknowledgment and of authentication are pro- vided by Laws 1909, Act 69, which are the same as those recommended by the Commissioners on Uniform State Laws. Ante, p. 6. Forms formerly provided may also be used. The acknowledgment of a married woman may be in the same form as if she were sole, without separate examinaticm. No acknowledgment of any conveyance or other instrument, whereby real estate is conveyed or may be affected shall be taken, unless the person offering to make such acknowledg- ment is personally known to the officer taking the same to be the person whose name is subscribed to such conveyance or instrument as a party thereto, or shall be proved to be such by the oath or affirmation of a credible witness known to the officer. Every officer who shall take the acknowledgment or proof of any instrument shall indorse, subjoin, or attach a certificate thereof, signed by himself, on the instrument. Ev- ery judge who shall take the proof of any instrument shall indorse, subjoin, or attach a certificate thereof, signed by him- self, on the instrument, giving the names of the witnesses ex- amined before him, their places of residence, and the substance of the evidence by them given. Laws 1909, Act 69. If there are any interlineations, erasures, or changes in the instrument, the officer taking the acknowledgment shall call the attention thereto of the person offering to acknowledge, and if they are approved by such person, the officer shall place his initials in the margin of the instrument opposite each such interlinea- 36 FORM BOOK (Ch. 1 tion, erasure, or change, and shall note at the foot of the instru- ment, before the acknowledging clause, what each such inter- Hneation, erasure, or change consists of, and the number of the page and line on which it occurs. Rev. Laws 1905, § 2370. IDAHO Before Whom Taken Within state : At any place within the state, before a justice or clerk of the Supreme Court; within the city, county, or district for which the officer was elected or appointed, before either a judge or clerk of a court of record, a county recorder, a notary public, or a justice of the peace. Rev. Codes, §§ 3123, 3124. Elsewhere within United States: Within the jurisdiction of the officer, before either: A justice, judge, or clerk of any court of record of the United States; a justice, judge or clerk of any court of record of any state or territory ; a commis- sioner appointed by the Governor of this state for that pur- pose ; a notary public ; or any other officer of the state or ter- ritory where the acknowledgment is made, authorized by its laws to take such proof or acknowledgment. Ibid. § 3125. Without United States : Before either : A minister, com- missioner, or charge d'affaires of the United States, resident and accredited in the country where the acknowledgment is made ; a consul or vice consul of the United States resident in the country where the acknowledgment is made; a judge of a court of record of the country where the acknowledgment is made; commissioners appointed for such purposes by the Governor of the state pursuant to statute ; or a notary public. Ibid. § 3126. When any of the officers above mentioned are authorized by law to appoint a deputy, the acknowledgment or proof may be taken by such deputy, in the name of his principal. Ibid. § 3127. The acknowledgment of an instrument must not be talerson mak- ing, signing, and swearing to such proof as the voluntary act and deed of said company. Ibid. p. 1573, § 114. Acknowledgment by Husband and Wife Statb of New Jbrsby, County of '' ' Be it remembered that on this day of , A. D. 19 — , before me, the subscriber (insert name and title of offi- cer), personally appeared and , his wife, who, I am satisfied, are the grantors mentioned in and who executed the within indenture, and to whom I first made known the contents thereof, and thereupon, they severally acknowledged that they signed, sealed, and delivered the same as their volun- tary act and deed, for the uses and purposes therein ex- pressed; and the said , wife of the said , being by me privately examined, separate and apart from her said husband, acknowledged that she signed, sealed, and delivered the same as her voluntary act and deed, freely, without any fear, threats, or compulsion of her said husband. In witness whereof I have hereunto set my hand and af- fixed my official seal the day and year aforesaid. {Signature and title.) Ch. 1) ACKNOWLEDGMENTS 71 Acknowledgment by Corporation State oif New Jersey,! County of . J ®^' Be it remembered that on the day of , A. D. 19 — , before me {name and title of officer) personally appeared , to me known, who, being by me duly sworn accordmg to law, on his oath doth depose and say that he is (the secre- tary, or, is acquainted with the seal) of the corporation, the grantor in the foregoing deed named ; that the seal affixed to the said deed is the corporate seal of the said {name of corpo- ration) ; that it was so affixed by order of the said {name of corporation) ; that is the (president, or other executive officer) of the said {name of corporation) ; that he saw the said , as such , sign the said deed, and heard him declare that he signed, sealed, and delivered the same as the voluntary act and deed of the said {name of corporation) by its order; and that this deponent signed his name thereto at the same time as a subscribing witness. Subscribed and sworn before me the day and year above written. NEW MEXICO Before Whom Taken Within state : Before a clerk of the district court, a judge or clerk of the probate court using the probate seal, a notary public, or a justice of the peace. Laws 1901, c. 62, § 14. Elsewhere within United States: Before a clerk of some court of record having a seal, commissioner of deeds appointed under the laws of New Mexico, or notary public having a seal. Ibid. § 15. Without the United States : Before a minister, commission- er, or charge d'affaires of the United States resident and accredited in the country where the acknowledge is made; a consul general, consul, vice consul, deputy consul, or consul or agent of the United States resident in the country where T2 FORM BOOK (Ch. 1 the acknowledgment is made having a seal; or a notary pub- lic having a seal. Ibid. § 16. Forms Forms that may be used in certifying acknowledgments, which are the same as those recommended by the Commission^ crs on Uniform State Laws (ante, p. 6), are provided. Comp. Laws 1897, § 3945. When a m;j.rried woman unites with her husband, she shall be described in the acknowledgment as his wife, but in all oth- er respects her acknowledgment shall be taken and certified as if she were sole ; and no separate examination is required. Ibid. § 3946, NEW YORK Before Whom Taken Within state: Before a justice of the Supreme Court; or within the district wherein such officer is authorized to per- form official duties, before a judge, clerk, deputy plerk, or special deputy clerk of a court, a notary public, or the mayor or recorder of a city, a justice of the peace, surrogate, special surrogate, special "county judge, or commissioner of deeds. Consol. Laws 1909, c. 50, § ^98. Elsewhere within United States : Before any of the follow- ing officers acting within his jurisdiction, or of the court to which he belongs: A judge of a court of the United States; a judge of the supreme, superior, or circuit court of a state; a mayor of a city ; a commissioner appointed for the purpose by the Governor of New York; any officer of the state or territory in which the acknowledgment is taken authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein ; any officer of the District of Columbia authorized by the laws of the United States to take the ac- knowledgment or proof of deeds to be recorded in said dis- trict. Ibid. § 299. In Porto Rico, the Philippine Islands, Cuba, or in any other place over which the United States exercises sovereignty, con- trol, or a protectorate : Before: (1) A judge or clerk of a court of record thereof, acting within his jurisdiction; {2) a mayor or other chief officer of a city, acting in such city ; (3) a com- missioner appointed for the purpose by the Governor of New York, and acting within his jurisdiction; (4) an officer of the Ch. 1) ACKNOWLEDGMENTS 73 United States regular army or volunteer service of the rank of captain or higher, or an officer of the United States navy of the rank of lieutenant or higher, while on duty at the place where such party or parties are or reside. The certificate of an acknowledgment taken before any of the officers men- tioned in subdivisions 1, 2, or 3 shall have attached thereto the seal of the court or officer if he have a seal, and, if such of- ficer have no seal, then a statement to that effect. The cer- tificate of an acknowledgment taken before an officer of the army or navy mentioned in subdivision 4 shall state his rank, the name of the city or other political division where taken, and the fact that he is on duty there, and shall be authenticated by the secretary of war or the secretary of the navy, as the case may be, of the United States. Ibid. § 300. In foreign countries: Before: Any of the following officers : An ambassador, a minister plenipotentiary, a minister extraordinary, a minister resident, or a charge d'affaires of the United States accredited to and residing in the country; a consul general, a vice consul general, a deputy consul general, a consul, a vice consul, a deputy consul, a consular agent, a vice consular agent, a commercial agent, or a vice commercial agent of the United States, if residing within the country to which he is appointed, or a secretary of legation at the post, port, place or within the limits of his legation ; a commissioner appointed for the purpose by the Governor, and acting with- in his own jurisdiction ; a person specially authorized for that purpose by a commission, under the seal of the Supreme Court of this state, issued to a reputable person residing in, or go- ing to, the country; if within the Dominion of Canada, it may also be made before any judge of a court of record, or before any officer of a province or territory of such Dominion au- thorized by the laws of such province or Dominion to take the acknowledgment or proof of deeds to be recorded there- in; if within the United Kingdom of Great Britain and Ire- land, or the dominions thereunto belonging, it may also be made before the mayor, the provost or other chief magistrate of a city or town therein, under his hand and the seal of such city or town; if within the states comprising the empire of Germany, it may also be made before a judge of a court of record under the seal of such court, or before a notary public under the seal of his office and the seal of the city or town in which the notary resides. Ibid. § 301. 74 FORM BOOK (Ch. 1 Authentication In the following cases a certificate of acknowledgment or proof is not entitled to be read in evidence or recorded un- less authenticated by the following officers, respectively: Where the original certificate of acknowledgment or proof is made by a commissioner appointed by the Governor, by the secretary of state; where made by a judge of a court of rec- ord in Canada, by the clerk of the court; where made by an officer of a state of the United States, or of any province or territory of the Dominion of Canada authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein, by the secretary of state of the state, the provincial secretary, deputy provincial secretary, or assistant provincial secretary of the province, or commissioner of tjie territory of the Dominion of Canada, or the clerk, register, recorder, or prothonotary of the county, city, or parish in which the officer making the original certificate resided, when the certificate was made, or in which such acknowledgment or proof was taken, or by the clerk of any court in or of that county, city, or parish having by law a seal. The word "coun- ty" applies to the District of Columbia for the purpose of this section. Ibid. § 311. An officer authenticating a certificate of aclcnowledgment or proof must subjoin or attach to the original certificate a cer- tificate under his hand, and if he has, pursuant to law, an of- ficial seal, under such seal. Except when the original cer- tificate is made by a judge of a court of record in Canada, such certificate of authentication must specify that at the time of taking the acknowledgment or proof the officer taking it was duly authorized to take the same, that the authenticating of- ficer is acquainted with the former's handwriting, or has com- pared the signature to the original certificate with that de- posited in his office by such officer, and that he verily believes the signature to the original certificate is genuine ; and, if the original certificate is required to be under seal, he must also certify that he has compared the impression of the seal af- fixed thereto with the impression of the seal of the officer who took the acknowledgment or proof deposited in his office, and that he verily believes the impression of the seal upon the original certificate is genuine. A clerk's certificate, authenti- cating a certificate of acknowledgment or proof, taken before a judge of a court of record in Canada, must specify that there is such a court; that the judge before whom the acknowledg- Ch. 1) ACKNOWLEDGMENTS 75 ment of proof was taken was, when it was taken, a judge thereof; that such court has a seal; that the officer authenti- cating is clerk thereof ; that he is well acquainted with the liandwriting of such judge, and verily believes his signature is genuine. Ibid. § 312. As to authentication of certificates made within the state by commissioners of deeds, justices of the peace, and notaries public. Ibid. § 310. Forms The acknowledgment or proof may be made by a married woman as if unmarried. Ibid. § 302. An acknowledgment must not be taken by any officer unless he knows or has satisfactory evidence that the person making it is the person described in and who executed such instru- ment. Ibid. § 303; An officer taking the acknowledgment or proof of a con- veyance must indorse thereupon or attach thereto a certifi- cate, signed by himself, stating all the matters required to be done, known, or proved on the taking of such acknowledgment or proof, together with the name and substance of the testi- mony of each witness examined before him, and,' if a subscrib- ing witness, his place of residence. Ibid. § 306. When the acknowledgment or proof is taken by a commis- sioner appointed by the Governor for a city or county within the United States and without the state, the certificate must also state the day on which and the town and county or the city in which the same was taken. Ibid. § 307. When a certificate is made by a commissioner appointed by the Governor, or by the mayor or other chief magistrate of a city or town without the United States, or by an ambassador, a minister, a charge d'affaires, a consul general, a vice con- sul general, a deputy consul general, a consul, a vice consul or a deputy consul, a consular or a vice consular agent, a com- mercial or a vice commercial agent, or a secretary of legation of the United States, it must be under his seal of office, or the seal of the consulate or legation to which he is attached. Ibid. §308. 76 FORM BOOK (Ch. 1 General Form of Acknowledgment Statb of ss. County of On this day of , in the year , before me personally came , to me known, and known to me to be the individual described in and who executed the foregoing in- strument, and he thereupon acknowledged to me that he executed the same. (Signature and title.) The acknowledgment of a conveyance or other instrument by a corporation must be made by some officer thereof au- thorized to execute the same by the board of directors. The certificate must be in substantially the following form (Ibid. § 309) : Acknowledgment by Corporation State of New York, ^ County of .| ^^• On the day of , in the year , before me personally came , to me known, who, being by me duly sworn, did depose and say that he resides in ; that he is the (president, or other officer) of the (name of corporation), the corporation described in and which executed the above in- strument ; that he knows the seal of said corporation ; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the board of directors of said cor- poration ; and that he signed his name thereto by like order. (Signature and office of officer taking acknowledgment) If such corporation have no seal, that fact must be stated in place of the statements required respecting the seal. Ch. 1)' ACKNOWLEDGMENTS 77 NORTH CAROLINA Before Whom Taken Within state: Before justices of the Suprerrie Court, judges of the superior court, commissioners of affidavits appointed by the Governor, the clerk of the Supreme Court, clerks and deputy clerks of the superior court, clerks of the criminal courts, notaries public, and justices of the peace. Revisal 1905, § 989. Without state : Before a judge or clerk of a court of record, notary public, mayor or chief magistrate of an incorporated town or city, ambassador, minister, consul, vice consul, vice consul general, or commercial agent of the United States, or a justice of the peace of any state or territory of the United States. If the certificate of such justice shall be accompanied by a certificate of the clerk of some court of record of the county in which such justice resides, under the hand and of- ficial seal of such clerk, to the effect that such justice of the peace was at the time the certificate of such justice bears date an acting justice of the peace of such county and state or ter- ritory, and that the genuine signature of such justice of the peace is set to such certificate. Ibid. § 990. A commission to take the acknowledgment of a nonresident may be issued by the clerk of the superior court of any coun- ty. Ibid. § 991. If the proof of acknowledgment is before a justice of the peace of any county in the state other than the county in which the instrument is offered for registration, the certificate of ac- knowledgment must be accompanied by a certificate under the hand and seal of the clerk of the superior court of the county in which such justice resides that he was at the time his certificate bears date an acting justice of the peace of such county, and that his genuine signature is set to his certificate. Ibid. § 992. Forms The following fortns are given by statute, which provides that they shall be in substance as prescribed. As to the provisions concerning acknowledgments by mar- ried women, and their separate examination, post, p. 600. 78 FORM BOOK (Ch. 1 Acknowledgment by Grantor or Maker North Carouna, | County. J I (here give the name of the official and his official title) do hereby certify that {here give the name of the grantor or maker) personally appeared before me this day and acknowl- edged the due execution of the foregoing instrument. Witness my hand and (zvhere an official seal is required by lam) official sfeal this, the day of (year). (Official seal.) (Signature of officer.) Ibid. § 1002. When the instrument purports to be signed by a married woman, the form of certificate shall be, in substance, as fol- lows: Acknowledgment and Private Examination of Wife North Carolina, "i County.J I (here give name of the official and his official title) do here- by certify thzt'(here give name of the married woman who ex- ecuted the instrument), wife of (here give husband's name), personally appeared before me this day and acknowledged the due execution of the foregoing (or, annexed) instrument; and the said (here give married woman's name), being by me pri- vately examined, separate and apart from her said husband, touching her voluntary execution of the same, doth state that she signed the same freely and voluntarily, without fear or compulsion of her said husband or any other person, and that she doth still voluntarily assent thereto. Witness my hand and (when an official seal is required by law) official seal this (day of month), A. D. (year). (Official seal.) (Signature of officer.) Ibid. § 1003. Ch. 1) ACKNOWLEDGMENTS 79 Where the instrument is acknowledged by both husband and wife or by other grantor before the same officer, the form shall be, in substance, as follows: Acknowledgment by Husband and Wife North Carolina, County. I {here give name of ofHcial and his oMcial title) do hereby certify that (he}-e give names of the grantors whose acknowl- edgment is being taken) personally appeared before me this day and acknowledged the due execution of the foregoing (or, an- nexed instrument), and the said (here give name of the married woman or women), wife (or, wives) of (here give name of hus- band or husbands), being by me privately examined, separate and apart from her said husband, touching her voluntary exe- cution of the same, doth state that she signed the same freely and voluntarily, without fear or compulsion of her said hus- band or any other person, and that she doth still voluntarily as- sent thereto. Witness my hand and (when an official seal is required by law) official seal this (day of month), A. D. (year). (Official seal) (Signature of officer.) Ibid. § 1004. The following forms of probate for deeds and other con- veyances executed by a corporation shall be deemed sufficient, but shall not exclude other forms of probate which would be deemed sufficient in law. If the instrument is executed by the president or presiding member or trustee and two other members of the corporation, and sealed with the common seal, the following form shall be sufficient: 80 FORM BOOK (Ch. 1 Acknowledgments by Corporation North Caroi^ina, "i County, j This day of , A. D. , personally came before me {here give the name and official title of the officer who signs this certificate) A. B. {here give the name of the sub- scribing witness), who, being by me duly sworn, says that he knows the common seal of the {here give the name of the cor- poration), and is also acquainted with C. D., who is the presi- dent {or, presiding member, or, trustee), and also with E. F. and G. H., two other members of said corporation, and that he, the said A. B., saw the said president {or, presiding member, or, trustee) and the two said other members sign the said in- strument, and saw the said president {or, presiding member, or, trustee) affix the said common seal of said corporation thereto, and that he, the said subscribing witness, signed his name as such subscribing witness thereto in their presence. Witness my hand and {when an official seal is required by law) official seal, this day of {year). {Official seal) {Signature of officer) Ibid. § 1005. If the deed or other instrument is executed by the pres- ident, presiding member or trustee of the corporation, and sealed with its common seal, and attested by its secretary or assistant secretary, either of the following forms of proof and certificate thereof shall be deemed sufficient: (1) North Carolina, County. This day of , A. D. , personally came before me {here give name and official title of the officer ivho signs the certificaie) A. E. {here give the name of the attesting Ch. 1) ACKNOWLEDGMENTS 81 secretary or assistant secretary), who, being by me duly sworn, says that he knows the common seal of {here give the name of the corporation), and is acquainted with C. D., who is the presi- dent of said corporation, and that he, the said A. B., is the sec- retary {or, assistant secretary) of the said corporation, and saw the said president sign the foregoing {or, annexed) instrument, and saw the said common seal of said corporation affixed to said instrument by said president {or, that he, the said A. B., secretary or assistant secretary as aforesaid, affixed said seal to said instrument), and that he, the said A. B., signed his name in attestation of the execution of said instrument, in the pres- ence of said president of said corporation. Witness my hand and (when an ofHcial seal is required by lav/) official seal this, the day of {year). {Official seal.) {Signature of officer.) (2) North Carolina, County. This is to certify that on the day of , 19 — , before me personally came (president, vice president, secretary, or assistant secretary, as the case may be), with whom I am personally acquainted, who, being by me duly sworn, says that is the president {or, vice president), and is the secretary {or, assistant secretary), of the -^ , the corporation described in and which executed the foregoing instrument; that he knows the common seal of said corporation ; that the seal affixed to the following instrument is said common seal, and the name of the corporation was sub- scribed thereto by the said president {or, vice president), and that said president {or, vice president) and secretary {or, assist- ant secretary) subscribed their names tliereto, and said common seal was affixed, all by order of the board of directors of said TrET.FoBMs — 6 82 FORM BOOK I (Ch. 1 corporation ; and that the said instrument is the act and deed of said corporation. Witness my hand and (when an official seal is required by law) official seal this, the day of {year). (Official seal.) (Signature of officer.) If the deed or other instrument is executed by the signature of the president, presiding member, or trustee of the corpora- tion, and sealed with its common seal and attested by its secretary, the following form of proof and certificate thereof shall be deemed sufficient : This day of , A. D. , personally came before me (here give name and official title of the officer who signs the certificate) A. B., who, being by me duly sworn, says that he is president (presiding member or trustee) of the Company, and that the seal affixed to the foregoing (or, an- nexed) instrument in writing is the corporate seal of the com- pany, and that said writing was signed and sealed by him in be- half of said corporation by its authority duly given. And the said A. B. acknowledged the said writing to be the act and deed of said corporation. (Signature of officer.) If the officer before whom the same is proven be the clerk or deput}'- clerk of the superior court of the county in which the instrument is offered for registration, he shall add to the foregoing certificate the following: "Let the instrument with the certificate be registered." Ibid. § 1005. NORTH DAKOTA Before Whom Taken Within state: At any place within state before a justice or clerk of the Supreme Court or notary public (Rev. Codes 1905, § 5011); within the judicial district, county, subdivi- sion, or city for which the officer was elected or appointed, before either a judge or clerk of a court of record, mayor of a city, register of deeds, justice of the peace. United States cir- cuit or district court commissioner, or county auditor (Ibid. § 5012). Ch. 1) ACKNOWLEDGMENTS 83 Elsewhere within United States : Within the jurisdiction of the officer, before either: A justice, judge, or clerk of any court of record of the United States ; a justice, judge, or clerk of any court of record of any state or territory ; a notary pub- lic ; any other officer of the state or territory where the ac- knowledgment is made authorized by its laws to take such proof or acknowledgment; a commissioner appointed for the purpose by the Governor of North Dakota pursuant to the Political Code. Ibid. § 5013. Without United States : Before either : A minister, com- missioner, or charge d'affaires of the United States resident and accredited in the country where the proof or acknowl- edgment is made ; a secretary of legation, consul, vice consul, or consular agent of the United States resident in the country where the proof or acknowledgment is made; a judge, clerk, register, or commissioner of a court of record of the country where the proof or acknowledgment is made ; a notary public of such country ; an officer authorized by the laws of the coun- try where the proof or acknowledgment is taken to take proof or acknowledgments ; or, when any of the officers above men- tioned in this article are authorized by law to appoint a dep- uty, before such deputy in the name of his principal, as dep- uty, or by such deputy as deputy. Ibid. § 5014. The acknowledgment of an instrument must not be taken, unless the officer taking it knows or has satisfactory evidence on the oath or affirmation of a credible witness that the per- son making such acknowledgment is the individual who is described in and who executed the instrument, or, if executed by a corporation, that the person making such acknowledg- ment is authorized to make it as provided in Rev. Codes, §§ 4969, 4970. Ibid. § 5015; post, p. 602. Forms As to acknowledgment by married women and by corpora- tions, post, p.602. The officer must indorse on the instrument or attach there- to a certificate substantially in the following forms. Ibid. § 5022. He must authenticate his certificate by his signature fol- lowed by the name of his office, and must affix his seal of office if required to have one. Judges and clerks of court must affix the seal of the court, and mayors of cities the seal of the city. A notary within the state must append the date 8i FORM BOOK (Ch. 1 of expiration of his commission. The certificate of a jus- tice of the peace of the state, when used in a county other than that in which he resides, must be authenticated by a certifi- cate of a court of record of his county. General Form of Acknowledgment Statb op , County of '' ^®' On this day of , in the year , before me personally appeared , known to me ipr, proved to me on the oath of -^ ) to be the person who is described in and who executed the within instrument, and acknowledged to me that he (or, they) executed the same. Acknowledgment by Corporation State oif County of ■ '^ ' On this day of , in the year , before me {here insert the name and quality of the officer) personally ap- peared , known to me (or, proved to me on the oath of ) to be the president (or, the secretary) of the corpora- tion that is described in and that executed the within instru- ment, and acknowledged to me that such corporation exec^lted the same. Acknowledgment by Attorney in Fact Statb of County of- ^ ^^• On this day of , lii the year , before me (here insert the name and quality of the officer) personally ap- peared , known to me (or, proved to me on the oath of ) to be the person who is described in and whose name Ch. 1) ACKNOWLEDGMENTS 85 is subscribed to the within instrument as the attorney in fact of , and acknowledged to me that he subscribed the name of thereto as principal, and his own name as at- torney in fact. Ibid. § 5022. OHIO Before Whom Taken Within state : Before a judge or clerk of a court of record, county auditor, county surveyor, notary public, mayor, or jus- tice of the peace, who shall certify the acknowledgment on the same sheet on which the instrument is written or printed, and subscribe his name. Gen. Code 1910, § 8510. Without state : Before a commissioner appointed by the Governor of Ohio, or a consul general, vice consul general, deputy consul general, consul, vice consul, deputy consul, com- mercial agent, and consular agent of the United States resi- dent in any foreign country. Ibid. § 8515. Forms As to acknowledgments within the state, see preceding para- graph. Instruments for the conveyance or incumbrance of lands, including powers of attorney, executed and acknowledged or proved, in and in conformity with the laws of any other state, territory, or country, or in conformity with the laws of Ohio, are valid. Ibid. § 8516. As to acknowledgments by married persons, post, p, 605. General Form of Acknowledgment Statb 01? , County of Be it remembered, that on this day of , before me, the subscriber, a in and for , personally ap- peared and , his wife, who executed the forego- ing deed {or, instrument), and severally acknowledged that they 86 FORM BOOK (Ch. 1 executed the same as their voluntary act and deed, for the uses and purposes therein mentioned. In testimony whereof I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid. (Signature and title.) OKLAHOMA Before Whom Taken Within state: Before a justice of the peace of the county where the land is situated, or before any notary public, coun- ty clerk, clerk of the district court, or county judge. Without state : Before any notary public, clerk of a court of record, commissioner of deeds appointed by the Governor of Oklahoma for the county, state, or territory where the same is taken. In foreign country: Before any court of record or clerk of such court, or before any consul of the United States. Rev. Laws 1910, § 1181. Forms Every acknowledgment, except when taken before a jus- tice of the peace, must be under the seal of the officer taking the same. Ibid. § 1179. Acknowledgments must be substantially in the following forms : Acknowledgment by Individuals State of Oklahoma, l County. / ^^• Before me, in and for said county and state, on this • day of , 189 — , personally appeared and , to me known to be the identical persons who executed the within and foregoing instrument, and acknowledged to me that executed the same as free and voluntary act and deed for the uses and purposes therein set forth. Ibid. § 1179. Ch. 1) ACKNOWLEDGMENTS 87 Deeds or other instruments affecting real estate executed by a corporation must be acknowledged by the officer or person subscribing the name of the corporation thereto, which ac- knowledgment must be substantially in the following form : Acknowledgment by Corporation State of Oklahoma, County. ss. Before me, a ill and for said county and state, on this day of , 189 — , personally appeared , to me known to be the identical person who subscribed the name of the maker thereof to the foregoing instrument as its (attorney in fact, president, vice president, or mayor, as the case may be), and acknowledged to me that he executed the same as his free and voluntary act and deed and as the free and voluntary act and deed of such corporation, for the uses and purposes therein set forth. Ibid. § 1188. OREGON Before Whom Taken Within state : Before a judge of the Supreme Court, coun- ty judge, justice of the peace, or notary public within the state. Lord's Ore. Laws, § 7109. Elsewhere within United States : A deed may be executed according to the laws of the state, territory, or district where executed or of Oregon, and the execution may be acknowl- edged either according to the laws of such other state, terri- tory, or district or of Oregon, before any judge of a court of record, justice of the peace, notary public, or other officer authorized by the laws of such state, territory, or district to take acknowledgment of deeds therein, or before any commis- sioner appointed by the Governor of Oregon for such purpose. Ibid. § 7110. In such cases, unless the acknowledgment be taken before a commissioner, or a notary public certified un- der his notarial seal, or the clerk of a court of record under the seal of the court, the deed shall have attached thereto a certificate of the clerk or other proper certifying officer of a 88 FORM BOOK (Ch. 1 court of record of the county or district within which the ac- knowledgment was taken, under the seal of his office, that the person whose name is subscribed to the certificate of acknowl- edgment was at the date thereof such officer as he is therein represented to be, that he believes the signature of such per- son subscribed thereto to be genuine, and that the deed is exe- cuted and aclcnowledged according to the laws of such state, territory, or district. Ibid. § 7111. Without United States : A deed may be executed in a for- eign country according to the laws of such country or of Ore- gon, and the execution may be acknowledged either according to the laws of such f oreigfn country or of Oregon, before any notary public therein, or any minister plenipotentiary, minister extraordinary, minister resident, charge d'affaires, commis- sioner, consul, vice consul, or consul general of the United States appointed to reside therein, which acknowledgment shall be certified thereon by the officer taking the same, under his hand, and, if taken before a notary pubHc, his seal of office shall be affixed to such certificate, and it shall not be necessary for any of said persons to state in such certificate that the deed or instrument is executed according to the laws of such country. Ibid. § 7112. Form As to married women, post, p. 610. Acknowledgment by Husband and Wife State of , County of This certifies that on this day of , A. D. 19 — , before me, the undersigned, a (insert name and title) in and for said county and state, personally appeared the within- named and , his wife, to me personally known {or, satisfactorily proven to me on oath) to be the individuals described in and who executed the within instrument, and ac- knowledged to me that they executed the same freely and vol- untarily, for the uses and purposes therein expressed. In testimony whereof I have hereunto set my hand and seal the day and year above written. Ch. 1) ACKNOWLEDGMENTS 89 PENNSYLVANIA Before Whom Taken Within state: Before judges of the Supreme Court, judges of the courts of common pleas of the counties, the mayors and police magistrates or aldermen of Philadelphia and Pittsburg, recorders of deeds for deeds to be recorded in their coun- ties, notaries public, and justices of the peace. Elsewhere within United States : Before the mayor or chief magistrate of the town or place where the deed is executed with the seal thereof; a judge of the supreme or district court of the United States; a judge of the circuit or superior courts or courts of common pleas of any state or territory with the seal of the court; a commissioner appointed by the Gov- ernor of Pennsylvania; any notary public having an official seal ; any officer or magistrate of any state or territory having authority by the laws thereof to take acknowledgments, with a certificate of the clerk of a court of record therein of his authority to act. A person in the military service of the Unit- ed States may acknowledge before any person holding the rank of major or a higher rank in such service, under a com- mission from the Governor of Pennsylvania. In possessions of United States: In Cuba, Porto Rico, the Philippine Islands, or other possessions of the United States : Before a major or officer of higher rank in the military service of the United States, or before any civil officer there in the service of the United States, under the seal of such officer if he have one, and, if not, with a certificate under the seal of any officer of the United States in any such place who has an official seal. Without United States : Before ambassadors, (ministers plenipotentiary, charges d'affaires, or other persons exercising ministerial functions appointed by the United States ; consuls, vice consuls, deputy consuls, commercial agents, vice and dep- uty commercial agents, or consulate agents exercising their functions in the place where the acknowledgment is taken, un- der their official seals ; notaries public under their official seals ; commissioners appointed by the Governor of Pennsylvania, or commissioners in chancery. It seems that, where the ac- knowledgment is before a notary, a consul or vice consul should certify that the notary is a proper officer, and his act in accordance with the laws of the country. 90 FOEM BOOK (Ch. 1 Form The acknowledgment of any married woman shall be taken in same manner and form as though she were feme sole ; and such acknowledgment has the same force and effect as if taken separate and apart from her husband. Pepper & Lewis' Dig. Laws, p. 2741, par. 7. The form of certificate of acknowledgment of individuals, single or married, may be in the following words : Acknowledgment of Individuals (Single or Married) State oif Picnnsyi,vania,"| County of _ . j On this day of , A. D. , before me, , came the above-named , and acknowledged the foregoing deed to be act and deed, and desired the same to be recorded as such. Witness my hand and seal the day and year afore- said. , (Seal.) {Official character.) My commission expires . Laws 1909, No. 53, ,§ 8. A corporation may acknowledge by an attorney appointed by such corporation, and such appointment may be embodied in the deed or other instrument in substantially the following form: Appointment by Corporation of Attorney The (name of corporation) doth hereby constitute and ap- point (name of appointee) to be its attorney for it, and in its name and as and for its corporate act and deed, to acknowl- edge this (name of instrument) before any person having au- thority by the laws of the commonwealth of Pennsylvania to take such acknowledgment, to the intent that the same may be duly recorded. Ibid. p. 2745, par. 15. Ch. 1) ACKNOWLEDGMENTS 91 Acknowledgment of Corporation by Attorney I hereby certify that on this day of , in the year of our L,ord , before me, the subscriber (title of officer taking acknoivledgment), personally appeared {name of attorney), the attorney named in the foregoing {name of in- strument), and by virtue and in pursuance of the authority therein conferred upon him acknowledged the said {name of. instrument) to be the act of the said {corporation's fianie). Witness my hand and seal the day and year aforesaid. Ibid. p. 2745, par. 16. RHODE ISLAND Before Whom Taken Within state: Before any state senator, judge, justice of the peace, mayor, notary public, town clerk, or recorder of ■deeds. Elsewhere within United States: Before any judge or jus- tice of a court of record or other court, justice of peace, mayor, ■or notary public of the state. District of Columbia, or ter- ritory in which the acknowledgment is made, or before any commissioner appointed by the Governor of Rhode Island: Provided that, if the instrument is acknowledged or proved in the manner prescribed by the law of the state, territory, or District of Columbia where executed, it shall be deemed to be legally executed. Without United States : Before any ambassador, minister, ■charge d'affaires, consul general, vice consul general, consul, vice consul, consular agent, or commercial agent of the United States, or before any commissioner appointed by the Governor ■of Rhode Island in the country in which such acknowledg- ment is made. By persons in military or naval service : Within or without the limits of the state, by any person actually engaged in the military or naval service of the United States, before any colonel, lieutenant colonel, or major in the army, or before any officer in the navy not below the grade and rank of lieuten- ant commander. Gen. Laws 1909, c. 253, § 8. 92 FORM BOOK (Ch. 1 Forms Acknowledgment need not be in any set form, but shall be made by all the grantors, including married women, even though releasing dower only, and the certificate thereof shall express the ideas that the grantors respectively making the acknowledgment were each and all known to the magistrate taking the acknowledgment, and known by the magistrate to be the parties executing the instrument, and that they acknowl- edged said instrument to be their free act and deed. No other acknowledgment shall be required of married women. Ibid, c. 253, § 5. Acknowledgment by Husband and Wife State op , County of In , on the day of , A. D. 19 — , before me (name and title) personally appeared and , his wife, both to me known, and known by me to be the par- ties executing the foregoing instrument, and acknowledged the said instrument, by them executed, to be their free act and deed. In witness whereof I have hereunto set my hand and seal the day and year above written. SOUTH CAROLINA Affidavit of Subscribing Witness — Before Whom Tajcen Before any deed or other instrument in writing can be re- corded in the proper office, the execution thereof must be prov- ed by the affidavit in writing of a subscribing witness to such instrument, taken before some officer within the state compe- tent to administer an oath ; or, if taken without the state, before a commissioner or commissioners appointed by dedimus issued by the clerk of the court of common pleas of the coun- ty in which the instrument is to be recorded ; or before a com- missioner of deeds of the state of South Carolina ; or before a clerk of a court of record, who shall certify the same under his official seal ; or before a justice of the peace, who must Ch. 1) ACKNOWLEDGMENTS 9S append to the certificate his official seal; or before a notary public, who shall affix thereto his official seal within the state of his appointment, which seal shall be a sufficient authentica- tion of his signature, residence, and official character; or be- fore a minister, ambassador, consul general, consul, vice con- sul, or consular agent of the United States. Where the af- fidavit of a subscribing witness cannot be had by reason of his death, insanity, or absence from the state, then upon proof of such fact and of the handwriting of the parties who signed the instrument, and of the subscribing witnesses, by proper af- fidavit, the proof in every such case to be recorded with the instrument. Code of Laws 1912, § 1352. Affidavit of Subscribing Witness State of , County of ^ ®^* Personally appeared before me A. B., and made oath that he saw the within-named C. D. sign, seal, and as his act and deed deliver the within-written deed for the uses and pur- poses therein mentioned, and that he, with E. F., in the pres- ence of each other, witnessed the due execution thereof. A. B. Subscribed and sworn to before me this day of Witness my hand and official seal. (Seal.) (Signature and title.) Affidavit of Subscribing Witness in Case of Corporation State oe , County of '' ^^• Personally appeared before me A. B., and made oath that he saw C. D., as president, sign, affix the corporate seal of the within-named Company, and as the act and deed of the said corporation deliver (concluding as in preceding form). 94 FORM BOOK (Ch. 1 Renunciation of Dower When any feme covert shall relinquish her right of dower in any real estate and acknowledge the same in writing, if she be within this state, in open court, or before any judge of the court of common pleas, justice of the Supreme Court, judge of probate, clerk of the court of common pleas, or mas- ter, magistrate, or notary public, or, if she be without this state, before a commissioner of deeds of the state, or before a commissioner duly appointed by dedimus, or before any min- ister, ambassador, consul general, consul, vice consul, deputy consul, consular agent, commercial agent of the United States or any other officer appointed by the United States in foreign countries with the power to administer oaths and having an official seal, or a clerk of a court of record, or before a notary public, who must each append to the certificate the official seal used by him, and such acknowledgment shall be recorded, the same shall be effectual in law to convey and pass away the right of such feme covert, although she has not executed or ac- knowledged any deed of conveyance for that purpose. Ibid. § 3469. The wife of any grantor conveying real estate by deed of release may, whether she be of lawful age or a minor, release, renounce, and bar herself of her dower in all the premibcs so conveyed, by acknowledging, as prescribed in the preceding section, upon a private and separate examination, that she did freely and voluntarily, without any compulsion, dread, or fear of any person whomsoever, renounce and release her dower to the grantee, and his heirs and assigns, in the premises men- tioned. Ibid. § 3470. Certificate of Renunciation of Dower A certificate, under the hand of the woman and the hand and seal of the officer or officers aforesaid, shall be indorsed upon such release, or a separate instrument of writing to the same effect, in the form, or to the purport, hereafter following, and be recorded in the office of register of mesne conveyances in the county where the land lies : Ch. 1) ACKNOWLEDGMENTS 95 Certificate Indorsed on Release State of South Carolina, County. I, F. G. ( judge, magistrate, or other ofUcer, as the case be), do hereby certify unto all whom it may concern that E. B., the wife of the within-named A. B., did this day appear be- fore me, and, upon being privately and separately examined by me, did declare that she does freely, voluntarily, and with- out any compulsion, dread, or fear of any person or persons whomsoever, renounce, release, and forever relinquish, unto the within-named C. D., his heirs and assigns, all her interest and estate, and also all her right and claim of dower, of, in, or to all and singular the premises within mentioned and re- leased. Given under my hand and seal this day of , Anno Domini . {Signed) E. B. (Seal.) F. G. Ibid. § 3471. SOUTH DAKOTA Before Whom Taken Within state: At any place, before a justice or clerk of the Supreme Court or notary public. Civ. Code 1910, § 970. Within the judicial circuit, county, subdivision, or city for which the officer was elected or appointed, before either : A judge or clerk of a court of record: a mayor of a city; a register of deeds; a justice of the peace; a United States cir- cuit or district court commissioner ; or a county auditor. Ibid. § 971. Elsewhere within United States: Within the jurisdiction of the officer, before either: A justice, judge, or clerk of any court of record of the United States; a justice, judge, or clerk of any court of record of any state or territory ; a notary public; any other officer of the state or territory where the acknowledgment is made authorized by its laws to take such 96 FOEM BOOK (Ch. 1 proof or acknowledgment; or a commissioner appointed for the purpose by the Governor of South Dakota. Ibid. § 972. Without United States : Before either : An ambassador, minister, commissioner, or charge d'affaires of the United States resident and accredited in the country where the proof or acknowledgment is made ; a consul, vice consul, or consular agent of the United States resident in the country; a judge, clerk, register, or commissioner of a court of record of the country; a notary public of such country; an officer authoriz- ed by the laws of the country to take proof of acknowledg- ment; or, when any of the officers above mentioned are au- thorized to appoint a deputy, before such deputy. Ibid. § 973. Forms An acknowledgment must not be taken unless the officer taking it knows, or has satisfactory evidence, on the oath or affirmation of a credible witness, that the person making such acknowledgment is the individual who is described in and who executed the instrument, or, if executed by a cor- poration, that the person making such acknowledgment is the president or secretary of such corporation. Ibid. § 974. See, also. Ibid. § 962. Acknowledgment by Individual State; op , 1 L sS. County of .J On this day of , A. D. 19 — , before me (name and title of officer) personally appeared , known to me {or, proved to me on the oath of ) to be the person who is described in and who executed the within and foregoing instrument, and duly acknowledged to me that he executed the same. (Seal.) (Signature and title.) Acknowledgment by Attorney in Fact (Begin as in preceding) personally appeared , known to me (or, proved to me on the oath of ) to be the per- son who is described in and whose name is subscribed to the Ch. 1) ACKNOWLEDGMENTS 97 within instrument as the attorney in fact of , and ac- knowledged to me that he subscribed the name of thereto as principal, and his own name as attorney in fact. (Seal.) {Signature and title.) Acknowlecjgment by Corporation (Begin as in preceding) personally appeared , known to me {or, proved to me on the oath of ) to be the pres- ident {or, the secretary) of the corporation which is described in and which executed the within instrument, and acknowl- edged to me that the said corporation executed the same. {Seal.) {Signature and title.) TENNESSEE In General No deed of conveyance for lands shall be good and available in law, as to strangers, unless the same be acknowledged by the vendor, or proved by two witnesses upon oath, in the man- ner hereinafter prescribed, and registered by the register of the county where the land lies ; and all deeds so done and ex- ecuted shall be valid and pass estates in land, or right to other estate, without livery of seisin, attornment, or other ceremony in the law whatever. Code 1896, § 3671. To authenticate an instrument for registration, its execution shall be acknowledged by the maker, or proved by two subscribing witnesses, at least. Code 1896, § 3712. For other provisions as to conveyances, post, p. 621. Acknowledgments — Before Whom Within state : Before the clerk or deputy clerk of the coun- ty court of some county in the state, or a notary public. Code 1896, §§ 3713, 3714. Elsewhere within Union: Before (1) Any court of record, or the clerk thereof in any state ; (2) a commissioner for Ten- nessee appointed by the Governor in any state or territory ; or (3) a notary public of such state or territory. Ibid. § 3715. Without Union : Before (1) A commissioner for Tennessee TtFF.FOKMS 7 98 FORM BOOK (Ch. 1 appointed in the country where the acknowledgment is made ; (2) a notary pubHc of such country ; or (3) a consul, minister, or ambassador of the United States in the country where the acknowledgment is made. Ibid. § 3716. Any deed, or other instrument which requires registration, executed in a foreign country by any officer or soldier in the regular army, or in any volunteer corps, or by any other person in the service of the United States, or by a married woman accompanying her husband in such service, may be acknowledged by the grantor or proved by two subscribing witnesses, or privy examination be taken before the colonel, lieutenant colonel, major, or com- manding officer of the regiment to which such officer or soldier belongs. Ibid. § 3747. Forms If the acknowled^ent be made before a clerk or deputy clerk of the county court of Tennessee, he shall write upon or annex to the instrument the following certificate : Acknowledgment before Clerk of County Court State op Tennussbe, 1 County. J Personally appeared before me, clerk (or, deputy clerk) of the county court of said county, the within-named bargainor, with whom I am personally acquainted, and who acknowledged that he executed the within instrument for the purposes there- in contained. Witness my hand, at office, this day of , 19-. Ibid. § 3717. If the acknowledgment be before a notary, commissioner of the state, a consul, minister, or amba.'isador, he shall make the certificate under his seal of office. Ibid. § 3718. If it be made before a judge, he shall make the certificate under his hand, and the clerk of his court shall certify, under his seal of office, if there be a seal, or, if there be none, under his pri- vate seal, as to the official character of the judge; or the official character of the judge may be certified by the Governor of the Ch. 1) ACKNOWLEDGMENTS 9'J state or territory, under the great seal thereof. Ibid. § 3719. If it be made before a court of record, a copy of the entry of the acknowledgment on the record shall be certified by the clerk, under his seal of office, if there be a seal, or, if there be none, under his private seal; and the judge, chief justice, or presiding magistrate of the court shall certify as to the official character of the clerk. Ibid. § 3720. If the acknowledgment or probate be before a clerk of a court of record of another state of the Union, and certified by him under his seal of office, the judge, chief justice, or presiding magistrate of the court shall certify to the official character of the clerk. Ibid. § 3721. The officer or court before whom the execution of a deed or instrument by husband and wife is acknowledged or proved shall examine the wife privily and apart from her husband touching her voluntary execution of the same knd her knowl- edge of its contents and effect; and, if she acknowledges or states that she executed the same freely and voluntarily, and without any compulsion on the part of her husband, and the clerk or other officer is satisfied that she fully understands the same, he shall, in addition to the certificate of probate or ac- knowledgment, also put on the back of the deed, or annex to it, a certificate such as is embodied in the following form (Ibid. § 3753) : Acknowledgment by Husband and Wife State of County } Personally appeared before me (name and title of oMcer), in and for , duly commissioned and qualified, the with- in-named and , his wife, the bargainors, with whom I am personally acquainted, and who acknowledged that they executed the within instrument for the purposes therein contained. And , wife of the said , having appeared be- fore me privately and apart from her husband, the said {husband's itame), acknowledged the execution of the said deed to have been done by her freely, voluntarily, and under- 100 FORM BOOK (Ch. 1 Standingly, without compulsion or constraint from her said husband, and for the purposes therein expressed. Witness my hand and official seal at this day of , 19 — . (Seal.) (Signature and title.) Ibid. § 3753. The authentication or acknowledgment of a deed by a cor- poration, whether it has a seal or not, is sufficient, when in sub- stantially the following form : Acknowledgment by Corporation State oj? , County of '' Before me, , of the state and county aforesaid, person- ally appeared , with whom I am personally acquainted, and who, upon oath, acknowledged himself to be president (or other officer authorized to execute the instrument) of the , the within-named bargainor, a corporation, and that he, as such , being authorized so to do, executed the foregoing instrument for the purpose therein contained, by signing the name of the corporation by himself as . Witness my hand and seal, at office in , this day of . Code Supp. 1903, p. 642; Laws 1899, c. 187. Proof by Subscribing Witnesses State oe , | Covmty. I ^®' Personally appeared before- me (name and title of officer), in and for , duly commissioned and qualified, and ^ , subscribing witnesses to the within deed, who, being first sworn, deposed and said that they are acquainted with , the bargainor (or as the case may be), and that Ch. 1) ACKNOWLEDGMENTS lOl he acknowledged the same, in their presence, to be his act and deed upon the day it bears date (or stating the time as proved by the witnesses). Witness my hand and seal of office this day of , 19—. Ibid. TEXAS Before Whom Taken The acknowledgment or proof of an instrument of writing for record may be made within this state before either : Within state : A clerk of the district court ; a judge or clerk of the county court; a notary public. Rev. Civ. St. 1911, art. 6797. Elsewhere within United States: Before either: A clerk of some court of record having a seal ; a commissioner of deeds appointed under the laws of Texas; a notary public. Ibid. art. 6798. Without the United States : Before either : A minister, commissioner, or charge d'affaires of the United States, res- ident and accredited in the country where the proof or ac- knowledgment is made; a consul general, consul, vice consul, commercial agent, vice commercial agent, deputy consul, or consular agent of the United States resident in the country where the proof or acknowledgment is made ; a notary public. Ibid. art. 6799. Forms No acknowledgment shall be taken unless the ofificer taking it knows or has satisfactory evidence on the oath or affirmation of a credible witness, which shall be noted in his certificate, that the person making such acknowledgment is the individual who executed and is described in the instrument. Ibid. art. 6801. No acknowledgment of a married woman shall be taken un- less she has had the instrument shown to her, and then and there fully explg.ined by the officer taking the acknowledgment, on an examination privily and apart from her husband; nor shall he certify to the same unless she thereupon acknowledges to such officer that the same is her act and deed, that she has willingly signed the same, and that she wishes not to retract it. Ibid. art. 6802 ; post, p. 103. 102 FORM BOOK (Ch. 1 The officer must place on the instrument the official certifi- cate, signed by him and under his seal of office. Ibid. art. 6803. The forms of certificate of aclmowledgment must be sub- stantially as given below : The proof of any instrument for the purpose of record shall be by one or more of the subscribing witnesses personally ap- pearing before some officer authorized to take such proof, and stating on oath that he or they saw the grantor or person who executed such instrument subscribe the same, or that the gran- tor or person who executed such instrument of writing ac- knowledged in his or their presence that he had executed the same for the purposes and consideration therein stated, and that he or they had signed the same as witnesses at the re- quest of the grantor or person \Yho executed such instrument ; and the officer taking such proof shall make a certificate there- of, sign, and seal the same with his official seal. Ibid. art. 6806; post, p. 103. The certificate must be substantially as given below : Ordinary Acknowledgment State op , County of Before me, {here insert the name and character of the officer), on this day personally appeared , known to me (or, proved to me on the oath of ) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the pur- poses and consideration therein expressed. Given under my hand and seal of office this day of , A. D. . (Seal.) . Ibid. art. 6804. Ch. 1) ACKNOWLEDGMENTS 103 Acknowledgment by a Married Woman Stats op , County of — Before^ me,'— ^ (here insert the name and character of the officer), on this day personally appeared , wife of , known to me {or, proved to me on the oath of ) to be the person whose name is subscribed to the foregoing instrument, and, having been examined by me privily and apart from her husband, and having the same fully explained to her, she, the said , acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same for the purposes and consideration therein expressed, and that she did not wish to retract it. Given under my hand and seal of office this day of , A. D. . {Seal) . Ibid. art. 6805. Certificate of Proof by Witness State of , County of .} Before me, {here insert the name and character of the officer), on this day personally appeared , known to me {or, proved to me on the oath of ) to be the person whose name is subscribed as a witness to the foregoing in- strument of writing, and, after being duly sworn by me, stated on oath that he saw , the grantor or person who exe- cuted the foregoing instrument, subscribe the same {or, that the grantor or person who executed such instrument of writ- ing acknowledged in his presence that he had executed the same for the purposes and consideration therein expressed), 104 FORM BOOK (Ch. 1 and that he had signed the same as a witness at the request of the grantor (or person who executed the same). Given under my hand and seal of office this day of , A. D. . (Seal.) . Ibid. art. 6808. UTAH Before Whom Taken The proof or acknowledgment of every conveyance whereby any real estate is conveyed or may be effected shall be taken by some one of the following officers : Within state: Before a judge or clerk of a court having a seal, or notary public, county clerk, or county recorder. Elsewhere within United States : Before a judge or clerk of any court of the United States or of any state or territory having a seal, a notary public, or a commissioner appointed by the Governor of Utah. Without United States: Before a judge or clerk of any court of any state, kingdom, or empire having a seal, notary public therein, or ambassador, minister, commissioner, or con- sul of the United States appointed to reside therein. Comp. Laws 1907, § 1985. When any of the officers above mentioned are authorized by law to appoint a deputy, acknowledgment or proof may be taken by any such deputy in the name of his principal. Ibid. § 1986. Forms The certificate shall be indorsed or annexed to the con- veyance, and shall be: When granted by judge or clerk, un- der the hand of such judge or clerk and the seal of the court ; when granted by any other officer, under the hand and official seal of such officer. Ibid. § 1987. Notaries public in the state must affix the date on which their commissions expire. Ibid. § 1672. No acknowledgment shall be taken unless the person of- fering to make such acknowledgment is personally known to the officer to be the person whose name is subscribed to such conveyance as a party thereto, or shall be proved to be such Ch. 1) ACKNOWLEDGMENTS 105 by the oath or affirmation of a credible witness personally known to the officer. Ibid. § 1988. Certificates of acknowledgment must be in substantially the following forms : Acknowledgment by Individual State op , ' County of ss. On the day of , A. D. 19 — , personally ap- peared before me A. B., the signer of the above instrurnent, who duly acknowledged to me that he executed the same. Acknowledgment by Corporation State of Utah, County of On the day of , A. D. 19 — , personally ap- peared before me A. B., who, being by me duly sworn {or, affirmed), did say that he is the president {or other officer or agent, as the case may be) of {naming the corporation), and that said instrument was signed in behalf of said corporation by authority of its by-laws {or, by resolution of its board of directors, as the case may he), and said A. B. acknowledged to me that said corporation executed the same. Ibid. § 1989, Acknowledgment Where Grantor Unknown to Officer State oe County of ss. On this day of , A. D. 19 — , personally ap- peared before me A. B., satisfactorily proved to me to be the signer of the above instrument by the oath of C. D., a compe- tent and credible witness for that purpose, by me duly sworn, and he, the said A. B., acknowledged that he executed the same. Ibid. § 1990. 106 FORM BOOK (Ch. 1 Certificate of Proof by Subscribing Witness State; of , County of : '' ^ ' On this day of , A. D. 19—, before me person- ally appeared A. B., personally known to me (or, satisfactorily proved to me by the oath of C. D., a competent and credible witness for that purpose, by me duly sworn) to be the same per- son whose name is subscribed to the above instrument as a wit- ness thereto, who, being by me duly sworn, deposes and says that he resides in , county of , and state of Utah ; that he was present and saw E. F., personally known to him to be the signer of the above instrument as a party hereto, sign and deliver the same, and heard him acknowledge that he ex- ecuted the same ; and that he, the deponent, thereupon signed his name as a subscribing witness thereto, at the request of the said E. F. Ibid. § 1990. VERMONT Before Whom Taken Within state: Before a justice, town clerk, notary public, master in chancery, county clerk, or judge or register of pro- bate. Such acknowledgment before a notary is valid without his official seal. Pub. St. 1906, § 2577. Without state: Deeds and other conveyances and powers of attorney for the conveyance of lands, the acknowledgment or proof of which is taken without the state, if certified agree- ably to the laws of the state, province, or kingdom in which such acknowledgment or proof is taken, shall be as valid as though the same were taken before" a proper officer or court in this state; and the proof of the same may be taken, and the same acknowledged with like effect, before a justice, mag- istrate, or notary public within the United States or in a for- eign country, before a commissioner appointed for that purpose by the Governor of this state, or before a minister, charge Ch. 1) ACKNOWLEDGMENTS 107 d'affaires, consul, or vice consul of the United States in a for- eign country. Ibid. § 2598. Forms None are prescribed. Acknowledgment by Husband and Wife State of , ] County of . j ^^' At this day of , A. D. 19 — , personally appeared and , his wife, and acknowledged the foregoing instrument by them sealed and subscribed to be their free act and deed. Before me (Signature and title.) Acknowledgment by Corporation State of , County of ss. At this day of , A. D. 19 — , personal- ly appeared , who has executed the foregoing instru- ment as the duly authorized agent of (name of corporation), and acknowledged the same to be the free act and deed of said corporation, and that he, as such agent, freely executed the same. Before me (Signature and title.) VIRGINIA Before Whom Taken The circuit court of any county or the corporation court of any city (other than of Richmond) in which any writing is to be or may be recorded, and the chancery court of the city of Rich- mond when any such writing is to be or may be recorded in said city, or the clerk of any such court, or his deputy, in his of- fice, shall admit to record any such writing as to any person 108 FORM BOOK (Ch. 1 whose name is signed thereto, when it shall have been acknowl- edged by him or proved by two witnesses as to him in such court, or before such clerk, or his deputy, in his office. Code 1904, § 2500. Such court or clerk shall also admit any such writing to record as to any person whose name is signed there- to upon a certificate of his acknowledgment before the said clerk, or before the clerk of any court of record in the state, or before the clerk of any court without the state, but within the United States, or before a justice, a commissioner in chancery of a court of record, or a notary within the United States, or in the Philippine Islands, Porto Rico, or in any territory or other possession or dependency of the United States, written on or annexed to the same, or upon the certificate of acknowl- edgment of such person before any commissioner appointed by the Governor, within the United States, so written or an- nexed, or upon the certificate of the clerk of any court of rec- ord in the state, or the clerk of any court out of the state and within the United States, or his deputy, that the said writing was proved as to him by two witnesses before such clerk or before the court of which he is clerk, or upon the cer- tificate, under the official seal of any ambassador, minister plenipotentiary, minister resident, charge d'affaires, consul gen- eral, consul, vice consul, or commercial agent appointed by the government of the United States to any foreign country, or of the proper officer of any court of such country, or of the mayor or other chief magistrate of any city, town, or corporation therein, that the said writing was acknowledged by such person or proved as to him by two witnesses before any person hav- ing such appointment, or before such court, mayor, or chief magistrate. Ibid. § 2501. Forms The following forms of certificate, entitled, respectively, "Ac- knowledgment" and "Acknowledgment Before Commission- er," are prescribed. In the case of a writing signed in behalf of or by authority of any person or corporation, or in any rep- resentative capacity, a certificate in the form so entitled shall be sufficient. Ibid. § 2501. When an instrument is acknowl- edged before a notary within the state, the certificate must state the date of expiration of his term of office. Ibid. § 2501. Ch. 1) ACKNOWLEDGMENTS 109 Acknowledgment County {or, corporation) of , to wit : I , clerk ■{or, deputy clerk) of court {or, a justice of the peace, or, commissioner in chancery of the court, or, notary public), for the county {or, corporation) aforesaid, in the state {or territory or district) of , do certify that E. F. {or, E. F. and G. H., and so forth), whose name {or, names) is {or, are) signed to the writing above {or, hereto annexed), bearing date on the day of , has {or, have) acknowledged the same before me, in my county {or, corporation) aforesaid. Given under my hand this day of . Acknowledgment Before Commissioner State {or, territory or district) of , to wit : I, , a commissioner appointed by the Governor of the state of Vir- ginia for the said state {or, territory or district) of , cer- tify that E. F. {or, E. F. and G. H., and so forth), whose name {or, names) is {or, are) signed to the writing above {or, hereto annexed), bearing date on the day of , has {or, have) acknowledged the same before me in my state {or, terri- tory or district) aforesaid. Given under my hand this •day of . Acknowledgment in Behalf of Corporation or in Repre- sentative Capacity State {or, territory or district) of , county {or, corpo- ration) of , to wit : I, , a {here insert the official title of the person certifying the acknoidedgment), in and for the state {or, territory or district) and county {or, cor- poration) aforesaid, do certify that {here insert the name or names of the persons signing the writing on behalf of 1 10 FOBM BOOK (Ch. 1 the person or corporation, or the name of the person signing the writing in a representative capacity), whose name {or, names) is (or, are) signed to the writing above, bearing date on the da)' of , has (oTj have) acknowledged the same before me in my county (or, corporation) aforesaid. Giv- en under my hand this day of . WASHINGTON Before Whom Taken Within state : Before a judge of the Supreme Court or of the superior court, a clerk of either court, or his deputy, a justice of the peace, a county auditor or his deputy, or a notary pubHc. Rem. & Bal. Ann. Codes & St. § 8754. Elsewhere within United States : Before any person au- thorized to taloint- ment, or before such court, mayor, or chief magistrate. If the acknowledgment be before a notary without the state, he shall certify the same under his official seal. Ibid. § 3076. A notary shall state the date of expiration of his commis- sion. When a husband and wife have signed a writing purporting: to convey real estate, the wife may acknowledge the same to- gether with, or separately from, her husband. If both ac- knowledge said writing at the same time, the certificate of such acknowledgments shall be in form or effect as follows : Acknowledgment by Married Women State (territory or district) of , county of , to- wit : I, , a commissioner appointed by the Governor of the state of West Virginia for the said state of {or, ter- ritory or district of ) {or, I, , a justice of the peace of the said county of ; or, I, , a notary of the said county of ; or, I, , prothonotary or cleric of the court or county of ; or other oMcer or person authorized to take acknowledgments, as the case may be), *do certify that and , his wife, whose names are signed to the writing above {or, hereto annexed), bearing. TiFF.FOEMS — 8 1 14 FORM BOOK (Ch. 1 date the day of , 19 — , have this day acknowl- edged the same before me in my said . Given under my hand this day of , 19 — . If the wife acknowledge a deed or other writing separately from her husband, the certificate of her acknowledgment after the star in the foregoing form shall be in form or effect as fol- lows: do certify that , the wife of , whose names are signed to the writing above {or, hereto annexed), bearing date the day of , 19 — , has this day acknowledged the same before me in my said . Given under my hand this day of , 19 — . If the acknowledgment be before a notary without this state, he shall certify the same under his official seal. Ibid. § 3077. When the acknowledgment of a married woman has been so taken and certified, such writing shall operate to convey from the wife her right of dower in the real estate embraced there- in, and pass from her and her representatives all right, title, and interest of every nature which, at the date of such writ- ing, she may have in real estate conveyed thereby, as effectually as if she were at said date an unmarried woman; and such writing shall not operate any further upon the wife or her representative by means of any covenant or warranty therein contained. If the deed be executed by a married woman, who at the time of its execution and acknowledgment is living separate, and apart from her husband, or her husband be non compos mentis, and such deed be for real estate which is her sole and separate property, such facts shall be recited in the deed, and if her husband has not joined therein, no person authorized to take such acknowledgment shall take and certify the same until it is proved to his satisfaction that such real estate is the sole and separate property of such married woman, and that she was and is living separate and apart from her husband, or that her husband is non compos mentis at the date of such deed, and the acknowledgment thereof ; and it shall be stated in the certificate of such acknowledgment that all of said facts were shown to the satisfaction of the person taking the same. The certificate as to such facts shall be included in the Ch. 1) ACKNOWLEDGMENTS 115 certificate of her acknowledgment, and may be in form or ef- fect as follows : And I further certify that before taking said acknowledg- ment it was proved to my satisfaction that the real estate in said writing mentioned was the sole and separate property of said , and that she was at the date of said writing, and now is, living separate and apart from her husband (or, that her husband is non compos mentis). Such certificate shall, in all cases where the validity of any such deed comes in question, be prima facie evidence of the facts therein stated. Ibid. § 3079. Acknowledgment by Corporation or Joint-Stock Association The certificate of acknowledgment of a corporation or joint- stock association may be in form or effect as prescribed in the next preceding section down to the star, and then as follows : do certify that personally appeared before me in my said , and, being by me duly sworn (or affirmed), did depose and say that he is the president (or other officer or agent) of the corporation (or, association) described in the writ- ing above (or, hereto annexed), bearing date the day of , 19 — , authorized by said corporation (or, association) to execute and acknowledge deeds and other writings of said corporation (or, association), and that the seal affixed to said writing is the corporate seal of said corporation (or the seal of the said association, as the case may be), and that said writ- ing was signed and sealed by him in behalf of said corporation (or, association), by its authority duly given. And the said acknowledged the said writing to be the act and deed of said corporation (or, association.) Or, if the corporation has no corporate seal, or the associa- tion has no seal, omit the words "seal affixed to said writing is the corporate seal of said corporation (or, the seal of said association, as the case may he)," and say "said corporation 116 FORM BOOK (Ch. 1 '{or, association) has no seal." And in such case omit the word "sealed" after the words "signed and," and insert in lieu of it the word "executed." Ibid. § 3078. WISCONSIN Before Whom Taken Within state: Before any judge or clerk of a court of rec- ord, court commissioner, county clerk, notary public, justice of the peace, police justice, or United States court commis- sioner who has filed his certificate of appointment with the clerk of the circuit court of the county in which he resides. The officer taking an acknowledgment shall attach his cer- tificate thereof with the date of making the same, under his hand and his official seal, if he has one. Wis. St. 1911, § 2216. Elsewhere within United States : Before any judge or clerk ■of a court of record, notary public, justice of the peace, mas- ter in chancery, or other officer authorized by the laws of the state, territory, or district to take acknowledgments of deeds therein, or before any commissioner appointed by the Governor ■of Wisconsin; and, if executed within the jurisdiction of any military post of the United States, before the commanding of- ficer thereof. Conveyances may be executed and acknowledged in the same manner as if within Wisconsin, or according to the laws of the state, territory, or district. Ibid. § 2218. Un- less the acknowledgment be taken before a commissioner ap- pointed by the Governor, a clerk of a court of record with its seal attached, a notary public with his seal attached, or the commanding officer O'f a military post, the conveyance shall have attached thereto a certificate of the clerk or other proper certifying officer of a court of record of the county or dis- trict within which the acknowledgment was taken, under the seal of his office, that the person whose name is subscribed to the certificate of acknowledgment was at the date thereof such officer as he is therein represented to be, and that he believes the signature of such person subscribed thereto to be genuine, and, if executed and acknowledged according to the laws of such state, territory, or district, the certificate shall state that fact, and, if the acknowledgment is taken before any such commissioner, clerk of a court of record, notary public, or commanding officer of a military post, the certificate may ■certify that fact in lieu of other proof thereof. Ibid. § 2219. In foreign country: Before any notary public or other of- ■Ch. 1) ACKNOWLEDGMENTS 117 ficer authorized by the laws of such country to take the ac- knowledgment of deeds therein, or before any minister plen- ipotentiary, minister extraordinary, minister resident, charge d'affaires, commissioner, or consul of the United States, ap- pointed to reside therein. Conveyances may be executed and acknowledged in the same manner as if within Wisconsin, or according to the laws of such country. The acknowledgment shall be certified by the officer taking the same under his hand, and, if taken before a notary public his seal of office shall be affixed, and, if the conveyance is executed and ac- knowledged according to the laws of such country, the cer- tificate of acknowledgment shall certify that fact. Ibid. § 2220. Porm T.he acknowledgment of a married woman may be in the same manner as if she were sole. Ibid. §§ 2221, 2224. A cer- tificate substantially in the following form is sufficient: Acknowledgment State of Wisconsin, Countv. ss. Personally came before me this day of ■ , 19 — , the above (or, within) named A. B. and C. B., his wife (or, if an officer, adding the name of his office), to me known to be the persons who executed the foregoing (or, within) instrument, and acknowledged the same. (Insert designation of officer.) Ibid. § 2217. WYOMING Before Whom Taken Within state : Before any judge or clerk of a court of rec- ord, United States commissioner, county clerk, justice of the peace, or notary public. The officer taking such acknowledg- ment shall indorse thereon a certificate of the acknowledgment thereof, and the true date of making the same, under his hand and seal of office, if there be one. Comp. St. 1910, § 3638. Without state : Before any officer authorized by law to take 118 FORM BOOK (Ch. 1 acknowledgments at the place where such acknowledgment is taken. If the officer has no seal, his certificate shall have at- tached thereto the certificate of the clerk of a court of record, or a county clerk, of the same place, having a seal, certifying that the officer talcing the acknowledgment is authorized to take the same, and that he believes that the signature appended to the acknowledgment is genuine. Ibid. § 3636. A conveyance executed in any other state, territory, district, or country may be acknowledged before a clerk of a court of record, county clerk, or a commissioner appointed by the Governor of Wy- oming. Ibid. § 3637. In foreign country : Before a consul general, consul, or vice consul of the United States. The officer shall certify over his hand and official seal or the seal of the consulate to which he is attached, if there be such seal ; and, if he has no official seal, and there be no seal of his consulate, that fact shall be stated in the certificate, and no other authentication shall be required. Ibid. § 3638. Forms A notary public, justice of the peace, or commissioner of deeds for Wyoming shall add to his certificate the date on which his commission or term of office expires. Ibid. § 3645. As to the acknowledgments where a wife releases the right of homestead, post, p. 641. A certificate substantially in the following form is suffi- cient (Ibid. § 3644) : Acknowledgment StaTB of (name the state), } County of (name the county), j ^^' I (here give the name of the ofUcer and his official title) do hereby certify that (name of the grantor, and, if acknowledged by a wife, her name, and add "his wife"), personally known to me to be the same person whose name is (or, are) subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he (she or they) signed, sealed, and delivered said instrument as his (her or their) free and voluntary act, for the uses and purposes therein set forth (with ■Ch. 1) ACKNOWLEDGMENTS 119 the following addition where the right of homestead is re- leased, including the release and waiver of the right of home- stead). Given under my hand and seal this {day of the month) day of {month), A. D. {year). Ibid. § 3644. Acknowledgment Where Wife Joins in Conveyance of Homestead (Follow the preceding form, inserting after "waiver of the right of homestead" the following:) And I further certify that , wife of the said , was by me first separately examined in reference to the signing and acknowledging such instrument, and by me fully apprised -of her right and the effect of signing and acknowledging the same, and that she, separate and apart from her said husband, did freely and voluntarily sign and acknowledge the same for the uses and purposes therein set forth, and expressly released -and waived all her right of homestead. 120 FORM BOOK (Ch. 2 CHAPTER II AGREEMENTS The term "agreement" is here used, somewhat informally and for convenience, to designate a contract which consists of the mutual promises of the parties ; the promises of the one party being the consideration for the promises of the other. Such contracts, resting merely in agreement and being based upon consideration, need not be in any prescribed form, nor need they, indeed, be in writing, or even evidenced by writ- ing, unless a writing is required by statute, as in the case of contracts falling within certain provisions of the statute of frauds. They are distinguished from contracts under seal, usually called deeds or specialties, which derive their validity at common law from their form alone, and not from the pres- ence of consideration. Agreements are usually signed in duplicate, each party re- taining one of the duplicates. It is not necessary, or usually desirable, to have the signatures attested by witnesses. If there is consideration for the respective promises, seals are su- perfluous, although if a corporation is a party it is better to have the corporate seal. Acknowledgment by the parties is, of course, unnecessary, but may be convenient as facilitating proof of execution. (See Acknowledgments, p. 1.) Forms of agreements appropriate to common subjects of contract are elsewjiere given. Page 1. Forms of commencement 121 2. Forms of testimonium clause 122 For forms of agreements appropriate to particular subjects of con- tract, see — Apprenticeship, p. 130. Arbitration Agreements, p. 138. Building Agreements, p. 261. Composition Agreements, p. 209. Easements, p. 648. Guaranties, p. 687. Hire of Goods, p. 695. Husband and Wife, p. 703. Indemnities, p. 720. Landlord and Tenant, p. 726. Novation, p. 1007. ■Ch. 2) AGREEMENTS 121 Party Walls, p. 1063. Partnership, p. 1011. Patents and Inventions, p. 1074. Pledges and Collateral Securities, p. 1118. PubUshmg Agreements, p. 458 et seq. Sale and Purchase of Land, p. 1167. Sale of Goods, p. 1191. Service and Agency Contracts, p. 1206. Ships and Vessels, p. 1225. Stock and Stockholders, p. 1257. 1. Forms of Commencement This agreement, made this day of , between , of , party of the first part, and , of , party of the second part, Witnesseth, etc. This agreement is made the day of , between , of the one part, and , of the other part. Whereas, etc. Now, it is hereby agreed as follows, etc. This agreement made the day of , between — - — , hereinafter called the vendor {or, the owner, the lessor, etc), of the one part, and , hereinafter called the purchaser {or, the contractor, the lessee, etc.), of the other part. Whereby it is agreed as follows, etc. This agreement made this day of , between and , partners under the firm name and style of & Co. {or, carrying on business in copartnership under the style of & Co.), parties of the first part, and the Company, a corporation organized and existing un- der the laws of the state of {or, a corporation of the state of) , party of the second part, Witnesseth as follows, etc. 122 FORM BOOK (Ch. 2 Agreement made the day of between . of the one part, and , of the other part : The said agrees, ^tc. The said agrees, etc. It is hereby mutually agreed by A. B. and C. D. as follows : A. B. shall, etc. C. D. shall, etc. 2. Forms of Testimonium Clause In witness whereof the said parties (or, the parties to these presents) have hereunto set their hands the day and year first above written. In witness whereof the said parties have hereunto, and to a duplicate hereof of like tenor and effect, set their hands the day and year first above written. Witness the hands of the said parties this day of In witness whereof the said Company, party of the first part, has caused its corporate name to be hereunto sub- scribed by its president, and its corporate seal to be hereunto affixed by its secretary, and the said party of the second part has hereunto set his hand, all on the day and year first above written. In witness whereof the parties hereto have caused their respective corporate signatures and seals to be hereunto affix- ed, all being done in the city of and state of , on the day and year first above written. Ch. 3) APPOINTMENTS OIT PROPERTY UNDER POWERS 123 CHAPTER III APPOINTMENTS OF PROPERTY UNDER POWERS Powers of appointment, although less common in this coun- try than in England, are created not infrequently by wills, and sometimes by deeds of trust and settlement. A power is general where the donee of the power is at liberty to appoint whom he pleases, and special where the donee is restricted to appointment to or among particular persons or objects. A power may be to appoint by deed, or by. will, or by deed or will. (For appointment by will, see p. 1345, post.) In general, all the circumstances and formalities required by the donor to attend the execution of the instrument must be duly complied with. It is not essential to recite the pow- er, if the intention to execute it appears ; but in order to show an intention to execute a power by deed, or a special power by will, the instrument must refer either to the power or to the property subject to the power, or it must afifect to deal with some property in general terms under such circumstances that it cannot have effect except upon the property comprised in the power. Estates and interests arising by virtue of the execution of a power take effect in the same manner as if created by the instrument which contained the power, but, as a rule, from the time of its execution. If, however, the power is special, or, according to the rule very generally prevailing, if the power, although general, is to appoint by will, the rule against per- petuities is to be applied as of the time of the creation of the power, and not as of the time of the execution — a point which must not be overlooked. In some states the common law relating to the creation and validity of trusts and powers has been changed, and trusts and powers are regulated by statute. Pago 1. Appointment of part of settled real estate to son, subject to life estate of appointor 124 2. Appointment of a portion to one of three children to be paid immediately out of real estate under power in marriage settlement 125 124 FOEM BOOK (Ch. S Page 3. Appointment of a reversionary life estate in personalty to an intended wife 126 4. Appointment to children of a trust fund under power in a will 127 5. Reservation of power to revoke and appoint anew, to be In- serted in an appointment 128 6. Revocation of former appointment and new appointment. . . 128 1. Appointment of Part of Settled Real Estate to Son, Sub- ject to Life Estate of Appointor To all to whom these presents shall come, A. B., of , sends greeting: [RejciTai, op power undUr marriage; settlbmbnt.] Whereas, by an indenture dated the day of , and made between the said A. B., of the first part, B. B., of the second part, and W. X. and Y. Z., of the- third part, being a settlement made in contemplation of a marriage then intended and shortly afterwards solemnized between the said A. B. and B. B., certain lands and tenements, to wit (description), were conveyed unto the said W. X. and Y. Z. to the use of the said A. B. for life, with remainder to the use of the said B. B. for life, and after the decease of the survivor of the said A. B. and B. B. to the use of all or such one or more of the children of the said A. B. and B. B. for such estate or estates and in such parts, shares, and proportions as the said A. B. and B. B. at any time during their joint lives by ;.ny deeds revocable or irrevocable or by will should appoint, and in de- fault of such appointment, and in so far as such appointment should not extend, to the use of all or such one or more of the children as aforesaid for such estate or estates and in such parts, shares, and proportions as the survivor of the said A. B. and B. B. by deed or deeds revocable or irrevocable or by will should appoint, and in default of such appointment to such uses and upon such trusts and in the said recited indenture are expressed concerning the same ; Ch. 3) APPOINTMENTS OF PROPERTY UNDER POWERS 125- [RuciTAi, OF DESIRE To EXERCISE POWER.] And whereas, the said B. B. died on the day of , and the said A. B. is desirous of exercising the power of appointment so reserved to the survivor of them as aforesaid in favor of C. B., his eldest son, as to the lands and tenements hereinafter particularly described, being part of the lands and heredita- ments comprised in the said recited indenture, but subject to the life estate therein of the said A. B. [Appointment.] Now, these presents witness that, in ex- ercise of the power vested in the said A. B. by the said re- cited indenture and of all other powers whatsoever enabling him in this behalf, the said A. B. hereby irrevocably limits and appoints that all those parcels, situate (description), shall henceforth go to and remain to the use of the said C. B., his heirs and assigns forever, subject and without prejudice to the estate for life of the said A. B. in the premises hereby ap- pointed. In witness whereof the said A. B. has hereunto set his hand and seal this day of . 2. Appointment of a Portion to One of Three Children to be Paid Immediately out of Real Estate under Power in Marriage Settlement To all to whom these presents shall come, A. B., of , sends greeting: [Recital oe settlement.] Whereas, by an indenture dated the day of , and made between the said A. B., of the one part, B. B., of the second part, and W. X. and Y. Z., of the third part, being a settlement made on the then intended marriage of the said A. B. and B. B., shortly afterwards solemnized, the said A. B. thereby conveyed cer- tain lands and hereditaments to the said W. X. and Y. Z. upon <^he trusts therein mentioned, subject nevertheless to the pow- 126 FORM BOOK (Ch. 3 er therein reserved to the said A. B. of appointing any sum or sums not exceeding a total of dollars for the portions of all or any one or more of the children of the said A. B. and B. B. 'in such shares and in such manner as the said A. B. should appoint, such portions to be raised and payable out of the said lands and hereditaments as therein mentioned; [ReciTai, of issue.] And whereas, there are issue of the said marriage three children, namely, C. B., D. B., and E. B. ; [Recitai, oE desire to appoint.] And whereas the said A. B. is desirous of appointing the sum of dollars, part of the said sum of dollars, in favor of the said C. B. [Appointment.] Now, these presents witness that, in the exercise of the power vested in him by the said recited in- denture and of every other power enabling him in this behalf, the said A. B. hereby appoints the sum of dollars, part of the said sum of dollars provided for the portions of the children of the said A. B. and B. B. as aforesaid, with interest for the same at the rate of six per cent, per annum from the date of these presents, unto the said C. B. and her assigns. And further directs and appoints that the same shall be- come vested in and be paid to the said C. B. or her assigns immediately upon the execution of these presents. In witness, etc. 3. Appointment of a Reversionary Life Estate in Person- alty to an Intended Wife Know all men by these presents that I, A. B., of , in the exercise of the power in this behalf conferred on me by the will, dated the day of , of C. D., deceased, and of every other power me hereunto enabling, hereby ap- point that, in case an intended marriage between me and E. F., Ch. 3) APPOINTMENTS OF PKOPEKTY UNDER POWERS 127 of , shall take effect, the trustees or trustee of the said will shall after my death pay the income of the trust estate therein comprised to the said E. F., if she shall survive me, during her life. In witness, etc. 4. Appointment to Children of a Trust Fund under Power in a Will To all to whom these presents shall come, I, A. B., of -, send greeting: [RECITAL OF POWER.] Whereas, C. D., late of , in the county of , and state of , by his will, dated the day of , devised and bequeathed the residue of his estate unto" certain trustees therein named upon trust to invest the same and to pay the income thereof unto me dur- ing my life, and thereafter to divide the same and the property and securities in which the same should be invested among all or any of my children in such shares and in such manner as I should by deed or will appoint, and in default of such ap- pointment upon the other trusts therein declared; [RecitaIv of PROOF OF WILL.] And whereas, the said tes- tator died on the day of without having re- voked or altered his said will, which was duly proved and ad- mitted to probate in and by the probate court of said county of on the day of ; [Recital of children.] And whereas, I have two chil- dren, namely, a daughter, B. B., and a son, C. B. [Appointment.] Now, these presents witness that I, the said A. B., in exercise of the power vested in me by the said recited will and of every power me hereunto enabling irrevo- cably direct and appoint that from and after my decease the said property and securities and all other the residuary estate of the said testator, and all the stocks, bonds, securities, and 128 FOEM BOOK (Ch. 3 other property upon which the same shall be invested, shall be equally divided among the said B. B. and C. B., share and share alike. In witness, etc. 5. Reservation of Power to Revoke and Appoint Anew, to be Inserted in an Appointment Provided, nevertheless, that it shall be lawful for me the said A. B. at any time during my life, by deed or by my last will and testament, to revoke all or any of the trusts herein ■declared, and to appoint any other trust or trusts in respect to the same as I may deem fit. 6. Revocation of Former Appointment and New Appoint- ment To all to whom these presents shall come, I, A. B., of -, send greeting: [Recitai. o:P former appointment.] Whereas, these pres- ents are supplemental to a deed of appointment, dated the day of , under my hand and seal, whereby, in exercise of the power vested in me in that behalf by the will of , deceased, dated the day of , I pur- ported to appoint certain trust funds therein more particular- ly described in favor of my daughter, B. B., and also in favor of my son, C. B. ; [Recital oe intended revocation.] And whereas, in exercise of the power in this behalf reserved to me by the said deed of appointment, I am desirous of revoking the said appointment in favor of the said C. B., and of making a new appointment in manner hereinafter appearing. [Revocation and new appointment.] Now, know ye that, in exercise of the said power reserved to me by the said Ch. 3) APPOINTMENTS OF PROPERTY UNDER POWERS 129 deed and of every other power enabling me in this behalf, I, the said A. B., hereby revoke and make void all the trusts and estates appointed by the said deed in favor of the said C. B. ; and in lieu thereof, in exercise of the said power vested in me by the said will and of every other power me enabling in this behalf, I hereby direct and appoint that from and after my death all the said trust funds and property shall be paid, as- signed, and transferred unto the said B. B. absolutely, but without prejudice to any further exercise by me of the power vested in me by the said will. In witness, etc. TiFF.FOBMS — 9 130 FOBM BOOK (Ch. CHAPTER IV APPRENTICESHIP Apprenticeship is to-day comparatively rare in this country. At common law an infant is bound by articles of apprentice- ship if the contract is reasonable and beneficial for him. The contract is usually by deed. The apprentice must consent to be bound, and the father or other guardian is usually a party, and may covenant that the apprentice will perform his cove- nants. The subject is usually regulated by statute. Page 1. Apprenticeship articles where infant binds himself with consent of parent or guardian 130 2. Same — Another form 132 3. Apprenticeship agreement providing for evening classes for manual and industrial training, with bonus to apprentice for faithful performance 133 1. Apprenticeship Articles where Infant Binds Himself with Consent of Parent or Guardian This indenture, made this day of , between -, of , an infant of the age of years or thereabouts, hereafter called the apprentice, of the first part, and , of said {if the mother of the apprentice, adding widow; if the guardian, the duly appointed guard- ian of the said ), hereinafter called the father {or, mother ; or, guardian), of the second part, and ,• of , hereinafter called the master, of the third part, wit- nesseth as follows : 1. [Binding to sBrvE.] The apprentice, of his own free will and with the consent of the father {or, mother; or, guard- ian), hereby binds himself to serve the master as his appren- tice in his trade of for the term of years from the date hereof. Ch. 4) APPKENTICESHIP 131 2. [Covenants by apprentice.] The apprentice cove- nants with the master that he will well and faithfully serve the master as his apprentice and keep his secrets and obey his law- ful commands ; that he will not knowingly suffer any damage to be done to the goods, moneys, or other property of the mas- ter, and will not waste or spoil the same, nor without the mas- ter's consent lend or dispose of them; and that in all things he will behave himself towards the master as a good and faith- ful apprentice ought. 3. [Covenants by master.] The master, in consideration of the sum of $ paid to the master by the father {or, mother ; or, guardian), covenants with the apprentice and the father {or, mother ; or, guardian), and each of them severally, that he will during the said term to the best of his skill and ability instruct the apprentice or cause him to be instructed in the trade of and in everything relating thereto ; that he will provide the apprentice with good and sufficient board, lodging, clothes, medical attendance, and other necessaries {or, that he will pay the apprentice weekly during the said term while he shall continue to be his apprentice the sum of $ in lieu of the board, lodging, clothes, medical attendance, and other necessaries of the apprentice) ; that he will pay to the apprentice every week during the first year of the said term the sum of $ , and during the second year thereof the sum of $ , and during the third and every subsequent year thereof the sum of $ : Provided, that the appren- tice shall have observed the covenants hereinbefore contained and on his part to be performed. In witness whereof the said parties have to this and one other indenture of the same tenor and effect interchangeably set their hands and seals the day and year first above written. 132 FORM BOOK (Ch. 4 2. Same — Another Form This indenture witnesseth : 1. [Binding to serve.] That , an infant of the age of years, the son of , of , doth by these presents bind himself, and with the free will and consent of the said he is hereby bound, an apprentice to ■ — , of -, to learn the art, trade, or mystery of , and with him, the said , after the manner of an apprentice, to serve from the day of the date of these presents until the day of , when the said apprentice will arrive at the age of years. 2. [Duties oe apprentice.] During all which time the said apprentice his said master well and faithfully shall serve, his secrets keep, and his lawful commands duly obey. He shall do no damage to his said master, nor suffer it to be done by oth- ers without giving seasonable notice thereof to his said master. He shall not waste the goods of his said master, nor lend them unlawfully to any. He shall not contract matrimony within the said term ; nor shall he commit any act of vice or immoral- ity which are forbidden by the laws of the state; but in all things, and at all times, he shall carry and behave himself toward his said master, and all others, as a good and faithful apprentice ought to do, during all the term aforesaid. 3. [Covenants oe master.] And the said doth hereby covenant and promise to teach and instruct the said ap- prentice or cause him to be instructed in the art, trade, or calling of by the best way or means that he may or can, if said apprentice be capable to learn, and during the said term to find and provide unto the said apprentice good and sufficient board, lodging, clothes, medical attendance, and other necessaries {etc.). In witness, etc. Ch. 4) APPRENTICESHIP 133 3. Apprenticeship Agreement Providing for Evening Class- es for Manual and Industrial Training, with Bonus to Apprentice for Faithful Performance This agreement made this day of between the Engineering Company, hereinafter called the com- pany, party of the first part, and , of , hereinaft- er called the apprentice, party of the second part, witnesseth as follows: 1. [Binding to serve.] The apprentice hereby binds him- self to serve, the company as an apprentice in the various branches of trade as practiced in its shops and works for the term of years from the date hereof. 2. [Covenants oe apprentice.] The apprentice cove- nants and agrees with the company that he will faithfully and diligently serve the company as an apprentice in the said branches of trade as he may from time to time be assigned to and employed in them or any of them by the company; that he will attend at the shops or works of the company during all hours of work appointed by the company, and will obey all the lawful commands of the company; and that he will also attend such evening classes for manual and industrial training and other studies as the company shall at its expense provide for, during the hours appointed for such classes ; and that he will diligently and to the best of his ability pursue such courses of study thereat as may be required of him. 3. [Covenants oe company — Proviso.] The company covenants and agrees with the apprentice that he shall during the said term have as full an opportunity as is reasonably pos- sible of learning each and every branch of trade practiced in its shops and works ; that the company will at its own expense provide for evening classes for manual and industrial train- ing, and will permit the apprentice to attend thereat free of 134 FORM BOOK (Ch. 4 charge; that the company will pay to the apprentice every month during the first year of the said term the sum of $ , and during the second year thereof the sum of $ , and during the third and every subsequent year the sum of $ ; and that, if at the end of the said term the apprentice shall have observed all the covenants hereinbefore contained on his part to be performed, the company will pay to the apprentice the further sum of $ : Provided, that if at any time the apprentice shall fail to be obedient, atten- tive, or diligent, he shall be subject, with the approval of the president of the company, to be dismissed, and this agreement shall then at the option of the company determine and be of no further effect. In witness, etc. {Signatures and seals.) I, , the father of the within-named apprentice, here- by consent to the within agreement of apprenticeship. (Signature.) Ch. 5) ARBITRATION AND AWARD 135 CHAPTER V ARBITRATION AND AWARD In many states arbitration is provided for by statutes under which the award of the arbitrators is enforceable by means of the judgment of a court, but at common law the parties to a controversy may submit its decision to arbitrators, and the statutes referred to do not ordinarily supersede the common- law method of arbitration, under which the successful party must resort to the courts in an action on the award for its en- forcement. The forms here given relate only to arbitration at common law. The following points may be noted : A submission to arbitration is made by a contract between two or more parties whereby they agree to refer the subject in dispute to another as arbitrator, and to be bound by his award. The form of the agreement is immaterial. It is suf- ficient if it appears that the parties intend to arbitrate and to be bound by the award, nor need there be an express promise to abide by the award, although it is usual to include this. The subject-matter of the controversy should be so stated as to leave no reasonable doubt as to what is submitted. The award being enforceable only by action, it is a common prac- tice for the parties to execute bonds conditioned for their re- spective submission to arbitration and for the performance of the award. The arbitrators may be one or several. Sometimes by the agreement two arbitrators, one chosen by each of the parties, are appointed, and it is provided that the two so chosen shall appoint a third, or, in case of their disagreement, shall appoint a third who shall act with the others. Sometimes by the agree- ment two arbitrators, one chosen by each party, are appointed, and it is provided that the arbitrators shall appoint an umpire, who shall have power to arbitrate and award in case of the dis- agreement of the arbitrators. Unless it is otherwise provided, the parties have a right to be heard and to introduce evidence in support of their claims. Provisions for written statements of the respective claims of the parties, for notice of hearings, and for the procedure' to be followed upon the hearings may properly be inserted. Nei- 136 FORM BOOK (Ch..5 ther the arbitrators nor the witnesses need be sworn unless it is so required by the terms of submission. The proceedings, so far as provision is made therefor, are controlled by the terms of the submission. Unless restricted thereby, the arbitrators have power to decide on all questions of law and fact involved in the controversy, nor are they bound by the strict rules of law or of evidence. While it is generally held that the arbi- trators have power to determine and award concerning their fees and expenses, authority to award that one party shall pay the expenses incurred by the other in the arbitration should be expressly conferred if it is intended to be granted. All the arbitrators must concur in the award unless it is provided that a less number or a majority may exercise the powers con- ferred. It is usual to provide within what time the award shall be made, but, if this is not done, it seems that a reasonable time will be implied. A submission may ordinarily be revoked by ■either party at any time before award, but a submission by •deed must be revoked by deed. A submission is revoked by the death of an arbitrator, unless provision is made for filling vacancies, and is revoked by the death of either party in the absence of express provision that the submission shall survive. In making an award the terms of the submission should be complied with, but in the absence of special requirements no precise form need be observed. Arbitration Agreements, Page 1. For reference of all disputes — Short form 138 2. Same — Another form 138 3. For reference of particular dispute to expert arbitrator. . . . 139 4. Agreement to refer matters of account to a single arbitrator 140 5. For reference of partnersiilp disputes to three arbitrators 142 6. For reference of differences under a buUdlng agreement to arbitrators or umpire 144 7. For reference to three arbitrators with provisions In respect to statement of claims and evidence .- 145 8. Clause In agreement foe reference of future differences thereunder 147 Agreement for reference of amount of loss under insurance policy to appraisers, post, p. 672. Ch. 5) ARBITRATION AND AWARD 137 II Vaeious Provisions of ARBiinATioiir Agreements. Page 9. Statements of claims to be submitted 148 10. Pending actions 148 11. General powers 148 12. Same 149 13. Power as to releases 149 14. Power as to accountant 149 15. Power as to taking advice of counsel 149 16. Parties to be examined and to produce 149 17. Failure of parties to attend, etc 150 18. Right of parties to inspect books, etc 150 19. Power of umpire — Award, bow made 150 20. Same — Evidence, how taken 151 21. Same — Where arbitrators fail to act 151 22. Same — Where either party impedes arbitration 151 23. Costs 151 24. Death of party 152.' Ill Miscellaneous Forms. 25. Arbitration bond 152 26. Revocation of submission 153 27. Appointment of umpire by arbitrators 153 28. Extension of time for award 153 IV Awards. 29. Award by arbitrators 154 30. Same — Another form 155 31. Award by umpire 156 32. Award of an umpire on cross-claims 157 33. Award by two arbitrators and an umpire, the former de- ciding some matters only, and the latter matters on which the arbitrators differ 158 188 FORM BOOK (Ch. 5 Arbitration Agreements 1. For Reference of All Disputes — Short Form We, and , hereby refer all matters in differ- ence between us to the determination and award of , who may direct which of us shall pay the costs of the refer- ence, and whose award shall be final and binding upon us, and our respective heirs, executors, administrators, and as- signs. In witness, etc. 2. Same — Another Form This agreement made this' day of , between , of the one part, and , of the other part, wit- nesseth : Whereas, differences have arisen between the parties hereto relating to divers matters : Now, therefore, it is hereby agreed that all differences, claims, demands, causes of action, and actions existing, held, or pending between and by the said parties shall be, and they are hereby, referred to the award and final determination of , , and , with power to award the pay- ment of the costs and expenses of this arbitration. And the parties hereto mutually covenant and agree to and with each other that the award to be made by the said arbitra- tors, or any two of them, shall in all respects be well and faithfully kept and observed by each of the parties hereto: Provided, that such award shall be made in writing signed by said arbitrators, or any two of them, and delivered to the said parties or either of them on or before the day of In witness, etc. Ch. 5) • AEBITEATION AND AWAED 139 3. For Reference of Particular Dispute to Expert Arbitrator Agreement made this day of , between , hereinafter called the seller, of the one part, and , hereinafter called the buyer, of the other part : [Recitai, o? differences.] Whereas, the seller, on or about the day of , , sold for $ a horse named to the buyer, and on such sale warranted the said horse to be sound in wind and limb ; and whereas, the buyer alleges that the horse was not at the date of said sale, and is not now, sound in wind and limb ; and [Recital of pending action.] Whereas, an action is now pending in the court for the county of and state of , wherein the buyer is plaintiff and the seller is de- fendant, for the recovery of $ damages for breach of the said warranty. Now, therefore, it is hereby agreed as follows: 1. [Reference.] All matters of dispute in the said action are hereby referred for decision to , hereinafter called the arbitrator, whose award shall be final and binding upon the parties hereto. 2. [Discontinuance of action.] The said action shall be forthwith discontinued by the buyer, and the seller shall consent to such discontinuance. 3. [Costs.] The costs of said action and of the arbitra- tion shall be borne and paid as the arbitrator shall by his award direct {or, shall be paid by the parties in equal shares). 4. [Evidence and hearing.] The arbitrator, having ex- pert knowledge of the subject, shall not be required to take the evidence of any witness unless he thinks fit, and may de- cide the question in dispute without hearing the parties hereto or their counsel, or otherwise than by an examination of the said horse. 1.40 FORM BOOK (Ch. 5 5. [GenBrai, powers O]? arbitrator.] The arbitrator may direct either party to pay any sum of money, or to do or submit to any act, or to execute any instrument, for the purpose of carrying his award into effect. In witness, etc. 4. Agreement to Refer Matters of Account to a Single Arbitrator An agreement made this day of , between , of , of the one part, and , of , of the other part : [Recital op muTuai< dEai^ings.] Whereas, the parties hereto have for some years carried on their respective busi- nesses at aforesaid, and have had mutual dealings and transactions together, and there has been no settlement of ac- counts between them for some years past. Now, it is hereby agreed between the parties hereto as fol- lows: 1. [Re^erBncE.] All matters in difference between the parties hereto touching the said dealings and transactions and all accounts relating thereto are hereby referred to the award and final determination of . 2. [Arbitrator to investigate notwithstanding stat- ute OF i,imiTations.] The arbitrator shall be at liberty, should he think fit, to investigate all the accounts and dealings between the parties from the — : day of to the present date, and to determine the true state of the accounts between the parties, notwithstanding the lapse of time and any statute of limitations. 3. [Production and inspection op books and papers.] The arbitrator shall have power to call for the production of any books or papers in the possession or control of either of the parties, and to order that either party shall in the mean- Ch. 5) AEBITPATION AND AWARD l41 time have access to and be at liberty to inspect and take cop- ies of all or any of the same relating to the matters in differ- ence. 4. [Particulars of claims to bs delivered.] Each of the parties shall within days from the date hereof de- liver to the other party and to the arbitrator a full and par- ticular statement in writing of the matters and things in re- spect of which he claims any relief against the other party, and only matters included or referred to in the statements shall be taken into consideration by the arbitrator. 5. [Accountant.] The arbitrator shall be at liberty to em- ploy an accountant to assist him and to charge the remunera- tion of the accountant in the costs of the award. 6. [General power oe arbitrator.] The arbitrator shall have power to order and direct what he shall think fit to be done by either of the parties respecting the matters in dif- ference. Q. [Power to proceed ex parte.] The arbitrator shall have power to proceed ex parte in case either party shall fail after reasonable notice to attend before him. 8. [Parties to eacilitate award.] The parties hereto will do and cause to be done all other things necessary and convenient for enabling the arbitrator to make his award with- out delay. 9. [Costs.] The costs of the arbitration shall be in the discretion of the arbitrator, who may award by and to whom they shall be paid. 10. [Death oe party.] This submission shall not be re- voked by the death of either party before the making of the award. In witness, etc. 142 FORM BOOK. (Ch. 5 5. For Reference of Partnership Disputes to Three Arbitrators This agreement, made this day of , between , of the first part, and , of the second part, and , of the third part : [ReciTAt OF DiFFgRBNcES.] Whereas, the parties hereto have heretofore carried on in copartnership the business of jobbers and wholesale dealers in dry goods at the city of , under certain articles of partnership dated the day of ; and whereas, differences and disputes have arisen between the parties hereto as to certain alleged breaches of said articles by the said party of the first part and the said party of the second part and as to the accounts of the part- nership. Now, therefore, the parties hereto do mutually covenant and agree to and with each other as follows : 1. [Reference.] There are hereby referred to the arbi- tration of , , and the matters in dispute hereinbefore recited, and also all other matters of difference, if any, arising under the said articles of partnership of which either party shall give written notice to the other parties and to the said arbitrators days at least before the day which shall be fixed by the said arbitrators for their first sit- ting. 2. [To ABIDE AWARD.] The parties shall abide by, observe, and perform the directions and award to be made by said arbi- trators, or any two of them. 3. [Time oe award.] The said award shall be made under the hands of the said arbitrators on or before the day of , or within such extended time, not exceeding alto- gether days, as the said arbitrators shall from time to time appoint by indorsement on this agreement. Ch. 5) ARBITEATION AND AWARD 143 4. [Parties to furnish particui^ars.] Each of the par- ties shall within days at least before the day which shall be fixed by the arbitrators for their first sitting furnish to the other parties hereto and also to the arbitrators full par- ticulars in writing of the claims and objections which they propose to submit to the arbitrators. 5. [Parties to attend and produce;.] Each party hereto shall attend the said arbitration personally and shall produce to the arbitrators all books, papers, accounts, vouchers, in- voices, and other documents in his possession or under his control relating to the matters referred to arbitration, and shall give to the arbitrators all the information and explana- tion in his power relating thereto. 6. [Accountant.] The arbitrators may submit to a com- petent accountant whom they may select any accounts which they consider ought to be examined for the purpose of the arbitration, and may act upon the report of such accountant without personally verifying the accuracy of such accounts or report. 7. [Hearing, witnesses, etc.] The arbitrators shall hear such testimony as the parties hereto or any of them may pro- duce, relevant to matters referred to arbitration, and the par- ties, if examined, and the witnesses shall be examined under oath or affirmation : Provided, that in the event of any party neglecting to attend before them after such written notice as the arbitrators may think reasonable, the arbitrators may pro- ceed with the arbitration in the absence of and without fur- ther notice to such party. The parties may be represented in the arbitration by their respective attorneys or counsel. 8. [Costs.] The costs of the arbitration shall follow the event of the award, unless the award otherwise directs. In witness, etc. 144 FORM BOOK (Ch. 5 6. For Reference of Differences under a Building Agree- ment to Arbitrators or Umpire This agreement, made this day of , between '■ — , hereinafter called the owner, of the first part, and , hereinafter called the contractor, of the second part: [REcitai, o-e BUii/DiNG AGREEMENT.] Whereas, by an agreement, bfearing date the day of , , made by and between the parties hereto, the contractor, in con- sideration of the sum of $ to be paid to him as therein provided, agreed with the owner to build a certain building in the city of according to the plans and specifications in the said agreement referred to, and to complete the said build- ing on or before the day of , , and it was agreed that in case of the default of the contractor to com- plete the said building on or before said last-mentioned day the contractor should forfeit the sum of $ for each and every day from and after said last-mentioned date while the said building should remain uncompleted; and [Recital oe dieeerencES.] Whereas, differences have arisen between the parties respecting the erection of the said building, and the due performance of the said contract, and in particular in the following matters, to wit: Whether the contractor is entitled to be paid any and what sum for work alleged by him to be extra work, aiid whether the contractor is liable for any and what penalty or damages by reason of delay in completing said building. Now, therefore, it is hereby agreed as follows : 1. [Reference.] The matters in dispute hereinbefore re- cited are referred to , who has been appointed by the owner, and , who has been appointed by the contractor, as arbitrators, or, if they shall not agree in making an award, to an umpire to be appointed by them in writing before enter- ing upon the arbitration. If either of the said arbitrators shall Ch. 5) ARBITRATION AND AWARD 145 die or refuse or become incapable to act in or to proceed in the arbitration, the party appointing him shall have power to appoint another in his stead, and such substituted arbitrator shall have all such powers as he would if he had been orig- inally appointed hereby. 2. [To ABIDE AWARD.] The parties hereto shall abide by, observe, and perform the directions and award of the arbitra- tors or the umpire. 3. [Time of award.] The said award shall be made un- der the hands of the arbitrators or the umpire, on or before the day of , or within such extended time, not exceeding altogether days, as the arbitrators or the umpire shall from time to time appoint by indorsement hereon. 4. [Costs.] The costs and expenses of the arbitration and award shall be in the discretion of the arbitrators or the um- pire, who shall state in the award which of the parties hereto shall pay and bear the same. 5. [Death oe party.] The submission hereby made shall not be affected by the death of either of the parties hereto, but the arbitrators or the umpire shall proceed as if such death had not occurred; and the executors and administra- tors of the party so dying shall be deemed parties to the sub- mission hereby made. In witness, etc. 7. For Reference to Three Arbitrators with Provisions in Respect to Statement of Claims and Evidence Agreement made this day of , between , of -, party of the first part, and , of , party of the second part : Whereas (recite explanatory facts) ; and [Recital oe dieeerEnces.] Whereas, controversies have arisen between the said parties concerning the said matters, and TlFF.FOEMS — 10 146 FORM BOOK (Ch. 5 certain claims are made and asserted by both of the said par- ties as to the state of accounts between them and as to wheth- er the said party of the second part is Uable to account to the said party of the first part, or whether a balance is due to said party of the second part from the said party of the first part, and as to whether the said party of the first part is in equity and justice entitled to certain real estate standings of record in the name of the said party of the second part ; and [Recitai, oif sBLEcTioN oif ARBITRATORS.] Whercas, it is desired to submit the said controversies to arbitration, and the parties hereto have selected as such arbitrators , of , , of , and , of , who are hereinafter referred to as the arbitrators, Now, therefore, it is hereby agreed as follows: 1. [ReperEncB.] All the said matters in controversy shall be and the same are hereby submitted to the arbitrators, by whom all of the said controversies shall be determined and settled; and the award of the arbitrators or a majority of them shall be final and binding upon the parties hereto, and their heirs, executors, administrators, and assigns. 2. [Statements oE cIvAIMs.] Each party shall in writing present to the arbitrators a statement of his claims with refer- ence to all said matters, as follows : The said party of the first part, on or before the day of , shall de- liver a statement of his claims to the arbitrators, and a copy thereof to the said party of the second part. Within days thereafter the said party of the second part shall deliver a statement of his claims to the arbitrators, and a copy there- of to the said party of the first part. The said party of the first part shall have the right within days thereafter to present to the arbitrators a statement of his claims in reply to the said statement of the said party of the second part, and in that case shall deliver a copy thereof to the said party of tlie second part. Ch. 5) ARBITRATION AND AWARD 147 3. [HEARING, Evidence, counsei..] The parties hereto shall have the right respectively to submit to the arbitrators at a time or times and a place to be fixed by the arbitrators and under such conditions as they may impose evidence and testimony in support of their said claims so made, and shall have the right upon hearing of such evidence and testimony to be represented by their respective counsel. In the deter- mination of the said matters the arbitrators shall not be bound by the rules of evidence prescribed in the trial of causes in court, but shall determine the said matters upon such evidence of any character as may be satisfactory to them; it being the intention of the parties that all the said matters in controversy between them shall be considered and decided in such way as to cause justice to be done between the parties. After the said statements of claims and the evidence are in the posses- sion of the arbitrators, the parties shall have the right respec- tively to have the said matters argued by counsel. 4. [Costs.] The expenses of such arbitration, including the compensation of the arbitrators, shall be shared equally by the parties hereto. In witness, etc. 8. Clause in Agreement for Reference of Future Differ- ences Thereunder In case any disagreement or difference shall arise between the parties hereto or any person claiming under them in rela- tion to this agreement or arising thereout, whether as to the construction or operation thereof or the respective rights and liabilities thereunder, such disagreement or difference shall be referred to three arbitrators, one to be appointed by each party and the third to be appointed by the two so by the par- ties appointed; and the award in writing signed by any two of them shall be final : Provided, that such award shall be 148 FORM BOOK (Ch. 5 made within days after the reference to the said arbi- trators. And, if either party shall refuse or neglect to appoint an arbitrator within days after the other shall have appointed an arbitrator and served written notice thereof upon the other requiring him to appoint an arbitrator, then the ar- bitrator so appointed by the first party shall have power to pro- ceed to arbitrate and determine the matters of disagreement or difference as if he were an arbitrator appointed by both the parties hereto for that purpose, and his award in writmg signed by him shall be final : Provided, that such award shall be made within days after such refusal or neglect of the other party to appoint an arbitrator. II Various Provisions of Arbitration Agreements 9. Statements of Claims to be Submitted Each of the parties shall within days from the date hereof {or, days at least before the day appointed by the arbitrators for their first sitting) furnish to the other par- ty hereto, and also to the arbitrators, a statement in writing of the claims and objections which he proposes to submit to the arbitrators. 10. Pending Actions Neither of the parties hereto shall, during the said arbitra- tion, prosecute or copimence any suit or action against the oth- er touching any of the matters hereby referred to the arbitra- tors. 11. General Powers The arbitrators shall have full power to make such regula- tions and to give such orders and directions in all respects, as they shall deem expedient, as well in respect to the matters and Ch. 5) ARBITRATION AND AWARD 149 differences referred to them as also with respect to the mode and times of executing and performing any of the acts, deeds, matters, and things which may be awarded or directed to be done. 12. Same The arbitrators shall have full power to give such directions and to make such orders in the matters so referred to them as they shall think just 13. Power as to Releases The arbitrators shall have full power to order mutual re- leases to be executed by the parties. 14. Power as to Accountant The arbitrators may submit to a competent accountant whom they may select any accounts which they consider ought to be examined for the purpose of the arbitration, and may act upon the report of such accountant without personally verifying the accuracy of such accounts or report. 15. Power as to Taking Advice of Counsel The arbitrators may submit to counsel whom they may select any point of law arising in the course of the arbitration, and may accept such opinion as conclusive. 16. Parties to be Examined and to Produce The parties and their respective witnesses shall, from time to time, when required by the arbitrators, attend and submit to be examined and cross-examined (upon oath or affirmation), re- lating to all or any of the matters so referred; and the parties shall, when so required, produce (upon oath or affirmation) and 150 FORM BOOK (Ch. 5 deposit with the arbitrators all or any of the title deeds, writ- ings, account books, vouchers, letters, documents, evidences, and things in their possession or under their control, respective- ly, touching or concerning the matters so referred ; and in de- fault thereof the arbitrators may proceed with the arbitration in their discretion as if no such evidence had ever existed. 17. Failure of Parties to Attend, etc. In the event of either party or his witness failing to attend before the arbitrators, after such written notice as the arbitra- tors may think reasonable {or, after days' written no- tice given to such party), the arbitrators may proceed with the arbitration in the absence of and without further notice to such party. 18. Right of Parties to Inspect Books, etc. Each of the parties shall have the right, during the said ar- bitration and until the final submission to the arbitrators of the matters hereby referred, to inspect and make copies of all the books of account, vouchers, letters, and documents in the pos- session or under the control of the other relating to any of the said matters. 19. Power of Umpire — Award, How Made The umpire may adopt in his award the decision of the ar- bitrators upon any matters as to which they have agreed, or may make a separate award upon the particular matters re- ferred to him by the arbitrators, and the award of the umpire and the award, if any, made by the arbitrators shall for this purpose be deemed a single award. Ch. 5) ARBITRATION AND AWARD 151 20. Same — Evidence, How Taken To save expense the umpire may sit and take the evidence with the arbitrators, and may from time to time examine the witnesses and decide any question as to the admissibihty of evidence referred to him by the arbitrators. He may accept any finding of fact arrived at by the arbitrators, or may require fresh evidence on any point referred to him. 21. Same — Where Arbitrators Fail to Act If the arbitrators shall not agree upon and make their award within the time hereinbefore appointed, it shall be lawful for the umpire to act with all the powers of the arbitrators and to make his award, and such award shall be binding upon the par- ties in all respects as if the arbitrators had disagreed and refer- red the same to his decision under the power for that purpose hereinbefore contained, but his award shall be made and pub- lished under his hand within days from the date hereof. 22. Same — Where Either Party Impedes Arbitration If either party shall unreasonably delay or otherwise prevent or impede the arbitration or the making of the award, the arbi- trator appointed by the other party or the umpire may proceed alone and make such award as he shall think fit, and his deci- sion and determination shall be final and binding upon both the parties hereto. 23. Costs The costs and expenses of the arbitration shall be borne and paid as the arbitrators shall by their award direct (or, shall abide the event of the award; or, shall be paid by the parties in equal shares). 152 FOEM BOOK (Ch. 5 24. Death of Party The power hereby given to the arbitrators shall not be de- termined or revoked by the death of either of the parties here- to, but the arbitrators shall proceed with the arbitration not- withstanding such death, and their award in the premises shall be binding and conclusive upon the said parties and those claim- ing under them. Ill Miscellaneous Forms 25. Arbitration Bond Know all men by these presents that, etc. The condition of this obligation is such that, if the above- bounden , his heirs, executors, and administrators, shall well and truly submit to and abide by, observe, and perform the award which shall be made by , , and , arbitrators appointed to arbitrate concerning certain matters in controversy between the said obligor and the said obligee, as set forth in a certain agreement for the submission of said matters to the said arbitrators, made by the parties hereto, and bearing date the day of , provided, that the said award shall be made within the time in the said agreement pro- vided (or, shall be made on or before the ■ day of ), then this obligation to be void; otherwise to remain in full force. In witness whereof I have hereunto set my hand and seal this day of . Ch. 5) ARBITRATION AND AWARD 153 26. Revocation of Submission In the Matter of the Arbitration Between and To , , and , arbitrators : You are hereby notified that I revoke your powers as arbi- trators in the matters referred to you by a certain agreement, dated the day of , made between and myself. Dated . Yours, etc. 27. Appointment of Umpire by Arbitrators Whereas, by an agreement bearing date the day of , made between and , certain matters in dispute were referred to the undersigned and , as arbitrators, or, if we should not agree in making an award to an umpire to be appointed by us in writing before entering up- on the arbitration, we do hereby before entering upon the said arbitration appoint as such umpire, provided he shall within days from the date hereof consent to act. Witness our hands this day of . 28. Extension of Time for Award It is hereby agreed between the parties to the within agree- ment for arbitration that the time for making the award is hereby extended to the day of . Dated . (Signatures.) 154 FOKM BOOK (Ch. 5 IV Awards 29. Award by Arbitrators To all to whom these presents shall come, we, , , and , send greeting : Whereas, by an agreement in writing, dated the day of , made between and , certain matters in controversy between them were referred to the undersigned , , and , as arbitrators, as by the said agreement more fully appears : Now, know ye that we, the said arbitrators, having taken up- on ourselves the burden of the said reference and having duly heard and considered the allegations and proofs of the parties in respect to the said matters, do make this our award in writ- ing concerning the same, and do hereby award as follows : 1. That the said shall pay to the said the sum of dollars in full satisfaction and discharge of all claims and demands whatsoever which have been referred to us. 2. That the costs of the reference, which we assess at the sum of dollars, shall be paid by the said . In witness whereof we have subscribed these presents this day of . Cb. 5) ARBITRATION AND AWARD 155 30. Same — Another Form (Following Submission under Form No. 7) Before , , and , arbitrators. In the Matter of the Arbitration Between and This matter came duly on to be heard before the above- named arbitrators, under and pursuant to a written agreement of arbitration dated the day of and duly exe- cuted by the above-named and , at , in the city of , on the day of , and the hearings were continued from time to time until and including the day of , at which time the same were concluded, and the matter finally submitted to the arbitrators for determi- nation and award. The said was present at such hear- ings in person, and was also represented thereat by , his attorneys ; and the said was also present at such hear- ings, and was also represented by , his attorney. The general claims of the respective parties were presented to the arbitrators in written statements signed by them. There was also offered in evidence at such hearings on behalf of both par- ties oral and documentary evidence. After duly considering such written statements and the evidence so offered and the ar- guments of the counsel of the respective parties, the arbitra- tors hereby make the following their decision and award in said matter, to wit : 1. It is found, determined, and adjudged that the said is entitled to demand, receive, and recover from the said the sum of dollars, with interest at the rate of six per cent, per annum from the day of . 2. It is further found, determined, and adjudged that the said is entitled to demand, receive, and recover from the 156 FOEM BOOK (Ch, 5 said fifty shares of the capital stock of the Jones Milling Company. 3. It is further found, determined, and adjudged that the said shall at his own cost, by a proper deed of quitclaim convey to the said , his heirs and assigns, that certain parcel of land (description). The fees of the three arbitrators have been fixed at dollars, and under the said agreement this expense is to be shared equally by the parties thereto. Dated . Arbitrators. 31. Award by Umpire Whereas, by a certain agreement in writing, dated the day of , made between — and , certain mat- ters in controversy between them were referred to and , as arbitrators, and it was therein provided that in case the said arbitrators should not agree in making an award the said matters should be referred to an umpire to be appointed by them in writing before entering upon the arbitration, all as in said agreement more fully set forth ; and whereas, the said arbitrators, before entering upon said arbitration, duly in writ- ing appointed the undersigned as such umpire, and thereafter met upon said arbitration and were unable to agree in making such award, and duly notified the undersigned to that effect, and that the undersigned was at liberty to proceed as umpire forthwith, and to arbitrate and determine the said matters : Now, I, the said umpire, having duly heard and considered the allegations and proofs of the said parties in respect to the Ch. 5) ARBITRATION AND AWARD 157 said matters so by the said parties referred to me, do make this my award in writing concerning the same, and so hereby award the, etc. 32. Award of an Umpire on Cross-Claims To all to whom these presents shall come, I, , of , send greeting: [Recital of agreement to refer to two arbitrators.] Whereas, by an agreement in writing, dated the day of , and made between A. B. and C. D., it was agreed that certain disputes and differences between the said parties were referred to the award and final determination of {arbi- trators), and in case they should not agree to the award of such person as the said arbitrators should by writing under their hands appoint as umpire, and that the decision of such umpire on the matters referred should be final {recite time, if named, on making award, the power to enlarge, and other powers justifying the subsequent recitals and directions) ; [ReciTae oe appointment oe umpire.] And whereas, the said arbitrators took upon themselves the burden of the said reference, and by writing under their hands duly ap- pointed me, , to be the umpire in accordance with the said agreement; [Recital oe arbitrators' failure to agree.] And whereas, the said arbitrators fkiled to agree, and gave written notice thereof to me, and thereupon the said disputes and dif- ference stood referred to me for my award thereon as umpire ; [Recital of enlargement of time.] And whereas, I, the said , by two several memoranda in writing under my hand indorsed on the said agreement, enlarged the time for making my umpirage and award until the day of 158 FORM BOOK (Ch. 5 [Award.] -Now, know ye that I, the said , having taken upon myself the burden of the said reference and um- pirage, and having heard, examined, and considered the alle- gations, witnesses, and evidence of both the said parties con- cerning the premises, and having done and performed all things necessary to enable me to make a valid award of and concerning the same, hereby make and publish this, my um- pirage and award of and concerning the same in manner fol- lowing, that is to say : 1. I award that upon taking an account of the dealings be- tween the said A. B. and C. D. there is justly due from the said C. D. to the said A. B. the sum of $ . 2. I direct that the said C. D. pay the said sum of $ to the said A. B. at , on the day of . 3. I award that the said C. D. shall at the same time and place also pay the costs of this my award, which are assessed at $ . In witness, etc. 33. Award by Two Arbitrators and an Umpire, the Former Deciding Some Matters Only, and the Latter Mat- ters on which the Arbitrators Differ To all to whom these presents shall come we, (first arbitra- tor) of , (second arbitrator) of , and (umpire) of , send greeting: [Recital op guaranty, DiififEReNcEs, and agreement to REFER.] Whereas, by an agreement dated the day of , and made between A. B., of the one part, and C. D., of the other part, after reciting that on the day of the said C. D. signed and gave to the said A. B. an instrument in writing guaranteeing and promising the said A. B. that the said C. D. would be responsible to the said A. B. Ch. 5) ARBITRATION AND AWARD 159 for the due payment of any goods which he might after the date thereof sell and deliver on credit to E. F., and reciting that the said A. B. alleged that he had afterwards sold to the said E. F. goods in respect of which there was then due to the said A. B. a balance of $ , and that differences had arisen between the parties thereto as to the liability of the said C. D. on the said guaranty, the said C. D. disputing the value of the goods so supplied to the said E. F., and also al- leging that he was discharged by fraudulent concealment by the said A. B. before the guaranty was given, and also by reason of time given to the said E. F. after his term of credit had expired, then it was agreed between the said A. B. and C. D., the parties thereto, that all matters of difference be- tween them should be referred to the said (first arbitrator) and the said (second arbitrator), and if and so far as to such matters only as they should be unable to agree to their umpire to be appointed by them in writing before entering upon the reference ; [Recital o? appointment oe umpire.] And whereas, the said (first arbitrator) and (second arbitrator), by writing under their hands dated the day of , appointed the said (umpire) to be the umpire in accordance with the said agreement ; [Recital that arbitrators agreed as to some matters ONLY.] And whereas, the said arbitrators and umpire took upon themselves the burden of the said reference, and have heard and considered the witnesses and the evidence of both the parties, and the said arbitrators have agreed as to some of the matters so referred to them, but have been unable to agree as to other matters. [Award oe arbitrators.] Now, know ye that we, the said (first arbitrator) and (second arbitrator), hereby find and award as follows, that is to say : 160 FORM BOOK (Ch. 5 1. We find that there is due from the said E. F. a balance of $ ■ in respect of goods supplied to him on credit by the said A. B. after the date of the said guaranty. 2. We also find that the said guaranty was not void by rea- son of any fraudulent concealment by the said A. B. before the same were given by the said C. D. ; but we are unable to agree as to whether the said C. D. was released and discharged by the said A. B. giving time to the said E. F. in pursuance of a binding agreement, and consequently we are unable to agree as to whether any sum is payable by the said C. D. to the said A. B. or as to how the costs of this reference, which are assessed at $ , should be borne or paid. [Award 0? umpirb.] And I, the said (umpire), hereby find and award as follows, that is to say : 3. I find that the said C. D. has not been discharged by the said A. B. giving time to the said E. F. 4. I award that there is now due from the said C. D. to the said A. B. the said sum of $ , and I direct the said C. D. to pay the said sum of $ to the said A. B. on the day of , at . 5. I direct the said C. D. to pay the costs of this reference. In witness, etc. (Signatures of arbitrators and umpire.) Ch. 6) ASSIGNMENTS 161 CHAPTER VI ASSIGNMENTS The term "assignment," broadly speaking, signifies the transfer of all kinds of property, whether in possession or action, and is applied also to the instrument of transfer. The forms in the present chapter relate principally to assignments of choses in action. By the rules of the common law property not in possession was incapable of transfer, and choses in action were not assignable. The practical effect of a transfer, however, was secured by means of a power of attorney whereby the owner of the claim empowered another to enforce it in the name of the owner with the right to retain what was recovered to the use of the grantee of the power. Assignments still com- monly bear the form of a transfer of the claim with an ex- press power to enforce it in the name of the assignor ; but an unqualified assignment of a chose in action carries with it by implication the right to the remedies which the assignor had for its enforcement. Courts of law have long recognized and en- forced assignments of choses in action by permitting the as- signee to sue in the name of the assignor under an implied pow- er held to be irrevocable, so that the inclusion of an express power is superfluous. A fortiori it is superfluous under the statutes now in force in most jurisdictions which permit or even require an assignee, as the real party in interest, to sue in his own name. An assignee, even under these statutes, ac- quires no better title than his assignor had. A release by the assignor to the debtor without notice of the assignment ex- tinguishes the debtor's liability. The usual words of an assignment are "sell, assign, and transfer," or "sell, assign, transfer, and set over," but any words which show the intention of the owner of the chose in action to transfer it are sufficient. It is not unusual to add words to the effect that the transfer is to the use of the as- signee and "his executors, administrators, and assigns" ; but, if the assignment purports to transfer the entire interest of the assignor, and there is nothing to show a different intention, this follows as an incident of the transfer, and anything more is superfluous. Covenants appropriate to the subject-matter may of course be desirable. The assignment of a written contract TiFF.FOKMS — 11 162 FORM BOOK (Ch. 6 may be made by the indorsement of an assignment thereon or by a separate instrument. If the contract assigned is a specialty, the assignment in some jurisdictions must be under seal. Many of the forms given below follow the older forms which are still in common use, and contain much that is super- fluous, which may be rejected by the draftsman. Page 1. Assignment ot chose in action — Short general form 163 2. Assignment of contract by indorsement 163 3. Same — With power to sue 163 4. Assignment of an account 163 5. Same — Another form 164 6. Assignment of legacy 164 7. Assignment of wages 165 8. Assignment of claim for damages 165 9. Assignment of a bond 166 10. Same — Another form with power to sue and full covenants 166 11. Assignment of book debts in consideration of assignor's debt to assignee 168 12. Assignment of part of a debt 169 13. Assignment of debts upon trust to collect and pay sum due to assignee, and surplus to assignor 169 14. Assignment of fire insurance policy by indorsement 170 15. Assignment of life insurance policy 171 16. Assignment of contract for sale of land by purchaser therein 171 17. Assignment of life estate in trust funds 172 18. Assignment of judgment 173 19. Same — ^Another form , 173 20. Same — ^Aiiother form 174 Assignment for Benefit of Creditors, p. 176. Assignment of Copyright, p. 456. Assignment of Dower, p. 495. Assignment of Freight of a Voyage, p. 1244. Assignment of Lease, p. 817. Assignment of License under Patent, p. 1086. Assignment of Marine Insurance Policy, p. 1245. Assignment of Mortgage (chattel), p. 324. real estate, p. 981. Assignment of Patent, p. 1079. Assignment of Secret Process, p. 1112. Assignment of Stock, p. 1267. Assignment of Trademark, p. 683. See, also — Bills of Sale, p. 1203. Good Will, p. 678. Ships and Vessels, p. 1225. Ch. 6) ASSIGNMENTS 163 1. Assignment of Chose in Action — Short General Form Know all men by these presents that I, , in consid- eration of dollars to me by paid, the receipt whereof is hereby acknowledged, hereby assign to the said ■ {description of subject-matter of assignment with such particularity as to identify it). Witness my hand (and seal) this day of . 2. Assignment of Contract by Indorsement In consideration of dollars to me paid by — hereby assign to him the within contract (or, bond; or, policy of insurance) and all my right and interest therein. (Date.) (Signature.) 3. Same — With Power to Sue In consideration of dollars to me paid by , the receipt whereof is hereby acknowledged, I hereby transfer, assign, and set over to the said , his executors, admin- istrators, and assigns, all my right, title, and interest in and to the within contract (or, bond ; or, policy of insurance), and I hereby constitute the said my attorney in my name, or otherwise, but at his own cost, to take all legal measures which may be proper or necessary for the recovery and enjoyment of the assigned premises. Witness my hand (and seal) this day of . 4. Assignment of an Account Know all men by these presents that I, of , in consideration of the sum of dollars to me paid by of , the receipt whereof is hereby acknowl- edged, do hereby sell, assign, and transfer to the said 164 FORM BOOK (Ch. 6 *any and all sum or sums of money now due or to grow due to me from upon the annexed account of sales (or otherwise describing the account), with full power unto the said , his executors, administrators, and assigns, in my name, but at his or their own cost, to sue for, collect, and give acquittance for the same, to his or their own use. In witness, etc. 5. Same — Another Fotm Know all men by these presents, that I, , of , in consideration of — '■ dollars, lawful money of the United States, to me paid before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have sold, assigned, transferred, and set over, and by these presents do sell, assign, transfer, and set over, unto , his execu- tors, administrators, and assigns, to his and their own proper use and benefit, any and all sums of money now due or to grow due upon the annexed account, or upon the sales {or other transactions, as the case may be) therein mentioned. And I do hereby give the said , his executors, admin- istrators, and assigns, the full power and authority, for his or their own use and benefit, but at his or their own cost, to ask, demand, collect, receive, compound, and give acquittance for the same or any part thereof, and in my name or otherwise to prosecute and withdraw any suits or proceedings at law or in equity therefor. In witness, etc. 6. Assignment of Legacy (Follow Porm 4, p. 163,, fo *) that certain legacy or sum of dollars to which I am entitled under the last will and testament of — ; who died on the day of ■, and whose said last will and testament was proved and ad- Ch. 6) ASSIGNMENTS 1G5 mitted to probate in and by the probate court of the county of and state of , on the day of . In witness, etc. 7. Assignment of Wages (Follow Form 4, p. 163, to *) the sum of dollars now- due me from as wages for my services rendered in his employment (or, all sums of money now due or to become due to me from as wages for my services rendered or to be rendered in his employment between the day of and the day of ), with full power to do and perform all acts and things touching the premises, in like manner to all intents and purposes as I could do if personally present. In witness, etc. 8. Assignment of Claim for Damages (Follow Form 4, p. 163, to *), his executors, administrators, and assigns, to his and their own proper use and benefit, any and all sums of money due or owing me, and all claims, demands, and causes of action of whatsoever kind which I have or may have against arising out of (state the facts constituting the claim). 'And I hereby constitute and appoint the said , his executors, administrators, and assigns, my true and lawful attorney or attorneys, irrevocable', with full power of substitution and revocation, for me and in my name, or otherwise, but for his and their sole use and benefit, to ask, demand, sue for, collect, receive, compound, and give acquit- tances for the said claim or claims or any part thereof. In witness, etc. 166 FORM BOOK (Ch. 6 9. Assignment of a Bond (Follow Perm 4, p. 163, to *) a certain bond, bearing date the day of , executed by to me, and all sums of money now due and to become due thereon. And I hereby covenant with the said that there is now owing on said bond for principal and interest the sum of dollars. In witness whereof I have hereunto set my hand (and seal) this day of . 10. Same — Another Form with Power to Sue and Full Covenants Indenture made the day of , between , of , hereinafter called the assignor, of the one part, and , of , hereinafter called the assignee, of the other part: [RgciTAL OF BOND.] Whereas, of in and by a certain bond became bound to the assignor in the penal sum of dollars, conditioned for the payment of the sum of dollars and interest on the day of , as by said bond more fully appears; and whereas, there is now due and payable to the assignor on said bond, for principal and interest the sum of dollars. 1. [Assignment.] Now, this indenture witnesseth that, in consideration of the sum of dollars paid by the as- signee, the receipt whereof by the assignor is hereby acknowl- edged, the assignor doth hereby sell, assign, transfer, and set over unto the assignee the said bond and all the moneys now due or to become due thereon, and all the assignor's right, ti- tle, and interest therein. To have and to hold the same unto the assignee, his executors, administrators, and assigns, to his and their own proper use and benefit. Ch. 6) ASSIGNMENTS lfi7 2. [PowUR OP ATTORNEY.] And the assignor doth hereby irrevocably appoint the assignee, his executors, administrators, and assigns, bis true and lawful attorney and attorneys, with full power of substitution and revocation, for and in the name of the assignor and in the names of his executors and admm- istrators, or otherwise, but at the risk and cost of the assignee, his executors, administrators, and assigns, to demand, sue for, recover, and receive of the said , his heirs, executors, and administrators, the moneys due or to become due on said bond, and to give good and sufficient releases for the same. 3. [Assignor's covenants.] And the assignor, for him- self, his heirs, executors, and administrators, doth covenant and agree to and with the assignee, his executors, administra- tors, and assigns, that there is owing and now payable upon the said bond the full sum of dollars principal and in- terest secured to be paid thereby ; that the assignor has good right to sell and assign the same in manner aforesaid ; that he will not hereafter receive any payment of the said sums, or release or discharge the said bond, or do any other act or thing whereby the assignee, his executors, administrators, or as- signs, may be hindered from enforcing the same. 4. [Assignee's covenant.] And the assignee, for himself, his executors, administrators, and assigns, doth covenant and agree to and with the assignor, his executors, administrators, and assigns, that he will protect, save harmless, and keep in- demnified the assignor, his heirs, executors, and administra- tors, of and from all costs and damages that he or they shall at any time pay or become liable to for or on account of any action that may be prosecuted in pursuance of the power here- in contained. In witness, etc. 168 FOEM BOOK (Ch. 6 11. Assignment of Book Debts in Consideration of As- signor's Debt to Assignee Indenture made the day of {parties as in preceding form) : [ReIcital of debts.] Whereas, the assignor has for some time past carried on the business of at , and in connection with such business the several persons whose names are set out in the iirst column of the schedule hereto annexed have become and are now indebted to him in the several sums set opposite to their respective names in the sec- ond column of such schedule: [Recitai, of agkeement.] And whereas, the assignor is indebted to the assignee in the sum of , and the parties hereto have agreed that the assignor shall assign the above- mentioned debts to the assignee in satisfaction of the said sum of $ . 1. [Assignment.] Now, this indenture witnesseth that, in consideration of the sum of $ so due and owing from the assignor to the assignee, from which sum and debt of $ the assignee hereby releases the assignor, the assignor hereby assigns unto the assignee the several debts or sums of money specified in the second column of the said schedule due and owing to the assignor as aforesaid from the several per- sons whose names are set opposite to such respective sums in the first column of the said schedule, and the benefit of all se- curities for the same and all interest due and to become due for the same. To hold the same unto the assignee absolutely. 2. [Assignor's covenant.] And the assignor covenants with the assignee that the several debts hereby assigned are still due and owing to the assignor from the several persons named in the said schedule. In witness, etc. {Signatures and seals of assignor and assignee) Ch. 6) ASSIGNMENTS 1G9 The Schedule Above RErERRED To Name of Debtor. Amount of Debt. 12. Assignment of Part of a Debt To of and all others to whom it may con- cern: In consideration of the sum of $ due and owing from me, the undersigned, of , to of , I here- by assign to the said the sum of $ , part of the money now due or hereafter to become due from you, the said , to me under a contract dated the day of , on account of the several buildings and works therein contracted to be erected and executed by me. And I authorize and request you to pay the said sum of $ out of any moneys which are now or hereafter may become due from you to me, for which sum the receipt of the said shall be your discharge. And if and so far as may be necessary to give effect to this assignment, I irrevocably appoint the said my attorney for me and in my name or otherwise to demand, sue for, re- cover, receive, and give effectual discharges for the said sum of $ hereby assigned. Witness my hand (and seal) this day of . 13. Assignment of Debts upon Trust to Collect and Pay Sum Due to Assignee, and Surplus to Assignor Indenture made this day of (parties as in Form 10, p. 166) : [Recital of assignor's indebtbdnBss.] Whereas, the assignor is indebted to the assignee in the sum of $ ; 170 FORM BOOK (Ch. 6 [Recital de;bts to bb assigned.] And whereas, the as- signor is entitled to the several debts the particulars whereof are specified in the schedule hereto annexed, and has agreed to assign them to the assignee upon the trusts hereinafter de- clared. [Assignment.] Now, this indenture witnesseth that, in consideration of the premises, the assignor hereby assigns unto the assignee all the several debts or sums of money specified in the second column of the schedule hereto, which are owing to the assignor from the several persons whose names are respectively set opposite to the sums in the first column of such schedule, and all other sums, if any, due and owing to the assignor from the said several persons, and the benefit of all securities for the same, and all interest due and to become due thereon. [Trust.] To hold the same unto the assignee absolutely, but upon trust nevertheless tOi call in, collect, and compel pay- ment thereof, and out of the moneys to be so realized in the nrst place to pay the costs, charges, and expenses incurred in realization, and in the next place tO' retain and pay to him- self the said sum of $ , with interest thereon at the rate of per cent, per annum from the day of , and to pay the surplus, if any, to the assignor. In witness, etc. 14. Assignment of Fire Insurance Policy by Indorsement For value received I hereby assign, transfer, and set over to all my right, title, and interest in and to the within policy, and all benefit and advantage to be derived therefrom. Dated . {Signature of insured) Ch. 6) ASSIGNMENTS 171 Consent of Insurance Company to Follozv Above Assignment The Fire Insurance Company hereby consents that the interest of in the within policy be assigned to , subject to all the terms and conditions therein men- tioned and set forth. Dated . A. B., Agent {or. Secretary, etc). 15. Assignment of Life Insurance Policy (Follow Form 4, p. 163, to*) that certain policy of insur- ance on my life, issued by the Life Insurance Com- pany, and numbered , for the sum of dollars, and all the moneys assured or to become payable thereby or thereunder and all the benefit and advantage to be derived therefrom ; to have and to hold the same unto the said ■ , his executors, administrators, and assigns. In witness, etc. 16. Assignment of Contract for Sale of Land by Purchaser Therein Indenture made the day of , between , of , of the first part, and , of , of the second part: [Recital of contract.] Whereas, by a certain agree- ment, bearing date the day of , between one and the said party of the first part, the said agreed to sell and convey to the said party of the first part, for the price and upon the terms therein mentioned, that cer- tain parcel of land described as (description) ; and whereas, no part of said purchase price has been paid. L [Assignment.] Now, this indenture witnesseth that 172 FORM BOOK (Ch. 6 tKe said party of the first part, in consideration of the sum ■of dollars to him paid by the said party of the sec- ond part, the receipt whereof is hereby acknowledged, doth ^hereby assign, transfer, and set over unto the said party of the second part the above-recited agreement and all the right, title, and interest of the said party of the first part in and to the- parcel of land therein described, to have and to hold the same unto the said party of the second part, his heirs, exec- utors, administrators, and assigns forever, subject, neverthei- less, to the terms, conditions, and stipulations in the said agreement contained. 2. [Assignee's covenants.] And the said party of the second part hereby covenants and agrees to and with the said party of the first part that the said party of the second part will pay the said purchase price, and will observe and per- form all the terms, conditions, and stipulations in the said agreement mentioned which are thereunder by the said party of the first part to be observed and performed, and will save harmless and keep indemnified the said party of the first part against all claims, demands, and actions by reason of the failure of the said party of the second part to observe and perform the said agreement. ' In witness, etc. 17. Assignment of Life Estate in Trust Funds Indenture made this day of , between , party of the first part, and , party of the second part : ■ Whereas, , late of , who died on the day of — , by liis will dated the day of , and duly proved and admitted to probate in and by the probate court of the county of and state of , on the -7— r- day of , gave the residue of his real and personal estate to his trustees upon trust to call in and convert the same Ch. 6) ASSIGNMENTS 173 into money, and invest the proceeds as therein mentioned, and pay the income thereof to the party of the first part during his life. Now this indenture witnesseth that the party of the first part, in consideration of the sum of $ to him paid by the party of the second part, the receipt whereof is hereby ac- knowledged, hereby assigns unto the party of the second part all the interest, dividends, and income hitherto accrued and un- paid and to accrue and become payable during the life of the party of the first part from or in respect of the residuary es- tate of the said . To hold the same unto the party of the second part absolutely. In witness, etc. 18. Assignment of Judgment (Follow Form 4, p. 163, to *) that certain judgment recover- ed by me, rendered on the day of in the court for the county of and state of , against , for the sum of dollars, as by the records thereof will more fully appear, and any and all sum or sums of money or other benefit or advantage which may he had or obtained by, reason of said judgment. • And I do hereby covenant with the said that there is now due and owing to me on said judgment the said sum of dollars, with interest from the date thereof. In witness, etc. 19. Same — Another Form Know all men by these presents that whereas, I, , of , did on the day of recover by judgment in the court in and for the county of , in the state of , against , of , dollars, as by the records thereof will more fully appear. 174 FORM BOOK (Ch. 6 Now, I, the said , in consideration of dollars, the receipt whereof is hereby acknowledged, do hereby sell, as- sign, transfer, and set over unto , of , the said judgment, and any and all such sum or sums of money or other benefit or advantage that may be had or obtained by reason of said judgment. And I do hereby make, constitute, and appoint the said , his executors, administrators, and assigns, to be my true and lawful attorney and attorneys, irrevocable, for me and in my name, but for their sole and proper use and benefit, and at their own costs and charges, to ask, demand, and by all law- ful means recover and receive, all money due or to become due on the said judgment, and to sue out executions upon the said judgment, or to prosecute any legal proceeding upon the said judgment, which I might do for the recovery thereof, and, on payment or collection of the same, to acknowledge satisfaction or to give good and sufficient releases and discharges of the said judgment, and to substitute attorneys under them for the purposes aforesaid, and revoke the same. And I do hereby covenant to and with the said , his executors, administrators, and assigns, that there is now due and owing to me on the said judgment the sum of dol- lars, with interest thereon from the day of . In witness, etc. 20. Same — Another Form Indenture made the — day of , between , party of the first part, and , party of the second part : Whereas, on the day of — judgment was entered in the court in favor of , and against , in the sum of dollars. ■ Now this indenture witnesseth that the said party of the first part, in consideration of dollars to him duly paid, Ch. 6) ASSIGNMENTS , 175 has sold and by these presents does assign, transfer, and set over unto the said party of the second part, and. his assigns, the said judgment and all sum or sums of money that may be had or obtained by means thereof. And the said party of the first part does hereby constitute and appoint the said party of the second part, and his assigns, his true and lawful attorney, irrevocable, with power of substitution and revocation, for the use and at the proper costs and charges of the said party of the second part, to ask, demand, and receive, and to sue out ex- ecutions and take all lawful ways for the recovery of the mon- ey due or to become due on the said judgment, and on payment to acknowledge satisfaction, or discharge the same, and attor- neys under him for the purpose aforesaid to make and substi- tute, and at pleasure to revoke, hereby ratifying and confirm- ing all that his said attorneys or substitutes shall lawfully do in the premises. And the said party of the first part does cove- nant that there is now due on the said judgment the sum of — ■ dollars, and that he will not collect or receive the same, or any part thereof, nor release or discharge the said judg- ment, the said party of the second part saving the said party of the first part harmless of and from any costs in the premises. In witness, etc. 176 FOEM BOOK (Ch. 7 CHAPTER VII ASSIGNMENT FOR BENEFIT OF CREDITORS AND COMPOSITIONS WITH CREDITORS The main purpose of an assignment for the benefit of cred- itors, a composition with creditors, or any other voluntary arrangement with creditors, is to secure for all the creditors the equal benefit of the debtor's property without the delay and loss incident to a proceeding in the bankruptcy or in- solvency court. An assignment for the benefit of creditors is usually a gen- eral assignment by the debtor of all his property, or of all his nonexempt property, to a trustee to convert it into money and distribute the proceeds among the creditors. Independently of insolvency and bankruptcy laws, preferences in favor of particular creditors are allowed. Assignments for the benefit of creditors are generally regulated in the different states by" statutes, which are in force except as affected by the National Bankruptcy Act. An assignment should, of course, be drawn and executed with reference tO' the provisions of the particular statute applicable to it. Under the National Bankruptcy Act, a general assignment, for the benefit of creditors is an act of bankruptcy ; and, even, if the debtor transfers only a part of his property, the transfer is an act of bankruptcy, if made with intent to hinder, delay,, or defraud his creditors, or if the debtor be insolvent, and the transfer is to one or more of his creditors with intent to- prefer them over his other creditors. Independently of the- Bankruptcy Act, indeed, a transfer made with jntent to hinder,, delay, or defraud creditors is fraudulent and subject to attack, by the creditors. A petition may be filed by the requisite number of creditors against a person who is insolvent, and. who has committed an act of bankruptcy within four months- thereafter. Moreover, the debtor commits an act of bank- ruptcy if he suffers or permits, while insolvent, any creditor to- obtain a preference through legal proceedings, provided the debtor does not at least five days before the sale or final dis- position of any property affected by such preference vacate or discharge the preference. It follows that the assent of sub- Ch. 7) ASSIGNMENTS AND COMPOSITION 17T stantially all the creditors is essential to the successful opera- tion of a general assignment. Under a composition agreement between a debtor and his creditors, each creditor agrees to accept a certain proportion of the debt due him in discharge of the whole. Under such an arrangement payment may be made immediately out of a fund provided wholly or in part by a third person, in which case security may be given to him, or payment may be by in- stallments, secured by the covenants of sureties or by the prom- issory notes of the debtor and sureties, or security may be taken in the form of an assignment to a trustee of part of the debtor's property, or the arrangement may be varied in other ways. As in the case of an assignment for the benefit of credi- tors, the co-operation of substantially all the creditors is es- sential, inasmuch as the arrangement has for its basis the in- solvency of the debtor. Assignment foe Benefit of Creditors Page 1. Assignment by an individual without preferences 178 2. Same — Another form ISO- 2a. Acceptance by assignee 182 3. Assignment by partners with preferences 182 4. Assignment by partners for benefit of joint and separate creditors, release of debts 185- 5. Same — Another form 192 6. Short form of assignment to wind up or carry on a small mercantile business 197 7. Assent of creditor to deed of assignment and undertaking to execute same 200 8. Deed allowing debtor to carry on his business under inspec- tion and control of committee of creditors and providing for assignment in certain events 200^ II Composition with Creditors 9. Deed of composition providing for payment by installments with covenant to pay by debtor (and a guarantor) 209' 10. Deed of composition providing for payment by install- ments, secured by assignment of contracts and notes of debtor and sureties 212 11. Deed of composition by partners providing for payment of one composition to both joint and separate creditors, secured by notes of partners and surety, with assign- ment of firm business to surety 21T TiFF.FORMS — 12 178 FORM BOOK (Ch. 7 Page 12. Agreement between debtor and principal creditors for com- position payable by installments, secured by notes of debtor and third persons, to take effect on signing by creditors and delivery of notes wltMn limited time .... 221 13. Agreement for composition and releases, althougb non- exeouting creditors be paid in full 222 Assignments for Benefit of Creditors 1. Assignment by an Individual Without Preferences Indenture made this day of , between of , party of the first part, and , of party of the second part: [Recital os debts.] Whereas, the party of the first part owes divers debts, wliich he is unable to pay in full, and is desirous to provide for the payment of the same, so far as in his power, by an assignment of all his property for that purpose. [Assignment to trustee.] Now, this indenture witness- eth that the party of the first part, in consideration of the , premises, and of one dollar to him paid before the sealing and delivery of these presents, the receipt of which is hereby acknowledged, has granted, bargained, sold, assigned, trans- ferred, and set over, and by these presents does grant, bar- gain, sell, assign, transfer, and set over, unto the party of the second part, his successors and assigns, all and singular the lands, tenements, hereditaments and appurtenances, goods, chattels, stocks, promissory notes, debts, choses in action, evi- dences of debt, claims, demands, property, and effects of every description belonging to the party of the first part, wherever the same may be situated, except such property as is exempt by law from levy and sale under execution. [Trust eor conversion.] To have and to hold the same, Ch. 7) ASSIGNMENTS AND COMPOSITIONS 179 and every part thereof, unto the party of the second part, his successors and assigns, but in trust, nevertheless, for the uses and purposes following : 1. To take possession of the said property, and to sell and dispose of the same, with all reasonable diligence, either at public or private sale, and for the best prices that can be ob- tained therefor, and to convert the same into money, and also to collect all such debts and demands hereby assigned, as may be collectible. And with and out of the proceeds of such sales and collec- tions : 2. [Expenses and charges.] To pay and discharge all the just and reasonable expenses, costs, and charges of exe- cuting this assignment, and of carrying into effect the trust hereby created, including the lawful commissions of the party of the second part for his services in executing the said trust. 3. [Payment oE debts.] To pay and discharge in full, if the residue of said proceeds is sufficient for that purpose, all the debts and liabilities now due, or to become due, from the said party of the first part, together with all interest moneys due and to grow due thereon ; and, if the residue of the said proceeds shall not be sufficient to pay the said debts and liabilities, and interest in full, then to apply the same, so far as they will extend, to the payment of the said debts and liabilities and interest, proportionately to their respective amounts. 4. [Appeication of surplus.] And if, after payment of all the said debts and liabilities, in full, there shall be any sur- plus or residue of the said property or proceeds, to repay and return the same to the party of the first part, his executors, administrators, or assigns. 5. [Power oe attorney.] And for the better and more effectual execution of these presents the party of the first part 180 FORM BOOK (Ch. 7 doth hereby make, constitute, and appoint the party of the sec- ond part his true and lawful attorney, irrevocable, with full power and authority to do, transact, and perform all acts, deeds, matters, and things which may be necessary in the premises, and to the full execution of the trust hereby created, to ask, demand, recover, and receive of and from all and every person and persons all the property, debts, and demands be- longing and owing to the party of the first part, and to give acquittances and discharges for the same, and to sue, prose- cute, defend, and implead for the same, and to execute, ac- knowledge, and deliver all deeds and instruments of convey- ance necessary or proper for the better execution of the trust hereby created; and also for the purposes aforesaid, or for any of them, to make, constitute, and appoint one or more at- torneys under him, and at his pleasure to revoke the same, "hereby ratifying and confirming whatever the said party of the second part, or his substitute, shall lawfully do in the premises. 6. [Acceptance of trust.] And the party of the second part doth hereby accept the trust created and in him reposed by these presents, and doth covenant and agree to and with the said party of the first part that he will faithfully and with- out delay execute the same according to the best of his skill, knowledge, and ability. In witness whereof the parties to these presents have here- unto set their hands and seals the day and year first above written. Sealed and delivered in presence of (Signatures and seals.) 2. Same — Another Form Know all men by these presents that, whereas, I, , of , am indebted to divers persons in considerable sums •of money, which I am at present unable to pay in full, and Ch. 7) ASSIGNMENTS AND COMPOSITIONS 181 am desirous to convey all my property for the benefit of all my creditors without any preference or priority. Now, therefore, I, the said , in consideration of the premises, and of one dollar to me paid by , of , the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, assign, transfer, and set over unto the said • all my lands, tenements, hereditaments, goods, chat- tels, property, and rights in action of every name, nature, and description, wheresoever the same may be, except such prop- erty as is by law exempt from execution ; to have and to hold the same unto the said in trust, to sell and dispose of the said real and personal property, and to collect the said rights in action, with the power to compound for the said rights in action, taking a part for the whole, where the said shall deem it expedient so to do, and then in trust to apply the proceeds of the said property and rights in action in the following manner : 1. To pay the costs and charges of these presents, and the lawful expenses of executing the trust hereby created. 2. To distribute and pay the remainder of said proceeds to the creditors of me, the said , for all debts and liabil- ities which I may be owing or indebted to any person what- ever: Provided, however, that if there shall not be sufficient funds with which to pay all my said debts, then the said debts are to be paid ratably and in proportion. 3. The residue and remainder of said proceeds, if any there be, after paying all my said debts in full, the said • is to repay to me, or my executors, administrators, and assigns. In witness whereof, I have hereunto set my hand and seal this of . In presence of (Signature and seal.) 182 FORM BOOK (Ch. 7 2a. Acceptance by Assignee I hereby accept the trust created by the above instrument, and agree faithfully to perform the same. Dated the day of . (Signature.) 3. Assignment by Partners, With Preferences This indenture made the day of , between and , partners under the name and style of A. & Co., of , parties of the first part, and , of the same place, party of the second part: [REcitai, of indEbTBdnEss-] Whereas, the said partner- ship is justly indebted in sundry considerable sums of money, and has become unable to pay and discharge the same with punctuality or in full, and the said parties of the first part are now desirous of making a fair and equitable distribution of all their property and effects among their creditors. 1. [Assignment to trustee.] Now, therefore, this inden- ture witnesseth that the said parties of the first part, in con- sideration of the premises, and lof the sum of one dollar to them in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, convey, assign, transfer, and set over unto the said party of the second part, and to his heirs and assigns forever, all and singular the lands, tenements, hereditaments, and all the goods, chattels, merchandise, bills, bonds, notes, book ac- counts, claims, demands, choses in action, judgments, evidenc- es of debt, and property of every name and nature whatsoever of the said parties of the first part. To have and to hold the same, and every part and parcel thereof, with the appurtenances, to the said party of the sec- ond part, his heirs, executors, administrators, and assigns. Ch. 7) ASSIGNMENTS AND COMPOSITIONS 183 In trust, nevertheless, to and for the followmg uses, intents, and purposes, that is to say : 2. [Trustee; to convert into money.] The said party of the second part shall forthwith take possession of all and singular the lands, tenements, hereditaments, property, and effects hereby assigned, and sell and dispose of the same for the best prices which he shall be able to obtain, and to convert the same into money, and shall also collect all and singular said debts, duebills, bonds, notes, accounts, claims, demands, and choses in action, or so much thereof as may prove collectible, and thereupon execute, acknowledge, and deliver all necessary conveyances and instruments for the purposes aforesaid. 3. [Cost and expenses.] By and with the proceeds of such sales and collections, the said party of the second part shall iirst pay and disburse all the lawful expenses, costs, charges, and commissions of executing and carrying into effect this assignment. 4. [Preferred creditors.] By and with the residue or net proceeds and avails of such sales and collections, the said party of the second part shall pay and discharge in full the debt due to the firm of , of , for the sum of $ . 5. [Other preferred creditors.] By and with the resi- due and remainder of said net proceeds and avails the said party of the second part shall pay and discharge the several and respective debts, bills, notes, or sums of money due, or to grow due, from the parties of the first part to the persons des- ignated in the schedule hereto annexed, together with such in- terest as may accrue thereon ; and, if such net proceeds and avails shall not be sufficient to pay the same in full, then such net proceeds and avails shall be distributed pro rata among said persons, according to the amount of their respective claims. 184 FORM BOOK (Ch. 7 6. [Partnership CREDITORS.] By and with the residue and remainder of said net proceeds and avails, if any there shall be, the party of the second part shall pay and discharge all the other partnership debts, demands, and liabilities whatsoever, now existing, whether due or hereafter to become due, pro- vided such remainder shall be sufficient for that purpose ; and, if not sufficient, then the same shall be applied pro rata to the payment of said debts, demands, and liabilities, according to their respective amounts. 7. [Individual creditors.] By and with the residue and remainder of said net proceeds and avails, if any there shall be, the party of the second part shall pay and discharge all the private and individual debts of the parties of the first part, or either of them, whether due or to grow due, provided such remainder shall be sufficient for the purpose; and, if insuffi- cient, then the same shall be applied pro rata, share and share alike, to the payment of said debts, according to their respec- tive amounts. 8. [Power oe attorney.] And for the better execution of these presents, and of the several trusts hereby reposed, the said parties of the first part do hereby make, nominate, and appoint the said party of the second part the true and lawful attorney irrevocable of them and of each of them, with full power and authority to do, transact, and perform all actsj deeds, matters, and things which can or may be necessary in the premises, as fully and completely as the said parties of the first part, or either of them, might or could do, were these presents not executed ; and attorneys, one or more, under him, to make, nominate, and appoint, with full power of substitu- tion and revocation, hereby ratifying and confirming all and everything that our said attorneys, or his attorneys, shall do or cause to be done in the premises. Ch. 7) ASSIGNMENTS AND COMPOSITIONS 185 9. [Acceptance 0? trust.] And the party of the second part hereby accepts the trust created by these presents, and covenants that he will faithfully perform the same. In witness, etc. {Signatures and seals.) SCH]JDUI<1S. (Names of creditors intended to be preferred in second cla^s, imth amounts of their debts.) 4. Assignment by Partners for Benefit of Joint and Sepa- rate Creditors — Release of Debts This indenture made the day of between A. B. and C. D., of , carrying on the business of in partnership under the name or style of B. & Co., at , hereinafter called the debtors, of the first part, and and , of , hereinafter called the trustees, of the second part, and the several persons, firms, and corporations, being creditors of the debtors, whose names (and seals) are subscribed and affixed, and the amount of whose debts are set out in the schedule hereto, and all other creditors of the said A. B. and C. D. or of the said firm of B. & Co. who shall assent to or agree to be bound by these presents or undertake to execute the same, all of which persons, firms, and corpora- . tions are hereinafter referred to as the creditors, of the third part: [Recital oe indebtedness.] Whereas, the debtors are jointly and severally indebted to the creditors in the third part of the said schedule hereto, and are respectively severally in- debted to the creditors in the first and second parts of the said schedule, in the amounts set opposite their respective names ; [Recital oe intended assignment.] And whereas, the debtors are unable to pay either to their joint or to their re- 186 FOEM BOOK (Ch. T spective separate creditors their debts in full, and have agreed to convey and assign to the trustees the property hereinafter mentioned on condition of being released from their debts as hereinafter provided; [ReciTAt OF ACCEPTANCE BY CREDITORS.] And whereas, the creditors have agreed to accept the said proposal and to take such conveyance and assignment in discharge and satis- faction of their respective debts and to grant to the debtors the joint and separate releases hereinafter contained. Now, this indenture witnesseth as follows : 1. [Conveyance and assignment — Excepted property.]; In pursuance of the said agreement and in consideration of the premises the said A. B. and C. D. do each of them hereby convey and assign to the trustees all the real and personal es- tate whatsoever and wheresoever of the debtors or either of them, excepting such property as is by law exempt from exe- cution, all of which property hereby conveyed and assigned is- hereinafter referred to as the trust property. To hold the said trust property as to such part thereof as consists of real estate to the use of the trustees in fee simple and as to such part thereof as consists of personal estate unto the trustees absolutely, but as to all the trust property subject to the trusts,, powers, and provisions hereinafter contained. 2. [Trust for conversion.] The trustees shall at such, times and in such manner as they shall think fit call in, collect^ compel payment of, and receive such part of the trust property as is outstanding, and sell and convert into money such part thereof as does not consist of money. 3. [Power to divide in specie.] It shall be lawful for the trustees, if they shall be of opinion that it would be more advantageous to the creditors, to divide in specie among the creditors, or among such of them as are willing to take the same, any part or parts of the debtors' property, and for that Ch. 7) ASSIGXMEXTS AND COMPOSITIONS 187 purpose to estimate and put upon such property such value as in their opinion it is worth. 4. [Application of proceeds.] The trustees shall pay and apply the net proceeds of such sale and conversion and all other moneys which shall come into their hands by virtue •of the trusts hereof as follows : (a) [Costs, charges, and expenses.] In payment of all the costs, charges, and expenses of and incidental to the prep- aration and execution of these presents, including the investi- gation of the debtors' affairs separately and as a firm, and of preparing statements of affairs of the debtors separately and •of their firm, and of the several meetings held by the creditors « whether separate or joint or both, and of realizing and man- aging the trust property or administering the trust funds and every part thereof, or otherwise relating to or arising out of the trust of these presents, including therein the remuneration of the trustees as hereinafter provided. (b) [Preferential claims.] In payment of all such debts as would by law be payable in full or in priority if the trust property were being administered in bankruptcy. (c) [Dividends.] In payment to the creditors by such dividends and at such times as the trustees shall think fit of all .such debts and claims as would be provable if the trust prop- erty were being administered and distributed in bankruptcy, and in such priorities and in accordance with such rules and equities as are applicable to the administration and distribu- lion of joint and separate estates in bankruptcy. (d) [Surplus.] The surplus, if any, of the trust funds ^hall be paid to the debtors respectively or as they shall direct in writing, according to their respective rights and interests therein. 5. [Power to postpone conversion and carry on the business.] It shall be lawful for the trustees, if they shall 188 FORM BOOK (Ch. T think fit, to postpone the sale and conversion of any part of the trust property for such period as they shall think fit (but not exceeding months without the consent of the cred- itors), and until such sale and conversion to manage, lease, re- pair, insure, or otherwise deal with the same as they may deem best, and in the meantime, but solely for the purpose of realizing the joint estate to the best advantage, carry on and manage the business of the debtors, and employ the debtors or either of them or any other person or persons in carrying on the said business and winding up the same or in realizing, and disposing of any of the trust property or otherwise in or about the premises, and to pay to the debtors or such other persons a reasonable remuneration for such services. 6. [Trusters' remuneration.] The trustees shall be en- titled to retain by way of remuneration a sum equal to per cent. upon, the amount distributed in dividend among the creditors, and so long as the said business is being carried on as aforesaid the trustees shall be entitled to receive the sum of $ per month on account of such remuneration. 7. [ProoE of debts.] If the trustees (or either of them) shall so require, the creditors or any of them, notwithstand- ing that they or he may have executed or assented to these presents and the amount of their or his debts or debt may be stated in the schedule hereto, shall prove their debts or his debt with such particulars and in such manner as the trustees may in their discretion think fit to require. 8. [Power to settle with dissentient creditors.] The trustees may, if they shall deem it expedient, pay in full or compound for at a higher rate or give security for or other- wise settle any debt not exceeding $ of any separate creditor, or $ of any joint creditor, who may refuse to come in under and take advantage of these presents. Ch. 7) ASSIGNMENTS AND COMPOSITIONS 189' 9. [Power to compromise; claims oi? debtors.] The trustees shall have power to compromise and in case of dis- pute to refer to arbitration all debts, claims, and liabilities,, whether present or future, certain or contingent, liquidated or unliquidated, existing or supposed to exist between the debt- ors and any person who may have incurred any liability to the debtors upon such terms as the trustees may deem expe- dient, including power to renounce, disclaim, or abandon the same or any of them. 10. [Power to pay off or redeem securities, etc.] The trustees shall have power to make such arrangement with any person having any mortgage, lien, charge, pledge, or other security on the trust property as the trustees may deem expe- dient for the purpose of paying off, redeeming, transferring,, or releasing the equity of redemption of such mortgage, lien, charge, pledge or other security, and may keep down all inter- est payable thereon from time to time. 11. [Power of attorney.] The debtors do and each of them doth hereby appoint the trustees their and his lawful attorney in their name and in the name of each of them and of the said firm of B. & Co. and on their behalf and on behalf of each of them and of the said firm of B. & Co. to do all such acts and things, and to make and execute all such deeds, instruments, and documents, as in the opinion of the trustees may be necessary or expedient for any of the purposes afore- said and generally for more effectually executing the trusts of these presents. 12. [Release.] In further pursuance of the said agree- ment, and in consideration of the premises, the creditors do and each of them doth hereby release the debtors and each of them from the said debts, both joint and separate, and from all actions, claims, demands, or other proceedings by the cred- itors or any of them in respect thereof. 190 FORM BOOK (Ch. 7 13. [Reservation oe rights against sureties.] The foregoing release shall in no way affect such rights and rem- edies as the creditors or any of them may be entitled to in respect of the said debts against third persons^- and all rights and remedies of the creditors against any and all sureties, guarantors, and indorsers are hereby expressly reserved. 14. [Reservation op rights oe secured creditors.] It shall be lawful for any creditor who holds any mortgage, lien, pledge, charge, or other security on or over any joint or sep- arate property of the debtors or either of them to take the full benefit of such mortgage, charge, lien, pledge, or other security subject to the provisions of the federal Bankruptcy Act, so far as they refer and are applicable to proofs by se- cured creditors. 15. [Creditors' meetings and resoIvUTions.] The trus- tees may at such times and in such manner as they may think fit call a meeting of the joint or of the separate creditors or of both combined, and shall call such meetings or meeting if so requested by not less than in number (representing $ in value) of the joint or of the separate creditors, or of the two combined, and the trustees shall have regard in the administration of the trusts hereby declared to the directions given by such joint or separate or joint and separate creditors by resolution at such meetings or meeting. Such resolutions shall not, unless the same are unanimously passed by separate resolutions at separate meetings of both joint and separate creditors specially summoned for the purpose, contravene the provisions hereinbefore contained for the administration of the joint and separate estates according to the law of bank- ruptcy. 16. [Apportionment oe costs.] The trustees shall have full power in their absolute discretion to apportion the costs, charges and expenses, including their own remuneration, of Ch. 7) ASSIGNMENTS AND COMPOSITIONS 101 the realization and distribution of the trust property and trust fund and of exercising any of the powers conferred on them by and in executing any of the trusts of these presents be- tween the joint and separate estates. 17. [REMOVAL OF Trustees.] The creditors in meeting as- sembled in accordance with the provisions hereinbefore con- tained shall have full power, in case it may seem expedient in the interests of the creditors to do so, to remove the trustees or either of them for any cause whatsoever (and without as- signing any reasons for such removal). 18. [Appointment of new trustees.] If the trustees or either of them or any trustee appointed as hereinafter pro- vided shall refuse to act, or become incapable of acting, or shall die, or resign, or cease to be trustee, or be removed, or in any other case in which a vacancy shall occur in the office of trustee hereunder, or if the creditors shall desire to appoint an additional trustee, then and in every such case the cred- itors, at a meeting and by a resolution passed thereat as here- inbefore provided, shall have power to appoint a new or ad- ditional trustee of these presents. And every new or addi- tional trustee, as well before as after all the trust property be- comes by assurance or otherwise vested in him, shall have the same powers, authorities, and discretions and may in all re- spects act as if he had been originally appointed a trustee by these presents. In witness, etc. (Signatures and seals of partners and trustees.) Schedule. Part I. (Signatures and seals of the separate creditors of one part- ner^ and the amounts of their debts.) 192 FOEM BOOK (Ch. 7 Part II. {Signatures and seals of the separate creditors of the other partner, and the amounts of their debts.) Part III. {Signatures and seals of the joint creditors of the partner- ship, and the amounts of their debts.) 5. Same — Another Form This indenture made this day of , by and be- tween and , of , carrying on the business of at — -, in partnership under the name or style of & Co., hereinafter called the debtors, parties of the first part, and , of , hereinafter called the trus- tee, party of the second part, and the creditors of the debtors who shall assent in writing to these presents as hereinafter provided, hereinafter called the creditors, parties of the third part: 1. [Assignment to trustee.] Witnesseth that the debt- ors, and each of them, in consideration of one dollar and other valuable considerations to them paid by the trustee, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, assign, and convey unto the trustee all the property and estate, both real and personal, wherever situate, of the debtors or either of them, excepting only such as by the laws of the said state is exempt from levy and sale under execution, to have and to hold all the said estate and property, hereinafter referred to as the trust property, to the trustee and his suc- cessors and assigns, absolutely, in trust nevertheless for the uses and purposes hereinafter set forth. 2. [Conversion oe trust property — Continuance of BUSINESS.] The trustee shall convert all the trust property Ch. 7) .ASSIGNMENTS. AND COMPOSITIONS 193 into money as soon as in the judgment of the trustee it can be done conveniently and to the best advantage, and for that purpose shall call in and collect such part of the trust property as is outstanding, and sell and convert into money such part thereof as does not consist of money : Provided, that the trus- tee may, if he shall deem best, but solely for the purpose of converting the trust property into money to the best advan- tage, continue and carry on the said business of the debtors for a period not exceeding months from the date of these presents, and for any further time to which the cred- itors may in writing assent to. 3. [Transfer to trusted in bankruptcy, if any.] In the event that the debtors or either of them shall be adjudged bankrupt upon a petition filed by or against them or either of them within four months of the recording of these presents, the trustee shall convey and transfer to the trustee in bank- ruptcy who shall be appointed in such bankruptcy proceedings all of the trust property and the proceeds thereof to which such trustee in bankruptcy may be entitled by law, less reason- able compensation for services of and charges and expenses reasonably incurred by the trustee hereunder. 4. [Application and distribution op proceeds.] Sub- ject to the provisions of the preceding paragraph, after de- ducting suitable compensation for the services of and reason- able charges and expenses incurred by the trustee, including those for the negotiation, preparation, and execution of these presents, the trustee shall pay and apply the net proceeds of the trust property as follows: First, in payment of all such debts and liabilities as would by law be payable in full and in priority to other debts if the trust property were being ad- ministered in bankruptcy; second, in payment to the credi- tors, equally and ratably, and by such dividends and at such times as the trustee shall think fit, of such other debts, lia- TiFr. Forms — 13 194 FORM BOOK (Ch. 7 bilities, and of liquidations of the debtors to the creditors as would be provable if the trust- property were being adminis- tered in bankruptcy, and in accordance with the rules which would be therein applicable to the appropriation of the part- nership property and the individual estates of the partners respectively to the payment of the partnership debts and the individual debts respectively; third, in payment of the sur- plus, if any, to the debtors respectively as their interest may appear. 5. [Rei-Ease — Proviso in case oe bankruptcy.] In con- sideration of the premises the creditors do hereby respectively and severally release and discharge the debtors and each of them from all and singular their debts, claims, demands, and causes of action against the debtors or either of them, both joint and separate, existing at the date hereof, whether pay- able now or at some future time : Provided, that if the debtors or either of them shall be adjudged bankrupt upon a petition filed by or against them or either of them within four months after the recording of these presents, the foregoing releases and discharges shall be void and of no effect as to such debts, demands, and claims as may be provable against the estates of such bankrupts or bankrupt, and the dividends, if any, which shall have been paid to the creditors or any of them respectively upon said last-described debts, demands, and claims out of the trust property under these presents shall merely reduce the same pro tanto, and the said debts, de- mands, and claims so reduced shall be enforceable against the respective debtors or debtor, and provable in bankruptcy against their or his estates. 6. [Reservation oe rights against sureties and of se- cured CREDITORS.] All rights and remedies of the creditors against any surety or sureties for the debtor are hereby ex- pressly reserved, and nothing herein contained shall prevent Ch. 7) ASSIGNMENTS AND COMPOSITIONS 195 the creditors or any of them from suing any third parties or persons other than the debtors who may be liable to any of the creditors for all or any part of their claims against the debtors or either of them or from enforcing or otherwise ob- taining the full benefit of any mortgage, charge, pledge, lien, or other security which they now hold on any property, cred- its, or effects of the debtor. 7. [Creditors to vai,ue thbir securities.] Any cred- itor who may have any such mortgage, charge, lien, pledge, or other security as aforesaid shall- be entitled to receive divi- dends hereunder in respect to the balance of his claim only after realizing or allowing for or valuing and deducting the value of such security, and any creditor who shall neglect to realize or value such security prior to receiving dividends hereunder shall be taken to have abandoned such security, and the same shall be forfeited and become part of the trust prop- erty.^ 8. [Power to pay oee or redeem securities, etc.] See Form No. 4, cl. 10, p. 189. 9. [Power to refer to arbitration.] The trustee shall have power, upon such terms as the trustee may deem expe- dient, to compromise, and in case of dispute to refer to arbi- tration, the claims or demands of any of the creditors against the debtors or either of them, or any dispute or controversy which shall arise out of these presents and the trusts herein declared or the execution thereof: Provided, that nothing herein contained shall bind any of the creditors to refer to arbitration any such claim or demand. 10. [Debtors to assist trustee.] The debtors and each of them do hereby covenant with the trustee and the creditors 1 For a provision compelling the ereclitor to value and entitling the trustee to redeem within a limited time, see Form No. 11, cl. 5, p. 219. 196 FOEM BOOK (Ch. 7 and each of them that the debtors and each of them will at all times give the trustee all the ihformation and assistance in their power in order to enable the trustee to collect, get in, and realize the estates of the debtors and each of them, and for that purpose will execute and do all such instruments and things as may reasonably be required by the trustee. 11. [PowBr op attorney.] See Form No. 4, cl. 11, p. 189. 12. [Creditors, when dEEmEd parties.] No creditors shall be deemed a party to these presents or entitled to the benefit of the provisions hereof who shall fail to assent in writing hereto within days from the date hereof ; but such assent may be expressed either by signing these, presents or by signing and delivering to the trustee any other writing expressing an assent to the terms hereof : Provided, that any person who was a creditor of the debtors or either of them at the date hereof may become a party hereto after the ex- piration of the said days with the consent of the trus- tee expressed in writing, if the trustee shall see fit to give such consent. Nothing herein shall prevent the party of the sec- ond part from becoming also a party of the third part here- under. 13. [Acceptance by and accountability oe trustee.] The party of the second part hereby accepts the trusts hereby created, and hereby covenants with the debtors and the cred- itors and each of them that he will faithfully and impartially execute the same ; but the trustee shall not be accountable or liable for any loss or damage net occasioned by his own will- ful neglect or gross negligence. In witness, etc. Ch. 7) ASSIGNMENTS AND COMPOSITIONS 197 6. Short Focm of Assignment to Wind up or Carry on a Small Mercantile Business Indenture made this day of between , of , hereinafter called the debtor, party of the first part, and , of , hereinafter called the trustee, party of the second part, and the several persons, firms, and corpora- tions, being creditors of the debtor, who shall in writing as- sent to these presents as hereinafter provided, and who are hereinafter referred to as the creditors, parties of the third part: [Recital o? indebtedness.] Whereas, the debtor has in- curred debts to the creditors which he is unable to pay as they fall due; [Recital oe proposed assignment.] And whereas, it is deemed advisable by all the parties hereto that the debtor shall transfer his property, except his household furniture and wearing apparel, to the trustee to the end that the trustee may continue the mercantile business heretofore carried on by the debtor at , or sell and dispose of the same and all the said property for the purpose hereinafter stated; [Recital oe acceptance by creditors.] And whereas, the creditors are willing to release the debtor from their re- spective debts on the terms and subject to conditions herein- after set forth ; [Recital oe trustee's acceptance.] And whereas, the party of the second part is willing to act as trustee hereunder as evidenced by his execution of these presents. Now, therefore, this indenture witnesseth as follows : 1. [Assignment.] The debtor, in consideration of the premises and of one dollar to him paid by the trustee, the re- ceipt whereof is hereby acknowledged, doth hereby grant, con- 198 FORM BOOK (Ch. 7 vey, assign, and transfer unto the trustee and his successor or successors all property, real and personal, whatsoever and wheresoever, of the debtor, excepting, however, the household furniture and wearing apparel of the debtor, to have and to hold the same, which is hereinafter referred to as the trust property, to the trustee and his successors and assigns abso- lutely, but in trust nevertheless for the uses and purposes here- inafter specified. 2. [Trustee; to convert into money — Power to carry ON BUSINESS.] The trustee shall convert the trust property into money in such manner and at such time or times as in the judgment of the trustee shall be for the best interest of the creditors. The trustee is hereby authorized, if he shall deem it for the best interest of the creditors, to postpone such conversion for such period as he shall think fit, and in the meantime to carry on the said business of the debtor, and tor that purpose from time to time to purchase such goods as may be necessary to keep up the stock therein and supply the de- mand therefor in the usual course of trade, and to employ such persons, including the debtor, in carrying on or winding up the said business, or in realizing and disposing of the trust property, as the trustee may deem necessary, and to pay for the goods so purchased, and the reasonable compensation of such persons so employed, and all the necessary current and other expenses of conducting, carrying on, winding up, pro- tecting, disposing of, and realizing the said business and the trust property, including the rent of the premises where the said business has been or may be carried on, taxes, and in- surance, from the receipts and proceeds of the said business and trust, property. And the trustee is hereby authorized to do all things which he may deem necessary or advisable to be done in the successful carrying on or closing out of the said business and property. ch. 7) assignments and compositions 199 3. [Application of proceeds — Dividends to credi- tors.] Whenever from time to time and so often as the trus- tee shall have on hand from the receipts and proceeds of the said business and the trust property moneys in his judgment sufficient, after the payment of all current bills and expenses to date, to pay a dividend to the creditors on the debts owmg to them from the debtor, the trustee shall pay such dividend to and among all the creditors equally and ratably. And if and when all the said debts, with interest thereon, shall have been paid in full, the trustee shall pay and transfer to the debt- or the balance and residue, if any, of the trust property. 4. [Power oe attorney.] The debtor hereby appoints the trustee and his successor or successors his lawful attorney or attorneys on his behalf to do and execute all such acts, things, deeds, instruments, and documents as in the opinion of the trustee or his successor or successors may be necessary or ad- visable for any of the purposes aforesaid, and generally for more effectually executing the trusts hereby created. 5. [Release.] In consideration of the premises the cred- itors and each of them do hereby release the debtor from their said respective debts and from all liability in respect thereof as fully as the debtor would be released by a discharge in bankruptcy. 6. [Creditors when deemed parties.] Every creditor shall be deemed a party hereto who shall execute these pres- ents or who shall sign and deliver to the trustee a copy hereof or any other writing expressing an assent hereto. 7. [New trustees.] In case a vacancy shall occur in the office of trustee hereunder by reason of the death or resigna- tion of the party of the second part or for any other reason, such vacancy may be filled by a majority of the creditors, rep- resenting in amount more than one-half of the debts of all the creditors. In witness, etc. 200 FORM BOOK (Ch. 7 7. Assent of Creditor to Deed of Assignment and Under- taking to Execute Same In the matter of the assignment of . I, the undersigned, being a creditor of the above-named , for the sum of $ , hereby assent to and agree to be bound by a deed of assignment, dated the day of , and expressed to be made between the said , of the first part, , of the second part, and the several individuals, firms, and corporations, being creditors of the said , whose names and addresses are contained in the schedule thereto (or, the creditors of the said , who shall assent in writing thereto as therein provided), of the third part, whereby the said assigned all his estate and effects to the said as trustee for the benefit of his cred- itors generally as therein set forth. And I hereby undertake to execute such deed of assignment. Dated this day of . (Signature.) 8. Deed Granting License to Debtor to Carry on his Busi- ness under Inspection and Control of Committee of Creditors and Providing for Assignment in Certain Events Indenture made the day of between , of , hereinafter called the debtor, of the first part, , , and , of , who and the survivor of them or other the persons or person for the time consti- tuting the committee under these presents are hereinafter re- ferred to as the committee, of the second part, and the several persons, firms, and corporations, being creditors of the debtor, whose names and seals are subscribed and affixed to these presents, and all other creditors of the debtor who shall as- sent to or agree to be bound by or undertake to execute these Ch. 7) ASSIGNMENTS AND COMPOSITIONS 201 presents, all of which persons, firms, and corporations are hereinafter referred to as the creditors, of the third part: [Recital of indBbtedness.] Whereas, in the course of carrying on his business of , at , he has become indebted to the creditors in the amount of the debts set oppo- site to their respective names in the schedule hereto; [Recital oe debtor's request to creditors.] And whereas, the debtor is temporarily embarrassed and unable at present to pay the said debts, and has requested the creditors to grant him time and to allow him to carry on his said busi- ness personally as heretofore, but subject to the inspection and control of the committee and to the conditions hereinafter contained ; [Recital oE creditors' assent.] And whereas, the cred- itors, being desirous that the said business should be carried on and the good will thereof preserved, have agreed to allow the debtor to carry on the said business as so requested for the period of months {or, years) from the date hereof. Now this indenture witnesseth as follows : 1. [lyicENsE to debtor to carry on business — Cove- nants NOT TO SUE, ETC.] In pursuance of the said agreement and in consideration of the premises, the creditors do and each of them doth hereby grant unto the debtor full liberty and license to carry on his said business of , for the period of months (or, years) subject only to the conditions hereinafter contained ; and the creditors do and each of them doth hereby covenant with the debtor, his heirs, executors, and administrators, that they the several creditors respectively will not during the continuance of these presents bring or prose- cute any action or other legal proceeding at law, in equity, in bankruptcy, or otherwise, or arrest, attach, or molest the debt- or or his estate or effects for or on account of any debt or de- mand from or upon the debtor, and that these presents may 202 FOEM BOOK (Ch. 7 be pleaded as a defense to any such action or other legal pro- ceeding (or, and that the debt or claim of any creditor so act- ing in breach of his said covenant shall be void). 2. [Business to be carried on under control oe com- mittee.] In consideration of the premises, the debtor shall carry on his said business with all diligence and to the best of his ability, subject to the inspection, direction, and control of the ' committee, and the debtor shall in carrying on the same in all matters (of doubt or difficulty) apply for and follow the advice and directions of the committee.^ 3. [Statement oe present aEEairs.] The debtor will im- mediately instruct , certified accountants, to make a statement of hi§ affairs as of the day of , and will give them every facility and all assistance and informa- tion in his power in preparing the same.^ 4. [Committee's appointee to receive moneys, etc.] Thr. debtor will allow or such other person or persons as tjie committee may from time to time appoint, including, if they shall see fit, the debtor himself, to collect and receive all debts and moneys, and all bills, notes, checks, or other securi- ties now due or hereafter accruing in respect of the said busi- ness, and its property, credits, and effects. 5. [Agent to disburse moneys and pay baeancE to committee.] The debtor shall allow the said or such other person as aforesaid, after payment out of the moneys coming to his hands of the current business expenses of the debtor in and with respect to the said business, including therein all salaries, wages, rents, taxes, assessments, interest, insurance, and other necessary expenses, and all accounts for = While it is generally expedient that the committee should exer- cise the minimum of Interference, it is desirable to give them full power. 3 This may be omitted if a satisfactory statement has already been submitted. Ch. 7) ASSIGNMENTS AND COMPOSITIONS 203 new materials or other goods necessary for successfully carry- ingf on the said business, to pay over the balance of such mon- eys weekly to the committee or as they shall from time to time direct. 6. [COJIMITTEB MAY RAISE MONgY ON SECURITY OF BUSI- NESS.] The committee may from time to time male advances to the debtor to enable him to carry on the said business, and for that purpose may raise money upon the security of the said business, its property and effects, to such amount and in such manner as they may deem fit, and the debtor will execute and do all such instruments and things as the committee may require in order to enable them to raise such money. 7. [Debtor not to incumber or part with business or PROPERTY.] The debtor will not mortgage, pledge, create any lien upon, or otherwise incumber, or part with the possession or control of, his said business, or any of its or his property, credits, or effects, without the consent of the committee. 8. [New and old contracts.] The debtor will not enter into any new contracts or engagements without the consent of the committee; and the committee may, if they think fit, require the debtor to determine and put an end to any existing contract, and the debtor shall thereupon determine such con- tract accordingly. 9. [Application oe moneys.] The committee shall apply all moneys received by them under and by virtue of these pres- ents in the payment of the costs of and incidental to these presents and the carrying out of the provisions thereof, in- cluding the actual expenses of the committee (and such sums by way of remuneration as the creditors may by resolution authorize), and in payment to the debtor monthly of such sum as the committee may from time to time think fit {or, in pay- ment to the debtor monthly of the sum of $ ) by way of maintenance for himself and his family, and subject thereto 204 FOEH BOOK (Ch. 7 in paying ratably to all the creditors the respective amounts owing them by the debtor with interest at the rate of per cent, per annum without preference or priority at such times and in such manner as the committee shall determine (provided, that no interim dividend shall be paid until the in- spectors h&.ve set aside the sum of $ as a reserve to meet possible contingencies in connection with the further car- rying on of the said business), and in the payment of the sur- plus, if any, to the debtor. 10. [Debtor to kbep books and submit to inspection.] The debtor, in addition to all the books of account proper in the said business, shall keep such other books and accounts as the committee may direct; and the debtor will at all times give the committee or any one appointed by them full access to and liberty to inspect and take copies of such books and all other papers, documents, and correspondence in connection with said business, and to make all necessary and proper en- tries' in such books, and will give all such information and ex- planation as the committee may require. 11. [Debtor to render accounts.] The debtor will from time to time and at such times as the committee may appoint render to the committee such balance sheets and profit and loss or other accounts as the committee may require. 12. [Reservation of rights against sureties and of secured creditors.] The rights of the creditors against any surety or sureties for the debts due to them and against all persons other than the debtor and all the rights of any creditor or creditors in respect of any security or securities which they or any of them may hold for their said debts or claims are hereby expressly reserved. 13. [Power to settee with dissentient creditors.] If any creditor or creditors shall refuse to take the benefit of and assent to these presents, the committee shall have full power Ch. 7) ASSIGNMENTS AND COMPOSITIONS 205 to pay, or to authorize the debtor to pay, in full, compromise, give security for, or otherwise discharge, settle, satisfy, or ar- range for the debt, claim, or demand of such creditor or cred- itors ; and for the purposes aforesaid the committee may raise such sums of money as may be necessary under and pursuant to the provisionsi of clause 6 hereof. 14. [Proof of dbbts.] It shall be lawful for the commit- tee, although a creditor may have assented to these presents, and the amount of his debt appears in the schedule hereto, to require such creditor to prove his debt or claim to the satisfac- tion of the committee, and in case of failure to agree upon the amount of such debt the matter shall be referred to arbitra- tion. 15. [Extension of period of ucensE.] If at the expi- ration of the said period of months {or, years) the debtor shall not have paid all the debts of the creditors, it shall be lawful for the committee in their discretion from time to time to extend the license hereby granted to the debtor : Pro- vided, that such extensions do not exceed altogether a period of months. 16. [Debtor to give notice of i See preceding notet Ch. 9) BILLS OF EXCHANGE 233 (Q Restrictive (1) Prohibiting further negotiation: Pay CD. only. A. B. (2) Constituting the indorsee the agent of the indorser: Pay to the Bank or order for collection. A. B. (3) Vesting the title in the indorsee in trust for or to the use of some other person : Pay to C. D. or order for the use of E. F. A. B. (D) Qualified Pay to C. D. or order without recourse. A. B. 8. Check Chicago, May I, I9I5. The First National Bank, Chicago, 111. Pay to the order of (or, to bearer) one thousand dol- lars. (Signature of drawer.), 9. Voucher Check" (The body of the check as in the preceding form.) Received of (drawer) the above-mentioned sum in- payment of bill for rendered the day of . (Signature of payee.) - In this form, the order to pay not being conditional upon the- signing of the receipt by the payee, the instrument is a check. 234 POEM BOOK (Ch. 9 10. Order to Bank for Payment ^ Chicago, May U 1915. The First National Bank of Chicago, 111. Pay to the order of the sum of one thousand dollars, provided the receipt form at foot hereof is signed and dated and is presented herewith. (Signature of drawer.) Receipt Received of (drawer) the above-mentioned sum in settlement of account furnished. Date . Signature . N. B. This receipt must not be detached from the check, but the two must be presented as one document. 11. Promissory Note $1,000. New York, May 1, 1915. On demand (or, months after date; or, on the day of , 1915 ; or, on or before the day of — , 1915) I promise to pay to or order (or, to the order of ; or, to bearer) one thousand dollars (value received). (Signature of maker.) 12. Joint Promissory Note (Beginning as in preceding form) we promise to pay to (concluding as in preceding form). (Signatures of makers) 7 Here the order to pay is conditional, and the instrument is not a cheek. Ch. 9) BILLS OF EXOHANGEJ 235 13. Joint and Several Promissory Note {Beginning as in Form No. 11) we jointly and severally promise (or^ I promise) to pay to {concluding as in Form No. 11). {Signatures of makers.) 14. Promissory Note Payable at Particular Place, with Interest $1,000. Chicago, Illinois, May 1, 1915. Sixty days after date I promise to pay to the order of the sum of one thousand dollars at the First National Bank of Chicago, Illinois, with interest before and after ma- turity at the rate of six per cent, per annum. {Signature of maker.) 15. Promissory Note Providing that Principal shall Be- come Due on Default in Payment of Interest $1,000. , 19—. Five years after date I promise to pay to the order of — • one thousand dollars, with interest thereon at the rate of six per cent, per annum, payable semiannually on the ^ day of and the day of in each year: Provided, that if default be made in the payment of any installment of interest at the time aforesaid, the principal sum shall at the election of the holder at once become due and payable. {Signature of maker.) 15a. Promissory Note Providing for Costs of Collection and Attorney's Fee $1,000. , 19—. Three months after date I promise to pay to the ordei* of one thousand dollars, with costs of collection and a reasonable attorney's fee in case payment shall not be made at maturity. {Signature of maker.) 236 FOEM BOOK (Ch. 9 15b. Promissory Note Authorizing Confession of Judg- ment $1,000. , 19—. Three months after date I promise to pay to the order of one thousand dollars, and if payment shall not be made at maturity I hereby authorize any attorney of any court of record in the United States to appear for me and confess judgment against me in favor of the holder of this note for the amount then due thereon, with interest and costs (and to release all errors and the right of appeal). (Signature of maker.) 15c. Same — With Waiver of Exemption, etc. (Penn- sylvania) $ . , 19-. after date I promise to pay to the order of ■ dollars, without defalcation, value received, with inter- est. And, further, I do hereby authorize and empower any attor- ney of any court of record of Pennsylvania, or elsewhere (if this note be not paid at maturity),^ to appear for and to enter judgment against me for the above sum, with or without dec- laration, with costs of suit, release of errors, without stay of ■execution, and with — ' per cent, added for collecting fees ; and I also waive the right of inquisition on any real estate that may be levied upon to collect this note, and do hereby volun- tarily condemn the same, and authorize the prothonotary to enter upon the fi. fa. my said voluntary condemnation, and I further agree that said estate may be sold on a fi. fa., and I hereby waive and release all relief from any and all appraise- 8 A provision authorizing confession of judgment before maturity renders the instrument nonnegotiable. Ch. 9) BILLS OF EXCHANGE ' 237 ment. stay, or exemption laws of any state, now in force, or hereafter to be passed. Witness. {Signature of maker and seai) 15d. Promissory Note of Corporation $1,000. , 19—. Sixty days after date the A. B. Company promises to pay to the order of the sum of one thousand dollars. The A. B. Company, By , Treasurer. 16. Notice of Dishonor to Drawer of Bill ' , 19-. To : I hereby give you notice that a bill of exchange, dated the day of , drawn by you on of for $ , payable to or order, months after date, has been dishonored by nonacceptance (or, by nonpay- ment) and protested, and that I look to you for the payment thereof. (Signature.) " The Negotiable Instruments Law provides that the notice may be given in any terms which sufficiently identify the instrument, and indicate that it has been dishonored by nonacceptance or nonpay- ment. It is usual to add that the holder looks to the party notified for payment. In the case of a foreign bill it is advisable to add that it has been protested. 238 FORM BOOK (Ch. 9 17. Notice of Dishonor to Indorser of Bill 19—. To I hereby give you notice that a bill of exchange, dated the day of , drawn by of , the of , for $ , payable to or order, months after sight, and bearing your indorsement, has been dishonored by nonacceptance (or, by nonpayment) and pro- tested, and that I look to you for the payment thereof. (Signature.) 18. Notice of Dishonor of Note by Notary to Indorser , 19-. Please take notice that a promissory note made by in favor of for dollars, dated the day of , payable the day of , and indorsed by you, having this day been by me at the request of , the holder thereof, presented for payment, which was duly de- manded and refused, is protested for nonpayment, and that the holder will look to you for the payment thereof, with all legal costs, interest, and damages in consequence of the non- payment thereof. , Notary Public. To . 19. Notice of Dishonor to Drawer of Check , 19-. To : I hereby give you notice that a check, No. , dated the day of , drawn by you on the Bank for $ , and payable to or order (or, to bearer), has been dishonored by nonpayment. (Signature of holder.) Ch. 9) BILLS OF EXCHANGE 239 20. Protest of Bill of Exchange " United States oi? America, I State oe , I ss. County of . J (// the original instrument is not annexed, Urst set out an exact copy of the instrument, with all indorsements!) On the day of at the request of , the holder of the original bill of exchange {or, promissory note) hereunto annexed {or, of which a true copy is hereinabove written), I, , of , a notary public in and for the county of and state of , duly commissioned and sworn, did present said original bill of exchange {or, promis- sory note) to , the drawee {or, acceptor; or, maker) at during the usual hours of business for such purposes and demanded payment {or, acceptance) thereof, to which he made answer that he would not pay {or, accept) the same {or state the answer otherwise given). Wherefore I, the said notary, at the request aforesaid, did protest and do by these presents solemnly protest as well against the drawer and indorsers of the said bill of exchange {or, the indorsers of the said promissory note) as against all 10 The Negotiable Instruments Law provides that the protest mnst be annexed to the bill, or must contain a copy thereof, and nmst be under the hand and seal of the notary making it, and must specify: (1) The time and place of presentment ; (2) the fact that presentment was made and the manner thereof ; (3) the cause or reason for pro- testing the bill ; and (4) the demand ma^e and answer given, if any, or the fact that the drawee or acceptor could not be found. It pro- vides, also, that protest may be made by a notary public, or by any respectable resident of the place where the bill is dishonored in tlie presence of two or moi-e credible witnesses. While protest is not required in the case of inland bills and promlssoiy notes, in many states provision is made by statute for their protest by a notary who has made presentment, thus furnishing convenient evidence of their dishonor. These statutes also often provide for notice of dishonor to be given by the notary, and that his certificate thereof In the protest shall be competent evidence of the fact. 240 FORM BOOK (Ch. 9 others whom it doth or may concern for exchange, re-ex- change, and all costs, damages, and interest incurred or to be incurred for want of payment {or, acceptance) thereof. In testimony whereof I have hereunto set my hand and afiSx- ed my notarial seal at aforesaid the day and year first above written. (Signature and seal of notary.) 21. Protest of Bill of Exchange Where no Person Au- thorized to Pay or Refuse Payment can be Found at Proper Place of Presentment (Begin as in Form No. 20) did present the said original bill of exchange at , the place of payment specified in the said bill (or, the address of the acceptor thereof given in the said bill ; or, the usual place of business or of residence of the acceptor thereof ; or, the last known place ,of business or of residence of , the acceptor thereof), but after the exer- cise of reasonable diligence no person authorized to pay or refuse payment could be found there. Wherefore I, the said notary, etc. (as in Form No. 20). 22. Protest by Person Other than Notary Know all men that I, , a reputable resident of , in the county of and state of , at the request of -rr , the holder of the original bill of exchange hereunto annexed, there being no notary public available, did on the day of , at , present the said bill to , the drawee (or, acceptor), and demanded payment (or, acceptance) thereof, to which demand he made answer (state answer). Wherefore I now, in the presence of and , credible witnesses, do protest the said bill of exchange, this — day of . (Signatures of person making protest and two witnesses.) ' Ch. 9) BILLS OF EXCHANGE 241' 23. Notarial Act of Honor on Payment for Honor Supra Protest " I, , of , a notary public in and for the county of and state of , duly commissioned and sworn^ hereby certify that on the day of , at , in • , the original bill of exchange for $ , of which a true copy is contained in {or, annexed to) the protest to which this act is appended {or, is above written), was by me exhibited to {payer for honor), of , who then and there declared that he intended to pay and did pay the same for the honor of , the drawer {or, the acceptor ; or, an in- dorser) of the said bill, holding the said drawer {or, acceptor ; or, indorser) and all parties liable on the said bill to him and all other proper persons responsible to him the said {payer for honor) for the said sum and for all interest, dam- ages, and expenses. In witness whereof I have hereunto set my hand and no- tarial seal this day of . {Signature and seal of notary^ 11 The Negotiable Instruments Law provides that the payment, in order to operate as such, and not as a mere voluntary payment, must be attested by a notarial act of honor which may be appended to the protest or form an extension to it, and that the notarial act of honor must be founded on a declaration made by the payor for honor or by his agent in that behalf declaring his intention to pay the bill for honor and for whose honor he pays. No notarial act of honor with regard to an acceptance for honor appears to be required by the Negotiable Instruments Law. TlIT.FoRMS — 16 242 FORM BOOK (Ch. 10 CHAPTER X BONDS A bond is a contract in writing and under seal whereby one person binds himself to another to pay to him a certain sum of money, the parties being called, respectively, "obligor" and "obligee." Bonds are called "single" when the obligor merely binds himself to pay a certain sum to another at a date speci- fied, and "double" or "conditional" when, as is usual, he adds a condition that, if he or some other person does or forbears to do some particular act, the obligation shall be void. A sure- ty or sureties may, of course, join with the principal obligor, and there is usually a requirement for sureties in statutory bonds. A conditional bond consists of the obligatory part or "obli- gation" and the "condition." Sometimes recitals are intro- duced after the obligation by way of explanation. The con- dition expresses the real object of the bond. No particular form of words is required, although if a bond is required by statute it should express, in substance, the condition required. In conditional bonds the old form was, before adding the condition, to conclude with the words "sealed with my seal" and the date; but this may, of course, be covered by the cus- tomary testimonium clause. In many states a scroll may be used in place of a seal, and in other states the use of private seals has been abolished. Unless the obligor expressly binds his heirs, they are not bound. The term "bond" is also applied to certain negotiable obliga- tions of municipal and other corporations, usually with inter- est coupons attached, which are, in effect, promissory notes. Post, p. 859. Page 1. Bond for payment of money and interest 243 2. Same — Another form 244 3. Same — Single bond 244 4. Joint bond of several for payment of money in installments 244 5. Bond for deed 245 6. Same — Another form 246 7. Same — Another form 247 8. Bond with surety for performance of building contract. . . 247 9. Bond to secure performance of agreement 248 Ch. 10) BONDS 243 Page 10. Bond for perfonnance of cx>ntract 248 11. Bond with sureties for payment of rent 249 12. Bond to indemnify mortgagor against liens 250 13. Bond of indemnity against mechanics' liens on premises mortgaged to coi-poration 250 14. Bond to indemnify purchaser against unsatisfied mortgage 251 15. Bond to indemnify purchaser against defect of title 252 16. Bond of indemnity on payment of lost note or bill 253 17. Bond for liquidated damages to preserve trade secret 254 19. Bond of treasurer of corporation 254 20. Bond of employg 255 21. Same — Another form 256 22. Sheriff's indemnity bond 257 23. Attachment bond 258 24. Official bond 259 25. Indemnity bond of principal to one v.ho has become surety with him under former bond 259 For other bonds, see Arbitration Bond, p. 152. Bottomry Bond, p. 1233. Bond of Indemnity for Lost Certificate of Stock, p. 1267. Mortgage Bond, p. 975. 1. Bond for Payment of Money and Interest Know all men by these presents that I, , of - am held and firmly bound unto , of , in the sum of dollars (usually twice the amount of the principal to be secured), to be paid to the said , his executors, ad- ministrators, and assigns, for which payment well and truly to be made I bind myself, my heirs, executors, and adminis- trators, firmly by these presents. Sealed with my seal this day of . The condition of the above-written obligation is such that, if the above-bounden , his heirs, executors, or adminis- trators, shall well and truly pay or cause to be paid unto the said , his executors, administrators, or assigns, on the day of , the full sum of dollars (the sum secured), with interest for the same from the date hereof at the rate of per cent, per annum, then the above-written ob- ^44 FORM BOOK (Ch. 10 ligation shall be void and of no effect ; otherwise to remain in full force. (Signature and seal.) Signed, sealed, and delivered in the presence of . 2. Same — Another Form Know all men by these presents that I, , of , hereby bind myself, and my heirs, executors, and administra- tors, to , of , for the payment to him, his execu- tors, administrators, and assigns, of the sum of $ . Sealed with my seal this day of . The above-written obligation is conditioned to be void in •case the above-boimden — , his heirs, executors, or admin- istrators, shall pay to the above-named , his executors, administrators, or assigns, on the day of , the sum of $-^- -, with interest for tlje same sum at the rate ■of per cent, per annum from the day of . (Signature and seal) 3. Same — Single Bond Know all men by these presents that I, , am held and "firmly bound unto in the sum of dollars, to be paid unto the said , his executors, administrators, or assigns, on the day of , with interest thereon at per cent, per annum; for which payment, well and truly to be made, I bind myself, my heirs, executors, and ad- ministrators, firmly by these presents. Witness my hand and seal this day of . 4. Joint Bond of Several for Payment of Money in Installments Know all men by these presents that we, , , and , are jointly (or, jointly and severally) held and bound unto in the sum of dollars, to be paid to the Ch. 10) BONDS 245 said , or his executors, administrators, or assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors, and administrators, firmly by these pres- ents. Sealed with our respective seals this day of . The condition of this obligation is such that, if the above- bounden , , and , or some or one of them, or of their heirs, executors, or administrators, shall well and truly pay or cause to be paid unto the said , his ex- ecutors, administrators, or assigns, the full sum of dollars in the manner following, to wit: The sum of dollars on the day of , the sum of dol- lars on the — day of , and the sum of dol- lars on the day of , together with interest m each case at the rate of per cent, per annum on the whole sum remaining due at the time of each such payment, then this obligation shall be void and of no effect; and other- wise shall remain in full force. (Signatures and seals.) 5. Bond for Deed Know all men by these presents that I, ^ , of , am held and firmly bound unto , of , in the sum of , dollars, to be paid unto the said , his execu- tors, administrators, or assigns, to which payment well and truly to be made I bind myself, my heirs, executors, and ad- ministrators, firmly by these presents. The condition of this obligation is such that whereas, the said obligor has this day bargained and sold unto the said obligee a certain lot or parcel of land situate (description), for the sum of dollars, of which sum dollars has this day been paid, and the remainder is to be paid six months from the date hereof, with interest thereon at the rate of per cent, per annum, according to the terms and con- 246 FORM BOOK (Ch. 10 ditions of a promissory note therefor executed by the said obligee to the order of the said obligor, and bearing even date herewith. Now, if the said obligor shall execute and deliver to the said obligee, or to his heirs, executors, administrators, or as- signs, a good and sufficient warranty deed, with full covenants, except as to such incumbrances as may arise by virtue of any tax assessed subsequent to the execution hereof, of the above- described premises, upon the said promissory note being paid according to the terms and conditions thereof, then this obliga- tion to be null and void ; otherwise to remain in full force and virtue. In witness whereof I have hereunto set my hand and seal this day of . 6. Same — Another Form (Begin as in preceding form.) The condition of this obligation is such that whereas, the said obligor has agreed to sell and convey unto the said obligee a certain parcel of real estate situated (description), the same to be conveyed by a good and sufficient warranty deed of the said obligor conveying a good and clear title to the same, free from all incumbrances ; and whereas, for such deed and con- veyance it is agreed that the said obligee shall pay the sum of dollars, of which the sum of dollars has been paid this day, the sum of dollars is to be paid in cash upon the delivery of said deed, and the remainder is to be paid by the note of the said obligee, dated , bearing interest at six per cent, per annum, payable semiannually, and secured by a mortgage, in the usual form, upon the said premises, such note to be payable . Now, therefore, if the said obligor shall, upon tender by the said obligee of the aforesaid cash, note, and mortgage at any Ch. 10) BONDS 247 time within days from this date, deliver unto the said obligee a good and sufficient warranty deed as aforesaid, then this obligation shall be void; otherwise it shall be and remain in full force and virtue. In witness whereof, etc, 7. Same — Another Form (Begin as in Form No. 5, p. 245.) Sealed with my seal , and dated the day of . ■The condition of this obligation is that, if I, the said , upon payment of dollars and interest thereon, as agreed and promised by said agreeable to his promissory note, dated , and made payable as follows, to wit (terms of payment), shall convey to said , his heirs and assigns, forever, the following described real estate (description), by a warranty deed in common form, duly executed and acknowl- edged, and in the meantime shall permit said , his heirs and assigns, to occupy and improve said premises for his or their own use, then this obligation shall be void ; otherwise it shall remain in full force. (Signature and seal.) 8. Bond with Surety for Performance of Building Contract Know all men by these presents that we, , of ■ — , as principal, and , of , as surety, are held and firmly bound unto in the sum of dollars, to be paid to the said , his executors, administrators, or as- signs, for which payment well and truly to be made we do bind ourselves, our heirs, executors, and administrators, firmly by these presents. The condition of this obligation is such that: Whereas, the said (principal) and the said {obligee), on the day of , entered into a certain written agreement bearing that date for the erection by the 248 FORM BOOK (Ch. 10 said of a building upon land of the said situate {description). Now, if the said , his executors and administrators,. shall in all things well and truly perform and observe all and singular the covenants, agreements, stipulations, and condi- tions contained in the said agreement on his part to be per- formed and observed, then this obligation shall be void ; other- wise to be in full force. In witness, etc. 9. Bond to Secure Performance of Agreement (Begin as in Form No. 5, p. 245.) Sealed with my seal this day of . The above-written obligation is conditioned to be void irt case the above-bounden , his heirs, executors, and ad- ministrators, shall henceforth at all times perform and observe the stipulations, provisions, and conditions on his or their part to be performed and observed and contained in an agreement dated the day of , and made between the said -^ and the said . {Signature and seal!) 10. Bond for Performance of Contract {Begin aj" in Form No. 5, p. 245.) The condition of this obligation is such that, if the above- bounden {principal), his executors and administrators, shall in all things well and truly perform and observe all the covenants,, agreements, and conditions on his or their part to be performed and observed which are contained in a certain agreement in writing made between the said and the said , and bearing even date herewith, then this obligation shall be void, etc. €h. 10) BONDS 249 11. Bond with Sureties for Payment of Rent Know all men by these presents that we, , of - as principal, and and , both of , as sure- ties, are held and firmly bound unto , of , in the sum of dollars, to be paid to the said , his executors, administrators, or assigns, for which payment well and truly "to be made we do bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals this day of . The condition of this obligation is such that: Whereas, the said (obligee) by indenture of lease bearing even date herewith, in consideration of the rents and covenants therein reserved and contained on the part of the said (principal obligor) to be paid and performed, has leased and demised unto the said certain premises (description), and in said in- denture more "fully described, for the term of years from the day of . Now, if the said , , and , their execu- tors, administrators, or assigns, during the continuance of the said lease, shall well and truly pay or cause to be paid the rent thereby reserved upon the respective days therein specified for the payment thereof, and shall duly perform and observe all and singular the covenants and conditions therein contained on the part of the lessee therein, his executors, administrators, and assigns, to be performed and observed, then this obligation shall be void; otherwise to remain in full force. (Signatures and seals). 250 FORM BOOK (Ch. 10 12. Bond to Indemnify Mortgagor against Liens (Begin as in preceding form.) The condition of this obligation is such that whereas, said has loaned to said the sum of . dollars, and has taken as security for said loan a mortgage of even, date herewith on (description) ; and whereas, the buildings on said premises are not yet finished, and the time for filing liens for labor and materials performed or furnished for said build- ings has not yet expired. Now, therefore, if the above-bounden shall save and keep harmless and indemnified the said obligee from and against all losses and expenses on account of such liens, and shall pay to said obligee on demand all sums he shall have paid to obtain a discharge of such liens as may effect the security under said mortgage, and all costs and expenses sustained by said obligee by reason of said liens, then this obligation shall be void; oth- erwise an full force. (Signatures and seals). 13. Bond of Indemnity against Mechanics' Liens on Prem- ises Mortgaged to Corporation Know all men by these presents : That we, , as principal, and and , as sureties, are held and firmly bound unto the Home Building Society, a corporation organized and existing under the laws of the state of , in the sum of dollars, to be paid to the said the Home Building Society, its successors or as- signs, for which payment well and truly to be made we do bind ourselves, our and each of our heirs, executors, and adminis- trators, firmly by these presents. Sealed with our seals and dated the day of . Ch. 10) BONDS 251 The condition of this obligation is such that: Whereas, the said Home Building Society has this day loaned to the said the sum of dollars ; and whereas, to secure the payment of said sum, the said has by instrument bearing even date herewith mortgaged to said society the following described real estate situate in (de- scription) ; and whereas, there is a possibility that mechanics' liens may be filed or perfected against said real estate and be- come a lien, or liens prior to that of said mortgage. Now, therefore, if the said shall well and truly pay or cause to be paid and discharged of record any and all mechanics' liens, or liens for labor performed or material fur- nished, which may be filed or perfected against said real estate, and shall save and bear harmless the said society of and from all actions, damages, costs, charges, and expenses by reason of or arising from or growing out of said liens, and shall protect said society in the priority of its said mortgage lien, over and above all other liens, then this obligation to be void ; else to remain of force and effect. (Signatures and seals.) 14. Bond to Indemnify Purchaser against Unsatisfied Mortgage (Begin as in Form No. 5, p. 245.) Whereas, by a written contract made the day of between the said and the said , the said (principal) agreed to sell and convey and the said (obligee) agreed to purchase the following described real estate (descrip- tion) for the price of dollars ; and whereas, upon ex- amination of the title of the said to the above-described premises it was found that such title was unmarketable by rea- son that a certain mortgage made by to , bear- ing date the day of , and recorded in the office 252 FORM BOOK (Ch. 10 of the register of deeds for the county of and state of in Book of Mortgages, at page , remains unsatisfied of record; and whereas, the said (principal) has been unable to discover whether the said mortgage has been actually paid, and has been unable to procure a satisfaction of the same ; and whereas, the said is willing to accept the said title and to complete the said purchase upon the execution of these presents. The condition of this obligation is such that, if the said shall at all times save harmless and keep indemnified the said , his heirs, executors, administrators, and as- signs, and also the above-described premises, against the said mortgage, and against all claims, demands, actions, proceed- ings, costs, and expenses by reason of or growing out of .the same, then this obligation shall be void; otherwise the same shall remain in full force. In witness, etc. IS. Bond to Indemnify Purchaser against Defect of Title (Begin as. in Form No. 5, p. 245.) Sealed with my seal this day of . Whereas, by an agreement dated the day of , and made between the said and the said , the said agreed to sell, and the said agreed to pur- chase, all the following described real estate (description) for the sum of $ ; and whereas, upon an examination of the title of the said • , it appeared that his title depended upon the fact that , late of , deceased, who died on or about the day of , died without leaving issue living at his death, and that in case the said left any such issue, then the said would be unable to make a good title to the said premises ; and whereas, the said is unable to produce any sufficient evidence that the said Ch. 10) BONDS 25a left no issue living at his death; and whereas, nevertheless the said has agreed to complete the said purchase upon the said vendor executing the above-written obligation condi- tioned as hereinafter expressed. Now the above-written obligation is conditioned to be void in case the said premises shall henceforth be quietly held and enjoyed by the said , his heirs and assigns, without any lawful interruption or disturbance on the part of any person or persons, being issue of the said , who was or were living at his death, or claiming through or under such issue, or otherwise claiming title to the said premises on the ground that the said left issue living at his death. (Signature and seal.) 16. Bond of Indemnity on Payment of Lost Note or Bill (Begin as in Form No. 11, p. 249.) The condition of this obligation is such that : Whereas, the said (obligee), on the day of , made his promissory note (or, drew his bill of exchange upon ; or otherwise describing the instrument) in the sum of dollars, bearing that date and payable to the order of the said (principal) three months after the date thereof; and whereas, it is alleged that the said note (or, bill) is lost (or, destroyed) ; and whereas, the said , at the request of the said , has paid to him the sum of dollars in full discharge of the said note (or, in full discharge of the lia- bility of the said as drawer of the said bill). Now, if the said , , and — — , their heirs, executors, and administrators, shall at all times defend, save harmless, and indemnify the said , his executors and administrators, against all claims, demands, and actions arising from or on account of the said promissory note (or, bill of ex- change), and against all damages, costs, and expenses by rea- 254 FORM BOOK (Ch. 10 son thereof, and shall deliver or cause to be delivered up the said note (or, bill) to the said , his executors or admin- istrators, if the same shall be found, then this obligation shall be void, etc. {Signatures and seals.) 17. Bond for Liquidated Damages to Preserve Trade Secret Know all men by these presents that I, , hereby bind myself to for the payment to him, his executors, admin- istrators, and assigns, of the sum of $ , as agreed as liquidated damages, and not as a penalty, for which payment well and truly to be made I bind myself, and my heirs, execu- tors, and administrators, firmly by these presents. Sealed with my seal this day of . Whereas, the said (obligee) has imparted to the said (obligor) a certain secret method of preparing an article of food known as (^designation), upon an express agreement that the said (ob- ligor) shall enter into the above-written obligation for the pay- ment to the said (obligee) of the sum of $ as liquidated damages, and not as a penalty, but conditioned as hereinafter ' expressed. , Now the above-written obligation is conditioned to be void in case the said (obligor) shall at all times hereafter well and truly keep the said secret, and shall not disclose the same or suffer or permit the same to be disclosed to any person or per- sons whatsoever, whether in the employment of the said (ob- ligor) or not, without the license of the said (obligee) first ob- tained. (Signature and seal.) 19. Bond of Treasurer of Corporation Know all men by these presents that we, , of , as principal, and and , both of , as sure- ties, are held and firmly bound unto the Company, a Ch. 10) BONDS 255 corporation organized under the laws of the state of , in the sum of dollars, to the payment of which to the said corporation, its successors and assigns, we do hereby jointly and severally bind ourselves, our heirs, executors, and admin- istrators. The condition of this obligation is such that: Whereas, the said (principal) has been elected treasurer of the said company for the term of one year from the day of ; and whereas, the said may be re-elect- ed to or may continue in the said office for a longer period. Now, if the said shall in all things well and faith- fully perform the duties of the said office, so long as he shall held the same or continue therein, and shall, when properly so required, fully and faithfully account to the said corporation, its successors or assigns, for all money, goods, and property whatsoever for or with which he may be in any wise account- able or chargeable to the said corporation, and shall, when so required, pay and deliver all such money, goods, and property to the said corporation, its successors and assigns, and if at the expiration of his term or continuance in office, and also in the case of his death, resignation, or removal from office, all books, pai)ers, vouchers, money, and other property in his custody or control belonging to the said corporation shall be restored to it, then this obligation shall be void; Otherwise to remain in full force. In witness, etc. 20. Bond of Employe Know all men by these presents that we, , as principal, and and , as sureties, are held and firmly bound unto in the sum of dollars, to be paid to the said , his executors, administrators, or assigns; to which payment well and truly to be made we bind ourselves, and our 256 FOEM BOOK (Ch. 10 heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , A. D. 19—. Whereas, the above-bounden has been employed by the said as a salesman and by reason thereof will re- ceive into his hands moneys, goods, and other property of the said . Now, the condition of this obligation is such that, if the said shall, whenever thereunto requested by the said , and at the expiration of his said employment, render a true account of all moneys, goods, and other property of the said as have come into his hands in, his said employ- ment as salesman or otherwise, and shall, when so required by the said , and at the expiration of his said employ- ment, pay and deUver to the said , or to any person duly authorized by the said to receive the same, all such moneys, goods, and other property as shall be in his cus- tody, charge, or possession, then this obligation shall be void, otherwise to remain in full force. (Signatures and seals.) 21. Same — Another Form (Begin as in preceding form.) Whereas, the above-bounden is about to act as cash- ier of the above-named , and by reason thereof will have the control of sums of money, and be required to perform various acts. Now, the condition of this obligation is such that, if the above-bounden shall well and truly account for, pay over, and deliver all moneys and property of said which may come into his possession or control, and shall well and truly discharge and perform all his duties as such cashier, then this obligation to be void ; otherwise to remain in full force. (Signatures and seals.) Ch. 10) BONDS 257 22. Sheriff's Indemnity Bond Know all men by these presents that we, A. B., of , as principal, and C. D., of , as surety, are held and firmly bound unto E. F., sheriff of the county of , in the sum of dollars, lawful money of the United States, to be paid to the said E. F., his executors, administrators, or assigns, for which payment well and truly to be made we bind ourselves, our and each of our heirs, executors, and admin- istrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , 19—. Whereas, the above-bounden A. B. did obtain judgment in the court (describe court) against G. H., for the sum of dollars, whereupon execution has been issued, di- rected and delivered to the said E. F., sheriff aforesaid, re- quiring him, out of the personal property of the said judgment debtor, to satisfy the judgment aforesaid; and whereas, cer- tain personal property that appears to belong to the said G. H. is claimed by I. J. Now, therefore, the condition of the above obligation is such that, if the above-bounden A. B. shall well and truly save harmless and indemnify the said E. F. and all and every per- son and persons aiding and assisting him in the premises of and from all damage, liability, costs, expenses, actions, judg- ments, special proceedings, and executions that shall or may at any time arise, accrue, or be brought against him, them, or any of them, as well for the levying and making sale under and by virtue of such execution of all or any personal property which he or they shall or may judge to belong to the said judg- ment debtor, as well as in entering any building or other prem- ises for the taking of any such personal property, then this obligation to be void ; otherwise to remain in full force. (Signatures and seals.) TiFF.FOKMS — 17 258 FORM BOOK (Ch. 10 23. Attachment Bond Know all men by these presents that we, , as prin- cipal, and and , as sureties are holden and stand firmly bound and obliged unto , sheriff of the county of , in the sum of dollars, to the payment of which to the said , or his executors, administrators, or assigns, we hereby jointly and severally bind ourselves, our heirs, ex- ecutors, and administrators. The condition of this obligation is such that whereas, the said , in his capacity of sheriff of the county of , in the state of , by virtue of a certain writ or process issued in favor of the said against , bearing date the ■ — day of , A. D. 19 — , and returnable to the court next to be holden at within and for the county of on the day of , A. D. 19 — , has attached, at the special request of the said {de- scription of property), shown to the said by the said as the property of the said , which when attach- ed as aforesaid . Now, therefore, if the said , their heirs, executors, or administrators, shall at all times hereafter well and truly in- demnify and save harmless the said , his heirs, execu- tors, and administrators, of and from all suits, damages, and costs whatsoever whereunto he or they or any of them may be liable or obliged by law to pay to any person or persons by reason of the said attachment, or if any further intermeddling of said by virtue of said process, then the above ob- ligation shall be void; otherwise it shall remain in full force and virtue. In witness, etc. > Ch. 10) BONDa 259 24. Official Bond Know all men by these presents : That we, , as principal, and and , as sureties, are held and firmly bound unto the state of in the following penal sums, to wit, the said principal in the penal sum of dollars, and the said sureties each in the following penal sums, to wit, the said in the penal sum of dollars, and the said in the penal sum of dollars, for the payment of which well and truly to be made we bind ourselves, our heirs, executors, and adminis- trators, jointly and severally, firmly by these presents. The condition of the above obligation is such that whereas, the above-bounden principal was, at a general election held in said state on the day of A. D. 19 — , duly elected to the office of in and for county, and state aforesaid. Now, therefore, if the said shall well, truly, and faithfully perform all official duties now required of him by law, and shall well, truly, and faithfully execute and perform all the duties of such office of required by any law to be enacted subsequently to the execution of this bond, then this obligation is to be void and of no effect; otherwise to remain in full force and effect. In witness, etc. 25. Indemnity Bond of Principal to One Who has Become Surety With Him Under Former Bond Know all men by these presents, that I, A. B., am held and firmly bound unto C. D. in the sum of dollars, to be paid unto the said C. D., his executors, administrators or as- signs, to which payment well and truly to be made I bind my- self, my heirs, executors and administrators, firmly by these presents. 260 FORM BOOK (Ch. 10 Sealed with my seal this day of Whereas, the said C."D., at the request of the above-bounden A. B., is by a certain bond bearing even date herewith bound unto E. F., his executors, administrators, and assigns, in the sum of $ , being the sole proper debt of the above- bounden A. B., with a condition for making void the said bond on payment by the said A. B. and C. D. or either of them, their or either of their heirs, executors, or administrators, unto the said E. F., his executors, administrators, or assigns, of the sum of $ , with interest as in the said recited bond and condition appears; and whereas, the said A. B. has agreed to execute the above-written bond for indemnifying the said C. D. by reason and from the consequences of having executed the hereinbefore recited bond, and become surety in manner aforesaid for the said A. B. Now the above-written obligation is conditioned to be void in either of the following cases : 1. If the above-bounden A. B., his heirs, executors, or ad- ministrators, shall pay or cause to be paid unto the said E. F., his executors, administrators, or assigns, the sum of $ , with interest for the same on the day of , in accordance with the above-recited condition. 2. If the above-bounden A. B., his heirs, executors, or ad- ministrators, shall from time to time and at all times hereafter keep the said C. D., his heirs, executors, and administrators, and his and their lands, tenements, goods, chattels, estate, and effects indemnified against all claims, demands, losses, costs, charges, expenses,- and damages whatsoever which he or they or any of them shall at any time hereafter sustain or incur by reason of the said recited bond having been executed or given or in any matter or thing relating thereto. In witness, etc. Ch. 11) BUILDING AGREEMENTS 261 CHAPTER XI BUILDING AGREEMENTS I General Foems Page 1. For building dwelling house 261 2. Same — Where owner supplies materials and no architect is employed 265 3. For building warehouse 267 4. For building stable, owner imying the actual cost and a commission (short form) 273 5. For alterations and repairs, the owner supplying the ma- terials 274 II The American Institui'e op Architects' Forms 6. The uniform contract 275 7. The builder's uniform subcontract 280 8. Standard forms of contract documents 285 (a) Invitation to submit a proposal 285 (b) Instructions to bidders 286 (c) The standard form of proposal of the American In- stitute of Architects 289 (d) The standard form of agreement of the American In- stitute of Architects , 291 (e) The standard form of bond of the American Institute of Architects 293 (f) The general conditions of the contract 295 I General Forms 1. For Building Dwelling House This agreement,' made this day of , between , party of the first part, hereinafter called the contrac- tor, and , party of the second part, hereinafter called the owner, 262 FORM BOOK (Ch, 11 Witnesseth that the parties hereto do hereby agree as fol- lows : 1. [Contractor to erBct buildings — Drawings and SPECIFICATIONS.] The contractor shall erect -and build in a substantial and workmanlike manner a dwelling house upon lot , block (description), in accordance with the drawings and specifications signed by both parties and hereto annexed, and subject to the directions of , architect, or any other architect for the time being employed by the owner for the purpose of supervising and certifying the work hereby agreed to be done, hereinafter called the architect. The said drawings and specifications shall remain the property of the owner (or,, of the architect) 2. [Time oE completion.] The contractor shall complete the said house so as to be fit for occupation, and remove all surplus materials, plant, and rubbish off the premises on or be- fore the ^ day of , unless prevented by strikes, accidents, weather, or other reasonable cause, in which case the architect shallhave power to extend the time and shall certify accordingly. 3. [Contractor to supply materials, appliances, and labor.] The contractor shall provide all the materials and perform all the work mentioned in the said specifications or shown upon the said drawings, and shall provide all scaffold- ing, plant, tools, and appliances necessary for the performance of said work. The contractor shall also supply duly qualified and experienced artisans, workmen, and foremen to carry out the work. 4. [Contractor to remove material and work disap- proved BY ARCHITECT.] The contractor, upon receiving writ- ten notice from the architect to that effect, shall remove all material brought upon the premises of which the architect dis- approves, and shall take down and remove any part of the Ch. 11) BUILDING AGREEMENTS 263 building which is not built to the architect's satisfaction, and no certificate given by the architect under clause 7 hereof shall discharge the contractor for liability under this clause. 5. [Contractor to obtain permits and comply with REGULATIONS.] The contractor shall give all necessary no- tices to and obtain the necessary permits and sanction of the proper authorities in respect of the said work, and generally comply with the building and other regulations of such au- thorities, and shall keep the owner indemnified against all fines, penalties, and loss incurred by reason of any breach of this stipulation. 6. [Additions and omissions.] If the owner shall upon written order signed by the architect require any deviation from the said drawings and specifications or any additional or other work to be done to or than as described therein, or any work therein described to be omitted, the contractor will carry out such requirement and perform the additional or other work in a substantial and workmanlike manner within the time prescribed by and to the satisfaction of the architect, who shall compute and certify the value of such additional or other work and of work omitted as soon as practicable, and the amount so ascertained shall be added or deducted from the contract- price. 7. [Payment and certificates.] The owner shall pay to the contractor in respect of the said work and materials the sum of dollars, subject to additions and deductions as hereinbefore provided, by installments as follows : dollars so soon as the architect shall certify that the said house has been duly carried up to the first floor joists ; the further sum of dollars so soon as he shall have certified that the said house is duly roofed in and covered ; and the residue thereof so soon as he shall have certified that the said house has been duly finished in all respects according to this con- 264 FORM BOOK (Ch, 11 tract : Provided, that if at any time there shall be evidence of any lien or claim {proceed as in Form No. 3, cl. It). 8. [Owner to proch;ed on contractor's default.] If the contractor shall in any manner neglect or fail to prosecute the work with reasonable diligence, or shall neglect or fail to perform any agreement herein on his part to be performed, it shall be lawful for the owner by written notice to the con- tractor to proceed with such work and to perform such agree- ment, and, if he shall fail to do so accordingly, and the archi- tect shall certify that such failure is a sufficient ground for such action, to enter upon the premises and to complete or to employ any other contractor or person to complete the work comprehended under this contract, and to use or authorize such other contractor or person to use therefor any plant, tools, materials, and property of the contractor upon the prem- ises; and in such case the contractor shall receive no further payment under this contract unless the amount of the contract price remaining unpaid shall exceed the expense incurred by the owner in completing the said work, and any damage in- curred by the owner by reason of the contractor's default, in which event the contractor shall be entitled upon such com- pletion to receive payment of the amount of such excess, but, if the expense so incurred by the owner, together with any such damage incurred by him, shall exceed such amount of the contract price remaining unpaid, the contractor shall pay the amount of such excess to the owner, the amount in either case to be computed and certified by the architect. 9. [Disputes and arbitration.] Any dispute or differ- ence arising under this contract shall be determined by the ar- chitect, whose decision shall be binding and conclusive upon both the said parties, except that in case of a dispute as to the value of additional or other work or of work omitted pro- vided for in clause 6, or of the amount of the payments to be Ch. 11) BUILDING AGREEMENTS 265 made by either party to the other provided for in clause 8, either party may appeal from the architect's decision in the following manner, viz. : Either party desiring to arbitrate shall serve a notice on the other party, stating his grievance and desire to arbitrate, and naming a person to act as arbitra- tor, and the other party shall then name an arbitrator, and these two shall select a third, and the decision of any two shall be binding and conclusive on both the parties hereto. 10. [Insurance.] The contractor shall at all times during the progress of the work keep the building in course of erec- tion insured in the full value thereof from loss or damage by fire (lightning, earthquake, cyclone, or other casualty), and shall on request produce to the owner all policies and receipts for premiums. 11. [Contractor's bond.] The contractor shall furnish to the owner a good and sufficient bond, with a surety or sure- ties to be approved by the owner, in the sum of dollars, conditioned that the contractor shall well and truly perform the agreements and terms of this contract on his part required to be performed. In witness, etc. 2. Same — Where Owner Supplies Materials and no Ar- chitect is Employed This agreement, made this day of ■ , between , hereinafter called the owner, and , hereinafter called the builder, witnesseth as follows : 1. [Builder to EREct building.] The builder will erect and build for the owner on the owner's land described as (de- scription) a dwelling house in a good and workmanlike man- ner, and in all respects to the satisfaction of the owner, and will supply all necessary labor and tools, but not materials, for that purpose, such house to be erected and built in all respects 266 FOEM BOOK (Ch. 11 in accordance with the plans and specifications hereto annexed and signed by the parties hereto. 2. [Time op compi^ETion.] The builder will complete the whole of the work herein provided for and remove all surplus material, plant, and rubbish off the premises not later than the day of , unless prevented by accidents, weather, strikes, or alterations or additions ordered by the owner in writing, or other reasonable cause. 3. [Owni;r to pay cost op i,abor and pErcentagb.] The owner will pay the builder weekly during the progress of the said work the actual cost of the labor performed in the due course thereof, and upon the completion thereof will pay the builder a sum equal to per cent, of such cost, which shall constitute the builder's profit. 4. [Owner to provide materials, etc.] The owner will at his own cost provide all materials essential for the said work and the erection and completion of the said house in such manner as not to delay the completion thereof, and will ob- tain the necessary permits and sanction from the proper au- thorities in respect of said work. The builder shall be respon- sible for all materials delivered by the owner on the premises. 5. [Alterations and additions.] The owner shall have the right by his written order to require any alterations and additions to the work called for by the said plans and specifi- cations, and in such case shall at his own cost provide all ma- terials essential thereto, and the builder shall make and exe- cute such alterations and additions in a good and workman- like manner to the satisfaction of the owner and within such time as shall be reasonable in view of such alterations and additions. The cost of such alterations and additions shall be paid for in the manner provided by clause 3 hereof. 6. [Determination oe contract.] If the builder shall become bankrupt or make an assignment for the benefit of Ch. 11) BUILDING AGREEMENTS 267 creditors, or otherwise become unable to carry out the work, or if without the written consent of the owner the' builder shall assign or sublet this contract, the owner may by notice in writing addressed to the builder and left at No. , street, thereupon terminate this contract, and all claim of the builder under the same shall thereupon cease. And if the builder shall in any manner delay or neglect to finish the said house within the time hereinbefore provided, the owner may by notice given as above provided require the builder to proceed with such work, and upon his failure so to do the owner shall have the right to employ any other builder to con- tinue and complete the said house according to the said plans and specifications, or any alterations or additions thereto as hereinbefore provided, and shall also have the right to au- thorize such builder to use any plant, materials, and property of the builder upon the ground, and the builder shall in such case forfeit and forego all his interest whatsoever under this contract. 7. [Disputes.] Any controversy or dispute arising under this contract shall be referred to , architect, or, him failing, to , architect, who shall determine the same, and whose decision or award shall be final and binding upon both the parties hereto. In witness, etc. 3. For Erection of Warehouse Agreement, made this day of between , hereinafter called the contractor of the one part, and , hereinafter called the owner, of the other part, Whereby it is agreed as follows : 1. [Contractor to erect building, etc. — Specifica- tions AND DRAWINGS.] The Contractor, under the direction and to the satisfaction of , architect, hereinafter called 268 FORM BOOK (Ch. 11 the architect, or his duly authorized agent, shall and will pro- vide all the materials and perform all the work mentioned in the specifications or shown on the drawings prepared by the architect for the erection of a warehouse on (descHption of premises). Specifications and drawings for said work are hereto attached, and become a part of this contract. The con- tractor shall pay all charges for permits, and for opening and for use of streets. 2. [Further drawings Ai^iD explanations.] The archi- tect will furnish to the contractor such further drawings or explanations as may be necessary to detail and illustrate the work to be done, and the contractor shall conform to the same as part of this contract so far as they may be consistent with the drawings and specifications referred to in article I. All drawings and specifications are to remain the property of the architect. 3. [Alterations.] The owner shall have the right to make any alterations in the work under this contract, but only upon the written order of the architect, signed by the owner, The value of the work added or omitted shall be computed by the architect, and the amount so ascertained shall be added to or deducted from the contract price. Should the architect be unable to compute the value of said work in advance, the work shall proceed under the architect's order, and the archi- tect shall compute said value as soon as practicable. In case of dissent from the architect's award, by either party hereto, the valuation of the work added or omitted shall be referred to arbitration as provided in article 9. 4. [Materials and work condemned.] The contractor sliall provide sufficient, safe, and proper facilities at all times for the inspection of the work by the architect or his author- ized representative. He shall, within 24 hours after receiving written notice from the architect to that effect, proceed to re- Ch. 11) BUILDING AGREEMENTS 269 move from the grounds or building all materials condemned by him, whether worked or unworked, and to take down all portions of the work which the architect shall by like written notice condemn as unsound or improper, or as in any way fail- ing to conform to the drawings and specifications, and shall make good all work damaged or destroyed thereby. 5. [Provisions in casb of contractor's dEi^ault.] Should the contractor at any time refuse to or neglect to sup- ply a sufficient amount of properly skilled workmen or mate- rials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the per- formance of any of the agreements herein contained, the own- er shall be at liberty, after five days' written notice to the con- tractor, to provide any such labor or materials and to deduct the cost thereof from any money then due or thereafter to be- come due to the contractor under the contract; and if the architect shall certify that such refusal, neglect, or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for the said work and to enter upon the premises and take possession, for the purpose of completing the work comprehended under the contract, of all materials, tools, and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractor, he shall not be entitled to receive any further payment under this con- tract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor ; but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided, either 270 FORM BOOK (Ch. 11 for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties : Provided, however, if the owner or contractor shall dispute the justice of the architect's deci- sion in the matter of said damages, then either of them may have such disputed matter referred to arbitration, under arti- cle 9 of this agreement, by serving notice of his demand there- for upon the other party within three days after receiving notice of such decision. 6. [Time; of completion and damages eor dEiecifications, and general conditions are as fully a part of the contract as if hereto attached or herein repeated, and that should the contractor and the owner fail to sign them the identification of them by the architect shall be binding on both parties. The contractor and the owner for themselves, their succes- sors, executors, administrators, and assigns, hereby agree that they will in all ways be bound by the documents forming the contract, and that they will abide by and will promptly and fully carry out all decisions given thereunder, and that they will Ch. 11) BUILDING AGREEMENTS 293 fully perform all of the covenants and agreements therein con- tained, in witness whereof they have hereunto set their hands and seals, the day and year first above written. In presence of : ■ (Seal) (Seal.) (This agreement is not intended to diminish the use of the uniform contract, the publication of which is continued by the American Institute of Architects and the National Association of Builders. This form copyrighted 1911 by the Apaerican Institute of Architects, The Octagon, Washington, D. C. Sole Licensee for Publication, E. G. Soltmann, Drawing Materials, 134-140 W. 29th St., New York.) (e) The Standard Form of Bond of the American Institute of Architects Know all men by these presents: That we (here insert the name and address of the contractor), hereinafter called the principal, and and and , hereinafter call- ed the surety or sureties, are held and firmly bound unto , hereinafter called the owner, in the sum of ($ ), for the payment whereof the principal and the sure- ty or sureties bind themselves, their heirs, executors, adminis- trators, successors, and assigns, jointly and severally, firmly, by these presents. Whereas, the principal has, by means of a written agree- ment, dated , entered into a contract with the owner for , a copy of which agreement is hereto annexed. Now, therefore, the condition of this obligation is such that, if the principal shall faithfully perform the contract on his part, and satisfy all claims and demands incurred for the same, and fully indemnify and save harmless the owner from all cost 294 FOEM BOOK (Ch. 11 and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense which the owner may incur in making good any such default, then this obHgation shall be null and void ; otherwise it shall remain in full force and effect : Provided, however, that no suit, action, or proceeding by reason of any default shall be brought on this bond after months from the day on which the final payment under the contract is made, and that service of writ or process com- mencing any such suit, action, or proceeding shall not be made after such date: And provided, that any alterations which may be made in the terms of the contract, or in the work to be done under it, or the giving by the owner of any extension of time for the performance of the contract, or any other forbearance on the part of either the owner or the principal to the other shall not in any way release the principal and the surety or sureties, or either or any of them, their heirs, executors, administrators, successors, or assigns, from their liability hereunder, notice to the surety or sureties of any such alteration, extension, or for- bearance being hereby waived. Signed and sealed this day of , 19 — In presence of: (Seal.) (Seal.) ■ — . (Seal.) (Seal.) (This form copyrighted 1911 by the American Institute of Archi- tects, The Octagon, Waslilngton, D. O. Sole Licensee for Publication, E. G. Soltmann, Drawing Materials, 134-140 W. 29th St., New York.) Ch. H) BUILDING AGREEMENTS 295 (f) The General Conditions of the Contract Standard Form of the American Institute of Architects (Copyrlglited 1911 by the American Institute of ArcMtects, Washington, D. C.) Architects using the standard general conditions of the con- tract are requested to read the note explanatory of the docu- ments,^ and especially the appendix to the general condi- 2 A Note Explanatory of tbe Standard Documents The American Institute of Architects has been engaged for more than four years in an effort to improve the form of certain docu- ments currently used fey architects, with a view to making these documents clear in thought and statement, equitable as between owner and contractor, applicable to work of almost all classes, bind- ing in law and a standard of good practice. The related standard forms now approved by the Institute are: (a) Invitation to Bid ; (b) Instructions to Bidders ; (c) Form of Pro- posal ; (d) Form of Agreement ; (e) Form of Bond ; (f) General Con- ditions of the Contract. These forms are not put forth to diminish the use of the "Uniform Contract," the publication of which will be continued under the joint auspices of the American Institute of Architects and the National Association of Builders. As in almost all cases, drawings, specifications, general conditions, and agreement are necessary for the complete expression of the ob- ligations of owner and contractor, they are in fact, as set forth in article 1 of the general conditions, "The Documents Forming the Contract." It is therefore inadvisable to speak of a certain one of them as "The Contract," but, as there .is one of them in which the owner and contractor formally acknowledge their agreement, that document is distinguished as "The Agreement." The general conditions contain so much relative not merely to the specifications, but to the drawings and the agreement, that it appears illogical to call them, as customary heretofore, "The Gen- eral Conditions of the Specifications." It has therefore been deemed wise to call them "The General Conditions of the Contract," and it is interesting to note that such is the designation assigned to them by the Royal Institute of British Architects. As statements placed In any one of the documents are just as binding as if placed in any other, the agreement has been reserved for matters that are essentially private as between owner and con- tractor, e. g., contract price, terms of payment, date of completion, penalty, etc. All other general clauses governing the relations of owner and contractor and the execution of the work have been Blaced in the general conditions of the contract. In view of the expense of corporate surety and of the difficulty of 296 FORM BOOK (Ch. 11 tions.' As these conditions and the standard form of agree- ment have been drafted for conjoint use, neither should be used without the other. recovery therefrom, the bonds of individuals are now frequently preferred. A simple form of bond suited for either has therefore been prepared. The forms, though intended for use in actual practice, should also be regarded as a code of reference representing the judgment of the Institute as to what constitutes the best practice of the profes- sion. Though Intended primarily for use in connection with a sin- gle or general contract, nothing contained in them prevents their use for operations under separate contracts without a general contractor. The work of preparing the documents was Intrusted to the Stand- ing Committee on Contracts and Specifications who, on undertak- ing it, studied with great care the uniform contract and forms in use by some thirty well-known architects. After much deliberation, ten- tative forms were embodied in a first and second edition, which lat- ter was submitted to all the chapters of the Institute. As a result of the criticisms thus obtained, careful revisions were made and the result embodied in a third edition. This in turn was submitted for cirtlcism to engineers, contractors, and architects throughout the country. The results of their suggestions and of further study and deliberation by the committee were embodied in three subsequent editions. The committee has from time to time had the advice of Francis Fisher Kane, Esq., counsel for the Institute; Ernest Eidlitz, Esq., and in the fifth edition of its work, the able and careful criticism of Prof. Samuel WUliston of the Harvard Law School and the assist- ance of James W. Pry or, Esq., in its editing. At its Forty-First annual convention held in Chicago in 1907, the Institute authorized its board of directors to sanction the publication of the standard forms as having the approval of the Institute, whioh sanction was given by the board, acting through its executive com- mittee, April 12, 1911. The Standing Committee on Contracts and Specifications has dur- ing the preparation of the standard forms consisted of the follow- ing members of the Institute: Allen B. Pond, Secretary Grosvenob Atterbtjet, Chairman Frank JIiles Day WiLLTAM A. Boring Frank C. Baldwin Frank W. Ferguson Alfred Stone, Deceased G. L. Heins, Deceased 8 See note 3 on following page. Ch. 11) BUILDING AGREEMENTS 29T Title Page of the General Conditions of the Contract and of the Specifications Brief Description of the Work The work consists of that called for by the drawings and specifications entitled {here iitsert the caption descriptive of the s Appendix to the ' General Conditions of the Contract In many cases the sixty-three articles printed will not include all- necessary general conditions of the contract. The architect will their add to them such others as he deems wise. Many architects include in their general conditions one or more of the subjects named helow. It would seem that many of these should appear in the specifications for the various trades, and that others, though suited for inclusion in the general conditions, are not invariably needed. These subjects are: Watchmen, Heating during Construction, Protection and Care of Trees and Shrubs, Protective Coverings in General, Vault Permit, Sidewalks, Fences, Ladders, Temporary Stairways, Scaffolding, Sheds, Sanitary Conveniences, Offices and their Furniture, Tele- phone, Temporary Wiring and Electric Lights, Lanterns, Temporary Inclosiure from Weather, Keeping Building and Cellar Free from Water, Chases, Photographs, Checking by Surveyor and his Certifi- cate, Contractor to Work Overtime if Required, Time of Completion of the Essence of the Contract, Earthquake Insurance, Owner to Furnish Survey, Contractors to Lay out the Work, Giving Lines and Levels, Owner's Contingent Policy of Accident Insurance, Bracing Building During Construction, Damage to Adjoining Property by Movement or Settlement, Stoppage of Work in Freezing Weather^ etc. Liens Owing to the diversity of the lien laws in the several states, it is Impracticable to draft an article suited for use in all, but it Is- thought that article 24 is of very general applicability. In certain states it is necessary as a bar to liens, that the agreement, or at least the lien clauses of the contract, be publicly filed or recorded. FlEB Insukance The scheme for effecting and settling insurance, described in the following paragraph, has had much consideration. As it has not been tried in prac-tice. It is though wiser to include in the body of the general conditions the shorter form, but the following is pre- 298 FORM BOOK (Ch. 11 work as used in the form of proposal, in the specifications, and upon the drawings), hereinafter called the owner, and is to be executed to the satisfaction of, under the supervision of, and sented for the consideration of members, as possibly preferable un- der certain conditions, and as having the approval of the represen- tatives of the National Board of Fire Underwriters. The "trustee" hereinafter mentioned may, of course, be agreed upon at the time of the signing of the contract, or subsequently -named by the architect. The owner shall maintain lire insurance -upon the building in all stages of construction, and upon all materials in or about the prem- ises, not including contractor's tools and appliances, to the full amount of the architect's estimate of the value of the building, so far as completed, and of such materials. The policies shall be tak- en out in the name of the owner "for account of whom it may con- cern, upon their joint and several interests in" the building and ma- terials described. The loss, if any, shall be made adjustable witli the owner, and payable to a trustee to be named by the architect. Within ten days after the occurrence of any loss covered by the policies, the contractor shall deliver to the owner a complete schedule of: (1) Labor and materials necessary for rebuilding, restoring, and replacing the work or the materials destroyed or damaged, and (2) their true value, together with a sworn statement that such schedule and valuation are full and correct. All moneys paid for losses un- der the policies shall be held by the trustee aforesaid for distri- bution to the owner, the contractor, and all other persons having in- surable interests in building or in materials upon the premises, as their interests may be determined. The trustee shall disburse the insurance moneys in accordance with the agreement reached by the owner, the contractor, and other persons having insurable interests under this policy, or as determined by arbitration; but he shall make payments to contractors only upon the architect's certificates of reinstallation of the work. If the owner, the contractor, and the other persons interested in the insurance should fail to agree upon a distribution, the matter shall be referred to arbiti'ation, as provided in article 38 of the general conditions, the owner appointing one arbitrator, the contractor, and the other persons having insurable in- terests appointing a second arbitrator, and these two appointing a third. The contractor agrees that, if the ovsTier maintains insurance as above provided, he will not make upon the owner any claim for loss through fire beyond the contractor's interest under the policies of insurance maintained by the owner under this article. In case of fire the contractor shall not be released or relieved in any way from the obligation to complete the work under contract, notwithstanding the cost of so doing may exceed the contract price, or the amount Ch. 11) BUILDING AGREEMENTS 299 in accordance with the drawings and specifications prepared by , acting as, and in these contract documents called, the architect. recovered as his share of the insurance; and the conti-actor shall proceed with the work forthwitli, and without awaiting a decision as to the distribution of insurance money, and shall make good all Ms work or materials destroyed or damaged. All fire insurance pol- icies upon the building or upon materials upon the premises shall be kept in the custody of the architect, and shall be open to inspection by the owner, the contractor and others having insurable interests. Upon the request of any person having an insurable interest under such policies, the architect shall deliver to such person a certificate setting forth briefly the tenus and the amounts of the policies, and the facts so far as they are within the personal knowledge of the architect, upon which such person claims an insurable interest. If the owner fails to maintain insurance as provided in this ar- ticle, the contractor may terminate the contract ; but the contrac- tor may terminate the contract, under this provision, only at a time when building and materials are not insured as provided in this ar- ticle. If the contractor or any subcontractor takes out fire insur- ance upon his interest in the building or in materials upon the prem- ises, he shall not have, while such insurance is in force, any right to participate under any policy taken out by the owner. A Suggested Clause Relative to Payments When the system of monthly payments is adopted, the following foi-m may be used in filling the blank in article 4 of the agreement: "On or about the day of each month, per cent, of the value, proportionate to the amount of the contract, of labor and materials wrought into the building up to the first day of that month, as estimated by the arcliitect, less the aggregate of previous payments. On the satisfactory completion of the entire work, a sum sutflcient to increase the total payments to i)er cent, of the value of the work, and days thereafter the balance due under the contract." 300 FORM BOOK (Ch. 11 Identification of Documents The drawings and specifications forming a part of thesecon- tract documents are the following : [Page 2] The General Conditions of the Contract Standard Form of the American Institute of Architects (This form copyrighted 1911 by the American Institute of Architects. The Octagon, Washington, D. C. Sole Licensee for Publi- cation, E. G. Soltmann, Drawing Materials, 134-140 W. 29th St., New York.) Index to the Articles of the General Conditions Drawings and Specifications Article Page 1. Contract Documents 3 2. Intent of Documents 3 3. Detail Drawings and Instructions 3 -4. Copies Furnished and Kept at the Work 3 5. Figures to Govern 3 ■6. Use and Return of Drawings and Models 3 7. Shop Drawings and Models 3 Materials and Workmanship 8. Skilled Workmen 3 9. Materials 3 10. Inspection 4 11. Ke-examination 4 12. Condemnation and Correction of Defective Work 4 13. Clerk of the Works and Superintendents 4 Financial Relations 14. Statement of Costs 4 15. Requisitions for Payments 4 16. Payment of Final Certificate a Waiver 4 17. General Guarantee 4 18. Certificates Withheld 5 Ch. 11) BUILDING AGREEMENTS 301 Article [Page 2] — Continued Page 19. Deductions for Defective Work 5 20. Changes in Work 5 21. Contractor's Claim for Extra Remuneration 5 22. Additions and Deductions 5 23. Extra Work under Special Order 5 24. Waiver of Liens 6 25. Cash Allowances 6 26. Fire Insurance 6 27. Contractor's Liability for Delay in Completion 7 28. Contractor's Claim for Extension of Time 7 29. Contractor's Claim for Damages 7 30. Mutual Responsibility of Contractors 7 31. Contractor's Responsibility for Damages to Persons or Property 7 32. Compensation for Protracted Services S 83. Right to do Work in Contractor's Default S 34. Owner's Right to Terminate Contract S 35. Contractor's Right to Terminate Contract and to Interest on Past-Due Payments 8 36. Assignment of Contract 8 37. Other Contracts 8 38. Arbitration 9 The Architect 39. Architect's Decision 9 40. Architect's Status 9 41. Architect's Authority in Emergencies 9 42. Change of Architect 9 The Contractor 43. Schedule of Dates 9 44. Labor, Materials and Appliances 9 45. Storage Limits 9 46. Subletting of Contracts 10 47. Control of Sub-Contractors 10 48. Co-operation 10 49. Competent Foreman 10 50. No Work Witlaout Instructions 10 51. Supervision and Verification 10 52. Measurements 10 53. Permits, Notices, Laws and Rules 10 54. Reports 10 55. Vouchers and Samples 10 56. Patents, Fees '. 10 57. Rubbish 11 58. Fires, Smoking, Signs, Loading '. 11 59. Protection of Work 11 302 FORM BOOK (Ch.ll Article [Page 23— Continued Page 60. Repair of Damage 11 61. Cutting, Fitting and Digging 11 62. Accident Insurance 11 63. Notice of Imperfect Work or Material 11 In these general conditions the owner, the contractor and the architect are treated as if each were of the singular number and masculine gender.' Where the words "written notice" or "notice in writing" are used, such notice shall be deemed to have been duly served if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or, if delivered at the last address of the said individual, firm, or corporation known to him who gives the notice. [Page 3] Drawings and Specifications Article 1. The agreement, the general conditions of the con- tract, the specifications, and the drawings, with all notes made thereon before the signing of the agreement, are the docu- ments forming the contract. Copies of all these documents signed by the parties, or identiiied by the architect, as provided in the articles of agreement, shall remain in the custody of the architect, and shall be produced by him at his office on demand of either party. Art. 2. The documents forming the contract are comple- mentary, and what is called for by any one shall be as binding as if called for by all. They are intended to include all detail of labor and material reasonably necessary for the proper exe- cution of the work. Should they disagree, the architect shall determine which quantity or quality of the work is to be fur- nished. Where reference is made to approval of work, ma- terial, fixtures, etc., such approval, unless otherwise distinctly stated, is to be understood as that of the architect. Art. 3. The contractor, if required, shall prepare, in con- sultation with the architect, a schedule fixing the latest dates Ch. 11) BUILDING AGREEMENTS 303 [Page 3] — Continued at which the various detail drawings and decisions will be re- quired for the proper conduct of the work, and the architect will from time to time, as necessary, furnish such detail and working drawings, which shall be true developments of the scale drawings. The work shall be executed in conformity therewith, and with such instructions, directions, and explana- tions, not inconsistent therewith, as may from time to time be given by the architect. Art. 4. The architect will furnish to the contractor, free of cost to him, one copy of each full size detail drawing, and two copies of all other drawings and of the specifications. If ad- ditional copies are desired, they may be obtained at the cost of reproduction. The contractor shall keep in good order upon the work one copy of the specifications and one of each draw- ing, and the architect and his representatives shall have free access to such copies. Art. 5. Figured dimensions shall be followed in preference to measurements by scale ; and larger scale drawings shall take precedence over those at smaller scale. Art. 6. The drawings and specifications furnished by the architect shall be used for this work only. As instruments of service they are the property of the architect, and shall be re; turned to him. Any models furnished under this contract, or by the owner, are the property of the owner, and shall be dis- posed of as directed by him. Art. 7. The contractor shall furnish to the architect at proper times all shop and setting drawings or diagrams which the architect may deem necessary in order to make clear the work intended or to show its relation to adjacent work of other trades. The contractor shall make any changes in such draw- ings or diagrams which the architect may require, and shall submit two copies of the revised prints to the architect for his 304 FORM BOOK (Ch. 11 [Page 3] — Oontinued identification, one copy to be returned to the contractor, the other to be filed by the architect. In submitting such shop and setting drawings the contractor shall in writing specifically call the attention of the architect to every change from the ar- chitect's drawings or specifications. The architect's identifi- cation on the revised prints shall not relieve the contractor of entire responsibility for his own errors and for changes not so pointed out in writing. Any models or templates submitted shall be changed as required until satisfactory to the architect Materials and Workmanship, and their Inspection Art. 8. No one unskilled in the work which he is given to do shall be employed, and all work shall be executed in a skill- ful and workmanlike manner. Should the architect deem any one employed on the work incompetent or unfit for his duties, and so certify, the contractor shall dismiss him, and he shall not again, without the architect's permission, be employed on the work. Art. 9. All materials, unless otherwise specified, shall be new and of the best quality of their respective kinds. [Page 4] Art. 10. The contractor shall at all times maintain proper facilities and provide safe access for inspection to all parts of the work, and to the shops wherein the work is in preparation. Where the specifications require work to be specially tested or approved it shall not be tested or covered up without timely notice to the architect of its readiness for inspection and with- out his approval thereof or consent thereto. Should any such work be covered up without such notice, approval, or consent, it must, if required by the architect, be uncovered for examina- tion at the contractor's expense. Ch. 11) BUILDING AGREEMENTS 305- [Page 4] — Continued Art. 11. When required, the contractor shall provide alF facilities and labor necessary for a complete re-examination of work under suspicion, and if the architect decides that the work is defective, the contractor shall bear the expense of re- examination and replacement. If not found defective, such expense shall be credited to the contractor as extra work. Art. 12. The contractor, upon receiving from the architect written notice and within such reasonable time as may be nam- ed therein, shall remove from the premises all materials,, whether worked or unworked, and take down and remove all portions of the work, condemned by the architect as unsound or improper or as in any way failing to conform to the con- tract; and the contractor shall promptly replace and re-exe- cute his own work in accordance with the contract and without expense to the owner, and shall bear the expense of making- good all work of other contractors destroyed or damaged by such removal, or replacement. If the contractor does not remove such condemned or re- jected work and materials within the time limited by the no- tice, the owner may remove them and may store the material' at the expense of the contractor. If the contractor does not pay within ten days after such removal by the owner the ex- pense of such removal, the owner may at any time thereafter upon ten days' written notice sell such materials at auction or at private sale. The owner shall account to the contractor for the proceeds of such sale, after deducting all expense of re- moval and storage. Art. 13. Except when authorized in writing by the owner through the architect, neither the clerk of the works nor a su- perintendent, even though employed by the owner, has author- ity to add to or deduct from the work called for under the contract, or to make any changes therein, T1FF.F0EMS— 20 306 FORM BOOK (Ch. 11 [Page 4] — Continued Financial Relations Art. 14. The contractor, when required, shall furnish to the architect, upon a blank form provided or approved by him, a correct statement, shov^ring the estimated cost of each part of the work as subdivided in the specifications, the total equal- ing the contract price. This statement shall be for the use of the architect at his discretion, in preparing estimates for pay- ments on account. Art. 15. At least one week before each payment falls due the contractor shall submit to the architect a requisition there- for, and shall, if required, submit therewith an itemized state- ment of the quantities and cost and proportionate share of profit of work performed to the termination of the period to be covered by the payment. Such statement shall be made in form provided or approved by the architect, but it shall not be binding as against his judgment. Art. 16. The acceptance by the contractor of the payment of the final certificate shall constitute a waiver of all claims against the owner under or arising out of this contract. Art. 17. The contractor shall make good, without cost to the owner, any omissions from his work or negligence in con- nection therewith or any improper materials or defective work- manship or consequences thereof of which he may in writing be notified within one year of the date of the final certificate, but this general guaranty shall not act as a waiver of any spe- cific guaranty for another length of time set elsewhere in the contract documents. Within the period of general or special guaranty, no cer- tificate given, nor payment made under the contract, nor partial nor entire occupancy of the premises by the owner, shall be con- Ch. 11) BUILDING AGREEMENTS 307 [Page 5] strued as an acceptance of defective work or of improper ma- terial or as condoning any negligence or omission. Art. 18. The architect may withhold or nullify any certifi- cate or reduce the amount thereof, if, in his opinion, violation of the contract exists after the contractor has been duly noti- fied to correct the same, or if he have knowledge of lien against the premises under this contract, and such certificates may be withheld until such violation is corrected to the satisfaction of the architect, or such lien is discharged or satisfactorily bonded. Art. 19. If, in the opinion of the architect, it is not. expedi- ent to correct injured work, or work not done in accordance with the contract, the owner may deduct the difference in val- ue between the work involved and that called for by the con- tract, together with a fair allowance for damage, the arnount of which shall be determined by the architect, subject to arbi- tration. Art. 20. The owner may, without invalidating the contract, make changes by altering, adding to, or deducting from the work in the manner hereinafter provided. No claim for an ex- tra charge for such changes shall be valid unless such work is done in pursuance of a formal written order therefor from the owner or from the architect acting under the authorization of the owner, and no bill for extra work of any kind will be audited by the architect or paid by the owner unless it be ren- dered in accordance with the terms of such formal written or- der. Unless otherwise expressly agreed all such work shall be executed under the conditions of the original contract. Art. 21. Should the contractor deem any work which he is called upon to perform, whether by instructions, by detail drawings, or otherwise, to be extra to the contract, he shall give the architect written notice thereof before proceeding to 308 FORM BOOK (Ch. 11 [Page 5] — Continued ■execute it, and in any case within two weeks of receiving such instructions or drawings or otherwise being called upon to per- form such work, and failure so to do shall constitute a waiver of all claim for extra payment on account of it. Should the architect decide that no extra work is involved, the contractor may appeal to arbitration before commencing the work, but in any case he shall proceed with it if so ordered. Art. 22. Should the architect determine that any altera- tions in, addition to or deductions from, the work covered by the contract affect the contract price, then their value shall be determined in one or more of the following ways, as may be selected by the owner: A. By unit prices named in the contract or subsequently agreed upon, in which case the architect shall make the award, subject to arbitration. B. By cost and percentage or cost and a fixed fee, under special order in writing, in which case the contractor shall keep a true and correct account of the net cost of labor and mate- rials, rendering to the architect, at required intervals, detailed statements and vouchers, and the architect shall award an amount as cost and profit, subject to arbitration. C. By estimate and acceptance in a lump sum. D. In case an agreement as to price cannot be reached or in case the owner should refuse to employ any of the above meth- ods, the architect may, with the authority of the owner, by a special order in writing, direct the work to proceed, and the contractor shall forthwith proceed and leave the price to be settled by arbitration. Art. 23. Where the contractor is thus specially ordered in writing by the owner or architect to do additional work not covered by unit prices, or by estimate and acceptance in a lump sum, the contractor or his duly authorized agent shall, unless Ch. 11) BUILDING AGREEMENTS 309 [Page 5] — Continued directed to the contrary by the architect, prior to doing such work, notify the superintendent, or, in his absence, the archi- tect, stating his intention to enter upon such work, and not lat- er than the next day thereafter he shall deliver to the superin- tendent or architect as directed a written memorandum, in du- plicate, giving in detail the amount of materials and labor in- corporated in the claim for the day, together with his proper compensation therefor. Failure on the part of the contractor so to notify the superintendent or architect or to deliver the memorandum relative to the day's work shall be construed as a waiver of any and all claims therefor. The duplicate copy of the above-mentioned memorandum will be returned to the contractor as soon thereafter as possible, with a duly certified [Page 6] approval, disapproval, or correction, and all bills for extra work shall be rendered on the basis of these approved daily memoranda. Art. 24. Neither the contractor nor any subcontractor, ma- terialman, nor any other person shall file or maintain a lien, commonly called a mechanic's lien, for materials delivered for use in, or work done in, the performance of this contract, and the right to maintain such lien by any or all of the above- named parties is hereby expressly waived, except in the event of the failure or refusal of the owner to pay the amount called for by any certificate of the architect, within ten days of the date of its tender to the owner for payment. Then, and in such case only, shall any of the above-named parties have the right to file and maintain a mechanic's lien. Payments shall not become due unless at the time of each payment the contractor, if so required, and in any event at the time of final payment, shall deliver to the owner a satisfactory 310 FORM BOOK (Ch. 11 [Page 6]— Continued release of all liens against the premises on the part of all per- sons who have delivered materials for use in, or work done in, the performance of this contract in respect of all such work or material covered by the payment in question. At the last pay- ment such releases shall include that of the contractor himself. If at any time there shall be evidence of any lien or claim for which, if established, the owner of the premises might be made liable, and which would be chargeable to the contractor, the owner shall have the right to retain out of any payment then due, or thereafter becoming due, an amount sufficient to in- demnify himself for such lien or claim until the same shall have been effectually discharged or banded. If, because of the contractor's negligence or default, any such lien or claim shall remain unsatisfied after all payments are made, the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging such lien or claim. Art. 25. The contractor shall set aside to be expended as the architect shall direct the amount of each cash allowance re- quired by the contract. The contractor shall expend and pay such allowance at such times and in such amounts and to and in favor of such persons and upon such work as the architect may in writing direct, and the contractor shall make subcon- tracts with such parties for furnishing such materials and la- bor, and he shall assume the same responsibility for their work as for other portions of his work. But no such subcontractor shall be employed upon the work against whom the contractor shall make objection which the architect considers reasonable, or who will not enter into an agreement with the contractor up- on conditions consistent with those of this contract. Except where specifically provided to the contrary, all cash allowances shall be for the actual net cost to the contractor of labor and material only, exclusive of office or other expenses Ch. 11) BUILDING AGREEMENTS 31i [Page 6] — ^Continued or profit; i. e., the contractor in making up his bid shall add such sum for expenses and profit on account of cash allowanc- es as he deems proper, and no demand for expenses or profit other than those included in the contract sum shall be allowed by the architect. Cash allowances shall be payable by the con- tractor without discount or deduction or by the owner direct- ly, if he so elect. All bills for labor and materials under such allowances shall be submitted to the architect for his approval. Proper credit or debit shall be made in the contract price, ac- cording to the difference between the total cost of such mate- rial and labor and the total of cash allowances named in the agreement or specification, and any credit balance may be de- ducted from the contract price or applied by written order of the architect in payment for additional work done by the con- tractor on formal written order. Art. 26. Unless specifically provided otherwise in the agree- ment, the owner and the contractor shall each protect his own interest against loss or damage by fire, pending full perform- ance by the contractor of the work hereunder and full pay- ment therefor by the owner. For the purpose of maintaining fire insurance as far as concerns this contract the owner's in- terest at any time shall be held to amount to the sum of all payments which he shall have made to the contractor on ac- count of this contract. For the same purpose, the contractor's interest shall be held to consist of any and all insurable va,lue under and pertaining to this contract not above defined as "owner's interest." Loss or damage by fire shall not affect the rights and obligations of either party under this contract, ex- cept that in such event the contractor shall be entitled to rea- sonable extension of time for the performance of this con- 312 FOKM BOOK (Ch. 11 [Page 7] tract, as provided under article 28, "Contractor's Claim for Ex- tension of Time." The contractor shall upon written notice from the owner immediately proceed with the reinstallation of work damaged or destroyed, and the owner shall make pay- ments to the contractor on account of reinstallation upon cer- tificates of the architect issued on the same principles as govern payments during its original construction as provided in the agreement. Should the owner and the contractor fail to agree on the total amount thus to be paid, such amount shall be sub- ject to arbitration. Art. 27. Should the owner claim damages for delay in the- completion of the work, the architect, if, in his opinion, any damages be payable, shall make an award, and shall write the amount thereof across the face of the final certificate as. "amount to be deducted from the face hereof for delay in completion of the work,'' but such amount shall be subject to- arbitration. Thereupon the architect's services in this matter shall terminate, except as provided under article 38. Art. 28. Should the contractor be delayed in the prosecu- tion or completion of the work by the act, neglect, or default of the owner, or of any one employed- by the owner, or by fire, or by general strikes, or for any other reason deemed suf- ficient by the architect, then the time fixed in the agreement for the completion of the work shall be extended for a period equivalent to the time lost by reason of any and all the causes aforesaid. Such extension of time shall be determined and fixed by the architect (subject to arbitration). But no such allowance shall be made unless a claim therefor is presented in writing to the architect within forty-eight hours of the occur- rence of such delay. Art. 29. Should the owner fail to provide all labor and ma- terials, not included in this contract, but essential to the con- ■Ch. 11) BUILDING AGREEMENTS 313 [Page 7] — Continued •duct of this work, in such manner as not to delay its reason- able progress, or should the contractor be damaged by any act •or omission of the owner, the right of the contractor to com- pensation for the damage suffered, whether in the form of un- usual or protracted services or otherwise, and the amount of such compensation shall be determined and awarded by the -architect (subject to arbitration) ; but no such allowance shall be made unless a claim therefor is made in writing or by tele- graph to the architect within forty-eight hours of the occur- rence of such damage. Art. 30. Should the contractor or any person directly or indirectly employed by him cause damage to the material, ap- paratus, or executed work of any other contractor employed by the owner on the work, or cause damage by way of delay or otherwise to such other contractor, such other contractor shall in writing notify the owner, through the architect, of the fact within forty-eight hours of the occurrence of such dam- age, and should the two contractors be unable to reach a set- tlement within ten days thereafter, the owner shall debit the ■contractor in the amount that the architect shall decide to be just, and shall credit that amount to the other contractor (sub- ject to arbitration). Should the contractor sustain damage to his apparatus or materials or executed work by reason of delay •or otherwise at the hands of some other contractor, he shall in similar manner notify the owner, and should the two contrac- tors be unable to reach a settlement within ten days thereafter, the owner shall credit the contractor in the amount that the ■architect shall decide to be just, and shall debit that amount to the other contractor (subject to arbitration). The contractor shall in final settlement accept, or permit the deduction of, the :amount determined by the architect or by arbitration. The terms of article 38, entitled "Arbitration," shall in all ways 314 FORM BOOK (Ch. 11 [Page 7] — Continued. control any arbitration held under this paragraph, save that each contractor shall name an arbitrator or that they may agree on a single arbitrator, the owner in either case naming none. Art. 31. The contractor shall save harmless and indemnify the ovi^ner from every claim or demand which may be made by reason of : 1. Any injury to person or property sustained by the con- tractor or by any person, firm, or corporation employed directly or indirectly by him upon or in connection with his work, how- ever caused, except as provided by article 29. ' 2. Any injury to person or property sustained by any per- son, firm, or corporation, caused by any act, neglect, default, [Page 8] or omission of the contractor or of any person, firm, or corpo- ration directly or indirectly employed by him upon or in con- nection with his work, whether the said injury or damage occur upon or adjacent to the work. And the contractor at his own cost, expense, and risk shall defend any and all actions, suits, or other legal proceeding that may be brought or instituted against the owner on any such claim or demand, and pay or satisfy any judgment that may be rendered against the owner in any such action, suit, or legal proceeding or result thereof. Art. 32. Should the contractor by his own fault or negli- gence delay the completion of the work, thereby necessitating unusual or protracted services or expenses on the part of the architect or the clerk of the works, the owner shall be entitled to retain from the amount otherwise to become due to the con- tractor, an amount sufficient to reimburse them for such pro- tracted or unusual services or expenses (subject to arbitration). Ch. 11) BUILDING AGREEMENTS 315 [Page 8] — Ck)ntinued Art. 33. Should the contractor become insolvent, or at any time, except in case of a general strike, refuse or fail to supply a sufficiency of properly skilled workmen or of materials of the proper quality, or fail in the performance of any of his obligations under the contract, such refusal or failure being certified by the architect to both owner and contractor as suf- ficient ground for such action, the owner shall be at liberty, without prejudice to any other right or remedy he may have, to provide, after giving the contractor three days' written no- tice, any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under the contract. Art. 34. If the architect shall certify to both owner and contractor that such refusal or failure is sufficient ground for such action, the owner shall also be at liberty, without preju- dice to any other right or remedy he may have, after giving the contractor three days' notice, to terminate the employment of the contractor for said work, and for the purpose of complet- ing the work, to enter upon the premises and take possession thereof, and of all materials, tools, and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor. In case of such discontinu- ance of the employment of the contractor, he shall not be entitled to receive any further payment until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid shall exceed the expenses incurred by the owner in finishing the work, including proper compensation to the architect for his additional services in connection there- with, such excess shall be paid by the owner to the contractor. But if such expense shall exceed such unpaid balance, the con- tractor shall pay the difference to the owner. The expense in- 316 FORM BOOK (Ch. 11 [Page 8] — Continued curred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred, through such default, shall be audited and certified by the ar- chitect. Art. 35. Should the owner fail to pay to the contractor any sum named in a certificate of the architect as due from the- owner to the contractor within ten days of its presentation to- the owner in person or at his last known address, the contrac- tor may give him written notice of such failure, and should he within a further period of five days fail to pay the said sum,. or if the work should be stopped under an order of any court of law for a period of three months through no action or fault of the contractor or of any one directly or indirectly employed or instigated by him, then the contractor shall be at liberty to terminate this contract by notice in writing given to the owner and the architect and to recover from the owner payment for all work executed, and for any loss he may have sustained up- on any plant or material supplied or purchased for the pur- pose of this contract and for reasonable profit and damages. Should the owner fail to pay the sum named in any certifi- cate of the architect within ten days of its presentation to him or at his last known address, the contractor shall receive, in addition to the sum named in the certificate, interest thereon at the rate of five per cent, per annum until the date of pay- ment of such certificate. Art. 36. The contractor shall under no circumstances as- sign this contract without the written permission of the owner. Art. 37. The owner reserves the right to let contracts oth- er than this one in connection with this work. Ch. 11) BUILDING AGREEMENTS 317 [Page 9] Art. 38. In any case in which an appeal to arbitration is permitted under this contract, the owner or contractor may de- mand arbitration by filing with the architect, within ten days of the receipt of the decision from which he appeals, a written no- tice of such demand, sending at the same time a copy thereof to the other party to the contract. In case no such notice be filed within ten days, both parties shall loose the right of ap- peal, and the decision of the architect shall stand as final. In case such notice be filed three disinterested arbitrators shall be chosen, one by the owner, one by the contractor, and the third by these two arbitrators, and the difference or dispute shall be submitted to them for arbitration. Should the party filing notice fail to choose an arbitrator within ten days of fil- ing such notice, his right to arbitration shall lapse, and the de- cision of the architect shall stand as final. Should the other party fail to choose an arbitrator within ten days of the filing of the notice, then the architect shall appoint an arbitrator who, with the other arbitrator, shall choose a third. Should either party refuse or neglect to supply the arbitrators with any papers or information considered necessary by them and de- manded in writing, the arbitrators are empowered by both par- ties to take ex parte proceedings. The arbitrators shall act with promptness. The decision of any two of tliem shall be binding on both parties hereto. The decision of the arbitrators upon any question subject to arbi- tration under the terms of this contract shall be a condition precedent to any right of legal action by either owner or con- tractor. The arbitrators, if they deem that the case demands it, are authorized to award to the party whose contention is sustained such sums as they shall deem proper for the time, expense, and trouble incident to the appeal, and this sum may be named in 318 FORM BOOK (Ch. 11 [Page 9] — Continued cases where the claim is set aside in whole, or as an addition to or deduction from the amount of the principal award. The arbitrators shall assess the costs and charges of the arbitration upon either or both parties, in such proportion as the arbitra- tors shall deem just. In lieu of the three arbitrators hereinbefore provided for, the parties may by mutual agreement name a single arbitrator, and in such case the provisions of this article shall otherwise apply. The Architect Art. 39. Save only in cases in which an appeal to arbitra- tion is permitted by these general conditions, the final decision of all questions arising under this contract shall be made and given by the architect, and both the owner and the contractor shall be bound thereby, and such decision shall be a condition precedent to any right of legal action by either owner or con- tractor. Art. 40. The parties to the contract recognize the architect as the interpreter of the contract documents, and in that capac- . ity he is to define their true intent and meaning. He is not the agent of the owner, except in structural emergencies (article 41), and except when in special instances he is authorized by the owner so to act. Art. 41. The architect has authority to stop the progress of the work whenever, in his opinion, such stoppage may be nec- essary to insure the proper execution of the contract. In an emergency affecting the safety of life or of the structure or of adjoining property, he is hereby empowered to act as the own- er's agent, and, if he so elect, to make such changes or to order such work, extra to the contract or otherwise, as may in his opinion be advisable. Ch. 11) BUILDING AGREEMENTS 319 [Page 9] — Continued Art. 42. In case of the termination of the employment of the architect or his successors, the owner shall appoint a capa- ble and reputable architect, whose duties and authority under the contract shall be those of the former architect. The Contractor Art. 43. The contractor, if required, shall prepare, in con- sultation with the architect, a schedule fixing dates for the beginning of manufacture and installation of materials and for the completion of the various parts of the work. [Page lO] Art. 44. The contractor, unless otherwise expressly pro- vided, shall furnish and install all material and shall furnish all labor, water, apparatus, light, and power necessary for the complete, prompt, and satisfactory execution of the work, and for properly connecting and co-ordinating his work with that of other contractors. Art. 45. The contractor shall confine the storage of materi- als and operations of his workmen to the limits indicated by law, ordinances, permits, or by the architect, and shall not unneces- sarily encumber the premises with his materials. Art. 46. The contractor shall submit in writing the names and references of all proposed subcontractors to the architect, who shall have the right to reject such as he deems unsatisfac- tory, and the contractor shall not sublet any portion of the work without the written permission of the architect. Such permission shall not, however, relieve the contractor from re- sponsibiHty for the conduct and work of his subcontractors. Art. 47. The contractor in subletting any part of the work shall make contracts by which his subcontractors shall be 320 FORM BOOK (Ch. 11 [Page 10] — Continued bound by the terms of these contract documents as far as ap- pHcable to the work sublet. He shall properly direct and con- trol his subcontractors, being responsible for the correlation of his own work and that of his subcontractors. Should the con- tract documents assign certain responsibilities to subcontrac- tors the contractor is not thereby relieved of such or of any responsibilities for the entire work or any part thereof. The contractor shall promptly transmit to his subcontractors all drawings and specifications bearing on their work. Art. 48. The contractor shall afford other contractors em- ployed by the owner every reasonable facility for the storage and introduction of their materials and for erection of their work. Art. 49. The contractor shall keep a competent general foreman and any necessary assistants, satisfactory to the ar- chitect, in charge during the progress of the work. The gen- eral foreman shall not be changed except with the consent or at the instance of the architect. The foreman shall represent the contractor in his absence, and all directions as to the con- duct of the work given to him shall be as binding as if given to the contractor, provided that on request such directions be given in writing. Art. SO. The contractor shall not do any work without proper drawings or instructions, and shall, at his own expense, replace any work wrongly executed, whether from lack of such drawings or instructions or otherwise. Art. 51. The contractor, as a part of his services, shall give personal supervision to the work, and he shall carefully study and compare all drawings, specifications, and other informa- tion given to him by the architect, as to figures, materials, and methods of construction, using therein the skill and experience for which he receives compensation under this contract, and Ch. 11) BUILDING AGEEEMENTS ' 321 tPage 10] — CJontlnued shall immediately report to the architect for rectification any error, inconsistency, or omission therein which he shall dis- cover. Art. 52. The contractor shall measure work already in place, to insure the proper execution of his subsequent work, or for the information of the architect; and, should any dis- crepancy between the executed work and the drawings be dis- covered, he shall report it at once to the architect. Art. 53. The contractor shall, at his own expense, obtain for the owner all necessary permits and licenses, except per- manent easements, give all necessary notices, pay all fees re- quired by law, and comply with all laws, ordinances, rules, and regulations relating to the work, and to the preservation of the public health and safety. If the drawings and specifications are at variance therewith, he shall so notify the architect in writing, stating the effect of such compliance upon the contract price. Art. 54. The contractor shall furnish, within a reasonable time, whenever required, and in the manner directed, reports .showing the progress and status of the work at the building and in the shops. [Page 11] Art. 55. The contractor shall, when required, produce sat- isfactory evidence to show the kind and quality of materials used, and furnish duplicate labeled samples of materials and workmanship, with sufficient information, for the architect's approval, and the materials furnished shall have the same char- acter, finish, color, and texture as the approved samples, and the workmanship shall be equal to that of the samples. Art. 56. The contractor shall pay all royalties and license fees, and shall save the owner harmless from loss or annoy- TlFP.FOEMS — 21 322 FORM BOOK (Ch. H [Page 11]— Continued ance on account of suits or claims of any kind for violation or infringement of any letters patent or patent rights by the con- tractor or any one directly or indirectly employed by him or by reason of the use by him or them of any art, machine, manufac- ture, or composition of matter on the works in violation or infringement of such letters or rights. Art. 57. The contractor shall not allow waste material or rubbish caused by his employes to accumulate in or about the premises, but shall promptly remove the same and at the com- pletion of the work he shall thoroughly remove all his rubbish from and about the building, and all tools, scaffolding, and sur- plus materials, and shall leave his work thoroughly cleaned and ready for use. In case of dispute the owner will remove the rubbish and charge the cost of work to the contractors pro rata. Art. 58. The contractor shall promulgate and enforce rules to prevent, and it shall be his duty to prevent : 1. The lighting of open fires upon the premises, in or dan- gerously near the building. 2. Smoking within the building after the roof is on. 3. The erection on or about the premises of any sign, bill- board, or other advertisement by the contractor or his subcon- tractors, except by written permission of the architect. 4. The loading of any part of the structure with a weight greater than it is calculated to bear. Art. 59. The contractor shall cover and protect his mate- rials and work from damage by the elements, or from any oth- er cause, in a manner satisfactory to the architect, and shall efficiently maintain such covering and protection. Art. 60. The contractor shall, at his own expense, make good, to the architect's satisfaction, any damage to his work Ch. 11) BUILDING AGREEMENTS 323 [Page 11] — Continued from the action of the eleriients, or axiy other cause, except such damages as are contemplated in article 19. Art. 61. The contractor shall do all cutting, fitting, or patching of his work that may be required to make its several parts come together properly and fit it to receive or be received by work of other contractors, shown upon, or reasonably im- plied by, the drawings and specifications for the completed structure, and he shall make good after them, as the architect may direct. But the contractor shall not endanger the stabil- ity of the structure or any part thereof by cutting or digging or otherwise, and shall not in any way cut or alter the work of any other contractor, save with the consent and under the di- rection of the architect. Art. 62. The contractor shall maintain such insurance as will adequately protect him and the owner from claims for damages for personal injuries arising directly or indirectly from operations under this contract, and he shall be liable to the owner for failure to maintain such insurance, and shall, if required by the owner, submit the policies to him for approval. Art. 63. If any part of the contractor's work is dependent for its proper execution or for its subsequent efficacy or ap- pearance on the character or condition of associated or con- tiguous work not executed by him, the contractor shall exam- ine such associated or contiguous work and shall report to the architect in writing any imperfection therein or any conditions that render it unsuitable for the reception of his work. In case the contractor proceeds without making such written re- port, he shall be held to have accepted such other work and the existing conditions, and shall be responsible for any defects in his own work consequent thereof, and shall not be relieved of the obligation of any guaranty because of any such imper- fection or condition. 324 FORM BOOK (Ch. 12 CHAPTER XII CHATTEI. MORTGAGES In General A mortgage of personal chattels, or chattel mortgage, un- less otherwise provided by statute, transfers the general prop- erty in the chattels mortgaged to the mortgagee. A chattel mortgage differs from a pledge in that under a pledge the gen- eral property remains in the pledgor. Post, p. 1118. It differs from a sale (post, p. 1 191) in that the transfer is defeasible upon performance by the mortgagor of the conditions of the mort- gage, usually the payment of money at a time fixed. A chattel mortgage is usually accompanied by retention of possession of the chattels by the mortgagor. At law, irrespective of stat- ute, unless the mortgage provide otherwise, there is no right of redemption after default has been made in the perform- ance of the conditions, although it may be otherwise in equi- ty; and upon breach the mortgagee may take possession and deal with the goods as his own. Chattel mortgages are, how- ever, generally governed by the provisions of statutes. Recording Acts Retention of possession by the mortgagor, at common law, gives rise to a presumption of fraud, in many states a conclu- sive presumption, thereby subjecting the transfer to the risk of avoidance by the mortgagor's creditors. For this reason the various states have enacted recording acts. These acts usually provide that chattel mortgages are void as against creditors of the mortgagor and subsequent purchasers in good faith unless possession be delivered to the mortgagee or the mortgage be recorded. Generally, to entitle a mortgage to record, it must be executed and acknowledged with the formali- ties of a deed of conveyance of land ; and tlie mortgage may be assigned and satisfied by instruments similarly executed and acknowledged or by a prescribed form of entry on the margin of the record. The statutes differ, many of them pre- scribing the rights of the parties and the remedies of the mort- gagee by sale and foreclosure in great detail. Ch. 12) CHATTEL MORTGAGES 325 Description of Property To be valid against third persons, the mortgage should so describe the property as to enable them upon reasonable in- quiry to indemnify it. And the better rule is that a mortgage of a certain number of chattels out of a larger number does not satisfy this requirement. After-Acquired Property In equity a mortgage which covers property afterwards to be acquired, if the property is sufficiently described to be identified, .gives the mortgagee a lien upon the property as against the mortgagor as soon as it is acquired; but under the recording acts generally the mortgage will not prevail against the mortgagor's creditors and purchasers in good faith, and as to them it is valid only if the mortgagee takes posses- sion before their rights accrue. Where after-acquired prop- erty is to be included, it is often best to provide for a con- firmatory mortgage, to be executed and recorded when the property comes into the mortgagor's possession. Mortgages of property having a potential existence, as a crop to be grown on specified land, or the future offspring of designated ani- mals, are sustained in some jurisdictions; and some statutes make special provision for crop mortgages. Retention of Right to Sell A mortgage giving the mortgagor a power of sale for his own benefit, or coupled with an agreement that he may re- tain possession and sell the property without applying the proceeds to the debt, is generally held to be fraudulent and void as to creditors and subsequent purchasers, although in some jurisdictions this is only evidence of fraud. Scope of Chapter The statutory provisions of the different states, so far as they relate to the validity of chattel mortgages, and to the formalities of record and renewal, as well as the formalities of execution and acknowledgment when they differ from those prescribed for deeds of land, and also provisions for the rec- ord of conditional sales (post, p. 1191), are here briefly set forth, followed by the statutory forms of chattel mortgages, where any are provided, and by forms of chattel mortgages in com- 326 FOEM BOOK (Ch. 12 men use. These forms will usually serve as precedents else- where, but their provisions should be carefully examined in or- der that they may conform with the requirements of the gov^ erning statute. Page Chattel mortgage — General form 328 Alabama, statutes 331 Chattel mortgage 333 Alaska, statutes 334 Arizona, statutes 335 Chattel mortgage 336 Affidavit 337 Arkansas, statutes 337 Chattel Mortgage 338 California, statutes 339 Mortgage of personal property (statutorj-) 340 Affidavit 341 Mortgage of crop 341 Colorado, statutes 343 Chattel mortgage 344 Connecticut, statutes 347 Mortgage of personal property 347 Delaware, statutes 348 District of Columbia, statutes 349 Deed of trust of personal property 349 Florida, statutes 352 Chattel mortgage 352 Georgia, statutes 354 Chattel mortgage 355 Idaho, statutes 356 Chattel mortgage 357 Affidavit 357 Illinois, statutes 358 Chattel mortgage 359 Acknowledgment 361 Indiana, statutes 362 Chattel mortgage 362 Iowa, statutes 364 Chattel mortgage 364 Kansas, statutes . . , 365 Chattel mortgage 366 Affidavit of renewal 367 Kentucky, statutes 367 Maine, statutes 368 Mortgage of personal property 369 Maryland, statutes 370 Mortgage of personal property (statutory) 371 Acknowledgment and affidavit ; 371 Ch. 12) CHATTEL MORTGAGES 327 Pace Massachusetts, statutes 372 Mortgage of personal property 373 AssignaieWt of mortgage 375 Discharge of mortgage 375 Michigan, statutes 376 Chattel mortgage 377 Affidavit 379 Renewal affidavit 379 Minnesota, statutes 380 Chattel mortgage :...:. 381 Mississippi, statutes 382 Chattel mortgage '. ." 383 Missouri, statutes 384 Chattel mortgage .'. 385 Montana, statutes 386 Chattel mortgage 387 Affidavit 389 Nebraska, statutes 390 Chattel mortgage 391 Nevada, statutes 392 Chattel mortgage 393 Affidavit 394 New Hampshire, statutes 394 Mortgage of personal property 396 New Jersey, statutes 397 Chattel mortgage 399 New Mexico, statutes 401 Chattel mortgage 402 New York, statutes 404 Chattel mortgage 406 Assignment 408 Satisfaction 409 North Carolina, statutes 410 Chattel mortgage (statutory) 410 North Dakota, statutes 411 Mortgage of personal property (statutory) 412 Another form 413 Ohio, statutes 414 Chattel mortgage 415 Statement of claim (mortgage securing money only) 417 (Mortgage to indemnify surety.) 417 (On refiling mortgage.) 418 Oklahoma, statutes 418 Chattel mortgage (statutory) 420 Oregon, statutes 420 Chattel mortgage 421 Pennsylvania, statutes 42^ Chattel mortgage (statutory) 423 328 FORM BOOK (Ch. 12 Page Rhode Island, statutes 425 Mortgage of personal property, 425 South Carolina, statutes 427 Mortgage of personal property 428 South Dakota, statutes 429 Mortgage of personal property (statutory) 431 Acknowledgment of receipt of copy 431 Tennessee, statutes 431 Chattel mortgage 432 Texas, statutes 433 Chattel mortgage 434 Utah, statutes 435 Chattel mortgage 437 Affidavit 438 Vermont, statutes 438 Mortgage of personal property 440 Affidavit 441 Assignment 441 Discharge ,. 442 Virginia, statutes 442 Washington, statutes 443 Chattel mortgage for $100 or less 444 Affidavit 446 West Virginia, statutes 446 Wisconsin, statutes 447 Chattel mortgage 449 Wyoming, statutes 451 Chattel mortgage 453 Mortgage of Ships, see Ships and Vessels, pp. 1227, 1230. Mortgage of Patent, see Patents, p. 1108. Chattel Mortgage — General Form Know all men by these presents that I, , of , in consideration of dollars to me paid by , of , the receipt whereof is hereby acknowledged, do hereby grant, sell, and transfer unto the said all and singular the goods and chattels mentioned in the schedule hereto an- nexed and now being in my possession on the premises known as . To have and to hold all and singular tlie said goods and chattels to the said , his executors, administrators, and assigns forever. Ch. 12) CHATTEL MORTGAGES 329 [Warranty op title.] And I hereby covenant with the said that I am the kwful owner of the said goods and chattels; that they are free from all incumbrances; that I have good right to sell the same as aforesaid ; and that I will warrant and defend the same against the lawful claims of all persons : [Dfi^BASANCE.] Provided nevertheless that if I, or my ex- ecutors, administrators, or assigns, shall pay unto the said , or his executors, administrators, or assigns, the sum of dollars, according to the terms of a certain promis- sory note made by me to the order of the said for the sum of dollars, payable years after date, with interest thereon at the rate of per cent, per annum pay- able semiannually on the day of and in each year, and shall also keep and perform all and singular the covenants and agreements on his part hereinafter con- tained, then this deed shall be void. [Covenants oe mortgagor.] And I hereby covenant, for myself, my heirs, executors, administrators, and assigns, with the said , his executors, administrators, and assigns, as follows : (1) [To PAY DEBT.] To pay the said sum of money and interest at the times and in the manner above described. (2) [To INSURE.] Until such payment shall be made, to keep the said goods and chattels insured against loss and dam- age by fire in at least the sum of dollars for the benefit of the said , his executors, administrators, and assigns, in such form and in such insurance companies as he or they shall approve, and that in default thereof he or they may effect such insurance and the sums so paid for that purpose with in- terest thereon at the rate of per cent, per annum shall be immediately payable by me, and shall be deemed part of the debt hereby secured. 330 FORM BOOK (Ch. 12 ■ (3) [Not To WASTB, ETC.] Not to waste or destroy the said goods and chattels, or to suffer them or any part thereof to be attached or taken on execution or other process ; (4) [Not to sELi, or removB.] Not to sell thereof or re- move the same from the said premises where the same now are, without the consent in writing of the said , his ex- ecutors, administrators, or assigns. [Aftbr-acquired property included.]^ It is further agreed by the parties hereto that all other goods and chattels of a like kind with those hereinbefore described, and all addi- tions to the said stock of goods which shall be brought by me upon the said premises, shall be subj ect to this mortgage ; and I hereby covenant and agree, upon request of the said , to execute and cause to be duly recorded a further and con- firmatory mortgage of any such property hereafter to be ac- quired by me during the continuance of this mortgage. [Mortgagor to retain possession.] And it is agreed that until default shall be made in the payment of the said sum of money and interest as aforesaid, or in the observance or performance of any of the other covenants on my part herein contained, I, or my executors, administrators, and assigns, may retain possession of the said goods and chattels, and may use and enjoy the same. ' 1 A provision like the following authorizing the mortgagor to sell on condition that with the proceeds he replace the goods sold with others of a like kind, which are to be subject to the mortgage, is held in some jurisdictions to pass to the mortgagee the legal title to the later goods when brought upon the premises (see preliminary note, ante, p. 325) : "It is further agreed that I may from time to time, in the usual course of ti-ade, sell any or all of the said stock of goods and any other goods which sliall replace those sold, provided that with the proceeds of such sales I shall purchase other goods of a like kind and place the same upon the said premises, all of which goods, together with all additions to the said stock, shall be subject to this moi-tgage. And I covenant and agree at all times during the continuance of this mortgase to keep the said stock of goods up to the full value of dollars." Ch. 12) CHATTEL MORTGAGES 331 [Mortgagee to take possession on default, etc.]^ But if default shall be made in the payment of the said sum of money and interest or any part thereof, or in the observance and performance of any of the other said covenants on my part herein contained, or if the said , or his executors, administrators, and assigns, shall at any time deem the secur- ity afforded by this mortgage unsafe or at any risk, then it shall be lawful for him or them, and I do hereby authorize and empower him or them accordingly, to take immediate posses- sion of the said goods and chattels, and for that purpose to enter upon any premises where the same or any part thereof may be and to remove the same therefrom. [Power oe saeE.]^ And it is agreed that upon any such default as aforesaid, it shall be lawful for the said , his executors, administrators, or assigns, to sell the said goods and chattels at pubHc {or private) sale, for the best price they can obtain, and that he or they may purchase at any such sale, and out of the moneys arising therefrom to retain all sums secured by this mortgage, whether then or thereafter payable, includ- ing all costs, charges, and expenses incurred by him or them in effecting such sale or otherwise in relation to the said prop- erty, rendering the surplus, if any, to me, or my executors, administrators, and assigns. In witness whereof, etc. ALABAMA Mortgages of personal property not in writing and sub- scribed by the mortgagor are invalid. Civ. Code 1907, § 4288. Conveyances of personal property to secure debts or to pro- vide indemnity must be recorded in the county in which the grantor resides, and also in the county where the property 2 The provisions should conform to the requirements of any stat- ute in that behalf. 3 See preceding note. 332 KOEM BOOK (Ch. 12 is at the date of the conveyance, unless the property is im- mediately removed to the county of, the grantor's residence, and if before the lien is satisfied the property is removed to another county, the conveyance must be again recorded within three months from such removal in the county to which it is removed. Ibid. § 3376. Whenever personal property is sub- ject to lien, incumbrance, mortgage, or trust for the security of debts, at the time of its removal to this state, the writing evidencing the same must be recorded in the county into which it is brought and remains within three months after the ar- rival of such property. Ibid. § 3377. Whenever any person, having an estate for life or years in personal property, re- moves to this state with such property, the conveyance cre- ating such estate must be recorded in the county to which it was brought, within twelve months thereafter; and if such property is removed to another county, then in such county within four months after its removal thereto; or such prop- erty must be taken to vest absolutely in such p>erson, as to purchasers and creditors without notice. Ibid. § 3378. Convey- ances of personal property to secure debts or to provide in- demnity are inoperative against creditors and purchasers with- out notice until recorded, unless the property is brought into this state subject to such incumbrances, in which case three months are allowed for registration of the conveyance; and if such property is removed to a different county from that in which the grantor resides, the conveyance must be recorded in such county within three months from the removal, or it ceases to have effect after such three months against creditors or purchasers of the grantor without notice. Ibid. § 3386. All contracts for the conditional sale of personal property, except railroad equipment or rolling stock, by which the ven- dor retains the title until payment of the purchase money and the purchaser obtains possession, and all contracts for the lease, rent, or hire of personal property, by which the prop- erty is delivered to another on condition that it shall belong to him whenever the amount paid shall be a certain sum, or the value of the property, the title to remain in the other par- ty until such sum or value has been paid, are, as to such con- dition, void against purchasers for a valuable consideration, mortgagees, and judgment creditors without notice, unless such contracts are in writing and recorded in the office of the judge of probate of the county in which the party so obtaining pos- session of the property resides, and also in the county in which such property is delivered and remains; and if, before such Ch. 12) CHATTEL MORTGAGES 333 payment, the property is removed to another county, the con- tract must be again recorded, within three months from the time of such removal, in the county to which it is removed; and if any such property is brought into this state while subject to such condition, the contract must within three months there- after be recorded in the county into which the property is brought and remains. Ibid. § 3394. Chattel Mortgage Thb State oe Alabama, County. Know all men by these presents that I, , of county of , and state of Alabama, for and in considera- tion of dollars, to me in hand paid by , of , do sell and convey unto the said the following goods and chattels, to wit (description), warranted free of in- cumbrance, and against any adverse claims: Upon condition that, if the said pay to the said dollars, and interest, on or before the day of , 19 — , agreeably to a promissory note of this date for that sum, pay- able to the said or order, or demand, with interest, this deed shall be void ; otherwise in full force and effect. The aforesaid parties agree that, until the condition of this instrument is broken, the said property may remain in the pos- session of ; but after this condition is broken the said may, at his pleasure, take and remove the same, and may enter into any building of the said for that pur- pose, and, after taking possession of said goods and chattels, may sell and dispose of the same at public or private sale, and after satisfying the amount due, and all expenses, the surplus, if any remain, shall be paid to said , or his assigns. The exhibition of this mortgage shall be sufficient proof that any person claiming to act for the mortgage is duly made, con- stituted, and appointed agent and attorney to do whatsoever is 334 FOEM BOOK > (Ch. 12 above authorized. And agree to waive all right of exemption under the laws of the state of Alabama, or of the United States. Witness hand — and seal — this day of — , 19—. ALASKA A mortgage of personal property is void as against creditors and subsequent purchasers and incumbrancers in good faith for value, unless: (1) Possession of such property be de- livered to and retained by the mortgagee ; or (2) the mortgage provide that the property may remain in possession of the ijiortgagdr and be accompanied by an affidavit of all the par- ties thereto, or, in case any party is absent from the precinct where such mortgage is executed, an affidavit of those present, and of the agent or attorney in fact of such absent party, that the same is made in good faith, to secure the amount named therein, and without design to hinder, delay, or defraud credi- tors, and be acknowledged and filed as hereinafter provided. Civ. Code 1900, § 311. One member of a firm of general part- ners may execute a mortgage and make the affidavit on behalf of the firm. The president, secretary, or managing agent of a corporation may make the affidavit on its behalf. Ibid. § 312. The mortgage must be acknowledged by the mortgagor or per- son executing the same, in the manner of a conveyance of real property. Ibid. § 313. The mortgage, together with the affidavits or a copy thereof, certified to be correct by the per- son before whom the acknowledgment was made, must be filed in the office of the recorder of the precinct where the mort- gagor resides and of the precinct where the property is at the time of execution, or, if he is not a resident of the district, then of the precinct where the property is at the time of the execution. Ibid. § 314. In order to renew the mortgage, with- in 30 days next preceding the expiration of one year from the filing, a true copy of the mortgage, with a verified statement exhibiting the interest of the mortgagee in the property at the time the same is renewed, must be filed in the office where the original was filed ; and such renewal extends the lien of the mortgage for another year. Ibid. § 315. Upon payment or discharge, an acknowledgment of satisfaction signed by the mortgagee, his legal representative or assigns, must be in- dorsed on the mortgage or copy thereof, filed as aforesaid. Ibid. § 321. Ch. 12) CHATTEL MORTGAGES ,335 ARIZONA No chattel mortgage has legal force or effect- except be- tween the parties, unless the residence of the mortgagor and mortgagee, the sum to be secured, the rate of interest to be paid, when and where payable, are set out in the mortgage; and the mortgagor and mortgagee must make affidavit that the mortgage is bona fide and made without any design to defraud or delay creditors, and the affidavit must be attached to such mortgage. Rev. St. 1913, par. 4124. Every mortgage, deed of trust, or other form of lien at- tempted to be given by the owner of any stock of goods, wares, or merchandise daily exposed to sale, in parcels, in the regular course of the business of such merchandise, and contemplating a continuance of possession of the goods and control of the business, by sale of the goods by the owner, is fraudulent and void. Ibid. par. 4125. Every chattel mortgage, deed of trust, or other instrument of writing intended to operate as a mortgage of, or lien upon, personal property, not accompanied by immediate delivery and followed by actual and continued change of fKJSsession of the property, is void as against creditors of the mortgagor, and as against subsequent purchasers and mortgagees or lien- holders in good faith, unless such instrument or a true copy thereof be forthwith deposited with and filed in the office of the county recorder of the county where the property is then situated, and, if the mortgagor be a resident of this state, then it must also be recorded in the county of which he is at the time a resident. Ibid. par. 4126. If the property is re- moved out of the county where the mortgage is recorded, the mortgagee has one month within which to cause it to be re- corded in the county to which the property is removed. Ibid, par. 4133. If the person making such instrument removes the property from the county, or otherwise sells or disposes oi the same, without the consent of the mortgagee, the mortgagee is en- titled to possession of the property, and to have it then sold for the payment of his debt, whether due or not. Ibid. par. 4131. A mortgage, where the time of payment is fixed, may be foreclosed by notice and sale, unless a stipulation, in writing to the contrary, has been agreed upon by the parties, or by action in the proper court. Ibid. par. 4134. 336 FORM BOOK (Ch. 12 Chattel Mortgage Know all men by these presents that , residing in 1— • , county of , state of Arizona, part — of the first part, being justly indebted to , residing in , part — of the second part, in the sum of dollars, which is hereby confessed and acknowledged, for the purpose of securing the payment of said debt, do — hereby grant, bar- gain, sell, and mortgage unto the said part — of the second part all that certain personal property described as follows, to wit (description). To have and to hold, all and singular, the personal property aforesaid, forever; Provided, always, and these presents are upon this express condition that, if the said part — of the first part shall pay or cause to be paid unto the said part — of the second part, the sum of dollars, according to the condi- tions of certain promissory note — , executed by , payable to the order of , at viz., , dated, , due , with interest at per cent, per annum, until paid, then these presents to be void and of no effect. But if default shall be made in the payment of said sum of money, or interest thereon, at the time said note shall become due, or if any attempt shall be made to remove, dispose of, of injure said property or any part thereof by said part — of the first part, or any other person, or if said part — of the first part does not take proper care of said property, or if said part — of the second part shall at any time deem insecure, then, thereupon and thereafter, it shall be lawful, and the said first part — hereby authorize — the said party of the second part, or authorized agent, to take said property wherever the same may be found, and hold or sell and dispose of the same and all equity of redemption, at public auction or private sale, with or without notice, and on such terms as the said part — of Ch. 12) CHATTEL MORTGAGES 337 the second part or agent may see fit, retaining such amount as shall pay the aforesaid note — and interest thereon, and an attorney's fee of $ and such other expenses as may have been incurred, returning the surplus money, if any there be, to the said part — of the first part, personal representatives or assigns. And as long as the conditions of this mortgage are fulfilled, the said part — of the first part is to remain in peaceful possession of said property, and in consid- eration thereof agrees to keep said property in as good condi- tion as it now is, at the cost and expense of said first part — . In witness whereof the said part — of the first part hereunto set hand — this day of , A. D. 19—. Affidavit State o? Arizona, ' County of the mortgagor within named, and the mortgagee within named, being first duly sworn, each for himself, and not for the other, doth depose and say that the foregoing mortgage is bona fide and made without de- sign to defraud or delay creditors, . Subscribed and -sworn to before me this day of , 19— , Notary Public. My commission expires . ARKANSAS Mortgages must be proved and acknowledged in the same manner as deeds for the conveyance of real estate; shall be recorded in the county in which the mortgagor resides, or, if he is a nonresident, in the county in which the property is where the mortgage is executed. Kirby's Dig. 1904, § 5395. They may be filed without recording, if they bear an indorse- TiFP.FoEMs — 22 338 POEM BOOK (Ch. 12 ment, "This instrument is to be filed, but not recorded," sign- ed by the mortgagee, and become liens from the time of fil- ing. Ibid. § 5407. AH trust deeds or mortgages of personal property filed with such indorsement may be withdrawn by the mortgagee if such mortgage be canceled or satisfied. Ibid. § 5413. In the absence of stipulations to the contrary, the mort- gagee has the legal title and right of possession. Ibid. § 5410. Chattel Mortgage This indenture, made this day of , 19 — , be- tween , part — of the first part, and , part — of the second part : Withesseth that for and in consideration of the sum of dollars, the receipt whereof is hereby acknowledged, the part — of the first part do — hereby bargain, sell, and convey to the part — of the second part the following described property, to wit (description). To have and to hold the same unto the part — of the second part, executors, administrators, and assigns, forever ; conditioned, however, as follows : Whereas, the said part — of the first part is indebted to the part — of the second part in the sum of dollars, pay- able as follows, to wit (state terms). Now, if the part — of the first part shall well and truly pay to the part — of the second part the sum — hereinbefore men- tioned, together with the cost of this trust, on or before the ma- turity hereof as above set out, then this conveyance shall be void ; otherwise to remain in full force and effect. And in case any default shall be made in the payment of said indebtedness, as herein set forth, or should the part — of the first part, prior to the said maturity hereof, sell or attempt to sell, remove, or otherwise dispose of the property hereby conveyed, or any part thereof, without the consent of the part — of the second part, then, in either event, the part — of the second part, agent or attorney, is hereby authorized and empowered to take Ch. 12) CHATTEL MORTGAGES 339 possession of said property on demand, without process of law, and to sell and dispose of the same, or so much as shall be necessary, at public sale, at , for cash, upon two weeks' notice in some newspaper published in the county, or by writ- ten notices posted in five conspicuous places near the property, at which sale any of the parties hereto may purchase as other parties, and out of the proceeds of such sale the part — of the second part to retain the sum due as herein set forth, and the cost of this trust and of sale, rendering the overplus, if any, to the part — of the first part, executors, admin- istrators, or assigns. Given under hand this day of , A. D. 19—. CALIFORNIA Mortgages may be made upon all growing crops, including grapes and fruit, and upon any and all kinds of personal property, except the following: (1) Personal property not capable of manual delivery; (2) articles of wearing apparel and personal adornment ; (3) the stock in trade of a merchant. Civ. Code 1909, § 2955. Except as otherwise provided, mortgages of personal prop- erty may be acknowledged, or proved and certified, recorded in like manner and with like effect as grants of real prop- erty. Ibid. § 2963. A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and incumbrancers of the property in good faith and for value, unless : (1) It is accompanied by the affidavit of all the parties thereto that it is made in good faith and without any design to hinder, delay, or defraud creditors ; and (2) it is acknowledged or proved, certified, and recorded as a grant of real property. Ibid. § 2957. Such mortgage must be recorded in the office of the coun- ty recorder of the county in which the mortgagor resides, if a resident of this state, and also in the county in which the property is situated, or to which it may be removed. Ibid. § 2959. Property in transit from the possession of the mort- gagee to the county of the residence of the -mortgagor, or to 340 FORM BOOK (Ch. 12 a location for use, is, during a reasonable time for such trans- portation, to be taken as situated in the county in which the mortgagor resides, or where it is intended to be used. Ibid. § 2960. Property used in conducting the business of a com- mon carrier is to be taken as situated in the county in which the principal office or place of business of the carrier is lo- cated. Ibid. § 2961. A single mortgage embracing several things or so situated that separate mortgages on them would be required to be recorded in different places is only valid in re- spect to the things as to which it is duly recorded. Ibid. § 2962. A certified copy of a mortgage once recorded may be recorded in any other county, with the same force and effect as though it was the original. Ibid. § 2964. When the property is thereafter removed from the county in which it is situated, the lien of the mortgage is not affected for 30 days ; but thereafter the property is exempted from the operation of the mortgage, except as between the parties, un- til either: (1) The mortgagee causes the mortgage to be re- corded in the county to which the property has been removed ; or (2) the mortgagee takes possession as prescribed in the next section. Ibid. § 2965. If the mortgagor voluntarily re- moves or permits the removal of the property from the coun- ty in which it was situated at the time it was mortgaged, the mortgagee may take possession and dispose of it as a pledge for the payment of the debt, though the debt is not due. Ibid. § 2966. The lien of a mortgage on a growing crop continues on the crop after severance, whether remaining in its original state or converted into another product, so long as the same remains on the land of mortgagor. Ibid. § 2972. A mortgage of a vessel or part of a vessel under the flag of the United States is recorded in the office of the collector of customs where such vessel is registered or enrolled. Ibid. § 2958. A mortgage of personal property may be made in substan- tially the following form : Mortgage of Personal Property (Statutory) This mortgage, made the day of , in the year , by A. B., of , by occupation a , mort- gagor, to C. D., of , by occupation a , mort- gagee, witnesseth : Ch. 12) CHATTEL MORTGAGES 341 That the mortgagor mortgages to the mortgagee (here de- scribe the property), as security for the payment to him of dollars, on {or, before) the day of , in the year , with interest thereon {or, as security for the payment of a note or obligation, describing it, etc.). Ibid. § 2956. Affidavit Statb of , County of , the mortgagor — in the foregoing mortgage named, and , the mortgagee — in said mortgage named, being duly sworn, each for — self, deposes and says that the afore- said mortgage is made in good faith and without any design to hinder, delay, or defraud creditors. Subscribed and sworn to this day of , 19 — , at the county of . Mortgage of Crop {Parties as in preceding form) witnesseth that said mort- gagor — mortgage-^ to the mortgagee — the following describ- ed growing crop {describe the crop), now growing upon that land in the county of , state of , and particularly described as follows, to wit {describe the land). As security for the payment to the mortgagee — of the sum of dollars, evidenced by promissory note — in the words and figures following, to wit {etc), and also to secure such other moneys as may be hereafter loaned or to secure payment for or for account of the mortgagor — by the mortgagee — , during the continuance of this mortgage, not to exceed in all the sum of dollars, exclusive of the sum mentioned in said promissory note — . And the mortgagor — hereby agree — that — he — will carefully care for and protect the said crop until fit for harvest, and then without delay 342 FORM BOOK (Ch. 12 harvest , and deliver the same immediately into the pos- session of the mortgagee — , to be by disposed of for the payment of the moneys hereby secured; that, in default of any of the above acts to be done by the mortgagor — the mortgagee — ' may at any time enter upon the premises and take all necessary measures for the protection of said crop, and may retain possession thereof, harvest ; and that all ex- penses so incurred, and that may become necessary in the keep- ing and care of said crop, as well as the hauling, storing, and delivery thereof, shall be secured by this mortgage, and shall be first payable in United States gold coin out of the money realized from the sale of said crop ; that said mortgagee — , or assigns, may at any time enter upon the premises to view them, or to take any measures — he — may deem neces- sary for the protection of said crop or interests there- in ; and that upon the harvesting thereof shall be en- titled to its immediate possession, and may haul and store it at the expense of said mortgagor — . And said mortgagor — do — for the purposes aforesaid hereby make and appoint said mortgagee — , and assigns attorney in fact ir- revocable, with power to enter upon said premises and take possession of said crop, and take care of, protect it, in case of any default on the part of the mortgagor — in the performance of the covenants herein contained. And do — further authorize said mortgagee — -, or assigns, to take possession of said crop, when harvested, to haul and store it, to sell and dispose of it, or any part thereof, at such time and tirnes and for such sum or sums of money as may deem proper and for the best advantage of all concerned ; and out of the proceeds of such sale : First, to retain the costs and charges thereof, and any and all expenses by the said mortgagee — incurred in the care and protection, harvesting, hauling, or storing it, and commission for selling it ; second, to apply the residue to the payment of said promis- Ch. 12) CHATTEL MORTGAGES 343 sory note — and such other moneys as may have been paid, loaned, or advanced as aforesaid, rendering the overplus, if any there be, to said mortgagor — . In witness thereof the part — of the first part ha — hereunto set hand — the day and year first above written. COLORADO No mortgage on personal property is valid as against third persons, unless possession of the property be delivered to and remain with the mortgagee, or the mortgage be acknowledged and recorded. 1 Rev. St. 1908, § 512. The mortgagor must acknowledge the mortgjige before some officer authorized to take the acknowledgment of deeds to real estate in this state, who shall certify: "This mortgage was acknowledged before me by A. B. (here insert the name of the mortgagor) this day of , A. D. 19 — ." Ibid. § 513. A mortgage of the household goods, used by the family, by husband or wife residing with the other must be by both joint- ly. Ibid. § 514. Mortgages certified and admitted to record by the recorder of the county wherein the property, or the greater part thereof, is situated, if bona fide, are good and valid from the time of record until the maturity of the last installment of the mort- gage indebtedness, but not exceeding two years if the principal of the indebtedness does not exceed $2,500, and not exceeding five years if the principal be more than $2,500 and not more than $20,000, and not exceeding ten years if the principal exceeds $20,000, notwithstanding that the property be left in the possession of the mortgagor, provided that the mort- gage so provides. If the mortgage be given to secure more than $2,500, there shall be recorded annually on the records of the county wherein the mortgage is recorded a sworn state- ment of the mortgagee, or one of them, showing: (1) That the mortgage was given in good faith to secure the payment of the sum of money mentioned therein; (2) and that said sum of money is still unpaid, or, if a portion has been paid, how much remains unpaid. Ibid. § 515. A mortgage of live stock may cover the increase, or any part thereof, as may be provided therein. Ibid. § 515. The lien of a mortgage recorded or filed and securing an in- 344 FORM BOOK (Ch. 12 debtedness not exceeding $300 payable in one installment, and due not more than 18 months after the execution of the mortgage, may be extended for not more than 6 months be- yond the maturity of the indebtedness, by a sworn statement filed by the mortgagee, or his assignee, with the county clerk of the county wherein the mortgage is recorded or filed, show- ing: (1) The amount of the debt which remains unpaid; and (2) that it is still due the mortgagee or his assignee, and that the mortgagee or his assignee consents to extend the mort- gage for a period not exceeding 6 months. Ibid. § 515. Where the indebtedness does not exceed $300, and the time of maturity does not exceed 6 months, a mortgage need not be recorded, but may be filed with the county clerk and record- er, shall then be held to be of record. And when released or discharged, the same shall be made to appear on the margin of the instrument so filed. Ibid. § 516. The mortgagee is allowed 30 days after the maturity of the debt in which to take possession. Ibid. § 518. The lien of a mortgage which has been admitted to record may, at any time within 30 days after maturity of the last installment of the indebtedness secured thereby, be extended for the unpaid portion of such indebtedness, by the mortgagee or his assignee filing with the county clerk of the county where- in the mortgage is recorded or filed a sworn statement show- ing: (1) The total payments that have been made on the debt, and the amount which remains unpaid; and (2) that it is still due the mortgagee or his assignee, and that he consents to extend the mortgage for not exceeding 2 years. Such exten- sions may be had, from time to time, until the indebtedness is paid or barred by limitation. Ibid. § 520. Entry of satisfaction or a receipt for payment on the mort- gage or on the record thereof operates as a release of the mort- gage. Ibid. § 6888. Chattel Mortgage Know all men by these presents that , of the county of , in the state of Colorado, part — of the first part, for and in consideration of the sum of dollars, to in hand paid by , of the county of , and state afore- said, part — of the second part, the receipt of which is hereby acknowledged, do — hereby grant, bargain, and sell unto the Ch. 12) CHATTEL MORTGAGES 345 said part — of the second part, the following goods and chattels (description). To have and to hold, all and singular, the said goods and chattels unto the said part — of the second part, per- sonal representatives and assigns forever. And the said part — of the first part for — sel — and heirs, executors, and administrators, do — hereby covenant with the said part — of the second part, personal representatives and assigns, that lawfully possessed (at this time) of the same goods and chattels as of own property; that the same are free from all incumbrances ; and that will warrant and defend the same to the said part — of the second part, and personal representatives and assigns, against the law- ful claims and demands of all persons : Provided, nevertheless, that if the said part — of the first part, heirs, executors, and administrators, shall well and truly pay to the part — of the second part, personal representatives and assigns, for the redemption of the above- bargained goods and chattels, the sum or sums hereinafter mentioned, with interest, according to the tenor and effect of certain promissory note — of even date herewith given by said part — of the first part to the said part — of the second part, payable as follows (state terms) and shall also -well and truly keep and perform each and every one of the covenants and agreements as herein contained, then these presents shall be null and void ; otherwise to remain in full force and effect : And provided, further, that until default be made by the said part — of the first part in the performance of the conditions aforesaid, it shall and may be lawful for to retain the possession of the said goods and chattels, and to use and enjoy the same ; but in case default should be made in the payment of said note — or either of them, or the interest therein men- tioned, according to tenor and effett, or if the said goods and chattels, or any part thereof, shall be attached or 346 FORM BOOK (Ch. 12- claimed by any other person at any time before payment, or if the said part — of the first part shall attempt to sell or re- move the same without the authority or permission of the said part — of the second part in writing expressed, from No. street, in the city of , in said county, or if the said part — of the second part, or personal representa- tives or assigns, shall at any time feel unsafe or insecure in the aforesaid security, then the said part — of the second part, legal representatives or assigns or the agents of or either of them, may take immediate and full possession of the aforesaid property, goods, or chattels, wherever the same may be found, and fOr that purpose may enter upon or into any premises, buildings, or inclosures, by and with such force and help as may be deemed necessary therefor, and in so doing shall not be liable to any action therefor ; and thereafter said part — of the second part, — — — personal representatives or assigns, may sell the said property, goods, and chattels, at the place where the same are found, at the option of the said second part — , for the best price that can be obtained therefor, at public or private sale, with or without notice, and out of the money arising therefrom may pay said note — and alL charges touching the same, and all expenses incurred in obtain- ing possession thereof, together with all reasonable costs, com- missions, and, in addition thereto, attorney's fees of $ — shall be allowed, the holder rendering and paying the surplus, if any, to the said part — of the first part. And it is further agreed that, if said property, goods, or chattels, or any portion thereof, shall be sold hereunder at public or private sale, then the part — of the second part,. legal representatives, or assigns, may become the pur- chaser or purchasers thereof. In witness whereof the said part — of the first part ha — hereunto set ■■ — hand this day of , A. D. 19—. 'Ch. 12) CHATTEL MORTGAGES 347 CONNECTICUT When any manufacturing or mechanical establishment, to- gether with the machinery, engines, or implements situated and used therein, or any printing, publishing, or engraving establishment, together with the machinery, engines, imple- ments, cases, types, cuts or plates situated and used therein, or any dwelling house, together with the household furniture belonging to its owner, and used therein by him in house- keeping, or any building containing hay or tobacco in the leaf, together with such hay or tobacco, or any of the personal prop- erty above mentioned, without the real estate in which the same is situated or used, or any piano, organ, or melodeon, or any musical instrument used by an orchestra or band, or any brick burned or unburned and being in any kiln or brick- yard, or any furniture, fixtures, or other personal chattels own- ed by hotel keei>ers, contained and used in the hotel occupied by such hotel keeper or employed in connection therewith, shall be mortgaged by a deed containing a condition of defeasance, and a particular description of such personal property, execut- ed, acknowledged, and recorded as mortgages of lands, the re- tention by the mortgagor of the possession of such personal property shall not impair the title of the mortgagee. Gen. St. 1902, § 4132. Every person who shall loan money upon a note secured by mortgage upon personal property, in which the sum loaned is stated to be greater than the amount actually loaned, or in which the rate of interest to be charged is greater than the rate allowed by law to be charged by pawnbrokers, shall be fined, etc. ; and the mortgage and note secured thereby shall be void. Ibid. § 4134. Mortgage of Personal Property To all people to whom these presents shall come, greeting : Know ye that , of , in the county of , and state of Connecticut, for the consideration of dol- lars, received to full satisfaction of , do hereby l)argain, sell, transfer, and convey unto the said the fol- lowing articles of personal property (description). 348 FORM BOOK (Ch. 12 To have and to hold the same to , the said , executors, administrators, and assigns, forever, to and their own proper use and behoof. And , the said , for — sel — heirs, executors, and administrators, covenant and agree with the said to warrant and defend the said goods to , the said , against all persons whatever. The condition of this deed is such that whereas, the said grantor justly indebted to the said grantee — in the sum of dollars, as evidenced by promissory note for dollars, of even date herewith, payable to said grantee — or order {state terms). Now, therefore, if said note shall be well and truly paid ac- cording to its tenor, then this deed shall be void ; otherwise to be and remain in full force and effect. In witness whereof have hereunto set hand — and seal — this day of . DELAWARE A bona iide mortgage of personal property, if duly signed, sealed, and delivered, and acknowledged like a mortgage of real property is, is a valid lien for three years, though, possession remain in the mortgagor, if it be lodged for record in the re- corder's office of each county where any of the mortgaged property is held, within ten days from the time of the acknowl- edgment. Rev. Code 1852, amend, to 1893, p. 633, § 1. No mortgage is valid unless there be indorsed upon or an- nexed to it, to be recorded with it, an affidavit that the said mortgage was made for the bona fide purpose of securing such a debt or making indemnity, as the case may be, and was not made to cover the property of the mortgagor, to protect it from his creditors, or to hinder or delay them in the collection of their debts. Ibid. § 4. Ch. 12) CHATTEL MORTGAGES 349 DISTRICT OF COLUMBIA No bill of sale, mortgage, or deed of trust to secure a debt of personal chattels whereof the vendor, mort- gagor, or donor shall remain in possession is valid, ex- cept as between the parties and as to other persons having actual notice, unless executed, acknowledged, and within ten days of such acknowledgment recorded in the same manner as deeds of real estate. As to third persons not havijig notice, such instrument is operative only from the time within such ten days when it is delivered to the recorder. Code of Laws 1901, as amend, to 1911, § 546. No conditional sale of chattels in virtue of which the prop- erty is delivered to the purchaser, but by the terms of which the title is not to pass until the price is fully paid, where the price exceeds $100, is valid as against third persons acquir- ing title to the property from the purchaser without notice, unless the terms of sale are reduced to writing and signed by the parties thereto and acknowledged by the purchaser and recorded in the same manner as a chattel mortgage. Code of Laws 1901, as amend, to 1911, § 547. Deed of Trust This indenture, made this day of , A. D. , by and between , of , District of Colum- bia, part — of the first part, and and , trustees, of , District of Columbia, parties of the second part: Whereas, the part — of the first part is justly indebted unto in the full sum of dollars, as evidenced by promissory note — {state terms) ; And whereas, said part — of the first part desire — to secure the full and punctual payment of the said note — with interest. Now, therefore, this indenture witnesseth that said part — of the first part, in consideration of the premises, and of one dollar, lawful money of the United States of America, to in hand paid by said parties of the second part, the receipt of which is hereby acknowledged, do — hereby grant. 350 FOEM BOOK (Ch. 12 sell, and deliver, unto the said parties of the second part, or the survivor of them, all and singular the goods and chattels and personal property named, mentioned, and described in Sched- ule "B," hereto annexed and made part of this deed, the same being now in and upon the premises know^n as No. , in , District of Columbia. To have and to hold the said goods and chattels and personal property unto and to the use of the said parties of the second part, or the survivor of them, executors, administra- tors, and assigns, in and upon the trust and for the uses fol- lowing : In trust, to suffer and permit the said part — of the first part to retain possession of and use the said goods and chattels and personal property until the same shall and may be required as hereinafter provided. And upon this further trust upon default being made in the payment of said note — , or either of them, or of any interest thereon, when due, or any proper cost, charge, or expense in and about the same, then, and at any time thereafter, to take immediate pvossession of said goods and chattels and personal property, wheresoever the same may be found, and to sell the same at public auction, upon such terms and after such public notice as the said parties of the second part, or the survivor of them, in the execution of this trust, shall deem ad- vantageous and proper, and of the proceeds of sale or sales: First, to pay all proper costs, charges, and expenses, including a commission of per cent, on the amount of said sale to said trustees for services; second, to pay whatever may then remain unpaid of said note — , whether the same be due or not; and, last, to pay the surplus, if any, to whomsoever shall be lawfully entitled to the same. And upon this further tnxst, at any time hereafter, whether said note — shall be due or not, upon the security hereby given Ch. 12) CHATTEL MORTGAGES 351 being in any wise endangered in the opinion of said parties of the second part, or the survivor of them, by the removal of said goods and chattels and personal property, or any of them, without the written consent of the said parties of the second part, or the survivor of them, or by the nonpayment of the rent of the premises where said goods and chattels may be placed, stored, or deposited, or by the rendering of a judg- ment or decree for the payment of money against said part — of the first part, or if said part — of the first part shall not keep the same insured in some good and reliable company against loss by fire to the extent of dollars, and assign the same to the use of said parties of the second part, or the survivor of them, for the more effectual securing of the pay- ment of said indebtedness, or if the same shall become en- dangered in any other manner, in the opinion of the said parties of the second part, or the survivor of them, then and thereafter, upon the written order of the holder or holders of said note — or of either of them, to take possession of said goods and chattels and j>ersonal property and sell the same, and dispose of the proceeds thereof in the manner hereinbefore provided, as though default had been made in the payment of said note — . In witness whereof said part — of the first part ha — here- unto set hand — and afiixed seal — on the day first hereinbefore written. SCHBDULB "B" {Referred to in the Foregoing Deed of Trust and Made a Part of the Same) All goods, chattels, implements, and other personal property of every description now contained in the premises No. — , in the , District of Columbia, including {description). Signed, sealed, and delivered in the presence of the under- 352 FORM BOOK (Ch. 12 signed as witnesses , being delivered in the name of all said goods and chattels and personal property . (Signature of witnesses.) (Signatures and seals.) Received the goods and chattels mentioned in the foregoing, deed of trust subject to all its provisions. (Signatures.) FLORIDA No chattel mortgage is valid or effectual against creditors or subsequent purchasers for a valuable consideration and without notice unless recorded, or unless the property be delivered to the mortgagee and continue to remain truly and bona fide in his possession. Gen. St. 1906, § 2496. To entitle such mortgage to record, its execution must be acknowledged or proved in the manner provided for mortgages of real prop- erty. Ibid. § 2497. All deeds of conveyance, obligations conditioned or de- feasible, bills of sale, or other instruments of writing convey- ing or selling property, either real or personal, for the pur- pose or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person in trust for the creditor, are deemed mortgages. Ibid. § 2494. Chattel Mortgage Know all men by thesp presents that , of the of , in the county of , and state of , here- inafter called mortgagor — , for securing the paj'ment of the money hereinafter mentioned, and in consideration of the sum of dollars, duly paid by , of the of , county of , and state of , hereinafter called mortgagee — , at or before the ensealing and delivery of these presents, the receipt whereof is hereby ■ acknowledged, ha — • granted, bargained, and sold, and by these presents do — grant, bargain, sell, and convey unto the said mortgagee — , executors, administrators, and assigns, all the goods, Ch. 12) CHATTEL MORTGAGES 353 chattels, and personal property now in and particularly described as follows (description). To have and to hold all and singular the said goods, chattels, and personal property above bargained and sold, or intended so to be, unto the said mortgagee — , executors, adrninis- trators, and assigns forever. And the said mortgagor — , for heirs, executors, and administrators, covenant — with the said mortgagee — , executors, administrators, and assigns, that the lawful owner — , of all and singular the goods, chattels, and personal property above bargained and sold ; that said property is free from all incumbrances; that good right to sell the same as aforesaid ; and that shall and will warrant and defend the same unto the said mortgagee — , executors, administrators, and assigns, against the lawful claims of all and every person or persons whomsoever: Provided always, and these presents are upon the express condition, that if — , the said mortgagor — , shall well and truly pay unto the said mortgagee — , executors, admin- istrators, and assigns, the aggregate sum of dollars, se- cured by — certain promissory note — of which the following, in words and figures, is a true and correct copy (etc.), and also all expenses that may or shall accrue in the event of the fore- closure of this mortgage, reasonable attorney's fees, and costs of court included, then these presents shall be void ; otherwise to remain in full force and virtue. And , the said mortgagor — , for and heirs, executors, and administrators, do — covenant and agree to and with the said mortgagee — , executors, adminis- trators, and assigns, that in case default shall be made in the payment of the said sum above mentioned, or any installment thereof, or in the payment of the whole or any part of the interest thereon at the times and in the manner provided in said promissory note — , or in case the said party of the first part TIFF.PORMS— 2.3 354 FORM BOOK (Ch. 12 shall remove the said goods, chattels, and personal property or any of them without written permission of said mortgagee — , or permit or suffer any attachment or other process to be levied upon said property or any part thereof, or permit or suffer any judgment to be entered up against , then the said aggregate sum of money herein mentioned shall become instantly due and payable, at the option of the said mort- gagee — , and then it shall and may be lawful for this mortgage to be immediately foreclosed for the whole of said money, in- terest, costs, fees, charges, and expenses as aforesaid. In witness whereof the said mortgagor — ha — hereunto set hand — and seal — the day of , GEORGIA A mortgage is only security for a debt, and passes no title. It may ernbrace all property in possession, or to which the mortgagor has the right of possession at the time, or may cover a stock of goods, or other things in bulk, but changing in specifics, in which case the lien is lost on all articles disposed of by the mortgagor up to the time of foreclosure, and attaches to the purchases made to supply their place. A mortgage giv- en by a person or a corporation to a trustee or trustees, to secure an issue of bonds, shall, when it is expressly so stipulat- ed therein, embrace and cover after-acquired property of such person or corporation. Civ. Code 1910, § 3256. No particular form is necessary to constitute a mortgage. It must clearly indicate the creation of a lien, specify the debt to secure which it is given, and the property upon which it is to take effect. It must be executed in the presence of, and attested by, or proved before, a notary public or justice of any court in this state, or a clerk of the superior court and recorded. Ibid. § 3257. Mortgages must be recorded in the county where the mort- gagor resided at the time of its execution, if a resident of this state ; if a nonresident, then in the county where the property is. If a mortgage be executed on personalty not within this state, and such property is afterwards brought within the state, the mortgage must be recorded according to the above rules within six months after the property is so brought in. Ch. 12) CHATTEL MORTGAGES 355 Mortgages of stocks of goods, wares, and merchandise, or oth- er personal property, must be recorded, if upon property lo- cated in some other county than that of the mortgagor's resi- dence, in the county where the property is located at the time of the execution of the mortgage, in addition to the record in the county of the mortgagor's residence. Ibid. § 3259. A mortgagor who has paid off his mortgage may present the same, with the order of the mortgagee or transferee direct- ing that it be canceled, to the clerk of the superior court of the county or counties in which the same is recorded, and such clerk shall write across the face of such record the word "satisfied," and the date of such entry, and sign his name thereto officially. Ibid. § 3270. Chattel Mortgage State of Georgia, County. Know all men by these presents that whereas, justly indebted to , of , in the sum of dollars, with interest from at the rate of per cent, per annum until paid, which is evidenced by promissory note — , payable as follows (state terms). Now, therefore, for the purpose of securing the payment of said sum or sums, as it or they may fall due, hereby mortgage and create a mortgage lien upon, to and for the benefit to heirs and assigns, the following described property, to wit (description), together with all the accretions, replenishments, additions, and all other property that shall appertain to said property aforementioned. And do declare that all of said property is and is free from any lien or incumbrance whatever. And it is further agreed and understood that this mortgage shall stand good for and include all future advances of money and indebtedness of any kind to date of foreclosure or settle- ment owing by to the said . And it is further agreed and understood that, in default of payment of said sum 356 POEM BOOK (Ch. 12 or any sum covered hereby at maturity, then the whole indebt- edness shall become immediately due, and this mortgage shall be foreclosed for the whole amount of indebtedness ; but, if all sums are promptly paid at maturity, then this mortgage to be null and void. And it is further agreed that the whole debt shall become due and payable, and the mortgage may be foreclosed for the whole amount, cost, and expenses, if any sale is made of this property or any interest herein, without consent of the mort- gagees, except in due course of trade, if stock of goods, or if there be any change of firm. Witness hand — and seal — this day of IDAHO A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and incumbranc- ers of the property in good faith and for value, unless : It is accompanied by the affidavit of the mortgagor that it is made in good faith and without any design to hinder, delay, or defraud creditors ; and is acknowledged or proven, as grants of real estate, and the mortgage, or a true copy thereof, is filed for record with the county recorder of the county where such property is located and kept. Rev. Codes 1908, § 3408. Where mortgaged property is thereafter removed from the county wherein it was situated at the time of the execution of the mortgage by the written consent of the mortgagee, it is, except as between the parties to the mortgage, exempt from the operations thereof, unless either : (1) The mortgagee, with- in ten days after such removal, cause the mortgage to be re- corded in the county to which the property has been removed ; or (2) the mortgagee, within ten days after such removal, take possession of the property. Ibid. § 3410. Ch. 12) CHATTEL MORTGAGES 357 Chattel Mortgage This mortgage, made this day of , by , of , county of , state of Idaho, the mortgagor — , to , of , county of , state of Idaho, the mortgagee — : Witnesseth that the said mortgagor — hereby mortgages to the said mortgagee — all of those certain goods and chattels now being in , state of Idaho, and described as follows (description), to secure the payment of dollars, accord- ing to the terms and conditions of certain promissory note — in words and figures as follows, to wit (etc.). But if the said mortgagor- — • shall fail to make any payment as in said promissory note — provided, then at the option of the said mortgagee — , executors, administrators, or assigns, the said note — shall immediately become due and payable, and the said mortgagee — may take possession of the said property, using all necessary force so to do, and may immediately proceed to sell the same in the manner provided by law, and from the proceeds to pay the whole amount in the said note — specified and all costs of any action or sale, including dollars as counsel fees, paying the surplus to the said mortgagor — . (Signature.) Affidavit State of Idaho, County of , the mortgagor — in the foregoing mortgage named. depose — and say — • that the foregoing mortgage is made in good faith and without any design to hinder, delay, or defraud creditor or creditors. . Subscribed and sworn to before me this day of 358 FORM BOOK (Ch. 12 ILLINOIS No mortgage, trust deed, or other conveyance of personal property having the effect of a mortgage or lien is valid against third persons, unless possession is delivered to and remain with the grantee, or the instrument provides for the possession of the property to remain with the grantor, and the instrument is acknowledged and recorded; and every such instrument is, for the purposes of this act, deemed a chattel mortgage. Hurd's Rev. St. 1913, c. 95, § 1. Such instruments must be acknowledged, in counties having a population of less than 200,000, before a justice of the peace or the county judge of the county where the mortgagor re- sides, or before the clerk or deputy clerk of any municipal court in such county, or, if the mortgagor is not a resident of the state at the time of acknowledgment, before any officer authorized by law to take acknowledgment of deeds, and in counties having a population of more than 200,000 if the mort- gagor is a resident of the state at the time of acknowledgment, before a justice of the peace of the town or precinct where the mortgagor resides, or, if there be no justice of the peace therein, before the clerk or a deputy clerk of the municipal court in the district in which the mortgagor resides or, if there be no such clerk or deputy clerk, before the county judge of the county in which the mortgagor resides. The certificate of acknowledgment may be in the following form : This (name of instrument) was acknowledged before me by (name of grantor) (when the acknowledgment is made of a resident insert the words, "and entered by me") this day of , 19 — . Witness my hand and seal. (Name of officer.) (Seal.) Ibid. § 2. Such instrument, so acknowledged, shall be admitted to rec- ord by the recorder of the county in which the mortgagor resides at the time when the instrument is executed and re- corded, or, in case the mortgagor is not a resident of this state, then in the county where the property is situated and kept. It is then, if bona fide, a valid lien from the time it is filed for record until the maturity of the entire debt or obligation, or extension thereof. Provided, such time shall not exceed 3 years from the filing of the mortgage, unless within 30 days next preceding the expiration of such 3 years, or, if the debt or obligation matures within such 3 years, then within 30 days next preceding the maturity of said debt or Ch. 12) CHATTEL MORTGAGES 359 obligation, the mortgagor and mortgagee, his or their agent or attorney, files for record in the office of the recorder of deeds of the county where the original mortgage is recorded, also with the justice of the peace, or his successor, upon whose docket the same was entered, an affidavit setting forth par- ticularly the interest which the mortgagee has by virtue of such mortgage in the property therein mentioned, and, if such mortgage is for the payment of money, the amount remaining unpaid thereon, and the time when the same will become due, by extension or otherwise, which affidavit shall be recorded by such recorder and be entered upon the docket of said justice of the peace, and thereupon the lien originally acquired is con- tinued and extended for one year from the filing of such affidavit, or until the maturity of the indebtedness, or extension thereof, provided such time shall not exceed one year from the date of filing such affidavit. Ibid. § 4. No mortgage executed by a married man or married woman on household goods is valid unless joined in by the husband or wife, as the case may be. Ibid. § 24. All notes secured by chattel mortgages must state upon their face that they are so secured, and when assigned by the payee are subject to all defenses existing between the payee and the payor. A chattel mortgage securing notes which do not state upon their face the fact of such security is absolute- ly void. Ibid. § 25. Chattel Mortgage Know all men by these presents that , of , in the county of , and state of , in consideration of the sum of dollars, to paid by , of the county of , and state of , the receipt whereof it hereby acknowledged, do — hereby grant, sell, convey, and confirm unto the said , and to heirs and assigns, the following goods and chattels, to wit (description). To have and to hold all and singular the said goods and chat- tels unto the said mortgagee — herein, and heirs, execu- tors, administrators, and assigns, to and their sole use, forever. And the mortgagor — herein, for , and for heirs, executors, and administrators, do — hereby cov- •360 FORM BOOK (Ch. 12 enant to and with the said mortgagee — , heirs, execu- tors, administrators and assigns, that said mortgagor lawfully possessed of the said goods and chattels, as of own property ; that the same are free from all incumbrances ; and that will, and executors and administrators shall, warrant and defend the same to , the said mort- gagee — , heirs, executors, administrators, and assigns, against the lawful claims and demands of all persons : Provided, nevertheless, that if the said mortgagor — , «xecutors or administrators, shall well and trulypay unto said mortgagee — , executors, administrators, or assigns, the sum of dollars, with interest according to the terms of 4 certain promissory note (state terms), then this mortgage is to be void ; otherwise to remain in full force and effect : And provided, also, that it shall be lawful for the said mort- gagor — , executors, administrators, and assigns, to re- tain possession of the said goods and chattels, and at ■ .own expense to keep and use the same until , or •executors, administrators, or assigns, shall make default in the payment of the said sum of money above specified, either in principal or interest, at the time or times and in the manner hereinbefore stated. And the said mortgagor — hereby cov- enant — and agree — • that in case default shall be made in the payment of the note — aforesaid, or of any part thereof, or the interest thereon, on the day or days respectively on which the same shall become due and payable, or if the mortgagee — , executors, administrators, or assigns, shall feel insecure or unsafe, or shall fear diminution, removal, or waste of said property, or if the mortgagor — shall sell or assign, or attempt to sell or assign, the said goods and chattels, or any interest therein, or if any writ or any distress warrant shall he levied on said goods and chattels, or any part thereof, then and in any or either of the aforesaid cases all of said note — and sum of money, both principal and interest, shall, at the Ch. 12) CHATTEL MORTGAGES 361 option of the said mortgagee — , executors, administra- tors, or assigns, v^ithout notice of said option to any one, be-; come at once due and payable, and the said mortgageer-, executors, administrators, or assigns, or any of them, shall thereupon have the right to take immediate possession of said property, and for that purpose may pursue the same wher- ever it may be found, and may enter any of the premises of the mortgagor — , with or without force or process of law, wherever the said goods and chattels may be, or be supposed to be, and search for the same, and, if found, to take possession of, and remove and sell, and dispose of the said property, or any part thereof, at public auction, to the highest bidder, after giving days' notice of the time, place, and terms of sale, together with a description of the property to be sold, by notic- es posted up in three public places in the vicinity of such sale, or at private sale, with or without notice, for cash or on credit, as the said mortgagee — , heirs, executors, administra- tors, or assigns, agents or attorneys, or any of them, may elect, and out of the money arising from such sale to retain all costs and charges for pursuing, searching for, taking, removing, keep- ing, storing, advertising, and selling such goods and chattels, and all prior liens thereon, together with the amount due and unpaid upon said note — , rendering the surplus, if any remain,. unto said mortgagor — , or legal representatives. Witness the hand — and seal — of the said mortgagor — this- day of . Acknowledgment State o? , County of I, , a justice of the peace in the town of , in- and for said county, do hereby certify that this mortgage was duly acknowledged before me by the above-named , the 362 FORM BOOK (Ch. 12 mortgagor — herein named [and enteredby me]^ this day of , A. D. 19—. Witness my hand and seal. (Seal.) Justice of the Peace. INDIANA No assignment of goods by way of mortgage is valid against any other person than the parties thereto, where such goods are not delivered to the mortgagee -or assignee and retained by him, unless such assignment or mortgage is acknowledged as in case of deeds of conveyance, and recorded in the record- er's office of the county where the mortgagor resides, if he resides in this state, and, if not a resident of the state, then in the county where the property is situated, within ten days after the execution thereof. Burns' Ann. St. 1914, § 7472. The mortgage may be released on the margin of the record or by certificate of satisfaction acknowledged like a deed of conveyance. Ibid. §§ 1138, 1140. It may be assigned by assignment entered in the margin or by separate assignment. Ibid. § 1145. Chattel Mortgage Know all men by these presents that , of coun- ty, in the state of , mortgage — to , of county, in the state of — -, the following described personal property, to wit (description), to secure the .payment of promissory note — , dated , 19 — , given by to , payable (state terms), all without relief from valuation or appraisement laws. Now, if the said shall well and truly pay said note — • at maturity, with all interest due thereon, then this instrument shall be void; otherwise to remain in force. ■t If the mortgagor be not a resident of the state, the aclmowledg- ment may be before any officer autliorized by law to take acknowl- edgments of deeds, iu which case the words in brackets are omitted. Ch. 12) CHATTEL MORTGAGES 363 It is agreed and understood by the parties hereto that said shall retain possession of and have the use of said property until said note — ■ hereby secured become — due, and, if said note not paid promptly at maturity, said shall then have the right to take and keep possession of said property, wherever it may be found, without any pro- cess of laWj, and the same shall become the absolute property of the said . And the said hereby expressly agree — not to remove the said property from the place where it now is without the consent of said , nor to sell, as- sign, or lease the same without such consent, to use such prop- erty well, keep the same insured in some reliable company, and in good repair. And in case of default being made in any one of these conditions, or if the property shall be levied on by execution from any court, or shall come into the hands of any administrator, guardian, executor, assignee, trustee, or commissioner, to be sold, then and in either of such cases the mortgagee or his attorney or agent, or his heirs, executors, ad- ministrators, or assigns, shall have the right to take immediate and unconditional possession of the same wherever the same can be found, and sell the same at public or private sale, with- out any proceedings or decree of foreclosure first had and ob- tained, to the highest bidder, for cash in hand or on reasonable credit, as may deem best, after giving days' notice of the time, place, and terms of sale, with a description of the property to be sold, by at least advertisements, in print or writing, posted in public places in the vicinity where the sale is to take place. ■Witness hand — and seal — this day of , 19—. 364 FORM BOOK (Ch. 12 IOWA No sale or mortgage of personal property, where the vendor or mortgagor retains actual possession, is valid against exist- ing creditors or subsequent purchasers, without notice, unless a written instrument conveying the same is executed, acknowl- edged like conveyances of real estate, and filed for record with the recorder of the county where the holder of the prop- erty resides. No incumbrance of personal property exempt from execution by the head of a family, if a resident of this state, is valid, except for the purchase price, unless it be by written instrument, and the husband and wife concur in and sign the same joint instrument. Code 1897, § 2906. In the absence of stipulations in the mortgage, the mortgagee is en- titled to possession, but the title remains in the mortgagor until divested by sale. Ibid. § 2911. Deeds of trust may be executed as securities for the performance of contracts, and are considered as, and f orclosed like, mortgages. Ibid. § 4284. No sale, contract, or lease wherein the transfer of title or ownership of personal property is made to depend upon any condition is valid against creditors or purchasers of the vendee or lessee in actual possession obtained in pursuance thereof, without notice, unless in writing, executed by the vendor or lessor, acknowledged and recorded in the same manner as chat- tel mortgages. Ibid. § 2905. Chattel Mortgage In consideration of dollars, in hand paid by , of , mortgagee, I, of , mortgagor, hereby sell and transfer to the said mortgagee the following described personal property, to wit (description). It being my intention to mortgage all property of the re- spective kinds above described that I now own, the same being free from incumbrance and in my possession at , county, Iowa, with all increase or additions thereto, until the consideration herein named is fully paid, according to the terms of a certain promissory note made by me, bearing even date herewith (state terms). Ch. 12) CHATTEL MORTGAGES 365 Should the mortgagee at any time deem himself unsafe, it shall be lawful for his representative to take said property and sell the same at public or private sale, with or without notice, whether the debt secured hereby is due or not due, in such manner and at such place as he may designate, and apply the proceeds of such sale to the payment of the expenses of taking, keeping and selling said property, and the payment of said note according to its terms. Signed and delivered this day ot . KANSAS Every mortgage or conveyance intended to operate as a mortgage of personal property, not accompanied by immediate delivery and followed by actual and continued change of pos- session, is void as against creditors of the mortgagor, and subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy is forthwith deposited in the office of the register of deeds in the county where the property is then situated, or, if the mortgagor be a resident of this state, then in the county of which he is at the time a resident. Gen. St. 1909, § 5224. Every mortgage so filed is void as against such persons after the expiration of two years after filing, unless, within thirty days next preceding the expiration of such two years, and each two years thereafter, the mort- gagee, his agent or attorney makes an affidavit exhibiting the interest of the mortgagee in the property at that time, and, if the mortgage is to secure the payment of money, the amount yet due and unpaid. Such affidavit must be attached to and filed with the instrument or copy on file to which it relates. Ibid. § 5226. If such affidavit be made and filed before any purchase of the mortgaged property is made, or other mort- gage deposited, or lien obtained thereon in good faith, it is as valid to continue in effect such mortgage as if made and filed within the period provided. Ibid. § 5227. In the ab- sence of stipulations to the contrary, the mortgagee has the legal title and right of possession. Ibid. § 5230. All instruments in writing or promissory notes evidencing the conditional sale of personal property, which retain the title in the vendor until the purchase price is paid in full, are void as against innocent purchasers or creditors of the vendee, unless 36C FORM BOOK (Ch. 12 the instrument or a copy of it be deposited in the office of the register of deeds of the county where the property is kept, and when so deposited is subject to the law applicable to the filing of chattel mortgages. A conditional verbal sale re- serving to the vendor the title is void as against creditors and innocent purchasers for value. Ibid. § 5237. Chattel Mortgage Know all men by these presents that , of , of the first part, is indebted to , of , of the second part, in the sum of — dollars, to be paid as follows {state terms). Now, therefore, in consideration of such indebtedness, and to secure the payment of the same, as aforesaid, the said-part — of the first part do — hereby sell, assign, transfer, and set over, to the said part — of the second part, the property owned en- tirely by the said part — of the first part without any incum- brance, and described in the following schedule, viz. {descrip- tion) : Provided, however, that if said debt and interest be paid, as above specified, this sale and transfer shall be void. The property sold is to remain in possession of the said part — of the first part until default be made in the payment of the debt and interest aforesaid, or some part thereof ; but in case of a sale, or a disposal, or an attempt to sell or dispose of the same, or a removal of or an attempt to remove the same from , or an unreasonable depreciation in the value, or if from any other cause the security shall become inadequate, or if at any time the said part — of the second part shall deem insecure, the said part — of the second part may take such property, or any part thereof, into own posses- sion. And upon taking the said property into posses- sion, either in case of default or as above provided, said part — of the second part shall sell the same at public or private sale, ss. Ch. 12) CHATTEL MORTGAGES 367 with or without notice ; and after satisfying the aforesaid debt, and interest thereon, and all necessary and reasonable costs, charges, and expenses incurred, out of the proceeds of sale, — he — shall return the surplus to the said part — of the first part or legal representatives. And if from any cause the said property shall fail to satisfy the said debt and interest aforesaid, the said part — of the first part hereby agree — to pay the deficiency. In witness whereof the said part — of the first part ha — hereunto set hand — , this day of . Affidavit on Renewal State of Ivansas, 1 County. J I do solemnly swear that I am one of the within-named mortgagees, and that the property described in the within mortgage was, on the day of , 19 — , conveyed to to secure the payment of dollars, of which sum there is yet due and unpaid the sum of dollars. So help me God. . Subscribed and sworn to before me this day of , 19-. KENTUCKY Chattel mortgages are not valid against purchasers for a valuable consideration without notice to creditors, until ac- knowledged or proved and lodged for record in the office of the clerk of the county court of the county of the owner's resi- dence. St. 1909, §§ 2061, 2062; Coppage v. Johnson, 107 Ky. 620, 55 S. W. 424. As a condition of record the mortgage should state the residence and post office address of the mort- gagee. Acts 1906, c. 22, art. 2, § 10. 368 FORM BOOK (Ch. 12 MAINE No mortgage of personal property is valid against any other person than the parties, unless possession of the property is delivered to and retained by the mortgagee, or the mortgage is recorded by the clerk of the city, town, or plantation organiz- ed for any purpose in which the mortgagor resides when the mortgage is given. When all the mortgagors reside without the state, the mortgage must be recorded in the city, town, or plantation where the property is when the mortgage is made; but, if a part of them reside in the state, then in the cities, towns, or plantations in which such mortgagors reside when the mortgage is given. A mortgage by a corporation must be recorded in the town where it has its established place of business. If a mortgagor resides in an unorganized place, the mortgage must be recorded in the oldest adjoining town or plantation, organized as aforesaid, in the county. Rev. St. 1903, c. 93, § 1. The mortgage is considered as recorded when received. No consent given by the mortgagee to the mort- gagor for the sale or exchange of the property is valid unless in writing and signed by the mortgagee or his assigns. Ibid, c. 93, § 2. Ivoans for less than $200 secured by mortgage or pledge of personal property, are dischargeable by the debtor on pay- ment or tender of the sum borrowed and interest at the rate specified, not to exceed 3 per cent, a month for not exceeding three months, and thereafter the rate of 15 per cent, a year, no renewal to bear a greater rate than 15 per cent, a year. Not exceeding $3 for the actual expenses of making and se- curing the loan may be charged. All loans made in violation hereof bear interest at the legal rate only. Ibid. c. 46, § 2. No mortgage of household furniture made to secure such a loan is valid unless it states with substantial accuracy the amount of the loan, the time for which it is made, the rate of interest, and the actual expense of making and securing it. Ibid. c. 46, §4. No agreement that personal property bargained and deliv- ered to another shall remain the property of the seller till paid for is valid unless in writing and signed by the person to be bound. When so made and signed, whether such agreement is or is called a note, lease, conditional sale, purchase on install- ments, or by any other name, and in whatever form it may be, it is not valid, except as between the original parties, unless Ch. 12) CHATTEL MORTGAGES 36& recorded in the office of the clerk of the town in which the purchaser resides at the time of the purchase. The property, whether the agreements are recorded or not, is subject to- redemption and to trustee process, but the title may be fore- closed in the manner provided for mortgages of personal prop- erty. Ibid. c. 113, § 5. Mortgage of Personal Property Know all men by these presents that , of , in consideration of dollars paid by , of , the receipt whereof the said do hereby acknowledge,. have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said , the following goods and chattels, viz. (description). To have and to hold the said goods and chattels unto the said , heirs, executors, administrators, and assigns to only proper use, benefit, and behoof forever. And , the said , do avouch to be the true and lawful owner of the said goods and chattels, and have in full power, good right, and lawful authority to dis- pose of the same in manner aforesaid; and do for , heirs, executors, and administrators, hereby covenant and agree to warrant and defend the said goods and chattels against the lawful claims and demands of all persons whomso- ever, unto , the said heirs, executors, adminis- trators, and assigns : Provided, nevertheless, that if the said , executors,. administrators, or assigns, shall pay unto the said ,. executors, administrators, or assigns, the sum of dol- lars in from this date, with interest at per cent. per annum, payable annually, then this bill of sale, as also certain promissory note bearing even date with these presents, given by the said to the said to- pay the sum and interest at the time aforesaid, shall be void; otherwise shall remain in full force: TiFP.FoEMs — 24 370 FOKM BOOK (Ch. 12 Provided, also, that it shall and may be lawful for said to continue in possession of said goods and chattels until In witness whereof , the said , have hereunto set hand — and seal — this day of . MARYLAND No personal property whereof the vendor, mortgagor, or donor shall remain in possession shall pass, alter, or change, or any property therein be transferred to any purchaser, mort- gagee, or donee, unless by bill of sale or mortgage acknowl- edged and recorded as herein provided ; but this shall extend to any sale or gift accompanied by delivery, nor invalidate such transfer as between the parties. Md. Ann. Civ. Code 1910, art. 21, § 43. A bill of sale is sufficient in form if it con- tain the names of the parties, the consideration, a description of the property, and be signed and sealed by the vendor, and dated. Ibid. § 44. A bill of sale or chattel mortgage, if ac- knowledged within this state, may be acknowledged before any officer authorized to take acknowledgments of deeds with- in this state in the same manner as deeds are acknowledged, or acknowledged as certified ; if acknowledged out of the state, before any officer authorized to take acknowledgment of deeds. Ibid. §§ 45, 46. A bill of sale must be recorded within 20 days from its date, , in the county or city where the vendor or donor resides ; if he resides out of the state, in the county where the property is located, or in Baltimore city, if it be located in that city. ibid. §47, A mortgage of personal property must be executed, ac- knowledged, and recorded as bills of sale. Ibid. § 48. It shall be deemed to contain an implied covenant (unless the contrary is therein expressed) by the mortgagor to pay the debt and interest specified in said mortgage. Ibid. § 49. Such mortgages are valid and taleriod of one year from maturity. 1887, April 28, P. L. 73, § 5 ; Pep- per & Lewis' Pa. Dig. p. 2837, par. 222. Ch. 12) CHATTEL MORTGAGES 425 RHODE ISLAND No mortgage of personal property is valid, as to the assignee in insolvency of the mortgagor, or any other person except the parties and their executors and administrators, until pos- session be delivered to and retained by the mortgagee, or the mortgage be recorded in the records of mortgages of personal property in the town or city where the mortgagor resides, or, if not in this state, in the town where the property is at the time of making the mortgage, which recording or taking and retention of possession shall be made or taken within five days from the date of the signing thereof : Provided, that nothing herein affects any transfer of property under bottomry or re- spondentia bonds, or of any ship or goods at sea or abroad, if the mortgagee take possession as soon as may be after the arrival of the same in this state. Gen. Laws 1909, c. 258, § 10. Mortgage of Personal Property Know all men by these presents that I, , of , in consideration of the sum of dollars to me paid by , of , the receipt whereof is hereby acknowledg- ed, do hereby grant, bargain, sell, and convey unto the said the following articles of personal property now in my possession in (description). To have and to hold, all and singular the said articles unto the said , his executors, administrators, and assigns for- ever. And I, the said , do avouch myself to be the sole, true, and lawful owner of said goods and chattels, and have in me good right, full power, and lawful authority to sell and dispose of the same in manner aforesaid, and that the same are free and clear from any and all incumbrances whatever : Provided, nevertheless, that if the said , his executors and administrators, shall well and truly pay to the said , his executors, administrators, or assigns, a certain promissory note of even date with these presents, for the sum of 426 FORM BOOK (Ch. 12 dollars, signed by me, payable to the order of the said , . • from the date thereof, with interest at the rate of • •— per cent, per annum, then this deed to be void ; other- wise to be and remain in full force: Provided, however, and it is expressly understood and agreed between the said mortgagor and mortgagee, that the mortgagor shall and may retain and keep possession of said granted property until after default be made in the perform- ance of the above conditions; but if the same or any part thereof shall be attached by any creditor of the said mortgagor, or if the said mortgagor shall sell or attempt to sell the same, or any part thereof, except in ordinary course of trade, with- out the written assent of the said mortgagee, his legal repre- sentatives or assigns, to do so, or if the said mortgagor shall remove, or suffer to be removed, said property or any part thereof, except in ordinary course of trade from and out of said without such previous written assent of said mort- gagee, his legal representatives or assigns, or if at any time the said mortgagee, his legal representatives or assigns, shall deem said property or his interest or security therein endangered or imperiled, then the said mortgagee, his legal representatives or assigns,, may enter upon the premises and take immediate pos- session of the whole of said granted property, wherever the same may be. And I do hereby constitute the said , his executors, administrators, and assigns, my attorneys irrevocable for me and in my name or in their names at any time after default in the payment of said note, or of the interest thereon, or breach of the foregoing conditions, or any one- of them, or possession taken as aforesaid, to sell said granted property at public auc- tion at , first giving days' notice of such sale, by advertisement in some newspaper printed in said , and after payment of the expenses incident thereto and the amount Ch. 12) CHATTEL MORTGAGES 427 due on said note, accounting to the said , or his legal representatives, for all sums over and above the amount there- of, hereby ratifying, approving, and confirming such sale or sales as may be made by virtue hereof. Furthermore, I, the said mortgagor, for myself, and for my heirs, executors, administrators, and assigns, do hereby cove- nant with the said mortgagee, his executors, administrators, or assigns, that insurance against loss by fire shall be kept and maintained upon the property aforesaid in a sum not less than dollars, and that the policy or policies of such insurance shall be assigned and transferred to the said mortgagee, or as- signs as collateral security hereto, and in default thereof do hereby agree that the said mortgagee, his heirs, executors, ad- ministrators, or assigns, may effect such insurance; and the premium or premiums paid thereon shall be a further lien upon said property, added to the amount of said note and secured by these presents. In testimony whereof I have hereunto set my hand this day of . SOUTH CAROLINA No chattel mortgage, except mortgages or deeds of trust covering the whole or any part of the real or personal prop- erty of a railroad company or manufacturing company, is valid or good to convey any interest or right to the mortgagee unless the property mortgaged be described in writing or type- writing, but not printing, on the face of the mortgage, nor shall any prosecution lie for selling any property under the lien of such mortgage, unless the property mortgaged be so describ- ed. 1 Code of Laws 1912, § 4103. All deeds of trust or instruments conveying personal estate and creating a trust in regard thereto, or charging or incumber- ing the same, and all mortgages or instruments in the nature of a mortgage of any such property, are valid, so as to af- fect from the time of delivery or execution the rights of subse- quent creditors (whether lien creditors or simply contract cred- 428 FORM BOOK (Ch. 12 iters) or purchasers for valuable consideration without notice, only when recorded within 10 days from such time in the of- fice of the register of mesne conveyances or clerk of court of the county where the owner of the property resides, or, if he resides without the state, of the county where the property is situated at time of the delivery or execution: Provided, that recording and record of such instruments subsequent to the expiration of said 10 days shall from date of such record have the same effect as to creditors and purchasers without notice as if such instruments had been executed and delivered on the date of the record thereof. Ibid. § 3542; 1914, 482. A crop mortgage conveys an interest only in the crops to be raised during the year in which it is given, and the land must be described. Ibid. § 4106. The mortgagor of a chattel has the right to redeem at any time before sale by the mortgagee by paying the mortgage debt and costs incurred in attempting to enforce its payment, and a tender of a sufficient amount, if not accepted, renders the mort- gage null and void. Ibid. § 4107. Mortgage of Personal Property {Set out copy of note) The State of South Carolina,"] County of . Whereas, I am indebted to in the sum of dollars, and have given my note therefor, of even date with these presents (a copy of which is hereto annexed), payable on the day of . Now, in order to secure the payment of said note, and in consideration of the sum of five dollars to me in hand paid, I do hereby grant and sell unto the said the following goods and chattels, to wit {description). To have and to hold, all and singular, the said goods and chattels unto the said , his executors, administrators, and assigns forever : Provided, nevertheless, that if the said mortgagor shall pay to the mortgagee the sum hereinabove mentioned when due, Ch. 12) CHATTEL MOETGAGBS 429 then this mortgage to be void ; otherwise to remain in full force and effect. And provided, further, that said mortgagor may retain pos- session of said goods and chattels until default be made in pay- ment of the said note ; but if the same is not paid when due, or if, before the "said note is due, the said mortgagor shall at- tempt to make way with or remove said goods and chattels, or any part thereof, from the place where they now are, then and in either event the said mortgagee, or his agent, shall have the right, without suit or process, to take possession of the said goods and chattels, wherever they may be found, and may sell the same, or so much as may be necessary, at public auction for cash, after giving notice by advertisement days, and shall apply the proceeds of said sale to the discharge of the said debt, interest, and expenses, and pay any surplus to the said mortgagor and his assigns. In witness whereof I, the said mortgagor, do hereunto set my hand and seal this day of . SOUTH DAKOTA A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and incumbranc- ers in good faith for value unless the original or an authenti- cated copy be filed by depositing the same in the office of the register of deeds of the county where the property mortgaged or any part thereof is at such time situated. Comp. Laws 1913 (Civil Code) § 2085. A single mortgage, embracing several things such or so situated that separate mortgages upon them v.'ould be required to be filed in different counties, is only valid in respect to the things as to which it is duly filed ; but a copy of the original, authenticated by the register of deeds in whose office it is filed, may be filed in any other county with the same effect as to the property therein that the original could have been. Ibid. § 2088. A mortgage of personal property ceases to be valid as against such creditors, purchasers, or incumbrancers after the expira- 430 FORM BOOK (Ch. 12 tion of three years from filing, unless within thirty days next preceding the expiration of such term a copy of the mortgage and a statement of the amount of existing debt for which the mortgagee or his assignee claims a lien, sworn to and sub- scribed by him, his agent or attorney, are filed anew in the office of the register of deeds in the county in which the mort- gagor then resides, and in like manner the mortgage and state- ment of debt must be again filed every three years, or it ceases to be valid as against creditors of the mortgagor and subse- quent purchasers or incumbrancers. Ibid. § 2089. A mortgage of personal property must be signed by the mortgagor in the presence of two persons, who must sign the same as witnesses thereto, and no further proof or acknowl- edgment is required to admit it to be filed. Ibid. § 2090. The mortgagee shall at the time of its delivery make and deliver to the mortgagor a full, true, and complete copy of the mortgage. Ibid. § 2091. No register of deeds shall receive or file any chattel mort- gage which does not contain a receipt over the signature of the mortgagor to the effect that a copy of such mortgage has been received by him ; and every chattel mortgage not contain- ing such receipt shall be null and void. Ibid. § 2092. Any provision in any chattel mortgage by which a lien is sought to be created on any crops not in actual existence, at the time of giving such mortgage, except crops growing or to be grown within one year thereafter, and any provision in any chattel mortgage, earnings contract, conditional sale, or lien, made or taken upon property in this state, by which a lien is sought to be created upon the earnings of any threshing ma- chine, or upon the earnings of any team or labor used in con- nection with the operation thereof, are void. Ibid. § 2102. On satisfaction, the mortgagee or assignee must within 30 days file in the office of the register of deeds a release and satisfaction in full, which must bear the names of two wit- nesses. Failure so to do is a misdemeanor. Ibid. § 2094. Chattel mortgages are foreclosed by public sale, on 6 days' notice, by publication in newspaper nearest the place of sale or by auction. See Ibid. §§ 2073-2075. Any stipulation or agree- ment in any chattel mortgage by which any provisions of this act are waived in form are inoperative and void. Ibid. § 2082. As to mortgages of ships and vessels of the United States, Ibid. S 2101. Ch. 12) CHATTEL MOETGAGES 431 A mortgage of personal property may be made in substan- tially the following form : Mortgage of Personal Property (Statutory) This mortgage, made the day of , in the year , by A. B., of , by occupation a , mort- gagor, to C. D., of , by occupation a , mortgagee, witnesseth : That the mortgagor mortgages to the mortgagee (here de- scribe the property), as security for the payment to him of dollars, on (or, before) the day of , in the , with interest thereon (or, security for the payment of a note or obligation, describing it, etc.). A. B. Ibid. § 2072. Acknowledgment of Receipt of Copy certify that a full, true, perfect, and complete copy of this chattel mortgage has been delivered to and received by at the time of the execution of this mortgage as pro- vided by law. . TENNESSEE All mortgages and trusts of personalty shall be in writing, and proved and registered, to be valid against the creditors of the bargainor, or purchasers under him for value and without no- tice. Code 1896, § 3664. The foregoing does not apply to' choses in action. Ibid. § 3665. All deeds, bills of sale, agree- ments, and other instruments for the conveyance or mortgage of personal property shall be registered in the county where the vendor or person executing the same resides, and, in case of his nonresidence, where the property is. Ibid. § 3706. 432 FORM BOOK (Ch. 12 Chattel Mortgage This instrument witnesseth : That for and in consideration of dollars to me paid by , of , I, , of , have this day bargained, sold, and conveyed to the said the following described personal property, to wit (description). To have and to hold the same for the following uses, pur- poses, and trusts, and none other, that is to say : That where- as, I am indebted to the said in the sum of dol- lars, as evidenced by a certain promissory note (state terms).. Now, if I shall pay said note, with interest, at maturity, thea this sale and conveyance shall be void ; but, if I shall fail to pay said note, with interest, at maturity, then the same shall immediately become due, and the said is authorized and empowered, after giving thirty days' notice of the time and place of such sale, to sell said property, or so much there- of as may, be necessary to pay said indebtedness, or so much as remain unpaid. The proceeds of the sale of said property will be applied by said : First, to the payment of the expenses incident to this sale ; second, to the payment of said indebtedness, or so much as remains unpaid ; third, the re- mainder, if any, to be paid over to me, or my executors, ad- ministrators, or assigns. If any sale of said property, or any part thereof, is made under this mortgage, it shall be for cash. Said property is now in possession of , and it is agreed by the maker of this mortgage and the beneficiaries under it that the possession of said property shall continue where it now is until such time as a sale under this mortgage becomes necessary to be made, and the said agrees to surrender the possession of said property whenever a sale be- Ch. 12) CHATTEL MORTGAGES 433 comes necessary by the terms of this mortgage, without delay or any hindrance whatever, and without process of law. This day of , 19—. Witness : TEXAS Every chattel mortgage, deed of trust, or other instrument intended to operate as a mortgage of or lien upon personal property, not accompanied by immediate delivery and followed by actual and continued change of possession, is absolutely void as against the 'creditors of the mortgagor or person mak- ing same, and as against subsequent purchasers and mort- gagees or lienholders in good faith, unless such instrument or a true copy be forthwith deposited with and iiled in the- office of the county clerk of the county where the property is situated, or, if the mortgagor or person making the same be a resident of this state, of the county of which he is a resi- dent. Rev. St. 1911, art. 5655. The clerk shall indorse on the instrument the day and hour when it was deposited, and keep it on file until satisfaction be entered. If a copy, the clerk shall compare it with the original and it shall not be filed unless it is a true copy. A copy can be filed only when the original has been witnessed by two subscribing witnesses or acknowledged or proven for record and certified as required in case of other instruments for record. Ibid. art. 5656. All chattel mortgages so filed are prima facie presumed to- have been paid after six years from the date of the maturity of the debts they were intended to secure, unless the owner or holder, his agent or attorney, within three months next before the expiration of said time, file an affidavit with clerk stating that such debt has not been paid and the amount still due thereon. Ibid. art. 5662. If the mortgagor remove the property from the county, or sell or dispose of it, without consent of the mortgagee, he is entitled to possession and sale for payment of the debt, wheth- er due or not. Ibid. art. 5660. Any mortgage or other form of lien attempted to be given by the owner of a stock of goods daily exposed to sale, in the regular course of business of such merchandise, and con- templating a continuance of possession of such goods and con- TlFF.FOEMS— 28 434 FORM BOOK (Ch. 12 trol of such business by sale of such goods by such owner, is void. All reservation of the title to or property in chattels as security for the purchase money thereof are held to be chattel mortgages, and when possession is delivered to the vendee, are void as to creditors and bona fide purchasers, unless such reservations be in writing and registered as required of chat- tel mortgages: Provided, that nothing in this law shall be construed to contravene the landlord and tenant act. Rev. St. 1911, art. 5654. Contracts for the conditional sale, lease, or hire of railroad equipment and rolling stock are recorded in the office of the secretary of state. Ibid. art. 5655. Chattel Mortgage The; State oi? Texas, ] County of .J Know all men by these presents : That I, , of , for and in consideration of the sum of dollars to me in hand paid by , of , the receipt of which is hereby acknowledged, do by these presents bargain, sell and convey unto the said the following described property, to wit (description). I hereby warrant that said property is owned by me in good faith, under perfect title, free of all liens and incumbrances whatsoever, and I agree to hold the same where it is now located, free of all liens, other than the one hereby granted, until the indebtedness hereinafter mentioned is paid in full. This conveyance, however, is intended as a mortgage, I being indebted to the said in the sum of dollars, as evi- denced by my certain promissory note dated day of , and due day of , bearing interest at the rate of per cent, per annum from until paid, and payable to the order of — . Now, if I pay or cause to be paid said indebtedness at its maturity, then this obligation is to be null and void • but in case said note is not paid at ma- Ch. 12) CHATTEL MORTGAGES 435 turity, or in case all or part of said property is moved from where it is now located, or when it is legally seized, then, or at any time thereafter, the holder thereof is hereby fully au- thorized to seize and to take into his possession all of said above described property, or any part thereof, wherever the same may be found (hereby binding myself to surrender up the same), and to sell, convey, and deliver the said property, or cause the same to be done, at either public or private sale, with or without notice, at such place and on such terms as he may deem best, and the proceeds of such sale shall be ap- plied, after deducting all costs, expenses, and attorney's fees to the payment of said note. The surplus, if any, shall be paid to me, my executors, administrators, or assigns ; and, if the proceeds of said sale shall not be sufificient to pay said note, I agree to be and remain liable for any deficiency. The holder of said note hereby secured may become the purchaser of all or any part of said property at such sale, being the highest bidder. In case the holder of said note shall elect to sell said property at public sale, with notice, then such notice of the time, place, and terms of such sale shall be given in the same manner as is required by law in the sale of personal property under execution. Witness my hand this day of . UTAH Unless the possession of personal property be delivered to and retained by the mortgagee, no mortgage thereof is valid as against any person other than the parties, unless : (1) The mortgage, duly witnessed by at least one person, provide that the property may remain in the possession of the mortgagor; (2) the mortgage be accompanied by the affidavit of the parties, or, if any party is absent, by the affidavit of the parties present and that of the agent or attorney of such absent party, that the same is made in good faith to secure the amount named therein and without any design to hinder or delay the 436 FORM BOOK (Ch. 12 •creditors of the mortgagor; and (3) the mortgage or a copy be filed in the office of the recorder of the county where the mortgagor resides, or, if he is a nonresident of this state, of the recorder of the county or counties where the property may be at the time of execution of the mortgage. Comp. Laws 1907, § ISO. Such mortgage need not be acknowledged. Ibid. .§ 151. Every mortgage so filed is void against the creditors of the person making it or against subsequent purchasers or mort- gagees in good faith,, after the expiration of one year after fil- ing, unless within 30 days after the expiration of such year, .and within 30 days after the expiration of each year thereafter, the mortgagee, his agent or attorney, make an affidavit ex- hibiting the interest of the mortgagee in the property at the time last aforesaid, claimed by 'virtue of such mortgage, and, if the mortgage is to secure the payment of money, the amount yet due and unpaid, and file the same with the county recorder, to be attached to the instrument or copy on file : Provided, that no mortgage is valid against creditors of the mortgagor or subsequent purchasers or mortgagees in good faith after 5 years from the date of the original filing. Ibid. § 155. If such affidavit be made and filed before any purchase of the mortgaged property be made, or other mortgage deposited, or lien obtained thereon, in good faith, it is as valid to continue in effect the mortgage as if made and filed within the period above provided. Ibid. § 156. The provisions of the foregoing sections extend to all such tills of sale, deeds of trust, and other conveyances of personal property as have the effect of a mortgage or lien thereon. Ibid. § 159. The mortgage may be discharged by entry on the margin ■of the index by the mortgagee, his agent, assignee, or legal representatives, or by the recorder on presentation of an order ■duly signed and acknowledged. Ibid. § 154. The husband may not without the consent of the wife cre- ate a lien by mortgage or otherwise on property exempt to heads of families. Such mortgage must be executed by both. Ibid. § 167. If the mortgage contains a power of sale, it may be fore- closed by advertisement in the manner prescribed. If the mortgage does not contain a power of sale, it is foreclosed like a mortgage on real estate without redemption. Ibid. §§ 152, 153, 160-165. •Ch. 12) CHATTEL MORTGAGES 437 Chattel Mortgage , of , mortgagor — , in consideration of •dollars, to — - — - paid by , of , mortgagee, do — hereby sell and mortgage unto said mortgagee all that certain personal property situated , in said , and de- scribed as follows, to wit (description). This is a chattel mortgage to secure the payment of a prom- issory note of even date herewith, for dollars, signed by the mortgagor — and payable to the order of the mortgagee after date, at , in said , with interest at the rate of per cent, per annum, and dollars -attorney's fee for collection. Said property may remain in the possession of the mortga- gor — subject to the conditions herein mentioned; but the ■mortgagor — agree — that will not remove the same from the place where it now is. If default be made in the payment of said note, or if sale •or removal of said property be made or attempted, the mort- gagee may take possession of said property wherever found, using all necessary force for that purpose, and may proceed to foreclose. And is hereby fully authorized and empowered to sell and dispose of the same at public auction, by advertise- ment, according to the act in such case made and provided. Should the proceeds from such sale fail to satisfy this mort- gage, costs, and expenses, then the mortgagor — : agree — to pay the deficiency. Witness the hand — of the mortgagor — this day of , 19 — . (Signature.) Witness : 438 FOKM BOOK (Ch. 12 Affidavit State oif Utah, County of — ss. , the mortgagor — , and (attorney for) the mortgagee named in the foregoing mortgage, being severally duly sworn, each for himself, says that the said mortgage is made in good faith to secure the amount named therein, and without any design to hinder or delay to the creditors of the said mortgagor — •. {Signatures.) Subscribed and sworn to, etc. VERMONT All personal property shall be subject to mortgage agreeably to the provisions of this chapter. Pub. St. 1906, § 2620. A mqrtgage of personal property is not valid either between the parties or otherwise unless in writing and recorded within 30 days from its execution in the office of the town clerk of the town in which the mortgagor resides, or if he resides out of the state, in the town in which the property is situated. Ibid. § 2621. A mortgagor and mortgagee, or, in the absence of the mort- gagee, his agent or attorney, shall make and subscribe an af- fidavit in substance as f ollo\ys : "We severally swear that the foregoing mortgage is made for the purpose of securing the debt specified in the conditions thereof, and for no other pur- pose, and that the same is a just debt, due and owing from the mortgagor to the mortgagee." Such affidavit, with the cer- tificate of the oath signed by the authority administering the same, shall be appended to such mortgage and recorded tibere- with. Ibid. § 2622. When a corporation is a party to such mortgage, the affidavit may be made and subscribed by a director, trustee, cashier, or treasurer thereof, or by a person authorized on the part of such corporation to make or receive such mortgage. When a partnership is a party, the affidavit may be made and subscribed by one member. Ibid. § 2623. If such mortgage is given to indemnify the mortgagee against liability assumed, or to secure the fulfillment of an agreement other than the payment of a debt due from the mortgagor to Ch. 12) CHATTEL MORTGAGES 439 the mortgagee, or given to a trustee to secure bonds issued or to be issued thereunder, such habihty, agreement, or obliga- tion shall be stated specifically in the condition of the mort- gage; and the affidavit shall be so varied as to verify the validity and justice of such liability, agreement, or obligation. Ibid. § 2624. Such mortgages may be discharged as mortgages of real estate. Ibid. § 2626. The property must not be removed from the state without consent of the mortgagor, mortgagee, or assigns. Ibid. § 2630. The mortgagor must not sell or pledge the property without consent of the mortgagee in writing on the back of the mortgage and on the margin of the record. Ibid. § 2631. A mortgagor shall not execute a second or subsequent mort- gage of property subject to a previous mortgage given by him, unless its existence is set forth in the subsequent mort- gage. Ibid. § 2632. After condition broken, the mortgagor or any person hold- ing under him, or holding a subsequent mortgage, may redeem by paying or tendering to the mortgagee the amount due, with reasonable costs and expenses incurred thereby before sale. Ibid. § 2635. After 30 days from the time of condition broken the mortgagee may cause the property or any part to be sold at public auction by some public officer in the manner prescribed. Ibid. §§ 2635-2639. No lien reserved on personal property sold conditionally and passing into the hands of the purchaser is valid against bona fide purchasers and attaching creditors, unless a memorandum, signed by the purchaser, witnessing the lien and the sum due thereon, is recorded within 30 days after the property is de- livered, in the office of the clerk of the town where the pur- chaser resides, or, if he resides out of the state, of the town where the vendor resides. Ibid. § 2663. The lien may be en- forced by public sale in the manner of a chattel mortgage. Ibid. § 2666. It may be discharged by a release signed by the vendor, his legal representative, attorney or assignee, and re- corded in the clerk's office, or by entry in the margin of the record or on the instrument creating the lien similarly signed. Ibid. § 2664. As to conditional sales of railroad or street rail- way equipment or rolling stock, etc., Ibid. §§ 4389, 4390. 440 FORM BOOK (Ch. 12' Mortgage of Personal Property Know all men by these presents that I, , of • in the county of , as security for the sum of dollars, as hereinafter set forth, do hereby sell, assign, and transfer to , of , in the county of , the following described personal property, to wit (description) : Provided, however, that it is a condition of the foregoing sale, assignment, and transfer that, if the said , his heirs, administrators, and assigns, shall well and truly pay or Cause to be paid to the said , his heirs and assigns, the sum of dollars, justly due and owing from the said to the said , as follows {state terms), then this instrument to be wholly null and void; otherwise to be and remain in full force and virtue. And it is hereby agreed that the property hereinbefore de- scribed is free and clear of all liens, mortgages, and incum- brances, and that I am the sole owner thereof, and have good right to sell the same as above written, and I agree that until the full payment of the debt named in the foregoing condition the said personal property shall not be removed from the state of Vermont, except by consent of the party holding this mort- gage hereon indorsed, and that I will not pledge, sell, or mort- gage the same to any other party without such written con- sent indorsed hereon. It is also further agreed that at any time after thirty days after the debt specified in the condition above written shall become due and payable and shall not be. paid as aforesaid that the said , his heirs or assigns,. may cause any or all said property to be sold at public auction by some public ofiicer, at any public place in town where the mortgagor resides, or where said property is situated, by post- ing notices of said sale in two or more public places in said town at least ten days previous thereto, and by giving the: "Ch. 12) CHATTEL MORTGAGES 441 mortgagor and all other persons interested in said sale notice thereof as required by law. In witness whereof I have hereunto set my hand and seal this day of . Signed, sealed and delivered in the presence of : Affidavit of Mortgagor and Mortgagee We severally swear that the foregoing mortgage is made for the purpose of securing the debt specified in the condi- tions thereof, and for no other purpose whatever, and that the same is a just debt, honestly due and owing from the mort- gagor to the mortgagee. (Signatures.) StAT^ OF Vermont,] County. I hereby certify that the foregoing aiifidavit was subscribed and sworn to by this day of , A. D. 19 — . Before me, {Signature and title.) Assignment Know all men by these presents that I, , of , in the county of , and state of , in consideration of dollars paid to me in full satisfaction by , of , in the county of. , and state of , do here- by assign, transfer, and convey unto the said , his ex- ecutors, administrators, and assigns, forever, all my right, title, interest, and estate in and unto the property conveyed by the within mortgage and all my rights and privileges under said mortgage. In witness whereof I hereunto set my hand and seal this day of . In the presence of : 442 FORM BOOK (Ch. 12 Discharge I hereby acknowledge satisfaction of the mortgage deed within, and the same is discharged at this day of , A. D. 19 — . {Signature and seal.) In presence of : VIRGINIA Every deed of trust or mortgage conveying goods and chat- tels and every bill of sale or contract for the sale of goods and chattels, when the possession is allowed to remain with the grantor (and any such bill of sale or contract shall be in writing and signed by the vendor), shall be void as to subse- quent purchasers for valuable consideration without notice and creditors until and except from the time that it is duly admitted to record in the county or corporation wherein the property may be. Code 1904, § 2465. Although recorded in one county or corporation, it is not valid as to property embraced in it and being in another. Ibid. § 2466. If any such goods or chattels be removed from a county or corporation where admitted to record, the writing shall, within one year after such removal, be admitted to record in the county or corporation to which the property is so re- moved ; otherwise, so long as it is not there admitted to record, as to the property so removed the writing is void as to such creditors or purchasers, except in respect to the interest of any married woman (such interest not being her separate estate), infant, or insane person, if before the end of one year after the disability shall cease, the writing be recorded in the county or corporation to which the property is removed. Ibid. § 2468. No mortgage, deed of trust, or other incumbrance on i>ersonal property in another state is a valid incumbrance thereon after it is removed into this state, as to purchasers and creditors, unless recorded in the county or corporation in which the property is located in this state. Ibid. § 2468a. Every sale or contract for the sale of goods and chattels- wherein the title or a lien is reserved until the same be paid for in whole or in part, or the transfer is made to depend on a condition, and possession is delivered to the vendee, in re- spect to such reservation and condition is void as to purchasers- Ch. 12) CHATTEL MOETGAGES 443 for value without notice from such vendee until such sale or contract, signed by both vendor and vendee, in which such reservation or condition is expressed, and until and except from the time that a memorandum of such writing, setting forth the date thereof, the amoimt due thereon, when and how payable, and a brief description of such goods or chattels, be docketed in the clerk's office of the circuit or corporation court of the county or corporation in which said goods or chat- tels may be. Special provisions apply to rolling stock, etc., of railroad companies. Ibid. § 2462. WASHINGTON Mortgages may be made on all kinds of personal property, the rolling stock of a railroad company, all kinds of machinery, boats and vessels, portable mills and such like property, grow- ing crops and crops before the seed thereof shall have been sown or planted, except that the mortgaging of crops before the seed thereof shall have been sown or planted for more than one year in advance is forbidden, and all securities or mort- gages on such unsown or unplanted crops are void and of no effect, unless such crops are to be sown or planted within one year from the time of the execution of the mortgage. Rem. & Bal. Code, § 3659. A mortgage of personal property is void as against cred- itors of the mortgagor or subsequent purchasers and incum- brancers for value and in good faith, unless accompanied by the affidavit of the mortgagor that it is made in good faith, and without any design to hinder, delay, or defraud creditors, and unless acknowledged and recorded in the manner required in conveyance of real property. Ibid. § 3660. It must be filed within ten days from the time of its execution in the office of the county auditor of the county in which the property is situ- ated. Ibid. § 3661. Every mortgage filed and indexed is notice to all the world, but ceases to be notice, as against creditors of the mortgagors and subsequent purchasers and mortgagees in good faith after the expiration of the time such mortgage becomes due, unless before the expiration of two years after the time it becomes due the mortgagee, his agent or attorney, make and file as aforesaid an affidavit setting forth the amount due upon the mortgage, which affidavit must be annexed to the instrument to which it relates, and the auditor shall indorse on said affi- 444 FORM BOOK (Ch. 12' davit the time it was filed. Ibid. § 3662. The effect of such affidavit shall not continue beyond one year from the time the mortgage would otherwise cease to be valid, as against such creditors and subsequent purchasers and mortgagees in good faith, unless before the time when the mortgage would other- wise cease to be valid as aforesaid a similar affidavit be filed and annexed as above provided and with like effect. Ibid. § 3663. A mortgage given to secure $100 or less, execlusive of inter- est and costs of foreclosure, may be made in substantially the following form: Chattel Mortgage for $100 or Less (Statutory) This mortgage, made this day of , in the year , by A. B., of , mortgagor, to C. D., of , mortgagee : Witnessetb that the mortgagor mortgages to the mortgagee {here describe the property), as security for the payment to him of dollars, on {or, before) the day of , in the year -, with interest thereon {or, security for the payment of a note or obligation, describing it, etc). A. B. Signed and delivered in the presence of : E. F. G. H. Ibid. § 3664. A mortgage given to secure $300 or more, exclusive of in- terest, costs, and attorney's or counsel fees, may be recorded and indexed with like force and effect as if this act had not been passed, but such mortgage or a copy thereof must also be filed and indexed as required by this act. Ibid. § 3665. If the property is in two or more counties, a copy of such mortgage may be filed in each county, with like force and effect as the original mortgage. Ibid. § 3666. A mortgage of personal property must be recorded in the ofiice of the county auditor of the county in which the mort- gaged property is situated. When the property is thereafter removed from the county in which it is situated, it is, except Ch. 12) CHATTEL MORTGAGES 44& as between the parties to the mortgage, exempted from the operation thereof, unless either: (1) The mortgagee within 30 days after such removal causes the mortgage to be recorded in the county to which the prop- erty has been removed ; or (2) the mortgage be recorded in the customhouse; or (3) the mortgagee within 30 days after such removal takes possession of the property. A mortgage on a vessel orboat, or part of a vessel or boat, over 20 tons burden, shall be recorded in the office of the collector of customs where such vessel is registered, enrolled, or licensed, and need not be recorded elsewhere. Ibid. § 3668. A mortgage may be satisfied by acknowledgment on the margin of the record, or by filing an instrument signed and acknowledged by the mortgagee, referring to the mortgage by volume and page of record, and acknowledging satisfaction thereof. Ibid. § 8798. When the debt is due, the mortgage may be foreclosed by notice and sale or by action. Ibid. §§ 1104-1110. Where the debt has become due, or is not yet due, and the mortgagee has reasonable ground to believe that his debt is insecure, and that by allowing the property longer to remain in the hands of the mortgagor he would be in danger of losing his debt or security, he may have the property taken from the possession of the mortgagor and sold. Where the debt is not due, and the mort- gagee has reasonable cause to believe that the property will be destroyed, lost, or removed, he has a right of action for the recovery of the debt; and the court may make an order to secure the property, so as to make it available for satisfaction of the debt. Ibid. §§ 1111, 1112. All conditional sales of personal property, or leases thereof, containing a conditional right to purchase, where the property is placed in the possession of the vendee, are absolute as to the purchasers, incumbrancers, and subsequent creditors in good faith, unless \within 10 days after talcing possession by the vendee a memorandum of such sale, stating its terms and con- ditions and signed by the vendor and vendee, be filed in the auditor's office of the county wherein at the date of the vendee's taking possession he resides. Ibid. § 3670. 446 FORM BOOK (Ch. 12 Affidavit of Mortgagor State of Washington, ' County of '' -, the mortgagor — in the foregoing mortgage named, being first duly sworn, on oath deposes and says that the afore- said mortgage is made in good faith, and without any design to hinder, delay, or defraud creditors. (Signature.) Subscribed and sworn to before me, this day of , A. D. 19 — . (Signature.) Notary public in and for the state of Washington, residing at . WEST VIRGINIA Every contract or deed of trust of mortgage conveying goods and chattels is void as to creditors and subsequent purchasers for valuable consideration without notice, until and except from the time that it is admitted to record in the county where- in the property embraced in such contract or deed may be. Ibid. § 3103. Notwithstanding such writing be admitted to record in one county wherein there are goods or chattels, it is void as to such creditors and purchasers in respect to other goods or chattels without the same until admitted to record in the county wherein such other goods or chattels may be. Ibid. § 3104. If any goods or chattels mentioned in such writing be re- moved from a county in which it is admitted to record, tlie writing shall, within three months after such removal, be ad- mitted to record in the county to which the property is so re- moved; otherwise the same, for so long as it is not admitted to record in such last-mentioned county, shall, as to the proper- ty so removed, be void as to such creditors or purchasers. But such writing shall not be so void in respect to the interests of any married woman, infant, or insane person if, before the end of three months after the disability shall cease, the writing be recorded in the county to which the property is removed. Ibid. § 3105. If any sale be made of goods and chattels, reserving the title until the same is paid for, or otherwise, and possession be de- Ch. 12) CHATTEL MORTGAGES 447 Hvered to the buyer, such reservation is void as to creditors of, and purchasers without notice from, such buyer, unless a notice of such reservation be recorded in the office of the clerk of the county court of the county where the property is, or, if the goods and chattels consist of engines, cars, or other rolling stock or equipment to be used in or about the operation of any railroad, unless such notice be recorded in the office of the sec- retary of state. Code 1906, § 3101. WISCONSIN No mortgage of personal property is valid against any other person than the parties, unless possession be delivered to and retained by the mortgagee, or unless the mortgage or a copy be filed. Nor is a chattel mortgage of exempt property valid unless signed by the wife of the mortgagor, if he be a married man and she a member of his family, and her signature be wit- nessed by two witnesses. St. 1911, § 2313. A mortgage of personal property or a copy may be filed in the office of the clerk of the town, city, or village where the mortgagor resides, or, if he is a nonresident of the state, where the property may be at the time of execution of the mortgage: Provided, that when the mortgage is of a stock of goods, wares, and merchandise, or of the fixtures pertaining to the same, the mortgage or a copy shall in addition be filed in the office of the register of deeds of the county in which may be situated the town, city, or village in the office of the clerk of which the mortgage or copy may be filed. Mortgages so filed are valid and binding upon all persons as if the property had been immediately delivered to and its possession retained by the mortgagee. Ibid. § 2314; Laws 1913, c. 575. Such mortgage ceases to be valid as against the creditors of the person making the same or subsequent purchasers or mort- gagees in good faith after the expiration of 2 years from such filing, unless within 30 days next preceding the expiration of the 2 years the mortgagee, his agent or attorney, make and annex to the instrument or copy on file, and in a proper case to the copy on file in the office of the register of deeds, an affidavit setting forth the interest which the mortgagee has by virtue of such mortgage in the property therein mentioned. St. 1911, § 2315. The effect of such affidavit does not con- tinue beyond 2 years from the time when the mortgage would otherwise cease to be valid as against subsequent purchasers 448 FORM BOOK (Ch. 12 ■or mortgagees in good faith ; but within 30 days next preced- ing that time a similar affidavit may be filed and annexed as above provided and with like effect. Ibid. § 2316. The mortgagor of any stock of goods or stock in trade of which he is in possession and from which he is permitted to make sales and apply the proceeds upon the indebtedness shall file a statement in writing of the aggregate amount of the sales made therefrom, the amount applied on the mortgage debt, and the total valuation of the stock added, every 60 days from the date of such mortgage, with the town, city, or vil- lage clerk in whose office the mortgage is filed, and shall file a •copy in the office of the register of deeds. Such mortgage shall cover and be a valid lien on the property added to such stock after its execution for the amount of the indebtedness remaining unpaid thereon. Such statement shall be verified by the mortgagor, his agent or attorney, as being a true and correct statement of all sales made from the stbck of mort- gaged goods, the value of the additions made to the original stock since the date of the mortgage or the date of the last verified statement so filed and the amount paid on the mort- gage debt since the execution of the mortgage or the filing of such statement. If any. mortgagor fail to file such statement within the time prescribed, the mortgage, as between the par- ties, shall be immediately due and payable, and at the expira- tion of 15 days from the time fixed for the filing of such state- ment shall cease to be a lien on such stock of goods or stock in trade, except as between the mortgagor and mortgagee. Ibid. § 2316b. On payment and performance of conditions, the mortgagee shall give a certificate to that effect, and, if the mortgage or copy was filed in the office of the register of deeds, two cer- tificates, which may be filed by the mortgagor, who may then remove the mortgage. Ibid. § 2317a. Provisions for sale and redemption. Ibid. §§ 2316a, 2316c, 2316m. As to mortgage of logs. Ibid. § 1739. No contract for the sale of personal property by the terms of which the title is to remain in the vendor and the posses- sion in the vendee until the purchase price is paid or other conditions of sale are complied with, is valid as against any other person than the parties and those having notice unless the contract be in writing, subscribed by the parties, and the ■same or a copy be filed in the office of the clerk of the town, Ch. 12) CHATTEL MORTGAGES 449 city, or village where the vendee resides, or if he be not a resident of the state, in the office of the clerk of the town, city, or village where the property may be at the time of making the contract; but the effect of such filing does not extend for more than one year after the time fixed for pay- ment of the contract price or for the performance of the other conditions of such sale. Ibid. § 2317. Contracts for the sale of furniture or other household effects made on con- dition that the title should not pass until the price is paid in full, whether such contract be in the form of a lease or other- wise, must be in writing and filed as above specified, and a copy thereof furnished the vendee by the vendor at the time of sale. All payments made by or on behalf of the vendee, and all charges, in the nature of interest or otherwise, as they accrue, must be indorsed by the vendor or his agents upon such copy, if the vendee so request. If the vendor fails to comply with any of these provisions through negligence, his rights under such contract are suspended while the default continues, and if he refuse or willfully or fraudulently fails to comply with these provisions he waives the conditions of the sale. The vendor, upon taking possession for noncom- pliance with the terms of the contract, must furnish the vendee or other person in charge of such property an itemized state- ment of account, showing the amount due, and the vendee may at any time within 15 days after such taking redeem the prop- erty, by paying the full amount of the price then unpaid, with interest and lawful charges and expenses. Ibid. § 2319b. As to conditional sales of railroad equipment and rolling stock. Ibid. § 1839a. Chattel Mortgage Know all men by these presents that I, , residing in , county of , state of Wisconsin, for the purpose of securing the payment of the sum hereinafter mentioned, and in consideration of one dollar to me in hand paid, the receipt of which is hereby acknowledged, do by these presents bargain, sell, assign, and set over unto , of , county of , state of , all the following described goods, chat- tels, and personal property, to wit (description), said property situated and being now at , in the of , TlFF.PORMS — 29 450 FOKM BOOK (Ch. 12 county of — ■ , and state of Wisconsin, and now free and clear from any prior lien or incumbrance, and being in posses- sion of said mortgagor and to remain in his possession until the same shall be taken possession of by said mortgagee as hereinafter provided. To have and to hold the same forever, upon condition that, if said mortgagor shall pay to said mortgagee the sum of dollars . (jf 0*6' terms), then these presents shall cease and be void. But in case of any default in making such pay- ment, or any part thereof, at the time above agreed on, or in performing any conditions hereof, the said mortgagee is hereby authorized and empowered, with the aid and assistance of any person or persons, to enter into or upon any place where said mortgaged property may be, and take possession of said mort- gaged property and convey it away and to sell and dispose of same at private sale without notice or at public sale after giving days' notice of time and place of such sale, in his discretion, or so much thereof as may be necessary to satisfy the said debt and interest, and all costs and expenses in taking, keeping, and disposing of said property, together with dollars for attorney's fees, and to retain the same out of the proceeds of said sale, rendering the surplus, if any, to said mortgagor. And in case the said mortgagee shall at any time deem the said property or the said debt insecure, he is hereby authorized and empowered to take immediate posses- sion of said mortgaged property, or any part thereof, and to sell and apply the proceeds as above provided. The provisions of this instrument shall extend and apply to the heirs, executors, administrators, and assigns of the respec- tive parties. In witness whereof I have hereunto set my hand and seal this day of . Ch. 12) CHATTEL MORTGAGES 451 WYOMING A mortgage of personal property shall be executed in one or the other of the following methods : (1) It may be executed and acknowledged in the manner of conveyances of real es- tate ; (2) it may be signed in duplicate by the mortgagor with two witnesses, in which case one duplicate shall be retained by the mortgagor, and the other, in which shall be contained or to which shall be annexed a statement over the signature of the mortgagor acknowledging receipt of a duplicate copy thereof, shall be filed as a chattel mortgage, in the manner provided in this chapter: Provided, that no instrument shall operate as a chattel mortgage unless it state distinctly upon its face that it is intended for security, and the amount for which it is security. Comp. St. 1910, § 3723. Such mortgage, or an as- signment or release thereof, by a partnership, must be executed and acknowledged by each member ; but a mortgage may run to a partnership without enumerating its members. Ibid. §§ 3724, 3726. A mortgage may include property of like kind and character as that therein described thereafter to be acquired. Ibid. § 3721. In a mortgage of live stock it h a sufficient description to set forth all such brands and marks of the same as will enable the mortgagee to identify, prove, and recover any or all of such stock as was possessed by the mortgagor at the time of making the mortgage, together with the ranches or range upon which such stock shall be running or ranging. Such mortgage conveys and covers all the cattle, horses, mules, sheep, or other live stock then marked or branded with such mark and brand belonging to the mortgagor and which thereafter may be ac- quired by him and be marked and branded with such mark and brand, and also such mark or brand, and all increase of such live stock. Ibid. § 3722. Every mortgage of personal property not accompanied by immediate deliveiy and followed by actual and continued change of possession is absolutely void as against the creditors of the mortgagor and subsequent mortgagees or purchasers in good faith, unless filed. Ibid. § 3727. It must be filed in the office of the county clerk where the property is situated. Ibid. § 3728. It is sufficient if a mortgage of live stock is filed in the county where the range upon which the live stock are or shall be principally running or ranging is located, the location of which range shall be described with reasonable certainty. 4:52 FORM BOOK (Ch. 12 Ibid. § 3730. In case of the removal of the property to some other county by consent of the mortgagee, the mortgage or a copy shall be certified by the clerk of the county where said instrument is filed, and immediately filed in the county to which the property is removed ; but this does not apply to live stock temporarily used, driven, or grazed in a county other than that in which the herd may belong or be permanently located. Ibid. § 3731. The mortgage, when filed, remains in force against third persons for its term and six months thereafter. If before ex- piration of such six months the mortgagee files or causes to be filed an affidavit setting forth his interest and the amount due and unpaid, the mortgage continues in force for one year, and it may be continued from time to time by like affidavits. Ibid. §3733; I^ws 1911, c. 82. A mortgage may give the mortgagor permission to, use, handle, operate, herd, manage, and control the property, and to market, sell, and dispose of such portions as may be neces- sary in the course of business, or to preserve and care for it, and to replace the property sold with other property of like kind and character, either with the proceeds of property sold or otherwise, all of which shall be subject to the mortgage; but, unless otherwise stipulated, the mortgagor must pay to the mortgagee all such proceeds of sale. Comp. St. 1910, § 3774. An assignment or release may be by indorsement on the mortgage on file, or by separate instrument executed and ac- knowledged like a chattel mortgage. Ibid. § 3728. Mortgages with power of sale are foreclosed by public auc- tion. Ibid. § 3735 et seq. No sale, contract, or lease wherein the transfer or title of ownership of personal property is made to dejiend upon any condition is valid against any purchaser or judgment creditor of the vendee or lessee in possession without notice, unless it be in writing, signed by the vendee or lessee, and the original or a copy be filed in the office of the county clerk of the county wherein the property is. The instrument so filed shall have attached an affidavit of the vendor or lessor, or his agent or attorney, which shall set forth the names of the vendor and vendee, or lessor and lessee, with a description of the property and the full and true interest of the vendor or lessor therein. Such sales or transfers shall cease to be valid against pur- chasers in good faith or judgment or attaching creditors with- out notice at the expiration of one year from the date of such Ch. 12) CHATTEL MORTGAGES 453 sale, unless the vendor or lessor within 30 days prior to that time file a similar affidavit in the office of such clerk. The vendor or lessor may preserve the validity of such sale or transfer by an annual refiling in the same manner as aforesaid of such copy. Ibid. § 3745. See, also, Ibid. § 3747 et seq. Chattel Mortgage Know all men by these presents that , of the county of , and state of , part — of the first part, for and in consideration of the sum of dollars to in hand paid by , of the county of , and state of , part — of the second part, the receipt of which is here- by acknowledged, do — grant, bargain, and sell unto the said part — of the second part, , the following goods and chattels, viz. (description), all in the county of , and state of Wyoming. To have and to hold, all and singular, the said goods and chattels unto the said part — of the second part, ex- ecutors, administrators, and assigns, forever. And the said part — of the first part, for heirs, executors, and admin- istrators, do — hereby covenant to and with the said part — of the second part, executors, administrators, and assigns, that the lawful owner— of said goods and chattels; that the same are free from all incumbrances ; and that will warrant and defend the same to the said part — of the second part, and executors, administrators, and assigns, against the lawful claims and demands of all persons whom- soever : Provided, nevertheless, that if the said part — of the first part, heirs, executors, and administrators, shall well and truly pay to the part — of the second part, execu- tors, administrators, or assigns, for the redemption of the above-bargained goods and chattels, the just and full sum of ■ dollars on or before the day of , A. D. 454 FORM BOOK (Ch. 12 19 — , with interest on the same according to the tenor and effect of certain promissory note — bearing even date herewith, given by the said part — of the first part to the said part — of the second part (state terms), then these presents to be void ; otherwise to remain in full force and virtue : And provided, further, that until default is made by the said part — of the first part in the performance of the conditions aforesaid it shall and may be lawful for to retain the possession of said goods and chattels, and to use and enjoy the same; but in case default should be made in the payment of said note — , or the interest thereon, or any installment of prin- cipal or interest according to the tenor and effect of said note — or if the goods and chattels, or any part thereof, shall be at- tached or claimed by any other person or persons at any time before payment, or if the said part — of the first part shall attempt to sell or remove the same beyond the limits of said county without the written consent of the said part — of the second part, or be negligent in the care of the same, or when- ever the said part — of the second part shall deem un- safe, then it shall and may be lawful for the said part — of the second part, or assigns, to take immediate and full possession of the whole or any part of said goods and chattels to own use, and sell the same according to law, or so much as may be necessary to pay said note — , together with the interest thereon and all costs, attorney's fees, and other expenses touching the same, and out of the money arising therefrom to pay said note — ; interest, costs, attorney's fees, and other expenses as aforesaid, rendering and paying the surplus, if any, to the said part — of the first part: And pro- vided, also, that the heirs, executors, administrators, and as- signs of either or both parties to this chattel mortgage shall have the same rights and privileges as the parties themselves would have, and shall be bound by all the terms, conditions, and provisions herein contained. Ch. 12) CHATTEL MORTGAGES -455 This chattel mortgage is intended for security, and the amount for which this instrument is intended as security as aforesaid is the sum of dollars, with such interest as may accrue thereon, according to the tenor and effect of the promissory note — above described. In witness whereof the said part — of the first part ha — hereunto set hand this day of , A. D. 19—. Signed and delivered in presence of {Two wittvesses). 456 FORM BOOK (Ch. 13 CHAPTER XIII COPYRIGHT The forms here given include only assignments of copyright and . publishing agreements, which necessarily deal with the ownership of the copyright. A copyright may be assigned, granted, or mortgaged by an instrument in writing signed by the proprietor of the copy- right. An assignment executed in a foreign country must be acknowledged before a consular officer or secretary of lega- tion of the United States authorized by law to administer oaths or perform notarial acts. Every assignment must be recorded in the copyright office within three months after its execu- tion in the United States, or within six months of its execu- tion without the United States, in order to protect the assignee against subsequent purchasers and mortgages. Act March 9, 1909, c. 320, §§ 43-45, 35 Stat. 1084 (U. S. Comp. St. 1913, §§ 9564—9566). An assignment may be of the whole right or of a specified interest therein, as an assignment for less than the full term of the copyright, or of the exclusive right to sell the copyrighted work or to represent a drama in a limited terri- tory, or an assignment with a reservation of the right to trans- late or to dramatize and to exercise the dramatic performing rights. Page 1. Assignment of literary copyright 456 2. Same — Another form : 457 3. Assignment of performing rights in a play 457 4. Sale of a manuscript with the right to copyright 458 5. Same — With agreement for publication 458 6. Agreement for publication of book, author reserving copy- right and receiving royalties 460 7. Same — Another form 462 1. Assignment of Literary Copyright Know all men by these presents that I, , of , in consideration of dollars to me paid by , of , the receipt whereof is hereby acknowledged, do here- by sell, a'ssign, and transfer unto the said , his execu- Ch. 13) COPYRIGHT 457 tors, administrators, and assigns,* the copyright heretofore secured by me for a certain book entitled , of which I am the (author and) proprietor, the certificate of the registra- tion whereof is hereto annexed, with all my rights in and to and in respect of the said copyrighted work, to hold and en- joy the same for the full unexpired term of the said copyright. In witness, etc. 2. Same — Another Form This indenture, made the day of , between , of , of the one part, and , of , of the other part: [ReciTAL OP COPYRIGHT.] Whereas, the said is the (author of and) proprietor of the copyright in a book (or, literary work) entitled . [Assignment.] Now, this indenture witnesseth that, in consideration of the sum of $ paid by to the said , the receipt whereof is hereby acknowledged, the said hereby assigns unto the said all the copy- right and other rights in the said book which is or are subsist- ing for the residue of the term thereof (excepting, however, and reserving hereby unto the said the right to drama- tize the said book and to exercise or assign the performmg rights therein). In witness, etc. 3. Assignment of Performing Rights in a Play Indenture made the day of between , of , of the one part, and , of , of the other part: [Recital of copyright.] Whereas, the said is the (author of and) proprietor of the copyright in a certain dra- matic work or drama entitled . 458 FORM BOOK (Ch. 13 [Assignment.] Now, this indenture witnesseth that, in consideration of the sum of $ paid by the said to the said , the receipt whereof is hereby acknowl- edged, the said hereby assigns unto the said the exclusive right to perform or represent the said drama pub- licly in this country or elsewhere for the term of the said copy- right. [Warranties.] And the said hereby warrants that the said drama (is his original work and) was performed first within the United States on the day of , and was not performed or issued in book form or made public ei- ther in this country or elsewhere before that date. In witness, etc. 4. Sale of a Manuscript with the Right to Copyright {Begin as in Form No. 1, p. 456. to *), the manuscript of a certain unpublished book of which I am the (author and) pro- prietor, entitled , with all my literary and other prop- erty, right, title, and interest therein, and all the profit, bene- fit, and advantage which may arise from printing, publishing, and vending the same, and the right to procure and have copy- right of the said book in accordance with any statute in such case provided. In witness, etc. 5. Same — With Agreement for Publication Indenture made the day of between , hereinafter called the author, of the one part, and , hereinafter called the publisher, of the other part: [Recital of authorship and ownership.] Whereas, the author has written a book entitled , which book has never been published, and the author is the sole owner of the manuscript thereof and of all right, title, and interest therein. Ch. 13) COPYRIGHT 459 Now, this indenture witnesseth as follows: 1. [Assignment.] The author hereby assigns to the pub- lisher the exclusive right of publishing the said book, and the publisher shall be the sole owner of the copyright therein on publication. 2. [Certain rights reserved to author.] The author reserves to himself the sole right of translating, abridging, or dramatizing the book, but he shall not without the publisher's consent publish any translation, abridgment, or dramatized version as a book. The author shall have full liberty to au- thorize the performance of any dramatized version of the book, and shall be the proprietor of the performing rights therein. 3. [StyIvE and eorm oe publication.] The pubhsher shall at his own expense and risk publish said book in such style as he shall see fit. The author's name shall be conspic- uously printed as author on the title page of every copy of the book sold or published; and the publisher shall not publish the book under any other title than , nor shall he in any way alter the literary matter contained in the book. 4. [Author to revise proofs.] The publisher shall sub- mit to the author for revision the proofs of the first edition of the book, and the author shall carefully and with reason- able dispatch revise and correct the same, and see it through the press. 5. [Terms oe payment.] In consideration of the premises the publisher shall pay to the author the sum of $ , which shall be payable as follows : $ on delivery of the manuscript; and $ on publication. In witness, etc. 460 FORM BOOK (Ch. 13 6. Agreement for Publication of Book, Author Reserving Copyright and Receiving Royalties Agreement made this day of between , hereinafter called the author, of the first part, and , hereinafter called the publisher, of the second part: [Recitai, o:? dBwvery of manuscript.] Whereas, the author has written a work {or, a novel) entitled , and has delivered the manuscript thereof to the publisher. It is hereby agreed as follows : 1. [Author to correct proof sheets.] The author shall promptly revise and correct all proof sheets submitted to him by the publisher. 2. [Publisher to print, publish and advertise.] The publisher shall as soon as practicable at his own expense pro- ceed to print and publish the said book, in one or more vol- umes, and in such style, as to paper, type, binding, and embel- lishments, and at such price, as in his judgment may be advisable, and shall advertise and push the sale of the said book to the best of his ability, and shall at all times keep the market fully supplied therewith. 3. [Royalties.] The publisher shall pay to the author a royalty of per cent, of the retail price at which the said book shall be sold on each and every copy sold, excludmg copies for review or supplied to the author, who shall receive copies gratis. 4. [Accounts.] The publisher shall render to the author a statement of the number of copies printed, and as often as every six months shall render a statement of the number sold and at the same time pay the said royalties for the same, such accounting to be for the six months ending on the first days of and in each year. Ch. 13) OOPYKIGHT 461 5. [ExcivUSivB RIGHT oif PUBiviCATioN.] During the con- tinuance of this agreement the author shall not publish or au- thorize to be published any copy or abridgment of the said work (but the author shall be at liberty to dramatize the same and exercise or assign the performing rights therein). 6. [Copyright and license.] The publisher shall cause the said book to be duly copyrighted in the name of the au- thor, in whom the copyright shall remain vested. The author hereby grants to the publisher the exclusive license to print, publish, and sell copies of the said work during the continu- ance of such copyright or any renewals thereof, subject to the terms of this agreement. '7. [Author to defbnd copyright and indemnify AGAINST LIBEL.] The author shall defend the said copyright against all adverse claims, and indemnify the publisher against all claims for libel. 8. [Publisher not to assign.] This agreement and the said license shall not be assignable by the publisher by any assignment either voluntary or involuntary (except in the event of a change in the constitution of his firm to the part- ners of the new firm). 9. [Right oe author to terminate agreement.] The author may determine this agreement and the said license if the publisher shall be adjudicated bankrupt (or, shall become insolvent), or shall make default in the payment of royalties for months after the respective dates hereby appointed for the payment of the same, or shall otherwise fail to per- form substantially the agreements on his part. Upon any such determination of this agreement all copies of the said book in stock (and the plates of the same) shall at the author's op- tion be taken over by him at a fair valuation ; and, if he shall fail to exercise such option within one month after notice re- 462 FORM BOOK (Ch. 13 quiring him to do so, the said copies may be sold by the pub- lisher, provided that the author shall receive his royalties upon all copies so sold. In witness, etc, 7. Same — Another Form This agreement made this day of between , hereinafter called the author, of the one part, and , hereinafter called the publisher, of the other part. witnesseth that it is hereby agreed as follows : 1. [Author to dEuvER manuscript.] The author shall write or complete the writing of a book of not less than words, being a (description of work), to be entitled • ■ — , and shall deliver the completed manuscript thereof to the pub- lisher on or before the day of . 2. [Exclusive right ojP publication — Dramatic rights RESERVED.] During the subsistence of this agreement the publisher shall have the sole right of publishing the book throughout the United States. The author shall not durmg such period publish or cause to be published in any part of the United States any copy, abridgment (or, dramatized ver- sion) of the work without the consent in writing of the pub- lisher (but the author shall be at liberty to dramatize the work and exercise or assign the dramatic performing rights therein). 3. [Neither party to produce rivae works.] During the existence of this agreement neither the publisher nor the author shall publish or cause to be published or edit, or assist in editing or contribute matter to, any work or treatise on the subject of . 4. [PUBEISHER TO PRINT AND PUBLISH — FiRST AND SUBSE- QUENT EDITIONS AND PRICE.] The publisher shall print and publish the book at his own expense and risk. He shall pub- lish a first edition of not less than copies nor more Ch. 13) COPTKIGHT 463 than copies on or before the ■; day of , printed on good paper and substantially bound. The book shall be sold at the price of . Second or subsequent editions are to be a matter of agreement with the author or his assigns and the publisher, and the publisher shall have no right nor be under any obligation to publish any such subse- quent edition except by mutual agreement (or, in place of the last sentence: "The publisher may in his discretion publish second and subsequent editions in the same form and at the same price or in such form and at such price as may be mu- tually agreed." In the case of works requiring periodical re- vision the following may he added: "In the event of any sec- ond or subsequent edition being required, the publisher shall before publishing such edition make a written request to the author, his executors, administrators, or assigns, requiring him or them to bring the book up to date, and thereupon he or they shall without undue delay make or cause to be made by some competent person all necessary and proper additions and al- terations; and, in the event of his or their failure so to do, the publisher may employ some competent person to do the said work, the cost of which shall be deducted from the au- thor's credit for royalties on the ensuing accounts.") 5. [Author's corrections.] The publisher shall submit the proof sheets of the first and all subsequent editions to the author, who shall revise and correct the same. If the au- thor's alterations and corrections by reason of departures made by him therein from the original manuscript shall exceed per cent, of the cost of composition, the amount of such excess shall be deducted from his credit for royalties on the next ensuing account. 6. [Royalties.] The publisher shall pay to the author the following royalty on the sale of copies, viz. : A royalty of ' per cent, of the said price at which the book shall be 464 FORM BOOK (Ch. 13 sold on each and every of the first 1,000 copies sold, and a royalty of per cent, of the said price on each and every copy sold thereafter. 7. [Accounts.] The publisher shall render to the author an account of sales every six months, commencing six months after the date of the first publication. The balance due to the author shall be payable three months after the half-yearly ac- count is rendered. 8. [Inspection oif publisher's books.] The author may require an inspection of the publisher's books every six months after the account of sales has been rendered, and also at the termination of this agreement. On the author demanding in writing an inspection, the publisher shall forthwith permit any accountant nominated by the author to examine all books and documents relating to the publication and sale of the book. 9. [Indemnification oif pubi^isher.] The author shall indemnify the publisher against all damage in consequence of the book (which is believed by both parties hereto to be in- nocent) being libelous or containing any infringement of copy- right. 10. [Publisher to procure copyright, which shali, re- main IN author, who may assign.] The pubhsher shall cause the book to be copyrighted in the name of the author. Subject to the provisions of this agreement, the whole right, title, and interest in the manuscript and the copyright in the book when published shall remain in the author, who shall be entitled to assign the same, together with his rights and obli- gations under this agreement. 11. [Publisher may NOT assign.] The publisher shall not assign the benefit of or delegate his obligations as a publisher under this agreement, except that the whole agreement may be assigned to such person or persons as may succeed him in his business as publisher. Ch. 13) COPYEIGHT 465 12. [Rescission if publishbr rbfuses to publish new EDITION.] If at any time the copies of the book in stock are reduced to copies or less, the author may propose in writing to the publisher that a new edition shall be published, and if the publisher does not publish a new edition within months of such proposal, the author may by notice in writing terminate this agreement. 13. [Rescission by either party ie ■sales do not reach CERTAIN amount.] If in any six months after the first six months from the date of publication the sale of the book does not exceed copies, either the publisher or the author may by notice in writing terminate this agreement. 14. [Rescission on publisher's bankruptcy.] If the publisher shall at any time commit an act of bankruptcy, the author may by notice in writing terminate this agreement. 15. [Rights of parties upon rescission.] In the event of this agreement being terminated, the copies of the book remaining in stock, and any plates, engravings, or other plant specially prepared for the production of the book shall at the option of the author be taken over by him at a fair valuation, or, if he fails to exercise such option within days after such termination, shall be sold by auction or otherwise, as the publisher shall see fit. On such sale or valuation the author shall be entitled to be credited with the royalties hereinbefore provided for according to the number of the copies which shall have been sold during the existence of this agreement. In witness, etc. Tiff. Forms— 30 166 FORM BOOK (Ch. 14 CHAPTER XIV DEEDS In General By the statute of frauds, which has been enacted with some variations in the several states, an instrument in writing is requisite for the conveyance of lands or any interest therein except tenancies for a short term. The instrument of convey- ance is termed a deed even in states where the use of seals has been abolished. The formalities of execution are generally pre- scribed by statutes, which differ in respect to the requirements for witnessing, sealing and acknowledgment, while many states require particular formalities in the case of married women. Short forms of deeds also are frequently prescribed, or rather authorized, for their use is not required. And generally any instrument, executed with the prescribed formalities, is sufH- cient, if it expresses an intent to convey the land described. For example, Kent declared the following to be sufficient any- where in the United States: "I, A. B., in consideration of one dollar to me paid by C. D., do bargain and sell to C. D. and his heirs the lot of land (describe it). Witness my hand and seal." The requirements of the several states in respect to the ex- ecution of conveyances, as well as some other statutory pro- visions relating to their form and effect, are given on pages 514-643). Parts of Deeds Deeds which follow the older and longer forms consist of the premises, that is, the parties, the recitals, if any, the con- sideration, the operative words of grant or conveyance, and the description of the land, with the exceptions, if any; the habendum ; the reservations, if any ; the covenants, if any ; and the testimonium. The operative words of conveyance generally used are "grant, bargain, sell and convey" ; although other words are often added, as "give, remise, release, alien, enfeoff and con- firm." Any words in a deed which clearly show an intent to grant the maker's interest or estate in the premises, as "grant" or "convey," are sufficient. In a "quitclaim" deed the usual Ch. 14) DEEDS 467 words are "remise, release and forever quitclaim"; the word "grant" being often avoided for the reason that it is some- times held to imply a covenant of general warranty. A quit- claim deed is by some statutes declared to be sufficient to pass all the estate which the grantor could convey by a deed of bargain and sale. But a quitclaim deed does not extend to after-acquired title, and in some states such a deed does not give the grantee the rights of a bona fide purchaser within the recording acts. It is usual by the granting words to define the estate intended to be created by adding, after the name of the grantee, if a fee simple is intended, "and his heirs and assigns"; the com- mon-law rule being that words of grant to a man without words of limitation or inheritance are understood to create in him only a life estate, and the word "heirs" being necessary to create an estate of inheritance, although this has been changed in most states by statute. Strictly the definition of the estate intended to be created is covered by the habendum, viz., "to have and to hold", to the grantee, "his heirs and assigns," and in that case the addition of "heirs and assigns" in the granting part is superfluous; but if the granting part contains proper words of limitation, as it usually does, the habendum may be, although in practice it seldom is, dispensed with. If the grantor wishes to except anything out of what in gen- eral terms he purports to grant, as a part of the land or an existing easement, the exception should follow the description of the thing granted, and the exception should be described with great particularity. An exception is to be distinguished from a reservation, which is always of some new right not in esse, a right newly created out of the land granted, as a right to cut timber or to extract minerals, or a right of way reserved in favor of the grantor. The reservation must be in favor of the grantor, and if he intends to secure it beyond his life there should be words of limitation and inheritance. A reservation is usually made by the reddendum, which follows the haben- dum, but sometimes follows immediately after the description. It is usual after the description of the lands, or more com- monly in the habendum, to add the words "with the appur- tenances" or other general words applicable to easements or servitudes used and enjoyed with the land. Ordinarily these words add nothing, for whatever is included under them will pass without them by the conveyance. Where, however, the thing granted is loosely described, as by such words as "dwell- ing house" or "mill," the word "appurtenance" includes, not 468 FOEM BOOK (Ch. 14 only the soil actually covered by the building, but so much oth- er land as is habitually occupied therewith and without which it cannot be enjoyed. Post, p. 644. Deeds other than those of mere quitclaim usually contain covenants in respect to the title of the granted premises. These so-called "warranty deeds" differ somewhat in different states, but usually include covenants of seisin and right to convey, against incumbrances, and of warranty, and sometimes cov- enants of quiet enjoyment and for further assurance. A covenant is sometimes implied at common law from the words "give" and "grant," and in some states certain covenants arise from the use of particular operative words or from statutory forms of deeds, although no covenants be expressed. A cov- enant of warranty is usually general, that is, against the law- ful claims of all persons ; but the covenant may be limited to the claims of particular persons, deeds containing only such limited covenants being known as "special warranty" deeds. Covenants of special warranty are often inserted in quitclaim deeds, the grantor warranting only against persons claiming by, through or under him. Restrictions and Conditions Restrictions concerning the use of the land are usually made by means of a covenant As to such use on the part of the gran- tee, but they may also be made by a proviso to that effect, or by a reservation, or even by a condition. Restrictions ordi- narily run with the land, and are enforceable in equity by the owners of other land, either the grantor, cr other persons for whose benefit the restriction is intended to operate. Such third persons are usually subsequent grantees of other land of the grantor; but a restriction may operate in favor of prior grantees, if it is manifest that there was an agreement with them on the part of the common grantor that restrictions to be subsequently imposed should operate for their benefit — as where land has been subdivided into lots pursuant to a general plan which contemplates restrictions as to the use to which the lots may be put, to be secured by covenants or other provisions to be inserted in the deeds to the several purchasers, with the intent that the restrictions shall bind and inure for the benefit of each purchaser. A restriction is to be distinguished from a condition, which is a right of reverter upon condition broken in favor of the grantor and his heirs, and is not assignable, although the fact that a remedy by way of forfeiture of the estate is attached Ch. 14) DEEDS 469 does not necessarily exclude an implied promise not to do the act forbidden which may be enforced as a restriction. Deed Poll and Indenture In some states the common form of deed is by deed poll, commencing, "Know all men by these presents that I," etc., or occasionally, "To all to whom these presents may come, greeting: Know ye that I," etc. In other states the common form is by so-called indenture, the grantor and the grantee be- .ing designated respectively as the party of the first part and the party of the second part, although like a deed poll the in- denture is signed only by the grantor. Probably there is no state where the use of either form would be questioned. Acknowledgment As a rule the acknowledgment of a conveyance is not essen- tial to its validity as between the parties ; but to entitle it to record, and thereby to protect the rights of the grantee and those claiming under him', its execution must be acknowledged or proved by the parties executing it as required by the par- ticular statute. Ante, p. l.y Recording The statutes generally provide that conveyances and other instruments relating to land may be recorded, usually with the register of deeds of the county in which the land is, and that, if not so recorded, they are void as against subsequent pur- chasers and mortgagees in good faith for valuable considera- tion whose deeds or mortgages are first recorded, and in some states as against attaching and judgment creditors without notice. The recording acts differ mainly as to the place of record and the persons protected. I FoBMs Geneballt Applicable Page 1. Warranty deed (indenture) 475 2. Special warranty deed (indenture) 476 3. Quitclaim deed (indenture) 476 4. Warranty deed (deed poll) 476 5. Quitclaim deed (deed poll) 477 6. Same — With covenant of special warranty 477 7. Deed by corporation to corporation (indenture) 478 470 FORM BOOK (Ch. 14 Page 8. Warranty deed subject to mortgage which grantee assumes 479 9. Conveyance subject to a lease • 479 10. Conveyance in fee, a lessee joining to merge his term 480 11. Conveyance of life estate 481 12. Conveyance subject to a life estate 481 13. Conveyance to subpurchaser by vendor under contract of sale, the original purchaser joining 482 14. Conveyance by tenants in common or joint tenants....... 483 15. Conveyance to joint tenants 483 16. Conveyance to partnership 484 17. Conveyance to tenants in common 484 18. Conveyance by indenture by trustees under deed of trust with special warranty 485 19. Conveyance by deed poll under deed of trust 486 20. Conveyance by tnistee in bankruptcy 487 21. Conveyance by executor under power in will (indenture). . . 488 22. Same (deed poll) 488 23. Deed of executor, administrator or guardian selling at pub- lic or private sale pursuant to license 489 24. Deed by sheriff or referee upon judicial sale pursuant to judgment 490 25. Conveyance to trustees under a will 492 26. Deed of partition between three co-owners 493 27. Deed executed under power of attorney 494 28. Assignment of dower 495 29. Release of dower 496 30. Same— Another form 496 31. Release by tenant by the curtesy 497 32. Conveyance of land with easements of rights of way and sewer, reservation of right of way and restrictive cove- nants against building 498 33. Conveyance of one lot with restrictions for benefit of all lots embraced in a general plan 501 34. Conveyance to a railway company subject to a condition in case the premises are not used for a station 503 35. Conveyance to railway company for right of way with condition in case of abandonment 504 36. Deed to correct mistake in prior deed 504 37. Deed of a mining claim 505 38. Conveyance reserving mines and minerals with liberty to work 506 39. Conveyance reserving coal 507 40. Deed by one of full age confirming a conveyance made dur- ing infancy 509 41. Deed confirming a conveyance made under power of attor- ney 510 Ch. 14) DEEDS 471 DegcripUons Page 42. Oity lot 511 43. Same — According to plat 511 44. Land in government survey 511 45. By course and distance 512 46. Description with reference to other land 512 47 Description with reference to map or plan 512 Attestation Glauses 48. Where delivery is in escrow 512 49. Noting alterations, omissions or insertions 513 50. Where signature is by mark 513 51. Where signature is written for grantor 513 52. Where execution is by attorney 514 II Statdtoet Provisions and Forms and Other Forms in Use in the States Alabama, statutes 514 Warranty deed 515 Quitclaim deed 516 Alaska, statutes 517 Arizona, statutes 517 Warranty deed 519 Quitclaim deed 520 Arkansas, statutes 520 Warranty deed with relinquishment of dower 521 California, statutes. 522 Grant (statutory) 523 Warranty deed 523 Quitclaim deed ' 524 Colorado, statutes 524 Warranty deed 525 Quitclaim deed 526 Connecticut, statutes 527 Warranty deed 527 Quitclaim deed 528 Delaware, statutes 529 Warranty deed 529 District of Columbia, statutes 530 Fee simple deed , 532 Deed by husband and wife 532 Deed of life estate 533 Deed of trust 533 Trustee's deed under a decree 533 Executor's deed 534 472 FOEM BOOK (Ch. 14 Page Florida, statutes 534 Warranty deed 535 Georgia, statutes 536 Warranty deed 537 Hawaii, statutes 538 Idaho, statutes 538 Warranty deed 540 Illinois, statutes 541 Warranty deed 541 Quitclaim deed 542 Indiana, statutes 543 Warranty deed 544 Quitclaim deed 544 Iowa, statutes 544 Quitclaim deed 545 Deed in fee simple without warranty 545 Deed In fee with warranty 545 Mortgage ; 545 Warranty deed, another form 546 Quitclaim deed, another form 546 Kansas, statutes 547 Warranty deed 547 Quitclaim deed 548 Kentucky, statutes 548 Warranty deed , 550 Louisiana, statutes 550 Sale by married woman (notarial act) 552 Credit sale (notarial act) 554 Promissory note to accompany above 557 Act under private signature 557 Special power of attorney to represent absent purchaser un- der notarial act 558 Maine, statutes 560 Warranty deed 560 Quitclaim deed 561 Maryland, statutes 561 Deed conveying fee simple 563 Where married woman is a party 563 Conveying estate for life 563 Trustee's deed under a decree 564 Executor's deed 564 Massachusetts, statutes 565 Warranty deed, statutory 566 Quitclaim deed, statutory 567 Deed of executor, administrator, trustee, guardian or con- servator (statutory) 567 Release, statutory 568 Warranty deed, common form 569 Quitclaim deed, common form 57l> Ch. 14) DEED8 473 Page Michigan, statutes 571 Conveyance, witli warranty, statutory 572 Conveyance in quitclaim, statutory 572 Minnesota, statutes 572 Warranty deed 573 Quitclaim deed 574 Mississippi, statutes. 574 Warranty deed, statutory 576 Deed of trust or mortgage, statutory 576 Quitclaim deed 576 Missouri, statutes 576 Warranty deed 577 Quitclaim deed 578 Montana, statutes 579 Grant, statutory 580 Warranty deed 580 Quitclaim deed 581 Nebraska, statutes 582 Warranty deed 582 Quitclaim deed 583 Nevada, statutes 583 New Hampshire, statutes 584 Warranty deed 584 Quitclaim deed 585 New Jersey, statutes 586 Deed, statutorj- 587 Warranty deed, common form 589 Quitclaim deed, common form 591 New Mexico, statutes ; 591 Warranty deed 592 New York, statutes 59^ Deed with full covenants 597 Executor's deed '. 598 Quitclaim deed with covenants against grantor's acts 599 North Carolina, statutes 599 Warranty deed 600 Quitclaim deed 601 North Dakota, statutes 602 Grant, statutory 603 Warranty deed, common form 604 Quitclaim deed, common form 605 Ohio, statutes 605 Warranty deed 006 Oklahoma, statutes 606 Warranty deed 608 Quitclaim deed 609 Oregon, statutes 609 Warranty deed 610 474 FORM BOOK (Ch. 14 Page Pennsylvania, statutes 611 Deed, statutory 612 Warranty deed, common form 613 Rhode Island, statutes 614 Warranty deed with release of dower 615 Quitclaim deed 616 South Carolina, statutes 617 Conveyance 618 South Dakota, statutes 619 Warranty deed, statutory 619 Quitclaim deed, statutory 620 Grant, statutory 620 Tennessee, statutes 621 Forms 622 Texas, statutes 623 Warranty deed, statutory 624 Warranty deed vs^ith vendor's lien 625 Quitclaim deed 626 Utah, statutes .• . . 626 Warranty deed 627 Quitclaim deed 628 Vermont, statutes 628 Warranty deed 629 Quitclaim deed 630 Virginia, statutes 630 Deed, statutory 631 Deed with covenants 632 Washington, statutes 633 Warranty deed ' 634 Bargain and sale deed 634 Quitclaim deed 635 West Virginia, statutes 635 Deed, statutory 636 Quitclaim 636 Wisconsin, statutes 637 Warranty deed, statutory ■ •,• ■ 63S Quitclaim deed, statutory 639 Deed reserving life estate, statutory 639 Wyoming, statutes 640 Warranty deed, statutory 641 Quitclaim deed, statutory 642 Ch. 14) DEEDS 4:75 I Forms Generally Applicable^ 1. Warranty Deed (Indenture) This indenture, made this day of , between , of , party of the first part, and , of , party of the second part, Witnesseth, that the said party of the first part, in consid- eration of the sum of dollars, to him in hand paid by the said party of the second part, the receipt whereof is here- by acknowledged, doth hereby grant, bargain, sell, and con- vey unto the said party of the second part (his heirs and as- signs, forever) all that tract or parcel of land lying and being in the and described as follows, to wit : {Description.) To have and to hold the same, together with all the heredita- ments and appurtenances thereunto belonging or in any wise appertaining to the said party of the second part, his heirs and assigns, forever. And the said party of the first part, for himself, his heirs, executors and administrators, doth covenant with the said party of the second part, his heirs and assigns, that he, the said party of the first part, is well seised in fee of the lands and premises aforesaid; that he has good right to sell and convey the same in manner and form aforesaid ; that the same are free from all incumbrances; and that he will, and his heirs, executors and administrators shall, warrant and defend the same to the said party of the second part, his heirs and assigns, against the lawful claims and demands of all persons. In witness whereof, the said party of the first part has here- unto set his hand and seal the day and year first above written. 1 The statutes should always be consulted. The statutory provi- sions and many forms in common use in the difEerent states follow erty belonging to her, provided her husband joins. Ibid. §§ 2460, 2464. She may relinquish dower, al- though a minor, by joining in the conveyance or mortgage, or by a separate deed executed in like manner as other convey- ances. Ibid. §§ 2461, 2463, 2464. In either case she must ac- knowledge separately and apart. Ibid. § 2462; ante, p. 31. A deed by a husband direct to his wife is effectual. Ibid. § 2457. Forms A deed executed in the following form shall be held to be a warranty deed with full common-law covenants, and shall bind the grantor, and his heirs, as if said covenants were specifically set out therein. And this form of deed, when sign- ed by a married woman, shall be held to convey whatever in- terest in the property conveyed she may possess. Ibid. § 2450. Such deeds shall be executed and acknowledged as is now or may hereafter be provided by the law regulating con- veyances of realty by deed. Ibid. § 2451. Warranty Deed (Statutory Form) This indenture, made this day of , A. D. , between , of the county of , in the state of , party of the first part, and , of the county of , in the state of , party of the second part, wit- nesseth : That the said party of the first part, for and in con- sideration of the sum of dollars to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, and sold to the said party of the second part, his heirs and assigns forever, the fol- lowing described land, to wit : . And the said party of the first part does hereby fully warrant the title to said land, and will defend the same against the lawful claims of all per- sons whomsoever. Ibid. § 2449. 536 FORM BOOK (Ch, 14 GEORGIA In General A deed to lands must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the pur- chaser or some one for him, and be made on a valuable or good consideration. The consideration may always be inquired into when the principles of justice require it. Civ. Code 1910, § 4179; ante, p. 32. Seal includes impressions on the paper it- self, on wax or wafers. With the exception of official seals, a scrawl or other mark intended as a seal is sufficient. Ibid. § 5. The word "heirs," or its equivalent, is not necessary to create an absolute estate; but every conveyance, properly executed, conveys the fee, unless a less estate is mentioned and limited in the conveyance. Ibid. § 3659. The purchaser of lands obtains with the title, however con- veyed to him at public or private sale, all the rights which any former owner under whom he claims may have had by virtue of any covenants of warranty of title, or of quiet enjoyment, or of freedom from incumbrances, contained in the convey- ance from any former grantor, unless the transmission of such covenants with the land is expressly negatived in the covenant itself. Ibid. § 4192. In a sale of land there is no implied war- ranty of title. Ibid. § 4193. A general warranty of title against the claims of all persons includes in itself covenants of a right to sell, and of quiet enjoyment, and of freedom from incumbrances. Ibid. § 4194. A general warranty of title against the claims of all persons covers defects in the title, though known to the purchaser at the time of taking the deed. Ibid. § 4195. Patent defects are not covered by a general express warranty, unless intended to be so covered, in proof of which parol evidence is admissible. Ibid. § 4140. Husband and Wife Dower is the right of a wife to an estate for life for one- third of the lands of which the husband was seised or pos- sessed at his death or to which he obtained title in her right, which he could do only under a marriage contracted before 1866. As to her acknowledgment, ante, p. 33. As to &...... lands she need not join in her husband's deed. Ch. 14) DEEDS 537 Forms No prescribed form is essential to the validity of a deed. If sufficient in itself to make known the transaction between the parties, no want of form will invalidate it. Ibid. § 4182. Warranty Deed This indenture, made this day of , A. D. 19 — , between , of , of the first part, and , of , of the second part : Witnesseth that the said party of the first part, for and in consideration of the sum of dollars in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, and convey, unto the said party of the second part, his heirs and assigns, all that tract or parcel of land lying and being in {description). To' have and to hold the said premises, together with all and singular the rights, members, and appurtenances thereof to the same belonging or in any wise appertaining, to the only proper use, benefit, and behoof of , the said party of the second part, his heirs and assigns forever, in fee simple. And the said party of the first part, for himself and his heirs, executors, and administrators, will warrant and forever defend the right and title to the above-described property unto the said party of the second part, his heirs and assigns, against the lawful claims of all persons whomsoever. In witness whereof the said party of the first part has here- unto set his hand and affixed his seal the day and year above written. 538 FORM BOOK (Ch. 1 4 HAWAII Husband and Wife No sale or mortgage of the real estate of a married woman is valid without the written consent of her Husband. Rev. Laws 1905, § 2251. IDAHO In General A fee-simple title is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser estate was intended. Rev. Codes, § 3112. From the word "grant" in any conveyance by which an estate of inheritance, possessory right, or fee simple is to be passed the following covenants, and none other, on the part of the grantor, for himself and his heirs, to the grantee, his heirs and assigns, are implied, unless restrained by express terms: (1) That previous to the time of the execution the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee; (2) that such estate is at the time of the execution free from incumbrances done, made, or suffered by the grantor, or any person claiming under him. Ibid. § 3120. Husband and Wife All property of the wife owned by her before marriage, or acquired afterwards by gift, bequest, or descent, or that which she shall acquire with the proceeds of her separate property, is her sole and separate property. Ibid. § 2676. She has the absolute power of disposition of her separate property, and may bargain, sell, and convey her real and personal property. Ibid. § 2677. All property owned by the husband before marriage, and that acquired by gift, bequest, devise, or descent, is his sep- arate property. Ibid. § 2679. All other property acquired after marriage by either husband or wife, including the rents and profits of the separate prop- erty of the husband and wife, is community property, unless by the instrument by which any such property is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and separate use, in which case the manage- ment and disposal of such rents and profits belong to the wife,. Ch. 14) DEEDS B39 and they are not liable for the debts of the husband. Ibid. § 2680. The husband has the management and control of the community property, with the like absolute power of dis- position (other than testamentary) as he has of his separate estate; but such power of disposition does not extend to the homestead or that part of the common property occupied or used by the husband and wife as a residence. Ibid. § 2686. No estate is allowed the husband as tenant by curtesy on the death of his wife, nor any estate in dower to the wife on the death of her husband. Ibid. § 2687. No estate in the homestead of a married person, or in any part of the community property occupied as a residence by a married person, can be conveyed or incumbered by act of the party, unless both husband and wife join in the execution of the instrument, and it be acknowledged by the wife in the man- Tier prescribed (ante, p. 37). Ibid. § 3106. No estate in the Teal prof>erty of a married woman passes by a grant or convey- ance purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed (ante, p. 37), and her husband, if a resident of the state, joins with her in the execution. Ibid. § 3107. If he has not been a bona fide resident at any time within the year ■next preceding her conveyance, she may convey her separate real property, or any interest therein, by an instrument in writ- ing, subscribed and acknowledged by her in the manner pre- scribed (ante, p. 37). Ibid. § 3108. A power of attorney of a married woman, authorizing the transfer of an estate in her separate real property, has no validity until acknowledged by her in the manner prescribed (ante, p. 38), and her husband, if a resident of the state, join therein ; but, if he has not been a Tjona fide resident of the state at any time within one year next preceding the execution of the power, she may execute the isame alone, as provided for the execution by her of convey- ances when her husband is a nonresident. Ibid. § 3109. Forms A conveyance of an estate in real property may be made by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing. Ibid. § 3105. An attorney in fact must subscribe the name of his principal to the instrument, and his own name as attorney in fact. Ibid. § 3110. All distinctions between sealed and un- healed instruments are abolished. Ibid. § 3319. 540 FORM BOOK (Ch. 14 WarTeinty Deed This indenture, made this day of , between , of , the party of the first part, and , of -, the party of the second part : Witnesseth that the said party of the first part, for and in consideration of the sum of dollars, of the Unit- ed States of America, to him in hand paid by the said party of the second part, the receipt whereof is hereby aclaiowledged, has granted, bargained, and sold, and by these presents doth grant, bargain, sell, convey, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all the fol- lowing described real estate, situated in county, state of Idaho, to wit (description). Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise apper- taining, the reversion and reversions, remainder and remain- ders, rents, issues, and profits thereof, and all estate, right, title, and interest in and to the said property, as well in law as in eq- uity, of the said party of the first part. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the party of the second part, and to his heirs and assigns for- ever. And the said party of the first part, and his heirs, the said premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against the said party of the first part, and his heirs, and against all and ever}' person and persons whomsoever lawfully claiming or to claim the same, shall and will warrant and by by these presents for- ever defend. In witness, etc. Ch. 14) DEEDS 541 ILLINOIS In General A deed, mortgage, or other conveyance in writing, signed and sealed by the party making the same, is sufficient to convey all the estate specified. Kurd's Rev. St. 1911, c. 30, § 1. A scrawl by way of seal is sufficient. Ibid. c. 29, § 1. In deeds whereby any estate of inheritance in fee simple is limited to the grantee and his heirs or other legal representa- tives, the words "grant," "bargain," and "sell" are express, cov- enant to the grantee, his heirs and other legal representatives, that the grantor was seised of an indefeasible estate in fee simple, free from incumbrances done or suffered from the grantor, except the rents and services that may be reserved, and for quiet enjoyment against the grantor, his heirs and as- signs, unless limited by express words. Ibid. c. 30, § 8. Every estate granted or conveyed is a fee-simple estate of inheritance, if a less estate be not limited. Ibid. § 13. Husband and Wife The estate of curtesy is abolished. The surviving husband or wife is endowed of the third part of all the lands whereof the deceased spouse was seised of an estate of inheritance at any time during the marriage, unless relinquished in legal form. Equitable estates and real estate contracted for by the deceased spouse, the title of which may be completed, are sub- ject to dower. Ibid. c. 41, § 1. A married woman above the age of 18, may convey her lands by joining with her husband in the conveyance. Ibid. c. 30, § 18. As to homestead and acknowledgment, ante, p. 42. Forms D'eeds for the conveyance of land (warranty deeds) and quitclaim deeds may be substantially in the following forms (Ibid. c. 30, §§ 9, 10): Warranty Deed (Statutory Form) The grantor {here insert name' or names and place of resi- dence), for and in consideration of (here insert consideration) in hand paid, conveys and warrants to {here insert the gran- 542 FORM BOOK (Ch. 14 tee's name or names) the following described real estate {here insert description), situated in the cotinty of , in the state of Illinois.'' Dated this day of , A. D. 19—. A. B. {L. S) Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple, to the grantee, his heirs or assigns, with covenants on the part of the grantor: (1) That at the time of the making and delivery of such deed he was lawfully seised of an in- defeasible estate in fee simple in and to the premises therein described, and had good right and full power to convey the same ; (2) that the same were then free from all incumbrances ; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed. Ibid, c. 30, § 9. Quitclaim Deed (Statutory Form) The grantor {here insert grantor's name or names and place of residence), for the consideration of {here insert considera- tion), convey and quitclaim to {here insert grantee's name or names) all interest in the following described real estate {here insert description), situated in the county of , in the state of Illinois.^ Dated this day of — , A. D. 19—. A. B. {L. S) Every deed in substance in the form prescribed in this sec- tion when otherwise duly executed, shall be deemed and held a good and sufficient conveyance, release, and quitclaim to the 1 If the deed releases the right of homestead, add: "Hereby releas- ing and waiving all rights under and by virtue of the homestead exemption laws of the state of Illinois." Ante, p. 4.2. 8 See note 7, supra. Ch. 14) DEEDS 543 grantee, his heirs and assigns, in fee of all the then existing legal or equitable rights of the grantor in the premises therein described, but shall not extend to after-acquired title unless words are added expressing such intention. Ibid. § 10. INDIANA In General Although several of the sections referred to below in terms provide that conveyances shall be sealed, a seal, except for a corporation, is not requisite. Burns' Ann. St. 1908, § 4042. Conveyances of lands or of any interest therein shall be by deed in writing subscribed (sealed) and duly acknowledged by the grantor or by his attorney, except bona fide leases for a term not exceeding three years. Ibid. § 3947. No convey- ance by attorney is good unless the attorney be empowered by instrument in writing, subscribed (sealed) and acknowledged by his principal as the conveyance is required to be. Ibid. § 3948. A deed of release or quitclaim passes all the estate which the grantor could convey by a deed of bargain and sale. Ibid. § 3955. It is not necessary to use the words "heirs and assigns of the grantee" to create an estate of inheritance; and, if it be the intention to convey a lesser estate, it shall be so expressed. Ibid. § 3960. Husband and Wife A married woman need not acknowledge in any other form than if single. Ibid. § 3971. A married woman under 21 years whose husband is of the age of 21 may join with him in the conveyance of his real es- tate, under such regulations as are prescribed in such cases for married women of the age of 21. Ibid. § 3976. A married woman under the age of 21, her husband being of full age, may convey or mortgage her separate real estate with the con- sent of the judge of the circuit court of the judicial circuit where she and her husband reside, the husband joining therein. Ibid. 3977-3978. A married woman may join in a power of attorney with h'er husband for the conveyance or mortgage of lands. Ibid. § 3984. 544 FORM BOOK (Ch. 14 Forms — Warranty Deed Any conveyance of lands worded in substance as follows: "A. B. conveys and warrants to C. D. (here describe the prem- ises), for the sum of {here insert the consideration)" — ^being dated and duly signed and acknowledged by the grantor, shall be deemed and held to be a conveyance in fee simple to the grantee, his heirs and assigns, with covenant from the grantor for himself and his heirs and personal representatives that he is lawfully seised of the premises, has good right to convey the same, and guarantees the quiet possession thereof; that the same are free from all incumbrances; and that he will warrant and defend the title to the same against all lawful claims. Ibid. § 3958. Same — Quitclaim Deed Any conveyance of lands worded in substance as follows: "A. B. quitclaims to C. D. {here describe the premises), for the sum of {here insert the consideration)" — being duly signed and acknowledged by the grantor, shall be deemed to be a good and sufficient conveyance in quitclaim to the grantee, his heirs and assigns. Ibid. § 3959. IOWA In General Seals, other than corporate, are not required. Code 1897, § 3068. Witnesses are not required. See Ibid. § 2926. The term "heirs" or other technical words of inheritance are not necessary to convey an estate in fee simple. Ibid. § 2913. Every conveyance passes all the interest of the grantor, un- less a contrary intent can be reasonably inferred from the terms used. Ibid. § 2914. Husband and Wife A married woman may convey or incumber any real estate belonging to her to the same extent and in the same manner as other persons. Ibid. § 2919. Dower and curtesy are abol- ished; but each spouse must join in a conveyance by the other of his or her real property, or otherwise relinquish his or her statutory right therein. Every conveyance made by a husband and wife is sufficient to pass all right of either in the property Ch. 14) DEEDS 545 conveyed, unless the contrary appears on the face of the con- veyance. Ibid. § 2920. No conveyance or incumbrance of the homestead is vaHd unless the husband and wife join in exe- cution of the same joint instrument. Ibid. § 2974. Forms The four following forms are given by statute, and they or other equivalent forms, varied to suit the circumstances, are sufficient for the purposes therein contemplated (Ibid. § 2958) : For a Quitclaim Deed For the consideration of dollars, I hereby quitclaim to A. B. all my interest in the following tract of real estate {describing it). . For a Deed in Fee Simple without Warranty For the consideration of dollars, I hereby convey to A. B. the following tract of real estate (describing it). For a Deed in Fee with Warranty The same as the last preceding form, adding the words: "And I warrant the title against all persons whomsoever" (or other words of warranty, as the party'may desire). For a Mortgage The same as deed of conveyance, adding the following: "To be void upon condition that I pay," etc. Ibid. § 2958. TiFP.FoBMS — 35 546 FORM BOOK (Ch. 14 Warranty Deed — Another Form Know all men by these presents that , of , in consideration of the sum of dollars in hand paid by , of , do hereby sell and convey unto the said , the following described premises situated in the county of , and state of Iowa, to wit (description). And the said hereby covenanted with the said that hold said premises by good and perfect title ; that ha — good right and lawful authority to sell and con- vey the same ; that they are free and clear of all liens and in- cumbrances whatsoever. And covenant to warrant and defend the title to the said premises against the lawful claims of all persons whomsoever. And the said hereby relinquishes all contingent rights, including all right of dower, homestead, or dis- tributive share in and to the above described premises. Signed the day of , A. D. 19—. Quitclaim Deed — Another Form Know all men by these presents that , of , in consideration of the sum of dollars in hand paid by , of do hereby release, remise, and quitclaim un- to the said all right, title, and interest in and to the following described premises, situated in the county of , and state of Iowa, to wit (description). And the said hereby relinquishes all contingent rights, including dower, homestead, or distributive share, in and to the above-described premises. Signed, etc. Ch. 14) DEEDS 547 KANSAS In General Conveyances of land or of any other estate or interest therein may be made by deed, executed by any person having authority to convey the same, or by his agent or attorney, and may be acknowledged and recorded as herein directed, without other act or ceremony. Gen. St. 1909, § 1654. All deeds or other conveyances of lands, or of any estate or in- terest therein, shall be subscribed by the party granting the same, or by his lawful agent or attorney, and may be acknowl- edged or proved and certified in the manner herein prescribed. Ibid. § 1658. The use of private seals, except of corpora- tions, is abolished. Ibid. § 1643. As to execution without the state in conformity with the laws of the place, ante, p. 47. The term "heirs" or other words of inheritance are not necessary to create or convey an estate in fee simple; and every conveyance passes all the estate of the grantor, unless the intent to pass a less estate expressly appears or is neces- sarily implied in the grant. Ibid. ,§ 1651. Any corporation may convey lands by deed, sealed by the common seal of the corporation, and signed by its president, vice president, or presiding member or trustee ; and such deed, when acknowledged by such officer to be the act of the cor- poration, or proved in the manner provided for other convey- ances, may be recorded. Ibid. § 1757. Husband and Wife Dower and by curtesy are abolished. Ibid. § 2961. The property which a woman owns at her marriage, or which comes to her by descent or devise, or the gift of any person except her husband, remains her sole and separate property. Ibid. § 4872. She may bargain, sell, and convey her property as a married man may in relation to his property. Ibid. § 4873. A homestead shall not be alienated without the joint consent of husband and wife. Ibid. § 3646. Forms — Warranty Deed Any conveyance of lands worded in substance as follows: "A. B. conveys and warrants to C. D. (here describe the prem- ises), for the sum of (here insert the consideration)" — the said conveyance being dated, duly signed, and acknowledged by 54:8 FORM BOOK (Ch. 14 the grantor, shall be deemed and held a conveyance in fee simple to the grantee, his or her heirs and assigns, with cove- nants from the grantor, for himself and his heirs and per- sonal representatives, that he is lawfully seised of the prem- ises, has good right to convey the same, and guarantees the quiet possession thereof, that the same are free from all in- cumbrances, and he will warrant and defend the same against all lawful claims. Ibid. § 1652. Same — Quitclaim Deed Any conveyance of lands worded in substance as follows: "A. B. quitclaims to C. D. (here describe the premises), for the sum of (here insert the consideration)" — the said convey- ance being duly signed and acknowledged by the grantor, shall be deemed to be a good and sufficient conveyance in quitclaim to the grantee, his heirs and assigns. Ibid. § 1653. KENTUCKY In General The owner may convey any interest in lands not in the ad- verse possession of another ; but no estate of inheritance or freehold, or for a term of more than one year, shall be con- veyed, unless by deed or will. St. 1909, ,§ 490. No seal or scroll is required, except for corporations. Ibid. § 471. Unless a different purpose appear, every estate created is deemed a fee-simple or such other estate as the grantor had power to dispose of. Ibid. § 2342. All deeds of bargain and sale, deeds to stand seised to use, deeds of release, and deeds of trust shall vest the possession of the grantor in the grantee to the extent of the estate in- tended to be conveyed. Ibid. § 491. A deed of release is effectual for the purposes therein expressed without the ex- ecution of a lease. Ibid. § 492. A covenant by a grantor in a deed "that he will warrant the property hereby conveyed," or words of like import, or the words "with warranty" or "with general warranty," have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, would forever warrant and defend the said property unto the grantee, his heirs, personal representatives, and assigns, against the claims and demands of all persons whatever. A covenant by a grantor "that he Ch. 14) DEEDS 549 will warrant specially the property thereby conveyed," or words of like import, or the words "with special warranty," have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, would forever war- rant and defend the said property unto the grantee, his heirs, personal representatives, and assigns, against the claims and demands of the grantor and all persons claiming or to claim by, through, or under him. Ibid. § 493. Husband and Wife Dower and curtesy exist. Ibid. §§ 2132, 2138. Married women may convey any real estate which they own, or in which they have an interest, legal or equitable, in posses- sion, reversion, or remainder. Ibid. § 505. The conveyance may be by the joint deed of husband and wife, or by separate instrument; but in the latter case the husband must first con- vey, or have theretofore conveyed. Acts 1910, c. 82, § 4. A married woman may by agent convey any interest she may have in real estate which she could 'convey in person. Such conveyance must be made in virtue of a power of attorney executed and acknowledged or proven as deeds by married women are required to be. Ibid. § 6. Forms All deeds of conveyance and mortgages of any interest in real estate equal to or greater than a life estate must, as a con- dition to record, plainly specify and refer to the next immedi- ate source from which the grantors derived title. If such source be a deed or other recorded writing, the deed offered for record shall refer thereto and give the date, and the office, book, and page of record. If the title be obtained by inheri- tance or in any other way then by recorded writing, the deed offered for record shall state clearly and accurately how and from whom the title was obtained. If the title be obtained from two or more sources, the deed shall specify each and show which part of the property or interest was obtained from each. Ibid. § 495. 550 FOEM BOOK (Ch. 14 Warranty Deed This deed of conveyance, made and entered into this day of 19 — , between , of , party of the first part, and , of , party of the second part, wit- nesseth : That the party of the first part, for and in considera- tion of the sum of dollars paid by the said party of the second part, the receipt whereof is hereby acknowledged, doth hereby sell and convey to the party of the second part, his heirs and assigns, the following described property, to wit (de- scription), being the same property conveyed to the party of the first part by , by deed dated the day of , 19 — , and recorded in the office of the County Court in deed book No. , page . To have and to hold the same, together with all the appurtenances thereunto belonging, unto the party of the second part, his heirs and assigns forever. And the party of the first part hereby covenants with the party of the second part that he will warrant the title to the property hereby conveyed unto the party of the second part and his heirs and assigns forever. In testimony whereof, the party of the first part has here- unto subscribed his name the day and year first aforesaid. LOUISIANA In General Instruments affecting real estate must be in writing. R. C. C. 2275. To have effect as against third persons, they must be registered in the proper public offices in the parish where the property is situated. R, C. C. 2262 and 2264. Husband and Wife Every contract by a married woman in Louisiana, whether the same be a contract of sale, or any other contract, must have the authorization of the husband, and this authorization is Ch. 14) DEEDS 551 necessary, even though the wife is separate in estate from the husband. R. C. C. 122. If the husband refuses to empower the wife, the wife may cause him to be cited before the judge of her domicile, who may authorize her to make such a con- tract, or refuse to empower her, after the husband has been heard. R. C. C. 125. On the other hand, the husband in no event needs the assistance of his wife in any contract involving his separate property or that of the community of acquets and gains which exists between himself and his wife. He is con- sidered as the head and master of the community, and is au- thorized to sell, mortgage, or hypothecate the real estate of the community which exists between him and his wife, at his pleasure, without the concurrence, sanction or assistance of his wife. R. C. C. 2404. The wife's intervention is necessary, however, in cases where she has recorded matrimonial, dotal or paraphernal rights against her husband. R. C. C. 129. Forms All sales of immovable property shall be made by authentic act or by act under private signature. R. C. C. 2440. An authentic act is one passed before a notary public, or other officer authorized to execute such functions, in the presence of two witnesses, aged at least fourteen years, or of three wit- nesses if the party be blind. R. C. C. 2234. The authentic act is full proof of the agreement contained in it against the contracting parties, their heirs and assigns, unless it be declared to be a forgery. R. C. C. 2236. An act under private signature does not make proof in itself until such time as the signatures thereto are proved. However, an act under private signature can be given the same effect as that of an authentic act provided it is acknowledged by the parties before a notary public (or other officer authorized to take oaths) and two witnesses. R. C. C. 2242. The deed of sale should be signed by both vendor and pur- chaser. The Supreme Court of Louisiana has held, however, that where the sale is a cash sale it need not be signed by the purchaser. If authentic deeds are passed in another state, involving real estate in Louisiana, they may be passed before a notary public or Louisiana commissioner, in the presence of two witnesses, at least 14 years of age; in a foreign country such acts may be passed before an ambassador, minister, consul, etc. (ante, p. 550), without the assistance of such witnesses. If the acts be 552 FORM BOOK (Ch. 14 passed under private signature in another state or country, they should be acknowledged before such notary public or com- missioner, and two witnesses, or such ambassador, minister, consul, etc., in order to give to them the same effect as au- thentic acts. However, such an acknowledgment is not ab- solutely necessary, as the act under private signature is bind- ing upon the parties to it. The only effect of such an acknowl- edgment is to give to it the dignity of an authentic act and dis- pense with proof of the signatures thereto. The editor is indebted to Mr. Theodore A. Schuber, of the New Orleans bar, for the following forms, as well as for the form of mortgage (post, p. 900), and for this statement of the Louisiana law. Sale by Married Woman (Notarial Act) United Statbs of America, State oe Louisiana, Parish of Orleans. Be it known that on this twelfth day of the Month of July, in the year of our Lord one thousand nine hundred and fif- teen, before me, Theodore A. Schuber, a notary public, duly commissioned and qualified, in and for this city of New Or- leans, and the parish of Orleans, therein residing, and in the presence of the witnesses hereinafter named and undersigned, personally came and appeared Mrs. Elizabeth Berley, wife of August Faber, herein duly aided, authorized, and assisted by her said husband, both of lawful age, and residents of New Orleans, parish of Orleans, La., who declare that she does by these presents grant, bargain, sell, convey, transfer, assign, set over, abandon, and deliver, with all legal warranties and with full substitution and subrogation in and to all the rights and actions of warranty which she has or may have against all preceding owners and vendors, unto James Smith, also of lawful age, and a resident of New Orleans, La., here present, accepting, and purchasing for himself, his heirs and assigns. Ch. 14) DEEDS 553 and acknowledging due delivery and possession thereof, all and singular the following described property, to wit: a cer- tain lot of ground, together with the buildings and improve- ments thereon, and all the appurtenances thereunto belonging, situate in the First district of this city, designated by the let- ter "C," in square No. 382, bounded by Erato, Clio, South Robertson, and Freret streets, on the sketch annexed to an act passed before Felix J. Dreyfeus, notary pubHc of this city, of date March 29, 1909, made by C. Uncas Lewis, deputy city surveyor, and according to which said sketch said lot lies at a distance of sixty-six feet, eleven inches, and two lines from the corner of Erato and Freret street, and measures twenty-nine feet, eight inches front on Erato street, same width in the rear by a depth of one hundred and twenty feet, between equal and parallel lines. Being the same property acquired by the vendor herein, by purchase from Henry James, as per act passed before the un- dersigned notary on June 27, 1910, registered C. O. B. 265, folio 78, and recorded in M. O. B. 948, folio 149. To have and to hold the above-described property unto the said purchaser, his heirs and assigns forever. This sale is made and accepted for and in consideration of the price and sum of five thousand dollars ($5,000.00) cash, which the said purchaser has well and truly paid in ready and current money to the said seller herein, who hereby acknowl- edges the receipt thereof and grants full acquittance and dis- charge therefor. All state and city taxes up to and including the taxes due and exigible in 1914 are paid as per city and state ta;x research- es hereto annexed. All taxes for the year 1915 are assumed by the purchaser herein. By reference to the certificates of the register of convey- ances and recorder of mortgages in and for the parish of Or- 554 FORM BOOK (Ch. 14 leans, annexed hereto, in the name of the present vendor, it does not appear that said property has been heretofore aHen- ated by the said vendor or that it is subject to any incumbrance whatever. According to certificates from the United States district and circuit courts hereto attached, there appears to be no unsatis- fied judgments standing in those courts against the present vendor.* The vendor herein declared on oath that she has been mar- ried but once, and at that time to her present husband, who joins her in this act. The purchaser herein declared on oath that he has never been married. Thus done and passed in my office at New Orleans, La., on the day, month, and year herein first above written, in the presence of Messieurs Edgar M. Cahn and Wm. F. Conkerton, competent witnesses; who hereunto sign their names with the said appearers, and me notary, after reading of the whole. Mrs. Elizabeth Berley Faber, August Faber, to authorize, assist and aid my wife. James Smith. Witnesses : 1. Edgar M. Cahn, 2. Wm. F. Conkerton. Theodore A. Schuber, Notary Public. (Seal.) Credit Sale (Notarial Act) (Begin as in preceding form) personally came and appeared August Faber, of lawful age, and a resident of New Orleans, La., who declared that he does by these presents, grant, bar- gain, sell, convey, transfer, assign, set over, abandon, and de- liver, with all legal warranties and with full substitution and Ch. 14) DEEDS 555 subrogation in and to all the rights and actions of warranty which he has or may have against all preceding owners and vendors, unto James Smith, also of lawful age, and a resident of New Orleans, La., here present, accepting and purchasing for himself, his heirs and assigns, and acknowledging due de- livery and possession thereof, all and singular the foUowmg described property, to wit (description). To have and to hold the above-described property unto the said purchaser, his heirs and assigns forever. This sale is made and accepted for and in consideration of the price and sum of five thousand dollars ($5,000.00), in part payment and deduction whereof the said purchaser has well and truly paid, in ready and current money, the sum of one thousand dollars ($1,000.00) to the said seller herein, who hereby acknowledges the receipt thereof and grant full acquit- tance and discharge therefor. And for the balance of said purchase price to wit, the sum of four thousand dollars ($4,000.00), the said purchaser has furnished his two (2) promissory notes each for the sum of two thousand dollars ($2,000.00), dated this day, and payable at New Orleans, La., in one and two years after date, respec- tively, payable to his own order and by himself indorsed, which said notes stipulate to bear interest at the rate of seven per cent, per annum from date until paid, and, after having been paraphed "Ne Varietur" by me, notary, to be herewith identified, were delivered to. the said vendor, who hereby ac- knowledges the receipt thereof. The purchaser hereby binds himself to keep the buildings on above-described property constantly insured against the risk of loss by fire, and to transfer such insurance to the present vendor or any other holder or holders of above-described notes up to the full amount of such notes. Said purchaser hereby authorizing said vendor, or any future holder or hold- 556 FORM BOOK (Ch, 14 ers of abpve-described notes to cause said insurance to be ef- fected on his default, at a premium not exceeding three per cent. And in case it should become necessary to institute suit for the recovery of the amount of said notes or any part thereof, the said purchaser hereby binds and obligates himself to pay the fees of the attorney at law who may be employed for that purpose, which fees are hereby fixed at ten per cent, on the amount sued for. And now, in order to secure the full and punctual payment of the said notes at maturity, together with all interest, costs, attorney's fees, and premiums of insurance, special mortgage and vendor's lien and privilege are hereby retained and granted in favor of said vendor and of all future holder or holders of said notes on the property herein conveyed, which the said purchaser binds himself not to sell, alienate, or in any wise incumber to the prejudice of this act. And here the said purchaser declares that he does by these presents consent, agree, and stipulate that, in the event of said promissory notes and not being punctually paid at their ma- turity, it shall be lawful for, and he does hereby authorize, the said vendor, or any other holder or holders thereof, to cause all and singular the said hereinbefore described and herein conveyed and mortgage property to be seized and sold (after due process of law) without appraisement, to the highest bid- der, payable cash. The said James Smith hereby confessing judgment in favor of said vendor, or any future holder or holders of said note. All state and city taxes, up to and including the taxes due and exigible in 1914 {following preceding form to the *). The vendor herein declared on oath that he has been mar- ried but once, and at that time to Elizabeth Berley, who is still alive and living with him in this city and state. Ch. 14) DEEDS 557 The purchaser declared on oath that he has never been married. Thus done and passed in my office at New Orleans, La., on the day, month, and year herein first above written, in the pres- ence of Messieurs Edgar M. Cahn and Wm. F. Conkerton, competent witnesses, who hereunto sign their names with the said appearers, and me notary, after reading of the whole. Witnesses: August Faber, 1. Edgar M. Cahn, James Smith. 2. Wm. F. Conkerton. Theodore A. Schuber, Notary Public. (Seal.) Promissory Note to Accompany Above ' $2,000.00. New Orleans, La. July 12th, 1915. One year (1 yr.) after date I promise to pay to the order of myself, two thousand dollars ($2,000.00) at New Orleans, La., with interest at the rate of seven (7%) per centum per annum, from date until paid, for value received. {Signed) James Smith. {Endorsed) James Smith. If a deed is to be passed under private signature, it is neces- sary to omit the notarial preamble, and to change the conclu- sion in the foregoing acts, in conformity with the following : Act under Private Signature Be it known that I, , of lawful age, and a resident of the city of New Orleans, parish of Orleans, state of Loui- siana, do hereby sell, convey, transfer, set over, abandon, and 9 Across the face of the note should appear the following words and figures: "Ne varietur. To identify it with an act of sale and mortgage passed before me this day. New Orleans, July 12, 1915. (Signed) Theodore A. Schuber, Notary Public." The second note is similar, except that it is payable two years after date. 558 FORM BOOK (Ch. 14 deliver unto {description, etc., following substantially the preceding or other desired forms). Thus done and signed by the parties at the city of , state of , this day of , 19 — , in the pres- ence of the undersigned witnesses. {Signatures) Witnesses : {Acknowledgment?) Where either the vendor or the purchaser is absent, if the sale is by notarial act, the absent party may be represented by an attorney and agent under an express and special power of attorney, or the act may be passed also under private signa- tures, the vendor and purchaser severally signing and acknowl- edging with twO' witnesses in the respective states. If a mar- ried woman is a party to an act, and therefore needs the as- sistance and authorization of her husband, it seems that it is sufficient to obtain his written consent and authorization wher- ever he may be, which should be notarially acknowledged and annexed to the act ; and the officer passing the act should re- fer to the authorization of the husband as being made in writ- ing and in such and such a place, and acknowledged before the notary who attested it, and should annex it to his act. Special Power of Attorney to Represent Absent Pur- chaser under Notarial Act Know all men by these presents that I, , of the city of New Orleans, state of Louisiana, have constituted and ap- pointed, and do by these presents constitute and appoint, , also of this city of New Orleans, state of Louisiana, td be my true and lawful attorney in fact, general and special, giving and by these presents granting unto the said attorney full power and authority for me and in my name and behalf to represent me and act for me in the purchase and acquisition for my account of a certain piece of real estate situated in the Ch. 14) DEEDS 559 city of New Orleans, La., and bearing the municipal No. 1626 street, belonging to , and more particularly de- scribed as follows {description). The sale of said above-described property is to be made to me on the consideration that I assume and bind and obligate myself to pay the outstanding mortgage against said property, which is for the sum of $1,800.00, and which mortgage is in favor of , of New Orleans, L,a., and is recorded in M. O. B. • , folio . To pass, sign, and execute all acts and deeds for the pur- pose aforesaid, and generally to do and perform all and every other act, matter, and thing whatsoever as shall or may be requisite and necessary as fully, amply, and effectually, and to all intents and purposes with the same validity, as if all and every such act, matter, or thing were or had been herein particularly stated, expressed, and specially provided for, or as he could or might do if personally present, also with full power of substitution and revocation, hereby agreeing to rat- ify and confirm all and whatsoever the said attorney shall law- fully do or cause to be done by virtue hereof. And said attorney is specially authorized to bind and obli- gate me for the payment of the outstanding mortgage of $1,800.00 against said property above referred to, which as- sumption is to constitute the consideration of the sale. Witness my hand and seal at on this day of , 1915. (Signature.) Witnesses : (Acknowledgment.) 560 FORM BOOK (Ch. 14 MAINE Tn General No estate greater than a tenancy at will can be granted, as- signed, or surrendered, unless by writing signed by the grantor or maker, or his attorney. Rev. St. 1903, c. 75, § 13. A deed of release or quitclaim of the usual form conveys the estate, which the grantor has and can convey by a deed of any other form. Ibid> § 17. Husband and Wife A married woman relinquishes her right by descent or other- wise by joining in her husband's deed, or by separate deed. A joint deed conveys her estate in which the husband has an interest. Ibid. § 17. Forms A seal is necessary. One witness is usual, but none is re- quired, except to a deed when not acknowledged. See Rev. St. 1903, c. 75, § 21. Warranty Deed Know all men by these presents that , of , in consideration of paid by , the receipt whereof do hereby acknowledge, do hereby give, grant, bargain, sell, and convey unto the said , heirs and as- signs forever, a certain lot or parcel of land (description). To have and to hold the aforegranted and bargained prem- ises, with all the privileges and appurtenances thereof, to the said , heirs and assigns, to and their use and behoof forever. And do covenant with the said grantee — , ■ heirs and assigns, that lawfully seised in fee of the premises ; that they are free of all incumbrances ; that ■ have good right to sell and convey the same to the said grantee — to hold as aforesaid; and that and • heirs shall and will warrant and defend the same to the said Ch. 14) DEEDS 561 grantee — , heirs and assigns forever, against the law- ful claims and demands of all persons. In witness whereof the said and , wife of the said , joining in this deed as grantor — , and relinquish- ing and conveying right by descent and all other rights in the above-described premises, have hereunto set hand — and seal — this day of , A. D. 19 — . Quitclaim Deed (With Covenant) (Begin as in preceding) do hereby remise, release, bargain,. sell and convey and forever quitclaim unto the said ,. — heirs and assigns forever, (description). To have and to hold the same, together with all the privi- leges and appurtenances thereunto belonging, to , the said , heirs and assigns, forever. And do covenant with the said , heirs and. assigns, that ^ will warrant and forever defend the prem- ises to the said grantee — , heirs and assigns for- ever, against the lawful claims and demands of all persons- claiming by, through, or under . In witness whereof (as in preceding). MARYLAND In General No estate of inheritance or freehold, or any declaration or limitation of use, or any estate above seven years, shall pass or take effect unless the deed conveying the same be executed,, acknowledged, and recorded as herein provided. Code Pub. Civ. Laws 1910, art. 21, § 1. As to acknowledgments, ante,, p. 51. All deeds conveying real estate which contain the names of the grantor and grantee, or bargainor and bargainee, a consideration where a consideration is necessary to the valid- ity of a deed, and a description of the real estate sufficient to identify the same with reasonable certainty, and the interest or estate intended thereby to be conveyed, are sufficient, if execut- TiFF.FORMS— 36 562 FORM BOOK (Ch. 14 ed, acknowledged, and recorded as herein required. Ibid. § 9. Every deed conveying real estate shall be signed and sealed by the grantor or bargainor and attested by at least one witness. Ibid. § 10. No words of inheritance are necessary to create an estate in fee simple, but every conveyance of real estate is construed to pass a fee-simple estate, unless a contrary intention appears. Ibid. § 11. The word "grant," the phrase "bargain and sell," in a deed, or any other words purporting to transfer the whole estate of the grantor, are construed to pass to the grantee the whole interest and estate of the grantor in the lands therein mentioned, unless there be limitations or reservations showing, by implication or otherwise, a different intent. Ibid. § 12. Every deed shall be recorded within six months from its date, in the county or city in which the land lies. Ibid. § 13. Every deed of real property, when acknowledged and recorded, takes effect as between the parties thereto from its date. Ibid. § 14. Where there are two or more deeds conveying the same lands or chattels real, the deed or deeds first recorded shall be preferred, if made bona fide and upon good and valuable consideration. Ibid. § 16. Deeds, except mortgages, may be recorded after the time prescribed, and when so recorded have, as against the grantor, etc., purchasers with notice, and cred- itors who become so after the recording, the same validity as if recorded within the time. Ibid. § 19. Husband and Wife A married woman may relinquish her dower by the joint deed of herself and husband or by her separate deed, or she may authorize an agent or attorney to relinquish the same by a power of attorney executed jointly with her husband or by herself without the joinder of her husband. A husband may relinquish his interest in the real estate of his wife by joint or separate deed, or may authorize an agent or attorney to relinquish the same by a power of attorney executed jointly with his wife or by himself without the joinder of his wife. Ibid. art. 45, § 12. Forms The following forms, or forms to like effect, are sufficient, and any covenant, limitation, restriction, or proviso allowed by law may be added, annexed, or introduced. Ibid. art. 21, Ch. 14) DEEDS 563 § 66. Any other forms conforming to the rules hereinbefore laid down, or to the rules of law, are sufficient. Ibid. § 67. Deed Conveying Fee Simple (Statutory) This deed, made this day of , in the year by me {here insert the name of the grantor), witness- eth that, in consideration of (here insert consideration), I, the said , do grant unto {here insert the name of the gran- tee) all that {here describe the property). Witness my hand and seal. {Seal.) Test: A. B. Ibid. art. 21, § 54. Form where Married Woman is Party (Statutory) This deed, made this day of , in the year , by us, and , his wife, witnesseth that, in consideration of , we, the said and his wife, do grant unto . Witness our hands and seals. {Seal.) Test: A. B. Ibid. § 55. Form Conveying Estate for Life (Statutory) This deed, made this day of , in the year , by me, , witnesseth that, in consideration of , I, the said , do grant unto , to hold during his life and no longer. Witness my hand and seal, {Seal.) Test: A. B. Ibid. § 56. 564 FORM BOOK (Ch. 14 Trustee's Deed under a Decree (Statutory) This deed, made this day of , in the year , by me, , trustee, witnesseth, whereas, by a decree of (here insert style of court), passed on (here insert day of decree), in the case v. — , I, the said , was appointed trustee to sell the land decreed to be sold, and have sold the same to , who has fully paid the purchase money therefor: Now, therefore, in consideration of the premises, I, the said , do grant unto all the right and title of all the parties to the aforesaid cause, in and to (describe property). Witness my hand and seal, (Seal.) Test: A. B. Ibid. § 59. Executor's Deed (Statutory) This I deed, made this day of , in the year , witnesseth that I, , executor of the last will of , late of — — — county, deceased,^ under a power in said will contained, in consideration of the sum of , have bar- gained and sold to all that parcel of land (here describe ihe land as described in the report of the e.vecutor to the court). Witness my hand and seal. (Seal) Test: A. B. Ibid. § 61. When in a deed conveying real estate the words "the said covenants" are used, such words shall have the same effect as if the covenant was expressed to be by the covenantor for himself, his heirs, devisees, and personal representatives, and shall be deemed to be with the grantee in the deed, his heirs, devisees, and personal representatives and assigns. Ibid. Ch. 14) DEEDS 565 •§ 72. A covenant by the grantor "that he will warrant gen- erally the property hereby conveyed" has the same effect as if the grantor had covenanted that he, his heirs, devisees, and personal representatives, will forever warrant the said prop- erty unto the grantee, his heirs, devisees, and assigns, against the claims and demands of all persons whomsoever. Ibid. § 73. A covenant by a grantor "that he will warrant specially the property hereby conveyed" shall have the same effect as if the grantor had covenanted that he, his heirs, devisees, and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, devisees, and per- sonal representatives and assigns, against the claims and de- mands of the grantor and all persons claiming or to claim hy, through, or under him. Ibid. § 74. As to particular cov- enants, see Ibid. §§ 75-79. MASSACHUSETTS * In General A deed executed and delivered by the person or by the attorney of the person who has authority therefor, sub- ject to the limitations of section 4, is sufficient to convey land. R. L. 1902, c. 127, § 1. A deed of quitclaim and release is sufficient to convey all the estate which could lawfully be con- veyed by a deed of bargain and sale. Ibid. c. 127, § 2. A con- veyance in fee simple, fee tail, or for life, or a lease for more than seven years, is not valid except as against the grantor or lessor, etc., and persons having actual notice, unless record- ed. Ibid. c. 127, § 4. Husband and Wife A married woman may bar her right of dower in land which is conveyed by her husband or by operation of law by joining in the deed conveying the land and therein releasing her right to dower, or by releasing the land by a subsequent deed ex- ecuted either separately or jointly with her husband. Ibid. c. 132, § 5. The husband should join in the wife's deed of her real property. Husband and wife may make conveyances of real estate to each other, except by way of mortgage, as if un- married ; but no such conveyance shall have any effect until the deed is duly acknowledged and recorded. Acts 1912, c. 304. 566 FOKM BOOK (Ch. 14 Forms The following forms may be used and are sufficient. They may be altered as circumstances may require, and other forms may be used. Acts 1912, c. 502, § 1. A seal is necessary, and a scroll is not sufficient. A witness is unnecessary, except to prove an unacknowledged deed in certain cases. R. L. c. 127, § 15. Statute Form, Warranty Deed , of , county (being unmarried), for consideration paid, grant to -, of , with warranty covenants, the land in (description and incumbrances, if any). , wife of said grantor, release to said grantee all rights of dower and homestead and other interests therein. Witness hand and seal this day of . (Acknowledgment.) (Seal.) Every deed in substance in the above form, when duly ex- ecuted, shall have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use, with covenants on the part of the grantor for himself, his heirs, executors, administrators, and successors, with the gran- tee, his heirs, successors, and assigns, that at the time of the delivery of such deed: (1) He was lawfully seised in fee sim- ple of the granted premises ; (2) that the granted premises were free from all incumbrances ; (3) that he had good right to sell and convey the same to the grantee and his heirs and assigns ; and (4) that he will, and his heirs, executors, and ad- ministrators shall, warrant and defend the same to the grantee and his heirs and assigns against the lawful claims and de- mands of all persons. Acts 1912, c. 502, § 2. Ch. 14) DEEDS 567 Statute Form, Quitclaim Deed , of , county (being unmarried), for consideration paid, grant to , of , with quitclaim covenants, the land in (description and incum- brances, if any). , wife of said grantor, release to said grantee all rights of dower and homestead and other interests therein. Witness hand and seal this day of . (Acknowledgment.) (Seal.) Every deed in substance in the above form, when duly ex- ecuted, shall have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use, with covenants on the part of the grantor for himself and his heirs, executors, administrators, and successors, with the gran- tee and his heirs, successors, and assigns, that at the time of the delivery of such deed the premises were free from all in- cumbrances made by him, and that he will, and his heirs, ex- ecutors, and administrators shall, warrant and defend the same to the grantee and his heirs and assigns forever against the lawful claims and demands of all persons claiming by, through, or under the grantor, but against none other. Ibid. c. 502, § 3. Statute Form, Deed of Executor, Administrator, Trustee, Guardian, or Conservator , executor of the will of (or, administrator of the estate of ; or, trustee under ; or, guardian of ; or conservator of ), by the power confer- red by , and every other power, for dollars paid, grant to the land in (description). Witness hand and seal this day of . (Acknowledgment.) (Seal.) Ibid. c. 502, § 4. 568 FORM BOOK (Ch. 14r Statute Form, Release , of , county, for consideration paid,. release to , of , the land in (description). , wife of said , release to said all • rights of dower and homestead and other interests. therein. Witness hand and seal this day of . (Acknowledgment.) (Seal.) Ibid. c. 502, § 5. For the purpose of avoiding the unnecessary use of words in instruments executed or delivered after this act takes effect in forms like or other than the foregoing, the following rules and definitions are made applicable to all such instruments re- lating to real property (Acts 1912, c. 502, § 13) : The word "grant" shall be a sufficient word of conveyance without the use of the words "give, bargain, sell, and convey," and no cov- enant shall be implied from the use of the word "grant." Ibid, c. 502, § 14. When a conveyance or devise of real property is made to a grantee or devisee to a use intended to be executed by the statute of uses, the word "use" shall be employed in declaring the use, and provisions introduced by the words "in trust," or other expressions that might otherwise create uses,, shall be deemed to create trusts, and not uses. If no use is declared in a conveyance or devise of real property, the same shall take effect as if it were expressed to be for the use of the grantee or devisee. Ibid. c. 502, § 15. In a conveyance the words "warranty covenants" shall have the full force, mean- ing, and effect of the following words : "The grantor, for himself and his heirs, executors, administrators, and succes- sors, covenants with the grantee and his heirs, successors,, and assigns that he is lawfully seised in fee simple of the granted premises ; that they are free from all incumbranc- es ; that he has good right to sell and convey the same ; and that he will, and his heirs, executors, administrators^ and successors shall, warrant and defend the same to the grantee and his heirs, successors, and assigns forever against the lawful claims and demands of all persons." Ibid. c. 502, § 16. The words "quitclaim covenants" or the words "limited covenants" shall have the full force, meaning, and Ch. 14) DEEDS 569 effect of the following words : "The grantor, for himself and his heirs, executors, administrators, and successors, covenants ■with the grantee and his heirs, successors, and assigns that the granted premises are free from all incumbrances made by the grantor, and that he will, and his heirs, executors, admin- istrators, and successors shall, warrant and defend the same to the grantee and his heirs, successors, and assigns forever against the lawful claims and demands of all persons claiming by, through, or under the grantor, but against none other." Ibid. c. 502, § 17. In a conveyance or reservation of real property the terms "heirs," "assigns," or other technical words of inheritance shall not be necessary to convey or reserve an estate in fee. A deed or reservation of real property shall be construed to convey or reserve an estate in fee simple, unless a different intention clearly appears in the deed. Ibid. c. 502, § 19. In a conveyance of real property all rights, easements, privileges, and appurtenances belonging to the granted estate shall be included in the property conveyed and passed by the conveyance, unless the contrary shall be stated in the deed, and it shall not be necessary to enumerate or mention them either generally or specifically. Ibid. c. 502, § 21. Forms In Common Use — Warranty Deed Know all men by these presents that I, , of , in the state of , in consideration of dollars (or, one dollar and other valuable considerations) to me paid by of , the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said all that parcel of land situate in said , and bounded as follows, etc. To have and to hold the granted premises, with all the rights, easements, and appurtenances thereto belonging, to the said , his heirs and assigns, to his and their own use and be- hoof forever. And I do hereby, for myself and my heirs, executors, and .administrators, covenant with the said grantee, his heirs and assigns, that I am lawfully seised in fee of the granted prem- ises; that they are free from all incumbrances; that I have 570 FORM BOOK (Ch. 14 good right to sell and convey the same as aforesaid ; and that I will, and my heirs, executors, and administrators shall, war- rant and defend the same to the said grantee, his heirs and as- signs forever, against the lawful claims and demands of all persons. And for the consideration aforesaid I, , of , wife of the said , do hereby release unto the grantee and his heirs and assigns all rights of or to both dower and home- stead in the granted premises. In witness whereof we, the said and , hereun- to set our hands and seals this day of , 19 — . Same — Quitclaim Deed (with Covenants) Know all men by these presents that I, , of , in the state of , in consideration of dollars to me paid by ■ — ■ , of , the receipt whereof is hereby ac- knowledged, do hereby remise, release, and forever quitclaim unto the said all that parcel of land situate in said , and boimded as follows, etc. To have and to hold the granted premises, with all the privi- leges and appurtenances thereto belonging, to the said , and his heirs and assigns, to their own use and behoof forever. And I do hereby, for myself and my heirs, executors, and administrators, covenant with the said grantee and his heirs and assigns that the granted premises are free from all incum- brances made or suffered by me, and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said grantee and his heirs and assigns forever against the lawful claims and demands of all persons claiming by, through, or under me. And for the consideration atoresaid 1 {concluding as in pre- ceding form). Ch. 14) DEEDS 571 MICHIGAN In General Conveyances of lands or of any estate or interest therein may be made by deed, signed and sealed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or attorney, and acknowledged or proved and recorded. C. L. § 8956. A scroll or device used as a seal has the effect of a seal, but this does not apply to official seals. Ibid. § 9005. Deeds executed within the state of lands, or any interest in lands therein, shall be executed in the presence of two witnesses, who shall subscribe their names to the same as such. C. L. § 8962, as amend. Pub. Acts 1905, No. 103. Deeds executed in another state, territory, or dis- trict of the United States may be executed according to the laws thereof. C. L. § 8963. The officer taking an acknowledg- ment should certify that the deed is executed and acknowledg- ed according to such law. Ibid. § 8964. As to acknowledg- ments, ante, p. 54. A deed of quitclaim and release, of the form in common use, is sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain and sale. Ibid. § 8957. No covenant is implied in any conveyance of real estate. Ibid. § 8959. No deed, mortgage, or other instrument required to be ac- knowledged, affecting the title to lands or any interest there- in, shall be recorded, unless witnessed and acknowledged or proved. Ibid. § 9013. It is not necessary to use the words "heirs and assigns of the grantee" to create in the grantee an estate of inheritance ; and, if it be the intention to convey any lesser estate, it shall be so expressed. Ibid. § 9016. Husband and Wife A married woman residing within the state may bar her right of dower in any estate conveyed by her husband by join- ing in the deed of conveyance and acknowledging the same, or by joining with her husband in a subsequent deed, or by deed executed by the wife alone to one who has theretofore acquired and then holds the husband's title: ■ Provided, the intent to bar her right of dower shall be expressed in the deed. Ibid. § 8930. When a married woman not residing in the 572 FORM BOOK (Ch. 14r state joins with her husband in any conveyance of real estate situated within the state, the conveyance has the same effect as if she were sole, and the acknowledgment or proof of the execution may be the same as if she were sole. Ibid. § 8968. Forms — Warranty Deed (Statutory) Any conveyance of lands worded in substance as follows: "A. B. conveys and warrants to C. D. {here describe the prem- ises), for the sum of {here insert the consideration)" — the said conveyance being dated and duly signed, sealed, and acknowl- edged by the grantor, shall be deemed and held to be a convey- ance in fee simple to the grantee, his heirs and assigns, with covenant from the grantor for himself and his heirs and per- sonal representatives that he is lawfully seised of the prem- ises, has good right to convey the same, and guarantees the quiet possession thereof ; that the same are free from all in- cumbrances; and that he will warrant and defend the title to the same against all lawful claims. Ibid. § 9014. Same — Quitclaim Deed (Statutory) Any conveyance of lands worded in substance as follows : "A. B. quitclaims to C. D. {here describe the premises), for the sum of {here insert the consideration)" — the said convey- ance being duly signed, sealed, and acknowledged by the gran- tor, shall be deemed to be a good and sufficient conveyance in Cjuitclaim to the grantee, his heirs and assigns. Ibid. § 9015. MINNESOTA In General No estate or interest in lands, other than leases for a term- not exceeding one year, shall be created, granted, assigned, or surrendered, unless by operation of law, or by deed or con- veyance in writing, subscribed by the parties creating, grant- ing, etc. G. S. 1913, § 7002. All conveyances made within the state of any interest in lands therein must be executed in the presence of two subscribing witnesses. Such conveyances made out of the state may be so executed as above, or accord- ing to the laws of the place of execution. Ibid. § 6833. As to proof of such execution, ante, p. 56. , To entitle any convey- ance, power of attorney, or other instrument affecting real Ch. 14) DEEDS 573 estate to record, it must be executed and acknowledged by the parties (ante, p. 57). Ibid. § 6835. A corporation may convey by an attorney appointed by resolution of its directors or governing board, a copy of which, certified by its clerk or secretary, may be filed for record. Ibid. § 6826. A deed of quitclaim and release is sufficient to pass all the estate which the grantor could convey by deed of bar- gain and sale. The word "heirs" or other words of inheritance are not necessary to create or convey an estate in fee simple. Ibid. § 6827. Except as provided in section 6828, infra, no covenant is implied in any conveyance or mortgage. Ibid. § 6829. Husband and Wife The surviving spouse "has an undivided one-third of all lands of the other to the disposition of which such survivor has not consented in writing, subject to certain exceptions. Ibid. § 7238. A husband or wife by their joint deed may convey the real estate of either. Either, by separate deed, may convey any real estate owned by him or her, except the homestead, sub- ject to the rights of the other therein ; and either may by sepa- rate conveyance relinquish his or her rights in the real estate so conveyed by the other. Subject to the foregoing, either may separately appoint an attorney to sell or convey any real estate owned by him or her, or to join in any conveyance made by or for the other. The wife's minority does not invalidate a con- veyance executed by her. Ibid. § 6814. A wife is bound by her covenants. Ibid. § 7144. As to acknowledgments, ante, p. 55. No alienation of the homestead is valid without the signature of both husband and wife. Ibid. § 6961. Forms Warranty and quitclaim deeds may be substantially in the following forms : Warranty Deed (Statutory) A. B., grantor of {here insert the place of residence), for and in consideration of {here insert the consideration), conveys and warrants to C. D., grantee, of {here insert the place of resi- 574 FORM BOOK (Ch. 14 dence), the following described real estate in the county of , in the state of Minnesota {here describe the premises). Dated this day of , 19 — . {Signature.) Every such instrument, duly executed, is a conveyance in fee simple of the premises described to the grantee, his heirs and assigns, with covenants on the part of the grantor, his heirs and personal representatives: (1) That he is lawfully seised of the premises in fee simple, and has good right to convey the same ; (2) that the premises are free from all in- cumbrances ; (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession thereof ; (4) and that he will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall be obligatory upon any grantor, his heirs and personal representa- tives, as if written at length in such deed. Ibid. § 6828. Quitclaim Deed (Statutory) A. B., grantor, of {here insert the place of residence), for the consideration of {here insert, the consideration), conveys and quitclaims to C. D., the grantee, of {here insert the place of residence), all interest in the following described real estate in the county of , in the state of Minnesota {here de- scribe the premises). Dated this day of , 19 — ■. {Signature) Every such instrument, duly executed, is a conveyance to the grantee, his heirs and assigns, of all right, title, and in- terest of the grantor in the premises described, but it does not extend to after-acquired title, unless words expressing such in- tention be added. Ibid. § 6828. MISSISSIPPI In General Any interest in or claim to land may be conveyed, to vest immediately or in the future, by writing signed and delivered. Code 1906, § 2762. The use of private seals is dispensed with, except as to corporations. Ibid. § 4631. Every estate granted or conveyed is deemed a fee simple if Ch. 14) DEEDS 575 a less estate be not limited. Ibid. § 2764. A conveyance of quitclaim and release is sufficient to pass all the estate or in- terest of the grantor and estops him and his heirs from assert- ing a subsequently acquired adverse title. Ibid. § 2767. The words "grant, bargain, sell" operate as an express cove- nant to the grantee, his heirs and assigns, that the grantor was seised of an estate, free from incumbrance made or suffered by the grantor, except the rents and services that may be reserved, and also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express word contained in the conveyance ; and the grantee, his heirs, executors, ad- ministrators, and assigns, may, in any action, assign breaches as if the covenants above mentioned were expressly asserted. Ibid. § 2769. The word "warrant," without restrictive words, in a conveyance, has the eflfect of embracing all of the five covenants known as common law, to wit, seisin, power to sell, freedom from incumbrance, quiet enjoyment, and warranty of title. Ibid. § 2817. The words "warrant specially" con- stitute a covenant that the grantor, his heirs and personal rep- resentatives, will forever warrant and defend the title of the property unto the grantee and his heirs, representatives, and assigns, against the claims of all persons claiming by, through, or under the grantor. Ibid. § 2818. A conveyance without any warranty operates to transfer the title and possession of the grantor as a quitclaim and release. Ibid. § 2819. Husband and Wife Married women have the same capacity to dispose of all prop- erty as if not married. Ibid. § 2517. Dower and curtesy, ex- cept where the estate vested prior to November 1, 1880, are abolished. Ibid. § 2519. Conveyances of the homestead must be by joint deed. Forms A conveyance of land may be in the following form, and is as effectual to transfer all the right, title, claim, and possession of the person making it as can be done by any sort of convey- ance: 576 FORM BOOK (Ch. 14 Warranty Deed (Statutory) In consideration of (here state it), I convey and warrant to • the land described as {describe it). Witness my signature the day of , A. D. If only a special warranty is intended, add the word "spe- cially" to the word "warrant" in the conveyance. Ibid. § 2816. Deed of Trust or Mortgage (Statutory) A deed "of trust or mortgage may be in the form of a con- veyance to the words "Witness my signature" at the end, and then as follows : "In trust to secure (here state what it is to se- cure and all the necessary prpvisions). In witness, etc." Ibid. § 2820. ^ Quitclaim Deed State op Mississippi, ' County. In consideration of dollars, I hereby convey to the land in said county and state described as (descriptioti). Witness my signature, etc. MISSOURI In General Conveyances of lands or of any estate or mterest therein may be made by deed executed by any person having author- ity to convey the same, or by his agent or attorney, and ac- knowledged and recorded. Rev. St. 1909, § 2787. A witness is not necessary. Private seals are abolished. Ibid. § 2773. All deeds or other conveyances shall be subscribed by the party granting the same, or by his lawful agent, and acknowledged •or proved and certified. Ibid. § 2792 ; ante, p. 59, The words "grant, bargain, and sell," in all conveyances in which any estate of inheritance in fee simple is Hmited, shall, ^ unless restrained by •expressed terms, be construed to be the Ch. 14) DEEDS 577 following expressed -covenants on the part of the grantor, for himself and his heirs to the grantee, his heirs and assigns : First, that the grantor was at the time of the execution of such conveyance seised of an indefeasible estate, in fee simple, in the real estate thereby granted; second, that such real estate was at the time of the execution of such conveyance free from incumbrances done or suiTered by the grantor or any person under whom he claims ; third, for further assurances of such real estate to be made by the grantor and his heirs to the gran- tee and his heirs and assigns — and may be sued upon in the same manner as if such covenants were expressly inserted in the conveyance. Ibid. § 2793. Husband and Wife A husband and wife may convey the real estate of the wife, and she may relinquish her dower in his real estate, by their joint deed acknowledged and certified as herein provided. Any covenant expressed or implied in any deed conveying property belonging to the wife shall bind the wife and her heirs. No covenant in any deed conveying property belonging to the wife shall bind the husband, nor shall any covenant in any deed conveying the property of the husband bind the wife, except so far as may be necessary to effectually convey from the husband or wife, so joining therein, and not owning the property, all the right, title, and interest expressed to be conveyed therein : Provided, however, that where the property conveyed is owned by the husband and wife as an estate by the entirety, then both shall be bound by the covenants therein expressed or implied. Ibid. § 2788. The husband is debarred from selling, mortgaging, or alienating the homestead. The husband and wife may jointly convey, mortgage, alienate, or in any other manner dispose of the homestead. Ibid. § 6704. Warranty Deed This indenture, made on the day of , A. D. 19 — , by and between , of , part — of the first part, and , of , part — of the second part : Witnesseth that the said part — of the first part, in consider- ation of the sum of dollars to paid by the said TIFF.FOBMS — 37 578 FOEM BOOK (Ch. 14 part — of the second part, the receipt of which is hereby ac- knowledged, do — by these presents grant, bargain and sell, convey, and confirm unto the said part — of the second part, heirs and assigns, the following described lots, tracts, or parcels of land, lying, being, and situate in the county of , and state of Missouri, to wit (description). To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances, and immunities thereto belonging or in any wise appertaining, unto the said part — of the second part, and iinto heirs and assigns forever ; the said hereby covenanting that law- fully seised of an indefeasible estate in fee in the premises here- in conveyed ; that ha — good right to convey the same ; that the said premises are free and clear of any incumbrances done or suffered by or those under whom claim — ; and that will warrant and defend the title to the said premises unto the said part — - of the second part, and unto heirs and assigns forever, against the lawful claims and demands of all persons whomsoever. In witness whereof the said part — of the first part ha — hereunto set — hand — (and seal — ) the day and year first above written. Quitclaim Deed (Begin as in preceding) do — by these presents remise, release, and forever quitclaim unto the said part — of the second part (description). To have and to hold the same, with all the rights, immuni- ties, privileges, and appurtenances thereto belonging, unto the said part — of the second part, and heirs and assigns, forever, so that neither the said part — of the first part, nor heirs, nor any other person or persons for or in name or behalf, shall or will hereafter claim or demand Ch. 14) ; DEEDS 579 any right or title to the aforesaid premises, or any part thereof, .but they and every of them shall by these presents be excluded and forever barred. ; In witness, etc. MONTANA In General An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing subscribed by the party disposing of the same, or by his agent thereunto au- thorized by writing. Rev. Codes 1907, § 4612. A seal is not required. Ibid. § 5023. A fee-simple title is presumed to pass by a grant, unless it appears that a lesser estate was intended. Ibid. § 4619. From the word "grant" in any conveyance by which an estate of in- heritance or fee simple or possessory title is to be passed the following covenants,, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs and assigns, are implied, unless restrained by express terms contained in such conveyance : (1) That previous to the time of the execu- tion of such conveyance the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee; (2) that such estate is at the time of the execution of such conveyance free from incumbrances done, made, or suffered by the grantor or any person claiming under him. Such covenants may be sued upon in the same manner as if they had been expressly inserted in the convey- ance. Ibid. § 4627. Husband and Wife A married woman relinquishes dower by Joining with her husband in the conveyance. As to the effect of her convey- ance, ante, p. 62. The homestead of a married person cannot be conveyed or incumbered unless by an instrument executed and acknowledged by both husband and wife. Ibid. § 4699. 580 FORM BOOK (Ch. 14 Forms A grant of an estate in real property may be made substan- tially as follows : Grant (Statutory) I, A. B., in consideration of dollars now paid, grant to C. D. all the real property situated in (insert name of county) county, state of Montana, bounded (or, described) as follows (here insert description, or, if the land sought to be conveyed has a descriptive name, it may be described by the name, as, for instance, "the Norris Ranch"). Witness my hand this (insert day) day of (insert month), 18—. A. B. Ibid. § 4613. Warranty Deed (Common Form) This indenture, made the day of , A. D. 19 — , between , of , the parties of the first part, and , of , the party of the second part : Witnesseth that the said parties of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, to them in. hand paid by said party of the second part, the receipt whereof is hereby ac- knowledged, do by these presents grant, bargain, sell, convey warrant, and confirm unto the said party of the second part, and to his heirs and assigns forever, the hereinafter described real estate, situated in the city or town of , county of , and state of Montana, to wit (description). Together with all and singular the hereinbefore described premises, together with all tenements, hereditaments, and ap- purtenances thereto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, Ch. 14) DEEDS 581 issues, and profits thereof ; and also all the estate, right, title, interest, right of dower, and right of homestead, possession, claim, and demand whatsoever, as well in law as in equity, of the said parties of the first part of, in, or tO' the said premises and every part and parcel thereof, with the appurtenances thereto belonging, to have and to hold all and singular the above mentioned and described premises unto the said party of the second part, and to his heirs and assigns forever. And the said parties of the first part, and their heirs, do hereby covenant that they will forever warrant and defend all right, title, and interest in and to the said premises and the quiet and peaceable possession thereof unto the said party of the second part, his heirs and assigns, against the acts and deeds of the said parties of the first part, and all and every person and persons whomsoever lawfully claiming or to claim the same. In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first here- in before written. Signed, sealed, and delivered in the presence of. Quitclaim Deed (Common Form) (Begin as in preceding) do remise, release, and forever quitclaim unto the said party of the second part, and to his heirs and assigns, the following described real estate, situated in the , county of , and state of Montana, to wit (description), together with all the tenements, hereditaments, and appurtenances thereunto belonging, and the reversion and , reversions, remainder and remainders, rents, issues, and prof- its thereof ; and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part of, in or to the said premises and every part and parcel thereof. To have and to hold all and singular the said premises, with 582 FORM BOOK (Ch. 14 the appurtenances, itnto the said party of the second part, his heirs and assigns forever. In witness, etc. NEBRASKA In General Deeds of real estate or any interest therein, except leases for one year or less, must be signed by the grantor or grantors, being of lawful age, in the presence of at least one competent subscribing witness, and be acknowledged or proved and re- corded. Cobbey's Ann. St. 1911, § 10800. Private seals are abolished. Ibid. § 11850. Husband and Wife Dower and curtesy are abolished. Ibid. § 4904. A mar- ried woman may convey her real property as a married man. Ibid. §1 5318. The homestead of a married person cannot be conveyed or incumbered except by an instrument executed and acknowledged by both husband and wife. Ibid. § 6278. Warranty Deed Know all men by these presents that , of , for and in consideration of the sum of dollars in hand paid, do — hereby grant, bargain, sell, convey, and confirm unto , of , the following described premises . {descrip- tion). And do — hereby covenant with the said , and heirs and assigns, that lawfully seised of said premises; that they are free from incumbrance, that ha — good right and lawful authority to convey the same, and do — hereby covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever. And the said hereby relinquishes all in and to the above-described premises. In witness whereof, I have hereunto set my hand this day of . Ch. 14) DEEDS 583 Quitclaim Deed (Begin as in preceding) do hereby quitclaim and convey unto , of — ■■ [description). In witness, etc. NEVADA In General Conveyances may be made by deed, signed by the person from whom the estate or interest is intended t^ pass, being of lawful age, or by his lawful agent or attorney, and acknowl- edged or proved, and recorded. Rev. Laws, § 1017. A seal is not requisite. Ibid. § 1095. The term "heirs," or other words of inheritance, are not necessary to create or convey an estate in fee simple. Ibid. § 1056. The words "grant, bargain, and sell," in conveyances by which any estate of inheritance or fee simple is to be passed, shall, unless restrained by express terms contained in such con- veyances, be construed to be the following express covenants, and none other, on the part of the grantor, for himself and his heirs, to the grantee, his heirs and assigns : First, that previ- ous to the time of the execution of such conveyance the gran- tor has not conveyed the same real estate or any right, title, or interest therein to any person other than the grantee ; second, that such real estate is at the time of the execution of such con- veyance free from incumbrances done, made, or suffered by the grantor, or any person claiming under him, and such cove- nants may be sued upon in the same manner as if they had been expressly inserted in the conveyance. Ibid. § 1063.. Husband and Wife The husband has the entire management and control of the community property, with absolute power of disposition, ex- cept as hereinafter provided, as of his own separate estate: Provided, that no deed of conveyance or mortgage of a home- stead shall be valid unless both the husband and wife execute and acknowledge. Ibid. § 2160. No estate is allowed the hus- band as tenant by curtesy, nor any estate in dower to the wiffe. Ibid. § 2161. A husband or wife may hold as joint tenants, tenants in common, or as community property. Ibid. 584 FORM BOOK (Ch. 14 § 2162. The wife may, without the consent of her husband, convey, charge, incumber, or otherwise in any manner dispose of her separate property. Ibid. § 2163. A conveyance by a married woman has the same effect as if she were unmarried, and may be acknowledged in the same manner. Ibid. § 1018. As to homestead, supra. NEW HAMPSHIRE In General Real estate rnay be conveyed by deed executed by any per- son or by his attorney, acknowledged and recorded. Pub. St. 1901, c. 137, § 1. Any public or private corporation author- ized to hold real estate may convey the same by an agent ap- pointed by vote for that purpose. Ibid. c. 137, § 2. Every deed or other conveyance must be signed and sealed by the grantor, attested by two or more witnesses, acknowledged by the grantor, and recorded. Ibid. § 3. Husband and Wife A married woman of full age may convey her real estate. A married woman, though not of full age, may join with her husband in release of dower. A married man, though not of full age, may join with his wife in release of curtesy. Real estate may be conveyed directly by one to the other. Ibid. c. 176. § 3. Warranty Deed Know all men by these presents, that I, , of , for and in consideration of the sum of to me in hand be- fore the delivery hereof well and truly paid by , the re- ceipt whereof I do hereby acknowledge, have granted, bargain- ed, and sold, and by these presents do give, grant, bargain, sell, alien, enfeoff, convey, and confirm, unto the said , his heirs and assigns forever (description). To have and to hold the said granted premises, with all the privileges and appurtenances to the same belonging to the said , and his heirs and assigns, to his and their only proper use and benefit forever. And I, the said , and my heirs. Ch. 14) DEEDS 585 executors, and administrators, do hereby covenant, grant, and agree to and with the said , and his heirs and assigns, that until the delivery hereof I am the lawful owner of the said premises, and am seised and possessed thereof in my own right in fee simple, and have full power and lawful authority to grant and convey the same in manner aforesaid; that the premises are free and clear from all and every incumbrance whatsoever ; and that I, and my heirs, executors, and administrators, shall and will warrant and defend the same to the said , and his heirs and assigns, against the lawful claims and demands of any person or persons whomsoever. And I, , wife of the said , in consideration aforesaid, do hereby relinquish my right of dower in the be- fore mentioned premises. (And we and each of us do hereby release all rights of home- stead secured to us, or either of us, by chapter of the Public Statutes of New Hampshire, or any other statute of said state.) In witness whereof we have hereunto set our hands and seals this day of — , Quitclaim Deed with Covenants (Begin as in preceding) have remised, released, and forever quitclaimed, and by these presents do remise, release, and for- ever quitclaim, unto the said , heirs and assigns forever {description). To have and to hold the said premises, with all the privileges and appurtenances thereunto belonging, to the said , and his heirs and assigns forever; and I do hereby covenant with the said that I will warrant and defend the said prem- ises to the said , and his heirs and assigns, against the lawful claims and demands of any person or persons claiming by, from, or under me. 586 FORM BOOK (Ch. 14 And I, wife of said , for the consideration aforesaid, do hereby release my right of dower in said prem- ises. {Insert clause releasing homestead as in preceding if appli- cable.) In witness, etc. NEW JERSEY In General Every deed executed and delivered conveying lands shall, unless an exception be made therein, be construed to include all the estate, right, title, interest, use, possession, property, claim, and demand whatsoever, both in law and in equity, of the gran- tor (including the fee simple, if he had such an estate) of, in, and to the premises, with the appurtenances, and the word "heirs" shall not be necessary in any deed to effect the con- veyance of the fee simple. P. L. 1912, c. 293. Husband and Wife No estate or interest of a feme covert in any lands, tene- ments, or hereditaments shall pass by her deed or conveyance, without a previous acknowledgment made by her on a private examination, apart from her husband, that she signed, sealed, and delivered the same as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband, and a certificate thereof written on, or under, or annexed to the said deed or conveyance, and signed by the officer before whom it was made ; and every deed or ^conveyance so executed, ac- knowledged, and certified shall release and bar her right of dower, and every deed executed by her and so acknowledged and certified shall be effectual to convey or affect the lands, tenements, or hereditaments, or other property, or her interest therein, thereby intended to be conveyed or affected : Provided, that this clause shall not be construed to enable any feme cov- ert under the age of 21 years to convey or affect her lands, tenements, or hereditaments or other property, or any right of dower, interest, or estate therein : And provided, further, that this shall not apply to assignments or releases of mort- gages by married women of mortgages held by them in their own right. P. L. 1912, c. 110. Any deed of conveyance of the lands of any married woman acknowledged and delivered Ch. 14) DEEDS 587 by her in which her husband joins by attorney duly constituted by power of attorney executed by him authorizing such attor- ney to join in the conveyance of the lands of the wife shall be as good and effectual to pass the estate of the said married woman as if her husband had personally joined in the making, execution, and delivery of such deed. Comp. St. 1910, p. 1548, § 39a. Any conveyance made by virtue and in pursuance of any letter of attorney for the sale, conveyance, assurance, acquittance, or release of any lands, tenements, or heredita- ments or other property, or interest therein, executed by any married woman who joins with her husband in executing such letter of attorney, shall be as effectual to pass any inchoate right of dower or estate in dower or other estate or right of such married woman as if she were a feme sole and unmar- ried: Provided, such letter of attorney shall have been or be acknowledged, and such acknowledgment certified in the man- ner prescribed for the acknowledgment of deeds of conveyance by a married woman. Ibid. p. 1549, § 40. Form A scroll, or inl-c, or other device by way of a seal is suffi- cient. Ibid. p. 1540, § 20. One witness is usual, but unneces- sary. A deed may be made in the following form or to the same effect (Ibid. p. 1570, § 99): Deed (Statutory) This deed made the day of , in the year , between {here insert names and residence of parties) : Witnesseth that, in consideration of (here state the consider- ation), the said doth (or, do) grant and convey unto the said all, et cetera (here describe the property and insert covenants or any other provisions). In witness whereof the said part — of the first part ha — hereunto set hand and seal the day and year first above written. Signed, sealed, and delivered in the presence of Ibid. p. 1570, § 99. 58S FORM BOOK (Ch. M Such deed, unless an exception be made therein, shall be construed to include all the estate, right, title, interest, use, possession, property, claim, and demand whatsoever, both in law and equity, of the grantor (including the fee simple, if he have such estate) of, in, and to the said premises, with the ap- purtenances ; and the word "heirs" shall not b.e necessary in any such deed to effect a conveyance of the fee simple (Ibid, p. 1570, § 100), and to include all and singular the buildings, improvements, ways, woods, waters, water courses, rights, liberties, privileges, hereditaments, and appurtenances to the same belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part and parcel thereof (Ibid. p. 1570, § 101). Whenever in any deed there shall be used the words "the grantor {or, the said ) releases to the said grantee (or, the said ) all his claims upon the said lands," such deed shall be construed as if it set forth that "the grantor {or, re- leasor) hath remised, released, and forever quitclaimed, and by these presents doth remise, release, and forever quitclaim, unto the grantee {or, releasee), his heirs and assigns, all right, title, and interest whatsoever, both at law and in equity, in or to the lands and premises granted {or, released) or intended so to be, so that neither he, nor his personal representatives, his heirs or assigns, shall at any time thereafter have, claim, chal- lenge, or demand the said lands and premises, or any part thereof, in any manner whatever." Ibid. p. 1570, § 102. When a deed uses the words "the said covenants,'' such covenant shall have the same effect as if it was expressed to be by the covenantor, for himself, his heirs, personal repre- sentatives, and assigns, and shall be deemed to be the cove- nantee, his heirs, personal representatives, and assigns. Ibid. p. 1570, § 103. A covenant by the grantor in a deed "that he will warrant generally the property hereby conveyed" shall have the same effect as if the grantor has covenanted that he, his heirs and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, per- sonal representatives, and assigns, against the claims and de- mands of all persons whomsoever. Ibid. p. 1570, § 104. A covenant by any such grantor "that he will warrant spe- cially the property hereby conveyed" shall have the same ef- fect as if the grantor had covenanted that he, his heirs and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, personal representa- Ch. 14) DEEDS 589 tives, and assigns, against the claims and demands of the gran- tor and all persons claiming or to claim by, through, or under him. Ibid. p. 1571, § 105. The words "with general war- ranty," in the granting part of any deed, shall be deemed to be a covenant by the grantor "that he will warrant generally the property hereby conveyed." The words "with special warranty," in the granting part of any deed, shall be deemed to be a covenant by the grantor "that he will warrant specially the property hereby conveyed." Ibid. p. 1571, § 106. Common Form of Warranty Deed This indenture, made the day of , in the year of our Lord one thousand nine hundred and , between , of the of , in the county of , and state of , of the first part, and , of the of , in the county of , and state of , of the second part: Witnesseth that the said part — of the first part, for and in consideration of dollars, money of the United States of America, to in hand well and truly paid by the said part — of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said part — of the first part, therewith fully satisfied, contented, and paid, ha — given, granted, bargained, sold, aliened, released, enfeoffed, conveyed and confirmed, and by these presents do — give, grant, bargain, sell, alien, release, en- feoff, convey and confirm to the said part — of the second part, and to heirs and assigns forever, all tract — or parcel — of land and premises, hereinafter particularly de- scribed, situate, lying, and being in the of , in the county of , and state of New Jersey (description). Together with all and singular the houses, buildings, trees, ways, waters, profits, privileges, and advantages, with the ap- purtenances to the same belonging or in any wise appertaining ; also all the estate, right, title, interest, property, claim, and de- 590 FOEM BOOK (Ch. 14 mand whatsoever of the said part — of tlie first part of, in, and to the same, and of, in and to every part and parcel thereof, To have and to hold all and singular the above-described land and premises, with the appurtenances, unto the said part — of the second part, heirs and assigns, to the only proper use, benefit, and behoof of the said part — of the second part, heirs and assigns forever. And the said- do — for heirs, executors, and administrators covenant and grant to and with the said part — of the second part, heirs and assigns, that , the said , the true, lawful, and right owner — of all and sin- gular the above-described land and premises, and of every part and parcel thereof, with the appurtenances thereunto belong- ing, and that the said land and premises, or any part thereof, at the time of the sealing and delivery of these presents, are not incumbered by any mortgage, judgment, or limitation, or by any incumbrance whatsoever by which the title of the said part — of the second part, hereby made or intended to be made, for the above-described land and premises, can or may be changed, charged, altered or defeated in any way whatsoever; and also that the said part — of the first part now good right, full power, and lawful authority to grant, bargain, sell,' and convey the said land and premises in manner aforesaid; and also that will warrant, secure, and forever defend the said land and premises unto the said , heirs and as- signs forever, against the lawful claims and demands of all and every person or persons, freely and clearly freed and dis- charged of and from all manner of incumbrance whatsoever. In witness whereof the said part — of the first part ha — hereunto set hand — and seal — the day and year first above written. Ch. 14) DEEDS 591 Common Form of Quitclaim Deed (Begin as in preceding) : Witnesseth that the said party of the first part, in considera- tion of the sum of dollars to — duly paid before the delivery hereof, ha — remised, released, and forever quit- claimed, and by these presents do — remise, release, and forever quitclaim, to the said party of the second part, and to heirs and assigns, all tract — or parcel — of land and premises, hereinafter particularly described, situate, lying, and being in the of , in the county of , and state .of New Jersey (description), with the appurtenances and all the estate, right, title, and interest, of the said party of the first part therein, to have and to hold the above men- tioned and described premises, with the appurtenances, unto the said party of the second part, heirs and assigns for- ever. In witness whereof, etc. NEW MEXICO In General All conveyances of real estate shall be subscribed by the person transferring his title or interest therein or by his legal agent or attorney. Comp. Laws 1897, § 3942. No seal or scroll is necessary. Laws 1901, c. 62, § 11. The words, "bargained and sold," or words to the same ef- fect, in all conveyances of hereditary real estate, unless re- stricted in express terms on the part of the person conveying the same, himself and his heirs, to the person to whom the property is conveyed, his heirs and assignees, shall be limited to the following effect : First, that the grantor at the time of the execution of said conveyance is possessed of an irrevocable possession in fee simple to the property so conveyed ; second, that the said real estate at the time of the execution of said conveyance is free from all incumbrance made or suffered to 592 FORM BOOK (Ch. 14 be made by the grantor, or by any person claiming the same under him; third, for the greater security of the person, his heirs and assignees, to whom said real estate is conveyed by the grantor and his heirs, suits may be instituted the same as if the conditions were stipulated in the said conveyance. Comp. Laws 1897, § 3941. Husband and Wife There is no courtesy or dower. Laws 1907, c. 37, § 17. The wife may without the consent of her husband convey her separate property. Ibid. § 8. The husband has the manage- ment and control of the community property, but he cannot make a gift of or convey the same without a valuable con- sideration, unless the wife in writing consent thereto. No sale, conveyance, or incumbrance of the homestead, occupied and used as a home by the husband and wife, or which has been de- clared to be such by a written instrument signed and acknowl- edged by the husband and wife and recorded, shall be made without the written consent of the wife. Ibid. § 16. Forms None are prescribed. Warranty Deed This indenture, made this day of , in the year ^ -—i between , of the first part, and , of the second part : Witnesseth that the said part — of the first part, for and in consideration of the sum of dollars, of the United States of America, to in hand paid by the said part — of the second part, the receipt whereof is hereby con- fessed and acknowledged, do — hereby grant, bargain, sell, re- mise, convey, release, and confirm unto the said part — of the second part, heirs and assigns forever, all the following described lot — or parcel — of land and real estate situate in the county of , state of New Mexico, to wit {description), Ch. 14) DEEDS 593 together with all and singular the lands, tenements, heredita- ments, and appurtenances thereunto belonging or in any wise appertaining and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and all the es- tate, right, title, interest, claim, and demand whatsoever of the said part — of the first part, either in law or equity, of, ia, and to the above-bargained premises, with the heredita- ments and appurtenances. To have and to hold the said premises above bargained and described, with the appurtenances, unto the said part — of the second part, — ; heirs and assigns forever. And the said part of the first part, for heirs, executors and administrators, doth covenant and agree, to and with the said part — of the second part, heirs and assigns, that at the time of delivery of these presents well seised of the premises above conveyed, as of a good, sure, perfect, and indefeasible estate of inheritance, in law, in fee simple, and ha — good right, full power, and lawful authority to grant, bargain, sell, and convey the same in manner and form aforesaid, and that the same are free and clear from all for- mer and other grants, bargains, sales, liens, taxes, assessments, and incumbrances of what kind and nature soever; and the above-bargained premises in the quiet and peaceable posses- sion of the part— of the second part, heirs and as- signs, against all and every person or persons lawfully claim- ing or to claim the whole or any part thereof, the said part — of the first part shall and will warrant and forever defend. In witness whereof the said part — of the first part ha — hereunto set hand — the day and year first above writ- ten. Signed and delivered in presence of TiiT.FoEMs— 38 594 FORM BOOK (Ch. 14 NEW YORK In General An estate or interest in real property, other than a lease for not exceeding one year, or any trust or power, over or con- cerning real property, or relating thereto, cannot be created, granted, assigned, surrendered, or declared^ unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surren- dering, or declaring the same, or by his lawful agent, there- unto authorized by writing. Consol. Laws 1909, c. SO, § 242. A grant in fee or of a freehold estate must be subscribed by the person from whom the estate or interest conveyed is in- tended to pass, or by his lawful agent. If not duly acknowl- edged before its delivery, its execution and delivery must be attested by at least one witness, or, if not so attested, it does not take effect as against a subsequent purchaser or incum- brancer until so acknowledged. Ibid. § 243. To be entitled to record, a conveyance must state the resi- dence address of the purchaser. Laws 1910, c. 227. A grant of real property passes all the estate or interest of the grantor, unless the intent to pass a less estate or interest appears by the express terms or by necessary implication. Consol. Laws 1909, c. SO, § 245. The term "heirs" or other words of inheritance are, not necessary to create an estate in fee. Ibid. § 240. The private seal of a person, other than a corporation, con- sists of a wafer, wax, or other similar adhesive substance af- fixed thereto, or of paper or other similar substance affixed thereto, by mucilage or other adhesive substance, or of the word "Seal," or the letters "L. S.," opposite the signature. Ibid. c. 22, § 44. Husband and Wife A widow shall be endowed of the third part of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage. Ibid. c. 50, § 190. Construction of Deeds A covenant is not implied in a conveyance of real property, whether the conveyance contains any special covenant or not. Ibid. c. SO, § 251. Ch. 14) DEEDS . 595 In grants of freehold interests in real property the follow- ing or similar covenants must be construed as follows: 1. Seisin. — ^A covenant that the grantor "is seised of the said premises (described) in fee simple, and has good right to' con- vey the same," must be construed as meaning that such gran- tor, at the time of the execution and delivery of the convey- ance, is lawfully seised of a good, absolute, and indefeasible estate of inheritance in fee simple of and in all and singular the premises thereby conveyed, with the tenements, heredita- ments, and appurtenances thereto belonging, and has good right, full power, and lawful authority to grant and convey the same by the said conveyance. 2. Quiet Enjoyment. — A covenant that the grantee "shall quietly enjoy the said prem- ises" must be construed as meaning that such grantee, his heirs, successors, and assigns, shall and may at all times there- after peaceably and quietly have, hold, use, occupy, possess, and enjoy the said premises, and every part and parcel there- of, with the appurtenances, without any let, suit, trouble, mo- lestation, eviction, or disturbance of the grantor, his heirs, successors, or assigns, or any person or persons lawfully claiming or to claim the same. 3. Freedom from Incumbranc- es. — A covenant "that the said premises are free from incum- brances" must be construed as meaning that such premises are free, clear, discharged, and unincumbered of and from all former and other gifts, grants, titles, charges, estates, judgments, taxes, assessments, liens and incumbrances, of what nature or kind soever. 4. Further Assurance. — A cove- nant that the grantor will "execute or procure any further necessary assurance of the title to said premises" must be construed as meaning that the grantor, and his heirs or suc- cessors, and all and every person or persons whomsoever law- fully or equitably deriving any estate, right, title, or interest of, in, or to the premises conveyed by, from, under, or in trust for him or them, shall and will at any time or times there- after upon the reasonable request and at the proper costs and charges of the grantee, his heirs, successors, and assigns, make, do, and execute, or cause to be made, done, and ex- ecuted, all and every such further and other lawful and rea- sonable acts, conv ;yances, and assurances in the law for the better and more effectually vesting and confirming the prem- ises thereby granted or so intended to be in and to the grantee, his heirs, successors, or assigns forever, as by the grantee, his heirs, successors, or assigns, or his or their counsel learned in the law, shall be reasonably advised or required. 5. War- 596 . FORM BOOK (Ch. 14 ranty of Title. — A covenant that the grantor "will forever warrant the title" to the said premises must be construed as meaning that the grantor, and his heirs or successors, the premises granted, and every part and parcel thereof, with the appurtenances, unto the grantee, his heirs, successors, or as- signs, against the grantor and his heirs or successors, and against all and every person or persons whomsoever law- fully claiming or to claim the same, shall and will warrant and forever defend. 6. Grantor has not Incumbered. — ^A covenant that the grantor "has not done or suffered anything whereby the said premises have been incumbered" must be construed as meaning that the grantor has not made, done, committed, executed, or suffered any act or acts, thing or things whatsoever whereby or by means whereof the above mentioned and described premises, or any part or parcel there- of, now are, or at any time hereafter shall or may be, im- peached, charged, or incumbered in any manner or way what- soever. Ibid. c. SO, § 253. In any grant or mortgage of freehold interests in real es- tate, the words "together with the appurtenances and all the estate and rights of the grantor in and to said premises" must be construed as meaning together with all and singular the tenements, hereditaments, and appurtenances thereunto be- longing or in any wise appertaining, and the reversion and re- versions, remainder and remainders, rents, issues, and profits thereof, and also all the estate, right, title, interest, dower and right of dower, curtesy and right of curtesy, property, possession, claim, and demand whatsoever, both in law and in equity, of the said grantor of, in, and to the said granted premises and every part and parcel thereof, with the appur- tenances. Ibid. c. 50, § 255. In any deed by an executor of, or trustee under, a will, the words "together with the appurtenances, and also all the es- tate which the said testator had at the time of his decease in said premises, and also the estate therein which said grantor has or has power to convey or dispose of, whether individu- ally or by virtue of said will or otherwise," must be con- strued as meaning together with all and singular the tene- ments, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, both in law and equity, which the said testator had in his lifetime, and at the time of his Ch. 14) DEEDS 597 decease, or which the said grantor has or has power to con- vey or dispose -of, whether individually or by virtue of the said last will and testament or otherwise, of, in, and to the said granted premises and every part and parcel thereof, with the appurtenances. Ibid. c. 50, ,§ 256. Forms The following forms for the conveyance of real property are provided, but the use of other forms is not invalidated. Ibid. c. 50, § 258. _ Deeds of bargain and sale, and of lease and release, may continue to be used, and are to be deemed grants, subject to all the provisions of law in relation thereto. Ibid. c. 50, § 246. Deed with Full Covenants (Statutory Form) This indenture, made the day of , in the year nineteen hundred and , between , of (in- sert residence), of the first part, and , of (insert resi- dence), of the second part: Witnesseth that the said party of the first part, in consid- eration of dollars lawful money of the United States, paid by the party of the second part, doth hereby grant and release unto the said party of the second part, his heirs and assigns forever {description), together with the appurtenances and all the estate and rights of the party of the first part in and to said premises. ' To have and to hold the above-granted premises unto the said party of the ^cond part, his heirs and assigns forever. And the said party of the first part doth covenant with said party of the second part as follows: First. That the party of the first part is seised of said prem- ises in fee simple, and has good right to convey the same. Second. That the party of the second part shall quietly en- joy the said premises. Third. That the said 'premises are free from incumbrances. 598 FOEM BOOK (Ch. 14r Fourth. That the party of the first part will execute or pro- cure any further necessary assurance of the title to said prem- ises. Fifth. That the party of the first part will forever warrant the title to said premises. In witness whereof the said party of the first part hath hereunto set his hand and seal the day and year first above written. ■In presence of Ibid. § 258. Executor's Deed (Statutory Form) This indenture, made the day of , nineteen hundred and , between , as executor of the last will and testament of , late o£ , deceased, of the first part, and • — ■ , of the second part, witnesseth : That the said party of the first part, by virtue of the power and authority to him given in and by the said last will and testament, and in consideration of dollars, lawful mon- ey of the United States, paid by the said party of the second part, doth hereby grant and release unto the said party of the second part, his heirs and assigns forever (description), together with the appurtenances, and also all the estate which the said testator had at the time of his decease in said prem- ises, and also the estate therein, which the said party of the first part has or has power to dispose of, whether individually, or by virtue of said will or otherwise. To have and to hold the above-granted premises unto the said party of the second part, his heirs and assigns forever. And the said party of the first part covenants with said party of the second part that the party of the first part has not done or suffered anything whereby the said premises have been incumbered in any way whatever. Ch. 14) DEEDS 599 la witness whereof the said party of the first part has here- unto set his hand and seal the day and year first above writ- ten. In presence of Ibid. c. 50, § 258. Quitclaim Deed with Covenant against Grantor's Acts (Begin as in deed with full covenants, supra) doth hereby remise, release, and forever quitclaim unto the said party of the second part, his heirs and assigns forever (description), together with the appurtenances and all the estate and rights of the said party of the first part in and to the said premises, to have and to hold the above-described premises unto the said party of the second part, his heirs and assigns forever. And the said party of the first part doth hereby covenant with the said party of the second part that the said party of the first part has not done or suffered any thing whereby the above-described premises have been incumbered in any way whatever. In witness, etc, NORTH CAROLINA In General All deeds, contracts, or leases, before registration, must be acknowledged by the grantor, lessor, or the person executing the same, or their signatures proven on oath by one or more witnesses in the manner prescribed by law, and all deeds ex- ecuted and registered according to law are valid, and pass title and estates without livery of seisin, attornment, or other ceremony whatever. Revisal 1905, § 979. When real estate is conveyed to any person, it shall be construed a conveyance in fee, whether the word "heirs" is used or not, unless the conveyance shows that the grantor meant to convey a less estate. Ibid. § 946. 600 FOEM BOOK CCh. 14 Husband and Wife Every conveyance or other instrument affecting the estate, right, or title of a married woman must be executed by her- self and her husband, and proof or acknowledgment must be made as to the husband, and acknowledgment must be made by the wife, and her private examination touching her volun- tary assent to such instrument must be taken separate and apart from her husband. Ibid. § 952. The probate as to the husband and acknowledgment and private examination of the wife may be taken before different officers and at dif- ferent times and places, whether both officials reside in this state, or only one in this state and the other in another state or country. It is not material whether the execution of the instrument was proven as to or acknowledged by the husband before or after the acknowledgment and private examination of his wife. Ibid. § 953. When an instrument purports to be signed by a husband and wife, it may be ordered registered, if the acknowledgment of the husband is duly taken, whether the private examination of the wife is properly taken or not, but no such instrument shall be the act or deed of the wife, unless her private examination is taken according to law. Ibid. ,§ 954. No deed made by the owner of a homestead is valid without the voluntary signature and assent of his wife, signified on her private examination according to law. Const, art. 10, § 8 Warranty Deed State oif North Carolina, . County. This deed, made this day of ^-^, 19 — , by , of — - county, and state of , of the first part, to , of county, and state of , of the second part: Witnesseth that said , in consideration of dollars, to paid by , the receipt of which is hereby acknowledged, ha — bargained and sold, and by these presents do — grant, bargain, sell, and convey, to said , heirs and assigns, a certain tract or parcel of land in county, state of North Carolina, adjoining the lands of , and others, and bounded as follows, viz. (description). Ch. 14) DEEDS 601 To have and to hold the aforesaid tract or parcel of land, and all privileges and appurtenances thereto belonging, to the said , heirs and assigns, to only use and behoof forever. And the said , for sel — ■ and heirs, executors, and administrators, covenant — with said , heirs and assigns, that seised of said premises in fee and ha — right to convey in fee simple; that the same are free and clear from all incumbrances; and that do — hereby forever warrant and will forever defend the said title to the same against the claims of all persons whomsoever. In testimony whereof the said ha — hereunto set — hand — and seal — the day and year first above written. (Signatures and seals.) Attest: Quitclaim Deed State of North Carolina, County. Know all men by these presents that we, and , his wife, of , for divers good causes and considerations thereunto moving, and more particularly for dollars received of , have remised, released, and forever quit- claimed, and by these presents do, for ourselves and our heirs, executors, and administrators, justly and absolutely remise, release and forever quitclaim unto the said , and to his heirs and assigns forever, all such right, title, and interest as we, the said , and , his wife, have or ought to have in or to all that piece, parcel, tract, or lot of land lying in township, county, state of North Carolina, and described as follows : (Description.) To have and to hold the above-released premises unto him, said , his heirs and assigns, to his and their only proper 602 FORM BOOK (Ch.l4 use and behoof forever, so that neither we, nor either of us, nor any other person in our name and behalf, shall or will hereafter claim or demand any right or title to the premises, or any part thereof, but they and every of them shall by these presents be excluded and forever barred. In witness whereof we have hereunto set our hands and af- fixed our several seals this day of . NORTH DAKOTA An estate in real property other than at will or for a term not exceeding one year can be transfe'rred only by operation of law or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing. Rev. Codes 1905, § 4968. All distinctions be- tween sealed and unsealed instruments are abolished. Ibid. § 5338. A fee-simple title is presumed to be intended to pass by a grant of real property unless it appears that a lesser estate was intended. Ibid. § 4982. Husband and Wife A conveyance or other instrument executed by a married woman has the same effect as if she was unmarried, and may be acknowledged in the same manner. Ibid. § 5016. Dower and curtesy are abolished. Ibid. § 5188. Neither husband nor wife need join in a conveyance of land belonging to the other. The homestead of a married person cannot be con- veyed or incumbered unless the ' instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife. Ibid. § 5052. Corporations Any foreign or domestic corporation may in its by-laws em- power any one or more of its officers severally or conjointly to execute and acknowledge in its behalf conveyances, trans- fers, assignments, releases, satisfactions, or other instruments affecting liens upon, titles to, or interests in real estate. Ibid. § 4969. In the absence of any by-laws, the president or secre- tary of any corporation, and the president, secretary, treas- Ch. 14) DEEDS 603 urer, or cashier of any loan, trust, or banking corporation, may execute and acknowledge such instruments when author- ized by resolution of the board of directors. Ibid. § 4970. The signature of a corporation to any instrument mentioned in section 4969 shall be as follows : (full name of corporation), by (some oMcer author- ised by resolution of the by-laws of the corporation to execute and acknowledge such instrument). (official designation of person signing). . Secretary. Attest : (Seal.) Ibid. § 4972. Forms The execution of a grant of an estate in real property, if it is not duly acknowledged, must, to entitle it to be recorded, be proved by a subscribing witness or as otherwise provided. The absence of a seal does not invalidate or impair it. A grant of an estate in real property may be made in substance as follows: Grant (Statutory) This grant, made the day of in the year , between A. B., of , of the first part, and C. D., of , of the second part, witnesseth: That the party of the first part hereby grants to the party of the second part, in consideration of dollars now received, all the real property situated in , and bounded (or, described) as follows: . Witness the hand of the party of the first part. A. B. Ibid. § 4973. 604 FORM BOOK (Ch. 14 Warranty Deed (Common Form) This indenture, made this day of , A. D. 19 — , between , of , part — of the first part, and , of , part — of the second part: Witnesseth that the said part — • of the first part, for and in consideration of the sum of dollars to in hand paid by said part — of the second part, the receipt whereof is hereby acknowledged, do — ' by these presents grant, bar- gain, sell, and convey unto the said part — of the second part, heirs and assigns forever, all tract — or par- cel — of land lying and being in the county of , and state of North Dakota, and described as follows, to wit : (De- scription') To have and to hold the same, together with all the heredit- aments and appurtenances thereunto belonging or in any wise appertaining, to the said part — of the second part, heirs and assigns forever. And the said , part — of the first part, for sel— , heirs, executors, and ad- ministrators, do — covenant with the part — of the second part, heirs and assigns, that well seised in fee of the land and premises aforesaid, and ha — good right to sell and convey the same in manner and form aforesaid, that the same are free from all incumbrances , and the above- bargained and granted land and premises in the quiet and peaceable possession of said part — of the second part, ■ heirs and assigns, against all persons lawfully claiming or to claim the whole or any part thereof, the said part — of the first part will warrant and defend. In witness whereof the said part — of the first part here- unto set hand — the day and year first above written. Ch. 14) DEEDS 605 Quitclaim Deed (Common Form) (Begin as in preceding) do — grant, bargain, sell, release, and quitclaim to the said part — of the second part, heirs and assigns forever, all right, title, interest, claim, or demand in and to the following tract or parcel of land lying and being in the county of , and state of North Da- kota, and described as follows, to wit : (Description.) To have and to hold the above-quitclaimed premises, to- gether with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to the said part — of the second part, heirs and assigns forever. Tn witness whereof, etc. OHIO In General A deed, mortgage, or lease of any estate or interest in real property must be signed bylhe grantor, mortgagor, or lessor, and such signing be acknowledged by the grantor, mortgagor, or lessor in the presence of two witnesses, who shall attest the signing and subscribe their names to the attestation. Such signing also must be acknowledged by the grantor, mortgagor, or lessor. Gen. Code 1910, § 8510. Private seals other than corporate are abolished. Ibid. § 32. Husband and Wife A deed, mortgage, or lease of any estate or interest of a mar- ried person in real property must be signed, attested, acknowl- edged, and certified in the manner above prescribed. Ibid. § 8511. The husband and wife should join to release dower. See Ibid. § 8606. 606 FORM BOOK (Ch. 14 Warranty Deed Know all men by these presents: That I, of , in consideration of dollars, to paid by , of , the receipt whereof is here- by acknowledged, do hereby grant, bargain, sell, and convey to the said , his heirs, and assigns forever (description), and all the estate, title, and interest of the said grantor, either in law or equity, of, in, and to the said premises, together with all the privileges and appurtenances to the same belong- ing, and all the rents, issues, and profits thereof ; to have and to hold the same to the only proper use of the said , his heirs and assigns forever. And I, the said , for myself and my heirs, executors, and administrators, do hereby covenant with the said , his heirs and assigns, that I am the true and lawful owner of the said premises, and have full power to convey the same, and that the title so conveyed is clear, free, and unincum- bered ; and, further, that I do warrant and will defend the same against all claim or claims, of all persons whomsoever. In witness whereof I, the said , and , the wife {or, the husband) of the said , who hereby releases all her (or, his) right and expectancy of dower in the said prem- ises, have hereunto set our hands this day of . OKLAHOMA In General Males of 21 and females, of 18 years, otherwise qualified, and all persons upon whom the rights of majority have been con- ferred, and corporations, to the extent and in the manner au- thorized by law, owning real estate in Oklahoma, may mort- gage, convey, or otherwise dispose of, or make any contract relating to, the same or any interest therein. Persons of what- soever age, legally married and otherwise qualified, may dis- Ch. 14) DEEDS G07 pose of and make contracts relating to real estate acquired after marriage. Rev. Laws 1910, § 1140. No subscribing wit- ness is necessary to the validity of a deed or other instrument conveying, affecting, or relating to real estate. Ibid. § 1141. No such instrument, other than a lease for not exceeding one year, is valid until reduced to writing and subscribed by the grantors. Ibid. § 1143. Distinctions between sealed and un- sealed instruments are abolished. Ibid. § 944. Every estate in land granted or conveyed is deemed an estate in fee simple and of inheritance, unless limited by express words. Ibid. § 1175. Husband and Wife The husband or wife may convey, mortgage, or make any contract relating to any real estate, other than the homestead, belonging to him or her, without being joined by the other. Ibid. § 1152. No deed, mortgage, or contract relating to the homestead exempt by law, except a lease for not exceeding one year, is valid unless in writing and subscribed by both husband and wife, where both are living, and not divorced or legally separated, except to the extent hereinafter provided. Ibid. § 1143. See, also. Ibid. §§ 1145, 1146. Where the title to the homestead is in one of the spouses, and the other voluntarily abandons him or her for one year, or from any cause takes up his or her residence out of the state, the former may con- vey, mortgage, or make any contract relating thereto without being joined therein by the other. Ibid. § 1145. Corporations Every deed or other instrument affecting real estate made by a corporation must have the name of the corporation sub- scribed either by an attorney in fact or by the president or a vice president, and when made by a public corporation its name must be subscribed by the chief officer thereof. Ibid. § 1186. The instrument, except when executed by an attorney in fact, must be attested by the secretary or clerk with the cor- porate seal attached. Ibid. § 1187. 60S FOEM BOOK (Ch. 14 Forms A warranty deed may be substantially in the following form : Warranty Deed (Statutory) Know all men by these presents: That , part — of the first part, in consideration of the sum of dollars in hand paid, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell, and con- vey unto the following described real property and premises, situate in county, state of Oklahoma, to wit, , together with all the improvements thereon and the appurtenances thereunto belonging, and warrant the title to the same. To have and to hold said described premises unto the said part — of the second part, heirs and assigns forever, free, clear, and discharged of and from all former grants, charges, taxes, judgments, mortgages, and other liens and in- cumbrances of whatsoever nature; Signed and delivered this day of , 189 — . Ibid. § 1184. A warranty deed made in substantial compliance with the provisions of this chapter conveys to the grantee, his heirs or assigns, the whole interest of the grantor in the premises de- scribed, and is deemed a covenant on the part of the grantor that at the time of making the deed he is legally seised of an indefeasible estate in fee simple of the premises and has good right and full power to convey the same, that the same is clear of all incumbrances and liens, and that he warrants to the gran- tee, his heirs and assigns, the quiet and peaceable possession thereof, and will defend the title thereto against all persons who may lawfully claim the same ; and the covenants and war- ranty shall be obligatory and binding upon any such grantor, his heirs and personal representatives, as if written at length in such deed. Ibid. § 1162. Ch. 14) DEEDS C09 Quitclaim Deed (Statutory) A quitclaim deed may be substantially the same as a war- ranty deed, with the word "quitclaim" inserted in connection with the words "do hereby grant, bargain, sell, and convey," as follows : "Do hereby quitclaim, grant, bargain, sell, and convey" — and by omitting the words "and warrant the title to the sam«." Ibid. § 1185. OREGON In General Conveyances of lands or of any estate or interest therein may be made by deed, signed and sealed by the person from whom the estate or interest is intended to pass, being of law- ful age, or by his lawful agent or attorney, and acknowledged or proved and recorded. Lord's Ore. Laws, § 7100. A deed executed within the state must have two witnesses. Ibid. § 7109. Deeds may be executed without the state according to the foreign law. Ante, p. 87. A deed of quitclaim and re- lease, of the form in common use, is sufficient to pass all the estate which the grantor could lawfully convey by deed of bar- gain and sale. Ibid. § 7102. The term "heirs," or other words of inheritance, are not necessary to convey an estate in fee simple ; and a conveyance passes all the estate of the gran- tor, unless the intent to pass a less estate appears. Ibid. § 7103. No covenant is implied in a conveyance, whether it con- tsin special covenants or not. Ibid. § 7105. A private seal may be made by a stamp or impression made upon wax, water, paper, or any other like .substance upon which a visible and permanent impression can be made, or without an impression by a wafer or wax attached to the in- strument, or by a paper attached to it by an adhesive substance, or by a scroll or other sign made with a pen or printed upon the paper ; and any printed seal or scroll on the instrument at the time of signing will be presumed to have been adopted by the person signing his name before it. A scroll or other sign made in a sister state, territory, District of Columbia, or a foreign country, and there recognized as a seal, shall be so re- garded in Oregon, and any instrument vaHd in the state where executed, without a seal, is in like manner valid in Oregon. Ibid. § 775. The seal affixed to a writing is primary evidence of a consideration. In other respects there is no difference be- TiFF. Forms — 39 610 FORM BOOK (Ch. 14 tween sealed and unsealed writings, except as to the time of commencing actions thereon. Ibid. § 776. Husband and Wife A husband and wife may, by their joint deed, convey her real estate as she might do by her separate deed if unmarried ; but she is not bound by any covenant therein. Ibid. § 7101. An acknowledgment of a married woman to a conveyance of real property in the state shall be taken in the same manner as if she were unmarried. Ibid. § 7114. When a married woman not residing in the state joins with her husband in a con- veyance, the conveyance has the same effect as if she were sole, and the acknowledgment or proof may be the same as if she were sole. Ibid. § 7117. A husband or wife may consti- tute the other his or her attorney in fact to sell and convey, mortgage, or bar dower or curtesy in his or her property for their mutual benefit. Ibid. § 7037. The husband .and wife must join to bar her dower. Warranty Deed Know all men by these presents that and , of , in consideration of — dollars, to paid by -, of , ha — bargained and sold, and by these pres- ents do — grant, bargain, sell, and convey, unto said heirs and assigns, all the following (description), to- gether with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertain- ing, and also all estate, right, title, and interest in and to the same, including dower and claim of dower. To have and to hold the above described and granted prem- ises unto the said , heirs and assigns forever. And , grantor — above named do — ■ covenant to and with , the above-named grantee — , heirs and as- signs, that lawfully seised in fee simple of the above- granted premises, that the above-granted premises are free from all incumbrances, and that will, and heirs, Ch. 14) DEEDS 611 executors, and administrators, shall warrant and forever de- fend the above-granted premises, and every part and parcel thereof, against the lawful claims and demands of all persons whomsoever. In witness whereof the grantor — above named hereunto set hand — and seal — • this day of . Signed, sealed and delivered in the presence of : PENNSYLVANIA In General The words "grant and convey," or either, pass a fee-simple title to the premises conveyed, if the grantor possessed such a title, although there be no words of inheritance or of perpe- tuity in the deed. Laws 1909, No. 53, § 1. All deeds granting or conveying without exception or reser- vation include all the estate, right, title, interest, property, claim, and demand whatsoever of the grantor, in law, equity, or otherwise howsoever, of, in, and to the same, and every part thereof, together with all and singular the improvements, ways, waters, water courses, rights, liberties, privileges, here- ditaments, and appurtenances whatsoever thereto belonging or in any wise appertaining, and the reversions and remain- ders, rents, issues, and profits thereof. Ibid. § 2. The words "grant and convey," or either, shall be adjudged an express covenant to the grantee, his heirs and assigns, that the grantor was seised of an indefeasible estate in fee simple in the property conveyed, freed from incumbrances done or suffered from the grantor, as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed. Ibid. § 3. A covenant by the grantor that he "will warrant generally the property hereby conveyed" has the same effect as if he had covenanted that he, his heirs and personal representatives, will forever warrant and defend the property, and every part thereof, unto the grantee, his heirs, personal representatives, and assigns, against the lawful claims and demands of all persons whomsoever. Ibid. § 4. A covenant by the grantor that he "will warrant 612 FORM BOOK (Ch. 14 specially the property hereby conveyed" has the same effect as if he had covenanted that he, his or their heirs and personal representatives, will forever warrant and defend the property and every part thereof unto the said grantee, his heirs, per- sonal representatives, and assigns, against the lawful claims and demands of the grantor and all persons claiming or to claim by, through, or under him or them. Ibid. § 5. Whenever there shall be used the words "release and quit- claim," the deed shall be construed as if it set forth that the grantor hath remised, released, and quitclaimed, and by these presents doth or do remise, release, and forever quitclaim, unto the grantee, his heirs and assigns, all right, title, interest, property, claim, and demand whatsoever, both in law and in equity, in or to the lands or premises released, or intended so to be, so that neither the grantor nor his personal representa- tives, heirs, or assigns shall at any time thereafter have, claim, challenge, or demand the said lands and premises, or any part thereof, in any manner whatever. Ibid. § 6. Husband and Wife Dower and curtesy exist. The wife must join in her hus- band's conveyance to bar dower. The husband must join in the conveyance of her separate property. As to her acknowl- edgment, ante, p. 90. Forms A seal is requisite, but an ink scroll suffices. One or more witnesses are usual, but not necessary unless the signature is by mark. The form of deed for conveying or releasing lands may be in the following words : Deed (Statutory) This deed, made the day of , in the year nine- teen hundred and , between {here insert name or names and residence of grantor or grantors), and {Jicre insert name or names and residence of grantee or grantees), wit- nesseth that, in consideration of dollars in hand paid, the receipt whereof is hereby acknowledged, the said grantor — do — hereby grant and convey (or, release and quitclaim) to Ch. 14) DEEDS 613 the said grantee — all (here give location and descrip- tion of property conveyed or released, with recital of title, if desired), {if reservations, exceptions, or special condi- tions, insert same here), (if covenants of general or special ivarranty, insert same here). In witness whereof said grantor — ha — hereunto set hand — and seal — the day and year first above written. . (Seal.) . (Seal.) Sealed and delivered in the presence of : Ibid. § 7. Warranty Deed (Common Form) This indenture made the day of , in the year of our Lord one thousand nine hundred and , between ~^. — -. — , of -^ , of the first part, and , of , of the second part, witnesseth that the said part — of the first part, for and in consideration of the sum of , lawful money of the United States of America, well and truly paid by the said part — of the second part to the said part — of the first part, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, ■ ■ granted, bar- gained, sold, aliened, enfeoffed, released, conveyed, and con- firmed, and by these presents grant, bargain, sell, alien, enfeoff, release, convey, and confirm, unto the said part — of the second part, heirs and assigns (description). Together with all and singular the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments, and appurtenances to the same belonging or in any wise appertain- ing, and the reversion and reversions, remainder and remain- ders, rents, issues, and profits thereof, and of every part and 614 FORM BOOK (Ch. 14 parcel thereof; and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, both in law and equity, of the said part — of the first part of, in, and to the samq premises, with the appurtenances. To have and to hold the said premises, with all and singular the appurtenances, unto the said part — of the second part, heirs and assigns, to the only proper use, benefit, and behoof of the said part — of the second part, heirs and assigns forever. And the said , heirs, executors, and adminis- trators, do — by these presents, covenant, grant, and agree to and with the said part — of the second part, heirs and assigns forever, that , the said , heirs, all and singular the hereditaments and premises herein above de- scribed and granted, or mentioned and intended so to be, with the appurtenances, unto the said part — of the second part, heirs, and assigns, against , the said , heirs, and against all and every other person or per- sons whomsoever lawfully ^claiming or to claim the same or any part thereof, shall and will warrant and forever defend. In witness whereof the said part — of the first part to these presents hereunto set hand — and seal — . Dated the day and year first above written. RHODE ISLAND In General Every conveyance for longer than one year shall be void unless made in writing duly signed, acknowledged, delivered, and recorded in the records of land evidence in the town or city where the lands are : Provided, that the same, if delivered, as between the parties and their heirs, and as against those tak- ing by gift or devise, or those having notice thereof, shall be valid and binding, though not acknowledged or recorded. Ch. 14) DEEDS 615 Gen. Laws 1909, c. 253, § 2. A seal is not retiuired. Ibid, c 253, § 4. The words "give," "grant," or "exchange," in any conveyance, imply no covenant, warranty, or right of re-en- try. Ibid. c. 253, § 13. Husband and Wife Dower and curtesy exist. A married woman may sell and convey directly to, or may take directly from, her husband or any other person, any estate or interest as if unmarried. Ibid, c. 246, § 4. The deed of a married woman conveying her sep- arate interest must be acknowledged by her in the same man- ner as if she were unmarried. If any deed affecting her right of dower in any estate of her husband during his life be ex- ecuted by her attorney, the letter of attorney must be ac- knowledged in the same manner as if she were unmarried. Ibid. c. 246, § 5. A married woman may bar her right of dower in her husband's estate by joining with him in the deed conveying the same and therein releasing her claim to dower, or by releasing the same by her separate deed acknowledged in the same manner as above provided; Ibid. c. 246, § 6. Both may join in the execution of a deed of land in which he has curtesy. Forms Any form of conveyance in writing, duly signed and deliv- ered by the grantor, or the attorney of the grantor duly au- thorized, conveys to the grantee all the possession, estate, title and interest, claim, demand or right of entry or action of the grantor absolutely in and to the land conveyed, unless oth- erwise expressly limited in estate, condition, use, or trust, and, if otherwise expressly limited, shall convey such property for the time or estate or on the condition, use, or trust as de- clared, without any other act or ceremony, and, if also duly acknowledged and recorded, shall be operative as against third parties. Ibid. c. 253, § 11. A witness, though usual, is unnec- essary. Warranty Deed (With Release of Dower) Know all men by these presents that I, , of , hereinafter called the grantor, in consideration of the sum of dollars to me paid by , of , hereinafter 61G FORM BOOK (Ch. 14 called the grantee, the receipt whereof is hereby acknowl- edged, do hereby give, grant, bargain, sell, and convey unto the said grantee, and his heirs and assigns forever (descrip- tion.) To have and to hold the afore-granted premises, with all the privileges and appurtenances thereunto belonging, 'unto and to the use of the said grantee, and his heirs and assigns tor- ever. And I, the said grantor, do hereby, for myself and for my heirs, executors, and administrators, covenant with the said grantee, and his heirs and assigns, that I am lawfully seised in fee simple of the said granted premises ; that the same are free from all incumbrances ; that I have good right, full pow- er, and lawful authority to sell and convey the same in man- ner as aforesaid ; that the said grantee, and his heirs and as- signs, shall by these presents at all times hereafter peaceably and quietly have and enjoy the said premises, and that I, the said grantor, will, and my heirs, executors, and administrators shall, warrant and defend the same to the said grantee, and his heirs and assigns forever, against the lawful claims and ■demands of all persons. And for the consideration aforesaid I, , wife of the ■said , do hereby release all my right of dower in and to the said granted premises unto the said grantee, and his heirs and assigns forever. In witness whereof we have hereunto set our hands and seals this day of . Quitclaim Deed (With Covenant) Know all men by these presents that , in considera- tion of the sum of dollars, to paid by , the receipt whereof is hereby acknowledged, do hereby remise, release, and forever quitclaim unto the said , heirs and Ch. 14) DEEDS G17 assigns forever, all the right, title, interest, property, claim, and demand which now have, or of right ought to have, or claim, in and to (description). To have and to hold the same, with all the rights, privileges, and appurtenances thereunto appertaining, unto and to the use of , the said , heirs and assigns forever. And , the afore-named , for and for heirs, executors, and administrators, do covenant with the said heirs and assigns, that will warrant and defend the afore-described premises unto the said , heirs and assigns forever, against the lawful claims and demands of all persons claiming by, through, or under . And , wife of the said , in consideration of the sum paid as aforesaid, do hereby release and forever quitclaim unto the said , heirs and assigns, all right of dower in and to the afore-described premises. In witness whereof, etc. SOUTH CAROLINA In General The following form or purport of a release is valid and effectual to carry from one person to another the fee simple of real estate, if exercised in the presence of and subscribed by two or more credible witnesses. This section shall be so construed as not to oblige any person to insert the clause of warranty, or to restrain him from inserting any other clause or clauses, in conveyances hereafter to be made, as may be deemed proper and advisable by the purchaser and seller, or to invalidate the forms heretofore in use within this state. Whenever it appears from the attestation clause or from the other parts of any instrument in writing that it was the inten- tion of the party or parties thereto that the instrument should be a sealed instrument, it shall be construed to be, and shall have the effect of, a sealed instrument, although no seal be actually attached thereto. Code of Laws 1912, § 3453. 618 FORM BOOK (Ch. 14 Form of Conveyance Tun Statu of South Carolina, ] Know all men by these presents that I, A. B., of , in the state aforesaid, have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release, unto the said C. D., all that {here describe the premises), together with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging or in any wise incident or appertaining ; to have and to hold all and singular the premises before mentioned unto the said C. D., his heirs and assigns, forever. And I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said C. D., his heirs and assigns, against myself and my heirs, and against every person whomsoever lawfully claiming or to claim the same, or any part thereof. Witness my hand and seal this day of , in the year of our Lord , and in the year of the mdependence of the United States of America. . (L.S.) Ibid. § 3453. Husband and Wife A married woman may convey her separate property by deed. As to renunciation of dower, ante, p. 94. A waiver of homestead must be by deed of conveyance, mortgage, or other instrument executed by both husband and wife. Const, art. 3, § 28; Code of Laws 1912, § 3715. Tenancy by the curtesy is abolished. Ibid. § 3763. Ch. 14) DEEDS C19 SOUTH DAKOTA In General An estate in real property, other than at will or for not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing. Civ. Code 1910, § 938. Witnesses are not re- quired. Distinctions between sealed and unsealed instruments are abolished. Ibid. § 1243. Deeds, mortgages, and assignments of mortgages which do not contain the post office address of the grantee, mortgagee, or assignee are not entitled to record. Laws 1911, c. 257, § 6. Words of inheritance or succession are not requisite to transfer a fee. Civ. Code 1910, § 934. Husband and Wife A conveyance or other instrument executed by a married woman has the same effect as if she were unmarried, and may be acknowledged in the same manner. Ibid. § 975. There is no dower or curtesy. Both husband and wife must join in a conveyance of the homestead. Forms Warranty deeds and quitclaim deeds may be substantially in the following forms : . Warranty Deed (Statutory) , grantor, of county, state of , for and in consideration of dollars,' grants, conveys, and war- rants to , grantee, of P. O., the following de- scribed real estate in the county of , in the state of South Dakota: . Dated this day of , 19—. (Signature.) . {A cknowledgment.) Every such instrument duly executed shall be a convey- ance in fee simple of the premises described to the grantee, <>20 FOKSI BOOK (Ch. 14 his heirs and assigns, with covenants on the part of the gran- tor, his heirs and personal representatives, that he is lawfully seised of the premises in fee simple, and has good right to convey the same; that the premises are free from all incum- brances; that he warrants to the grantee, his heirs and as- signs, the quiet and peaceable possession thereof; and that he will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall be obliga- tory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed. Laws 1911, c. 257, § 1. Quitclaim Deed (Statutory) , grantor, of — county, state of , for and in consideration of dollars, conveys and quitclaims to , the grantee, of , P. O., all interest in the fol- lowing described real estate in the county of , in the state of South Dakota : — . Dated this day of , 19—. (Signature.) . {Acknowledgment.) Every such instrument, duly executed, shall be a conveyance to the grantee, his heirs and assigns, of all right, title, and interest of the grantor in the premises described, but shall not extend to after-acquired title, unless words expressing such intention be added. Ibid. § 2. A grant of an estate in real property may be made, in sub- stance as follows : Grant (Statutory) This grant, made the day of , in the year , between A. B., of , of the first part, and C. D., of , of the second part, witnesseth : That the party of the first part hereby grants to the party of the second part, in consideration of dollars, now received, all the real Ch. 14) DEEDS 621 property situated in and bounded (or, described) as follows : . Witness the hand of the party of the first part. A. B. Civ. Code 1910, § 940. From the use of the word "grant" in any conveyance by which an estate of inheritance or fee simple is to be passed the following covenants, and none other, on the part of the grantor, for himself and his heirs, to the grantee, his heirs and assigns, are implied, unless restrained by express terms contained in such conveyance: (1) That previous to the time of the execution of such conveyance the grantor has not con- veyed the same estate, or any right, title, or. interest therein, to any person other than the grantee; (2) that such estate is at the time of the execution of such conveyance free from in- cumbrances done, made, or suffered by the grantor, or any person claiming under him. Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance. Ibid. § 942. TENNESSEE In General As to execution, ante, p. 97. Private seals, except for corporations, are abolished. Code 1896, § 3213. Words of inheritance are not requisite to convey an estate in fee, and every grant passes all the estate or interest of the grantor, unless the intent to pass a less estate or interest appears Ibid § 3672. Husband and Wife Every deed or other instrument executed by husband and wife, and duly acknowledged or proved and registered, binds them, their heirs and assigns. Ibid. § 3753. As to her ac- knowledgment, ante, p. 99. The homestead may be sold by their joint consent, by conveyance executed as required for married women. Ibid. § 3798. 622 FORM BOOK (Ch. 14 Forms The following or other equivalent forms, varied to suit the precise state of facts, are sufficient for the purposes contem- plated, without further circumlocution (Ibid. § 3680) : Deed in Fee with General Warranty (Statutory) I hereby convey to A. B. the following tract of land {de- scribing if), and I warrant the title against all persons whom- soever. Covenants of Seisin, Possession, and Special Warranty (Statutory) I covenant that I am seised and possessed of the said land, and have a right to convey it, and I warrant the title against all persons claiming under me. Quitclaim Deed (Statutory) I hereby quitclaim to A. B. all my interest in the following land (describing it). Mortgage (Statutory) I hereby convey to A. B. the following land {describing it), to be void upon condition that I pay, etc. Deed of Trust (Statutory) For the purpose of securing to A. B. a note of this date, due at twelve months, with interest from date {as the case may be), I hereby convey to C. D., in trust, the following property {de- scribing it). And if the note is not paid at maturity, I hereby authorize C. D. to sell the property herein conveyed {stating the manner, place of sale, notice, etc), to execute a deed to the Ch. 14) DEEDS 623 purchaser, to pay off the amount herein secured, with interest and costs, and to hold the remainder subject to my order. TEXAS In General No estate of inheritance or freehold or for a term of more than one year shall be conveyed unless the conveyance be de- clared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing. Rev. Civ. St. 1911, art. 1103. No pri- vate seal or scroll is necessary to any conveyance or instru- ment except such as are made by corporations. Ibid. art. 7092. A deed or conveyance must be signed or acknowledged by the grantor in the presence of at least two credible subscribing witnesses thereto, or must be duly acknowledged before some officer authorized to take acknowledgments, and properly certified to by him for registration. Ibid. art. 1109; ante, p. 101. Every estate granted or conveyed shall be deemed a fee sim- ple, if a less estate be not limited or do not appear to have been granted. Ibid. art. 1106. From the word "grant" or "convey," in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs and assigns, are implied, unless restrained by express terms con- tained in such conveyance : (1) that previous to the time of the execution of such conveyance the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee ; (2) that such estate is at the time of the execution of such conveyance free from incumbrances. Such covenants may be sued upon in the same manner as if they had been expressly inserted. Ibid. art. 1112. Husband and Wife The husband and wife must join in the conveyance of real estate, the separate property of the wife ; and the conveyance must be acknowledged by her and certified to in the mode pointed out in articles 6802 and 6805. Ibid. art. 1114; ante, p. 101. She need not join in the conveyance of his own or of the community property. See Ibid. art. 4622. The wife 624 FORM BOOK (Ch. 14 must join in the conveyance of the homestead, and acknowl- edge in the mode pointed out in articles 6802 and 6805. Ibid, art. 1115; ante, pp. 101-104. No mortgage or trust deed of the homestead, except for pur- chase money or improvements, is vahd. Forms The following form, or the same in substance, is sufficient as a conveyance of the fee simple of any real estate with a covenant of general warranty : Warranty Deed (Statutory) The State oe Texas, ' County of Know all men by these presents that I, , of the {give name of city, town, or county), in the state afore- said, for and in consideration of dollars to me in hand paid by , have granted, sold, and conveyed, and by these presents do grant, sell, and convey unto the said , of the {give name of city, town or county), in the state of , all that certain {describe the premises) ; to have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said , his heirs or assigns forever. And I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular the said prem- ises unto the said , his heirs and assigns, against every person whomsoever lawfully claiming or to claim the sarrie or any part thereof. Witness my hand this da) of , A. D. 19 — . Signed and delivered in the presence of : Ibid. art. 1107. Ch. 14) DEEDS 625 No person shall be obliged to insert the covenant of war- ranty, or be restrained from inserting any clause or clauses deemed proper and advisable by the purchaser and seller;, and other forms not contravening the laws of the land shall not be invalidated. Ibid. art. 1108. Warranty Deed with Vendor's Lien The State op Texas, County of . Know all men by these presents : That , of the county of , state of , for and in consideration of the sum of dollars to paid, and secured to be paid, by , of , as follows {describe note), have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said , all that certain (description). To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said , heirs and as- signs forever; and do hereby bind , heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said , heirs and assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof. But it is expressly agreed and stipulated that the vendor's lien is retained against the above-described property, premises, and improvements until the above-described note — , and all interest thereon, are fully paid according to face and tenor, effect and reading, when this deed shall become abso- lute. Witness, etc. TiFF.FOBMS — 40 626 FORM BOOK (Ch. 14 Quitclaim Deed Ti-iu State of Tbxas, County of . Know all men by these presents ; That , of the county of , and state of , in consideration of the sum of dollars to in hand paid by , of the county of , and state of , have bargained, sold, quitclaimed, and released, and by these presents do bargain, sell, quitclaim, and release, unto the said , all right, title, interest, and estate in and to the following described tract or parcel of land, situated in county, , to wit (description), together with all and singular the hereditaments and appurtenances there- unto belonging or in any wise appertaining. To have and to hold the above-described premises unto the said , — h — heirs and assigns forever. Witness, etc UTAH In General No estate or interest in real property, other than for leases for a term of not exceeding one year, nor any trust or power over or concerning it or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by act or operatioii of law, or by a conveyance or other instrument in writing, subscribed by the party creating, grant- ing, assigning, surrendering, or declaring the same or by his lawful agent thereunto authorized by writing. Comp. Laws 1907, § 1974. Private seals are unnecessary. Ibid. §§ 1976, 3399. There should be at least one credible witness. Every con- veyance in writing whereby any real estate is conveyed or may be affected shall be acknowledged or proved and certified in the manner provided. Ibid. § 1984 ; ante, p. 104. The term "heirs" or other technical words are not requisite Ch. 14) DEEDS 627 to transfer a fee. A fee-simple title is presumed, unless it ap- pears from the conveyance that a lesser estate was intended. Ibid. §§ 1970, 1971. Husband and Wife The separate property of a married woman may be con- veyed by her as if she were unmarried. Const, art. 22, § 2. One-third in value of all the legal or equitable estates possessed by the husband at any time during the marriage, and to which the wife had made no relinquishment of her rights, shall be set apart as her property in fee simple if she survive him; but she is not entitled to any interest under this section in any such estate of which he has made a conveyance when she was not a resident of Utah. Comp. Laws 1907, § 2826. The hus- band and wife must join in conveyance of homestead. Ibid. § 1155. Forms Conveyances of land may be in substantially the following forms : Warranty Deed (Statutory) A. B., grantor {here insert name or names and place of resi- dence), hereby conveys and vyarrants to C. D., grantee {here insert name or names and place of residence), for the sum of dollars, the following described tract — of land in county, Utah {here describe the premises). Witness the hand of said grantor this day oi , A. D. 19—. Such deed, when executed as required by law, shall have the effect of a conveyance in fee simple to the grantee, his heirs and assigns, of the premises herein named, together with all the appurtenances, rights, and privileges thereto belonging, with covenants from the grantor, his heirs, and personal repre- sentatives, that he is lawfully seised of the premises ; that he has good right to convey the same; that he guarantees the grantee, his heirs and assigns, in the quiet possession there- of; that the premises are free from all incumbrances; and that the grantor, his heirs and personal representatives, will 028 FORM BOOK (Ch. 14 forever warrant and defend the title thereof in the grantee, his heirs and assigns, against all lawful claims whatsoever. Any exceptions to such covenant may be briefly inserted in such deed following the description of the land. Ibid. § 1981. Quitclaim Deed (Statutory) A. B., grantor {here insert name or names and place of resi- dence), hereby quitclaims to C. D., grantee (here insert name or names and place of residence), for the sum of dol- lars, the following described tract — of land in county, Utah {here describe the premises). Witness the hand of said grantor this day of , A. D. 19—. Such deed, when executed as required by law, shall have the ■effect of a, conveyance of all right, title, interest, and estate ■of the grantor in and to the premises therein described, and all rights, privileges, and appurtenances thereto belonging at the date of such conveyance. Ibid. § 1982. VERMONT In General Conveyance may be made by deed executed by a person hav- ing authority to convey, or by his attorney, and acknowledged and recorded. Pub. St. 1906, § 2572. Deeds must be signed and sealed in the presence of two subscribing witnesses. Ibid. §§ 2577, 2597. A power of attorney to make a conveyance should be signed, sealed, witnessed, acknowledged, and record- ed. Ibid. § 2585. Husband and Wife A husband and wife may, by their joint deed, convey tne real estate of the wife as she might do by her separate deed if unmarried. Ibid. § 2573. The widow is entitled to one- third in value of the real estate of which her husband died seised in his own right, unless she is barred by jointure or will. Ibid. § 2921. Ch. 14) DEEDS 029 The homestead cannot be conveyed by the owner, if a mar- ried man, except by way of purchase-money mortgage, unless his wife joins in the execution and acknowledgment. Ibid. § 2553. The joining by a wife in such conveyance has no ef- fect upon her right to one-third in value of the real estate of which her husband died seised. Ibid. § 2554. Corporations A corporation authorized to hold real estate may convey by agent appointed by vote for that purpose. Ibid. § 2576. Warranty Deed Know all men by these presents : That , of , in the county of , and state of , for the consideration of • — dollars, received to full satisfaction of , of , in the county of , and state of , do give, grant, bargain, sell, and confirm unto the said , heirs and assigns, a cer- tain piece of land lying and being in , in the county of , and state of Vermont, and described as follows, viz. (description). To have and to hold the above granted and bargained prem- ises, with the appurtenances thereto, unto , the said , heirs and assigns forever, to them and their own proper use, benefit, and behoof. And also , the said , do for , ' heirs, executors, and ad- ministrators, covenant with the said , heirs and assigns, that at and until the ensealing of these presents well seised of the premises, as a good indefeasible es- tate in fee simple, and have good right to bargain and sell the samfe in manner and form as above written, and that the same is free from all incumbrances whatsoever. And, furthermore, , the said , do by these presents bind , and heirs forever, to warrant and defend the above 630 FORM BOOK (Ch. 14 granted and bargained premises to the said , heirs and assigns, against all claims and demands whatsoever, In witness whereof have hereunto set hand — and seal — this day of , A. D. 19 — . {Signatures and seals.) Signed, sealed and delivered in the presence of : Quitclaim Deed (Begin as in preceding) have remised, released, and quit- claimed, and by these presents do remise, release, and forever quitclaim, unto the said , heirs and assigns, all right and title in and to a certain piece or parcel of land situate in , in thp county of , and state of Vermont, and described as follows, namely (description). To have and to hold the above remised, released, and quit- claimed premises, with the appurtenances thereof, unto the said grantee — , heirs and assigns, to them and their own proper use, benefit, and behoof forever ; so that neither , the said grantor — nor heirs, nor any person or persons claiming under or them shall at any time hereafter, by any way or means, have, claim or demand any right or title to the aforesaid premises or appurtenances, or to any part or parcel thereof forever. In witness, etc. VIRGINIA In General A conveyance or grant without words of limitation passes the fee simple or other the whole estate or interest which the grantor had power to dispose of, unless a contrary intention ap- pears. Code 1904, § 2420. Ch. 14) DEEDS 631 Husband and Wife Both must join to bar the wife's right of dower or in a con- veyance of her separate property. Ibid. § 2502. Forms A scroll by way of seal is sufficient. Ibid. § 2841. Wit- nesses are not necessary if the instrument be acknowledged; if not, two witnesses are necessary. If the instrument is ac- knowledged before two witnesses, they must prove the ac- knowledgment before the court where the instrument is to be recorded. Ante, p. 107. A deed may be in the following form, or to the same effect (Ibid. § 2437) : Deed (Statutory) This deed, made the day of , in the year , between (here insert names of parties), witnesseth : That, in consideration of (here state the consideration), the said doth (or, do) grant unto the said , all, etc. (here describe the property, and insert covenants or any other provisions) Witness the foUowmg signature and seal (or, signatures and seals). Ibid. .§ 2437. Every such deed, unless an exception be made therein, in- cludes all the estate, right, title, and interest whatever, both at law and in equity, of the grantor in or to the lands. Ibid. § 2438. Whenever in any deed there shall be used the words, "The said grantor (or, the said ) releases to the ^aid grantee (or, the said ) all his claims upon the said lands," such deed shall be construed as if it set forth that the grantor (or, releasor) hath remised, released, and forever quitclaimed, and by these presents doth remise, release, and forever quitclaim, unto the grantee (or, releasee) his heirs and assigns, all right, title, and interest whatsoever, both at law and in equity, in or to the lands and premises granted (or, released), or in- tended so to be, so that neither he nor his personal representa- tive, his heirs or assigns, shall at any time hereafter have, B32 FORM BOOK (Ch.l4 claim, challenge, or demand the said lands and premises, or any part thereof, in any manner whatever. Ibid. § 2439. When a deed uses the words "the said covenants," such covenant shall have the same effect as if it was expressed to be by the covenantor, for himself, his heirs, personal repre- sentatives, and assigns, and shall be deemed to be with the covenantee, his heirs, personal representatives, and assigns. Ibid. § 2445. A covenant by the grantor in a deed "that he will warrant generally the property hereby conveyed" shall have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, per- sonal representatives, and assigns, against the claims and de- mands of all persons whomsoever. Ibid. § 2446. A covenant by any such grantor "that he will warrant specially the prop- erty hereby conveyed" shall have the same effect as if the grantor had covenanted that he, his heirs and personal repre- sentatives, will forever warrant and defend the said property unto the grantee, his heirs, personal representatives, and as- signs, against the claims and demands of the grantor and all persons claiming or to claim by, through, or under him. Ibid. § 2447. The words "with general warranty," in the granting part of any deed, shall be deemed to be a covenant by the grantor "that he will warrant generally the property hereby conveyed." The words "with special warranty," in the grant- ing part of any deed, shall be deemed to be a covenant by the grantor "that he will warrant specially the property here- by conveyed." Ibid. § 2448. As to the construction of par- ticular covenants. Ibid. §§ 2449-2452. Deed with Covenants This deed, made this day of , in the year , between , party of the first part, and , party of the second part, witnesseth: That, in consideration of the sum of dollars, the said doth grant unto the said , with general warranty, all (description). The said covenants that he has the right to con- vey the said land to the grantee; that he has done no act to incumber the said land ; that the grantee shall have quiet possession of the said land, free from all incumbrances ; and ■Ch. 14) DEEDS 633 that he, the said party of the first part, will execute such fur- ther assurance of the said land as may be requisite. Witness the following signature and seal. WASHINGTON In General All conveyances of real estate or of any interest therein shall be by deed. Rem. & Bal. Ann. Codes & St. § 8745. The term "heirs," or other technical words of inheritance, are not necessary to create and convey an estate in fee simple. Ibid. § 8753. Husband and Wife Each may convey his or her separate property as though unmarried. Ibid. §§ 5915, 5916. Both must join in the con- veyance of community real property. Ibid. § 5918. Tenancy in dower and curtesy are abolished. Ibid. § 5922. Either may convey to the other his or her interest in community real prop- erty. Ibid. § 8766. Either may execute a power of attorney for the conveyance of his or her separate estate, without the ■other joining in the execution ; and either may appoint the other his or her attorney. Ibid. § 8767. A conveyance under such power shall be executed, acknowledged, and certified as if the constituent were unmarried. Ibid. § 8768. Either may execute a power of attorney to the other to convey his or her interest in the community property, and either may execute a power to a third person to join with the other in the conveyance of any interest either in separate real estate of either or in the com- munity estate, and may jointly execute a power to a third person to convey the community real property. Ibid. § 8769. The homestead of a married person cannot be conveyed or incum- bered unless the instrument is executed and acknowledged by both. Ibid. § 534. Forms A deed shall be in writing, signed by the party bound there- hj, and acknowledged by the party making it, before some per- son authorized. Ibid. §■ 8746. The use of private seals is abolished. Ibid. § 8751. Witnesses are not required. Deeds may be substantially in the following forms : 634 FORM BOOK (Ch. 14 Warranty Deed (Statutory) The grantor {here insert the name or names and place of residence), for and in consideration of {here insert considera^ tion), in hand paid, convey and warrant to {here insert the grantee's name or names) the following described real estate {here insert description), situated in the county of . state of Washington. Dated this day of , 19—. . (Seal.) Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple to the grantee, his heirs and assigns, with covenants on the part of the grantee : (1) That at the time of the making and delivery of such deed he was lawfully seised of an inde- feasible estate in fee simple in and to the premises therein described, and had good right and full power to convey the same ; (2) that the same were then free from all incumbrances ; (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will de- fend the title thereto against all persons who may lawfully claim the same; and such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at full length in such deed. Ibid. 8747. Bargain and Sale Deed (Statutory) The grantor {here insert name or names and places of resi- dence), for (and) in consideration of {here insert considera- tion), in hand paid, bargain, sell, and convey to {here insert the grantee's name or names) the following described real estate {here insert description), situated in the county of , state of Washington. Dated this day of , 19—. . {Seal) Every deed in substance in the above form shall convey to the grantee, his heirs or other legal representatives, an estate of Ch. 14) DEEDS 035 inheritance in fee simple, and shall be adjudged an express covenant to the grantee, his heirs or other legal representatives, to wit, that any grantor was seised of an indefeasible estate in fee simple, free from incumbrance done or suifered from the grantor, except the rents and services that may be reserved, as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed; and the grantee, his heirs, executors, administrators, and assigns, may, in any action, recover for breaches, as if such covenants were expressly inserted. Ibid. § 8748. Quitclaim Deed (Statutory) The grantor (here insert name or names and place of resi- dence), for the consideration (here insert consideration), con- vey and quitclaim to (here insert grantee's name or names) all interest in the following described real estate (here insert description), situated in the county of , state of Wash- ington. Dated this day of , 19 — . . (Seal.) Every deed in substance in form prescribed in this section, when otherwise duly executed, shall be deemed and held a good and sufficient conveyance, release, and quitclaim to the grantee, his heirs and assigns, in fee of all the then existing legal or equitable rights of the grantor in the premises therein described, but shall not extend to the after-acquired title unless words are added expressing such intention. Ibid. § 8749. WEST VIRGINIA In General No estate of inheritance or freehold, or for a term of more than five years, in lands, shall be conveyed unless by deed or will. Code 1906, § 3020. A conveyance without words of limitation shall be construed to pass the fee simple or the whole estate or interest of the grantor, unless a contrary intention appears. Ibid. § 3027, 636 FORM BOOK (Ch. 14 Forms A seal is requisite, but a scroll is sufficient. Ibid. § 291.. Witnesses are not required when the deed is acknowledged. Ante, p. 112. A deed may be in the followine form or to the same effect (Ibid. § 3048) : Deed (Statutory) This deed made the day of , in the year , between (here insert names of parties), witnesseth : That, in consideration of (here state the consideration), the said doth {or, do) grant unto the said all, etc. (here describe the property, and insert covenants or any other provisions). Witness the following signature and seal {or, signatures and seals). Ibid. § 3048. Every such deed conveying lands shall, unless an exception be made therein, be construed to include all the estate, right, title, and interest whatever, both at law and in equity, of the grantor in or to such lands. Ibid. § 3049. Quitclaim Whenever in any deed there shall be used the words, "The said grantor {or, the said ; ) releases to the said grantee {or, the said ) all his claims upon the said lands," such deed shall be construed as if it set forth that the grantor {or, releasor) hath remised, released, and forever quitclaimed,- and by these presents both remise, release, and forever quitclaim, unto the grantee {or, releasee), his heirs and assigns, all right, title, and interest whatsoever, both at law and in equity, in or to the lands and premises granted {or, released), or intended so to be, so that neither he nor his personal representative, his heirs or assigns, shall at any time thereafter have, claim, chal- lenge, or demand the said lands and premises, or any part thereof, in any manner whatever. Ibid. § 3050. Any deed or part of a deed which shall fail to conform to the provisions of this chapter shall nevertheless be as valid and effectual, and shall bind the parties thereto, as far as the rules of law and equity will permit, as if it had so conformed. Ibid. § 3060. Ch. 14) DEEDS 63T When a deed uses the words "the said r covenants," such covenant shall have the same effect as if it was expressed to be by the covenantor, for himself, his heirs, personal repre- sentatives, and assigns, and shall be deemed to be v/ith the covenantee, his heirs, personal representatives, and assigns. Ibid. § 3061. A covenant by the grantor in a deed "that he will warrant generally the property hereby conveyed" shall have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, per- sonal representatives, and assigns, against the claims and de- mands of all persons whomsoever. Ibid. § 3062. A covenant by any such grantor "that he will warrant specially the prop- erty hereby conveyed" shall have the same effect as if the gran- tor had covenanted that he, his heirs and personal representa- tives, will forever warrant and defend the said property unto the grantee, his heirs, personal representatives, and assigns, against the claims and demands of the grantor and all i>ersons claiming or to claim by, through, or under him. Ibid. § 3063. The words "with general warranty," in the granting part of any deed, shall be deemed to be a covenant by the grantor "that he will warrant generally the property hereby conveyed." The words "with special warranty," in the granting part of any deed, shall be deemed to be a covenant by the grantor "that he will warrant specially the property hereby conveyed." Ibid. § 3064. For particular covenants, see Ibid. §§ 3065-3068. WISCONSIN In General Conveyances may be made by deed signed and sealed by the person from whom the estate or interest is intended, to pass, being of lawful age, or by his agent or attorney, and acknowl- edged or proved. Stat. 1911, § 2203. A scroll or device used as a scroll is sufficient. Ibid. § 2215. Conveyances must have two witnesses. Ibid. § 2216. Execution according to law of place of execution. Ante, p. 116. No covenant is implied in any conveyance, whether it con- tain special covenants or not. Ibid. § 2204. Words of inheritance are not necessary to create or convey a fee. Ibid. § 2206. 638 FORM BOOK (Ch. 14 Husband and Wife A married woman of full age may by joint or separate deed convey her lands or any interest therein, or release her dower in any lands of her husband which have been conveyed by him, or of which he has been divested by execution or judg- ment, as if she were unmarried. Ibid. § 2221. She may bar her dower if of the age of 18. Ibid. § 2222. A married woman may, by letter of attorney, executed and acknowledged, empower her attorney to bar her dower, or to convey any other interest in real estate in the same manner as she might personally do. Ibid. § 2223. Curtesy and dower exist. Ibid. § 2276. The wife must join in the alienation of homestead. Ibid. § 2203. Corporations A conveyance by a corporation organized under any law of Wisconsin should be signed by the president or other author- ized officers of the corporation, sealed with the corporate seal, and countersigned by the secretary or clerk thereof. Ibid. § 2216. Forms A deed of quitclaim and release of the form in common use or of the form hereinafter provided shall be sufficient to pass all the estate which the grantor could lawfully convey by deed of bargain and sale. Ibid. § 2207. G>nveyances may be in substantially the following forms : Warranty Deed (Statutory) A. B., grantor, of county, Wisconsin, hereby con- veys and warrants to C. D., grantee, of county, Wis- consin, for the sum of dollars, the following tract of land in county {here describe the premises). Witness the hand and seal of said mortgagor this day of , 19— . (Seal.) In presence of : (Seal.) Ch. 14) DEEDS 639 Quitclaim Deed (Statutory) A. B., grantor, of county, Wisconsin, hereby quit- claims to C. D., grantee, of county, Wisconsin, for the sum of dollars, the following tract of land in county (here describe the premises). Witness the hand and seal of said grantor this day of , 19—. . (Seal.) In presence of : • . (Seal.) Such deeds, when executed and acknowledged as required by law, shall, when of the first of the above forms, have the effect of a conveyance in fee simple to the grantee, his heirs and assigns, of the premises therein named, together with all the appurtenances, rights, and privileges thereto belonging, with a covenant from the grantor, his heirs and personal representatives, that he is lawfully seised of the premises, has good right to convey the same; that he guarantees the gran- tee, his heirs, and assigns in the quiet possession thereof ; that the same are free from all incumbrance, and that the grantor, his heirs and personal representatives, will forever warrant and defend the title and possession thereof in the grantee, his heirs and assigns, against all lawful claims whatsoever.- Any exceptions to such covenants may be briefly inserted in such deed, following the description of the land, and, when in the second of the above forms, shall have the effect of a convey- ance in fee simple to the grantee, his heirs and assigns, of all right, title, interest, and estate of the grantor, either in pos- session or expectancy, in and to the premises therein described and all rights, privileges and appurtenances thereto belonging. Ibid. § 2208. Deed Reserving a Life Estate (Statutory) A. B., grantor, of county, Wisconsin, hereby con- veys unto C. D., grantee, of county, Wisconsin, for the sum oi (here also state any other consideration) dollars, 640 FORM BOOK (Ch. 14 the following tract of land in county (here describe premises). To have and to hold said tract of land, together with the appurtenances thereto, unto the said C. D., the said A. B. reserving unto himself a life estate in said tract of land for his own life and for the life of (here insert the name of the wife or other person, for whose life a life estate is reserved). And the said C. D., as a part of the consideration for the grant of said tract of land, does agree to assume and pay {here state any incumbrance that may be assumed by the grantee or any agreement that may be had in regard to the payment of taxes, assessments, etc., by the grantee). Witness the hand and seal of said grantor this day of , 19—. . {Seal) In presence of: . {Seal) Such deed, when executed and acknowledged as required by- law, shall reserve to the grantor or other person or persons for whose lives a life estate is reserved and to the survivor of them a good and sufficient title and right to the exclusive pos- session of the lands conveyed until the death of all the persons for whose lives such estate is reserved; and upon the death of all the persons for whose lives such an estate is reserved the fee to such lands shall vest absolutely in the grantee. Ibid. § 2208m. The above forms of conveyance shall be deemed to exclude the use of any other form sufficient in law. It is the duty of all parties executing a conveyance to state therein, as near as practicable, the actual'and true consideration. Ibid. § 2214. WYOMING In General Conveyances may be made by deed, signed by the grantor, being of lawful age, or by his lawful agent or attorney, and acknowledged or proved and recorded. Comp. St. 1910, § Ch. 14) DEEDS 641 3623. The use of private seals is abolished. Ibid. § 3641. Conveyances shall be executed in the presence of one witness, who shall subscribe his name as such, and the person executing shall acknowledge the execution thereof. Ibid. § 3633. A deed of quitclaim and release is sufficient to pass all the estate which the grantor could lawfully convey by deed of bargain and sale. Ibid. § 3625. No covenant is implied, whether the conveyance contain special covenants or not. Ibid. § 3626. The term "heirs," or other words of inheritance, are not necessary to create or convey an estate in fee simple. Ibid. § 3629. Husband and Wife A married woman may, by her deed or mortgage, convey her real estate in like manner as she might if she were unmar- ried. Ibid. § 3624. There is no dower nor curtesy. The cpnveyance or mort- gage of a homestead is void, unless the wife (if any) of the grantor shall, separate and apart from her husband, freely and voluntarily sign and acknowledge the instrument, and the officer taking her acknowledgment shall fully apprise her of her right and the effect of signing and acknowledging. The certificate of acknowledgment shall contain, a clause substan- tially as follows: "Including the release and waiver of the right of homestead" — or other words which expressly show that the parties intended to release such right. Ibid. § 3662 ; ante, p. 119. Forms Deeds may be substantially in the following forms : Warranty Deed (Statutory) A. B., grantor {here insert name or names of grantor and place of residence), for and in consideration of {here insert consideration) in hand paid, conveys and warrants to C. D., grantee {here insert grantee's name or names and place of residence), the following described real estate {here insert de- scription), situate in the county of {here insert name of coun- ty) state of Wyoming. {And when the right of homestead is TiFP.FOEMS — 41 642 FORM BOOK (Ch. 14 involved add the following:) Hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of said state. ^^ Dated this day of , A. D. . In presence of: A. B. Ibid. § 3658. Such deed, when executed, shall be deemed a conveyance in fee simple to the grantee, his heirs and assigns, with covenants on the part of the grantor: (1) That at the time of the mak- ing and delivery of such deed he was lawfully seised of an in- defeasible estate in fee simple in and to the premises therein described, and had good right and power to convey the same ; (2) that the same were then free from all incumbrances; and (3) that the grantor warrants to the grantee, his heirs and as- signs, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. Such covenants shall be obligatory upon the grantor, his heirs and personal representatives. Ibid. § 3659. Quitclaim Deed (Statutory) A. B., grantor {here insert grantor's name or names and place of residence), for the consideration of {here insert the consideration), conveys and quitclaims to {here insert gran- tee's name or names) all interest in the following described real estate {here insert description), situate in the county of {here insert name of county), in the state of Wyoming. {And where the right of homestead is released add the following:) Hereby relinquishing and waiving all rights under and by virtue of the homestead exemption laws of said state. Dated this day of , A. D. . In presence of : A. B. Ibid. § 3660. 10 See Coiiip. St. 1910, § 366S, infra, p. 643. Ch. 14) DEEDS 643 Such deed, when executed, shall be held a sufficient convey- ance, release, and quitclaim to the grantee, his heirs and assigns, in fee of all legal and equitable rights of the grantor at the time of the execution and delivery of such deed in the premises therein described, but shall not extend to after-acquired title unless words are added expressing such intention. Ibid. § 3661. A deed of quitclaim, without the word "release," is suffi- cient to pass all the estate which the grantor could lawfully convey by deed of bargain and sale. Ibid. § 3663. When the grantor or grantors in any such deed or mortgage desires to release or waive their homestead rights, they or either of them may release or waive the same by inserting in the form of deed or mortgage (as the case may be) provided herein, after the words "state of Wyoming," in substance the following words : "Hereby releasing and waiving all right under and by virtue of the homestead exemption laws of this state." And such instrument shall be acknowledged in the manner provided for the acknowledgment to deeds of home- stead. Ibid. § 3668. 644 FORM BOOK (Ch. 15 CHAPTER XV EASEMENTS AND LICENSES An "easement" is a right or privilege annexed to the owner- ship of a parcel of land, called the dominant tenement, and binding neighboring land, called the servient tenement, of an- other, whereby the owner of the dominant tenement is entitled, for its advantage, to have some particular use, without pos- session or profit, of the servient tenement or to require its owner to refrain from some particular use of it. Easements may be created by grant, which must be by deed or will, and also by express reservation in a deed conveying land over which it is in,tended that the grantor shall have an easement for the benefit of other land retained by him, either on the theory of an implied grant back or of an exception. An ease- ment passes by a grant of the dominant tenement, although not mentioned expressly or by the use of the word "appur- tenances" ; and the burden of an easement runs with the servient tenement, into the hands of every person to whom it comes. See Deeds, ante, p. 467. The forms in this chapter are confined to cases in which easements are the separate sub- ject of some grant or other agreement. A "Hcense" is an authority to do specified acts on the land of the licensor. It differs from the grant of an easement in that it creates only personal rights and obligations, and not an interest in the land. It terminates upon the licensor's con- veyance of the land to another. A mere license is revocable at the will of the licensor, even though money has been paid for it ; but the licensee is entitled to notice of revocation and reasonable time to remove his goods. Even if the license be made irrevocable by contract, the remedy is only an action for breach of the contract if the license be revoked ; although in some states the license is irrevocable if the licensee has ex- pended money on the land in reliance upon the license. A license coupled with an interest in the land, as where a right to take minerals is granted, is irrevocable. A license may be by parol. Ch. 15) EASEMENTS AND LICENSES 645 Pago 1. Grant of right of way in perpetuity for all purposes 645 2. Grant of right of way in connection with dwelling house 647 3. Grant for a footway in substitution for a right of way which is released 648 4. Grant of right of way to railway company- 649 5. Agreement quieting disputes as to use of a way and license 650 6. Grant of right of sewage 652 7. Grant of right to lay footings of wall in land of adjoin- ing owner 653 8. Grant of right of lateral support for a building 654 9. Grant of easement of light 656 10. Agreement between adjoining houseliolders as to right of eavesdrop 656 11. Agreement between adjoining landowners as to encroach- ing fence and license 658 12. Release of right of way or other easement — by indorsement 659 13. License to fish 660 14. License to club to use land for playing baseball. 660 15. License to golf club reserving rent and revocable by notice 661 16. Grant of right to construct telephone line in street 662 17. Grant of right to construct telephone line over owner's land 663 For licenses under patents, see Patents, p. 1074; under lease, see Landlord and Tenant, p. 726. 1. Grant of Right of Way in Perpetuity for All Purposes Indenture made the day of between , party of the first part, and , party of the second part : [Recital of seisin oe grantor.] Whereas, the party of the first part is seised of an estate in fee simple free from incumbrances of a parcel of land described as (description), and delineated on the plan annexed hereto, across which there runs a private road shown on the said plan by the dotted lines between the point A, where the road opens into street, so-called, and the point B, where it opens into lane, so-called; [Recital oe seisin oe grantee.] And whereas, the par- ty of the second part is seised in fee simple of another parcel of land near the first-mentioned land, described as (descrip- tion) ; 646 FORM BOOK (Ch. 15 [RbcitaIv of agrBEmUnT.] And whereas, the party of the first part has agreed, in consideration of the sum of $ to be paid to him by the party of the second part, to grant to the party of the second part an easement or right of way over the said private road for the purposes and in the man- ner hereinafter expressed. [Grant of right op way.] Now, this indenture witness- eth that, in pursuance of the said agreement and in Consid- eration of the sum of $ paid by the party of the sec- ond part to the party of the first part, the receipt whereof is hereby acknowledged, the party of the first part hereby grants unto the party of the second part, his heirs and assigns: [Extent op grant.] Full and free right and liberty for him and them, his and their tenants, servants, visitors, and licensees, in common with all others having the like right, at all times hereafter, with or without horses, cattle, or other animals, carts, carriages, or other vehicles of any descrip- tion, for all purposes connected with the use and enjoyment of the said land of the party of the second for whatever pur- pose the said land may be from time to time lawfully used and enjoyed, to pass and repass along the said private road for the purpose of going from the said street to the said lane, or vice versa. [Habendum.] To hold the said easement or right of way hereby granted unto the party of the second part, his heirs and assigns, as appurtenant to the said land of the party of the second and every part thereof. In witness whereof the party of the first part has hereunto set his hand and seal the day and year first above written. Ch. 16) EASEMENTS AND LICENSES 647 2. Grant of Right of Way in Connection With Dwelling House {Begin as in preceding form, including first recital^ [Recital of seisin of grantee.] And whereas, the par- ty of the second part is seised in fee simple of another parcel of land described as {description), upon which is erected a private dwelling house; [Recital of agreement.] And whereas, for the consid- eration hereinafter mentioned, the party of the first part has agreed to grant to the party of the second part such right of way over the said private road as hereinafter expressed. [Grant of right of way.] Now, this indenture witness- eth {grant as in preceding form) : [Extent of grant.] Full and free right and liberty for him and them, his and their tenants, servants, visitors, and licensees, in common with all other persons having the like right, at all times hereafter, on foot or on horseback or in vehicles (but not with sheep, cattle, pigs, or other animals) to pass and repass along the said private road from the said street to the said lane for all lawful purposes :onnected with the use and enjoyment of the said premises of the party of the second part as a single private dwelling house, but for no other purposes. [Habendum.] To hold the said right of way hereJay grant- ed unto the party of the second part and his heirs as appurte- nant to his said premises. In witness, etc. 648 FORM BOOK (Ch. 15 3. Grant for a Footway in Substitution for a Right of Way Which is Released This indenture is made the day of between , party of the first part, and , party of the sec- ond part: [Recital of sBisin of servient owner.] Whereas, the party of the first part is seised in fee simple in possession of a parcel of land described as (description), and delineated on the plan hereto annexed, across which there runs a path, here- inafter called the "old path,'-" as shown by the dotted lines on the said plan from the point marked A to the point marked B on the said plan; [Recital oe seisin oe dominant owner.] And whereas, the party of the second part is seised in fee simple in posses- sion of another parcel of land, described as (description), ap- purtenant to which there is a private right of footway along the said old path ; [Recital oe desire to substitute.] And whereas, the party of the first part is desirous of closing the said old path, and of substituting therefor the new path, the width, position, and direction of which are shown on the said plan by the continuous blue lines running from the point marked C to the point marked D on the said plan; [Recital oe agreement.] And whereas, the party of the first part has agreed, in consideration of the party of the sec- ond part releasing his said right of way over the said old path in the manner hereinafter expressed, to grant to him such right of way over the said new path as hereinafter expressed. Now, this indenture witnesseth as follows : 1. [Grant oe new right of way.] In pursuance of the said agreement, and in consideration of the release on the part of the party of the second part hereinafter expressed. Ch. 15) EASEMENTS AND LICENSES 64^ the party of the first part hereby grants to the party of the second part full and free liberty, in common with all other persons entitled to the like liberty, of passing and repassing, on foot only, at all times along the said new path for any pur- pose connected with the use and enjoyment of the said land of the party of the second part. To hold the said right of way hereby granted to the party of the second part, his heirs and assigns, as an easement appurtenant to the said land. 2. [Release of old right of way.] In further pursu- ance of the said agreement, and in consideration of the prem- ises, the party of the second part hereby releases unto the party of the first part all the right or easement of way over the said old path now belonging to the party of the second part as appurtenant to his said land, or otherwise howsoever. To hold the said right or easement hereinbefore expressed to be hereby released unto the party of the first part, his heirs and assigns, to the intent that the same may be extin- guished. In witness, etc. (Signatures and seals of both parties.) 4. Grant of Right of Way to Railway Company This indenture made the day of between , of , party of the first part, and the Railway Company, a corporation organized and existing un- der the laws of the state of , party of the second part : Witnesseth that the said party of the first part, in consid- eration of the sum of $ paid by the said party of the second part, the receipt whereof is hereby acknowledged, doth hereby grant to the said party of the second part, its succes- sors and assigns, full and free right, liberty, and authority to enter upon and to construct, operate, and maintain its line of railroad over and upon a strip of land feet in width. 650 FORM BOOK (Ch. 15 being feet wide on each side of the center line of the railroad or right of way of the said party of the second part, as the same is now surveyed and located (or, is now con- structed), across the following described lands (description). To have and to hold the said easement or right of way unto the said party of the second part, its successors and assigns, as appurtenant to its railroad constructed or about to be con- structed between and , so long as the said party of the second part, its successors or assigns, shall continue to operate the said railroad. In witness, etc. 5. Agreement Quieting Disputes as to Use of a Way and License Agreement made this day of between , party of the first part, and , party of the second part: [RECITAL OP OWNERSHIP OP LANDS.] Whereas, the party of the first part is the owner of certain lands (description), across which runs a private road leading out of the highroad from to — and opening into the highroad from to ; and whereas, the party of the second part is the owner of certain other lands near the said premises of the party of the first part (description) ; [Recitai, of disputes as to right To use.] And where- as, the party of the second part has from time to time dur- ing the preceding years passed and repassed along the said private road for the purpose of going to and from the said secondly mentioned highroad, and disputes have arisen between the partes hereto in regard to his right so to do, and for the purpose of settling all such disputes and for the con- sideration hereinafter mentioned the parties hereto have en- tered into this agreement. Ch. 15) EASEMENTS AND LICENSES 651 Now, it is hereby agreed as follows : 1. [Admission of no right.] The party of the second part admits that he has no right to use the said road except by the license of the party of the first part. 2. [IvicBNSE To use.] The party of the first part agrees that the party of the second part may without further license on the part of the party of th'e first part use and enjoy the said road for the purpose of passing and repassing along the same with or without horses or vehicles between the said first-mentioned highroad to the said second-mentioned high- road during the period of one year from the date hereof and so on from year to year until this agreement shall be deter- mined. 3. [Consideration.] In consideration of the foregoing the party of the second part will on the day of in every year during the continuance of this agreement pay to the party of the first part the sum of $ , if demanded, as an acknowledgment that the enjoyment of the said way is had under this agreement, and not otherwise. 4. [Agreement, how terminated.] The party of the first part may terminate this agreement at the end of any calendar year by giving days! notice in writing to that effect to the party of the second part. 5. [To run with land.] The burden and benefit of this agreement are intended, so far as may be, to attach and run with the said premises of the party of the first part and the party of the second part, respectively. In witness, etc. (Signatures of both parties.) C52 FORM BOOK (Ch. 15 6. Grant of Right of Sewage Indenture made this day of between , party of the first part, and , party of the second part: [RBciTai, of seisin of lands.] Whereas, the party of the first part is seised in fee simple of a piece of land {descrip- tion), and the party of the second part is seised in fee simple of another piece of land adjoining thereto {description), as shown upon the plan hereto annexed; [RBciTal of sewer.] And whereas, a sewer or drain has been constructed by the party of the first part beneath the surface of his said land, and is connected with the main or public sewer, the course of which sewer or drain is shown on the said plan by dotted lines between the points marked A and B thereon. [Grant.] Now, this indenture witnesseth that, in consid- eration of the sum of $ paid by the party of the sec- ond part to the party of the first part, the receipt whereof is hereby acknowledged, the party of the first part hereby grants unto the party of the second part, his heirs and assigns for- ever, the right of using the said sewer or drain for the pas- sage of sewage water and soil from the said land of the party of the second part or all or any of his lands adjoining his said land, and for that purpose also the right to make and at all times repair and maintain all such connections with the said sewer or drain at the said point marked A on the said plan as may be reasonable and proper in that behalf, making good, nevertheless, at his own expense, all damage or disturb- ance which may be caused to the said land of the party of the first part in relation to such connections, repairs or mainte- nance. In witness, etc. {Signatures and seals of both parties) Ch. 15) EASEMENTS AND LICENSES 653 7. Grant of Right to Lay Footings of Wall in Land of Adjoining Owner This indenture is made this day of between , party of the first part, and , party of the sec- ond part: [Recital of ownership oE lands.] Whereas, the party of the second part is the owner in fee simple of a parcel of land described as (description), and the party of the first part is the owner in fee simple of another parcel of land adjoining thereto, abutting upon street, and described as (de- scription), all as shown upon the plan hereto annexed; [Recital oe desire to erect wall.] And whereas, the party of the second part is desirous of erecting a building the south wall of which will constitute the boundary between the said lands of the parties hereto, and the footings or founda- tions of which wall will lie partly in and upon the said land of the party of the first part; [Recital of agreement.] And whereas, it has been mu- tually agreed between the parties hereto that the party of the second part shall have the right to lay the said footings or foundations in and upon the said land of the party of the first part for the consideration hereinafter expressed. Now, this indenture witnesseth as follows : 1. [Grant of right to lay footings and repair wall.] In pursuance of said agreement and in consideration of $ paid by the party of the second part, the receipt whereof by the party of the first part is hereby acknowledged, the party of the first part doth hereby grant unto the party of the second part, his heirs and assigns, full and free liberty, right, and authority to enter into and upon the said land of the party of the first part and to excavate the same to the width of feet and the depth of feet along the 6D4 FORM BOOK (Ch. 15 said boundary line between the said respective lands of the parties hereto, and to lay and forever maintain in such ex- cavations at a depth of not less than feet from, the established grade of said street all such footings and foundations for such wall of such dimensions and materials as the party of the second part shall see fit ; and in and upon the said land of the party of the first part to do all other acts and things necessary or proper for the purpose of enabling the said wall, footings, and foundations to be speedily and efficiently built and laid and to be maintained and kept in re- pair. 2. [Covenants.] The party of the second part hereby covenants with the party of the first part that he the party of the second part, his heirs and assigns, in excavating for, building, laying, maintaining, and repairing the said wall, foundations, and footings, will do as little damage as possible to the said premises of the party of tlie first part, and will make good all such damage, and will restore the said premises so far as possible to their present condition to his and their reasonable satisfaction. In witness, etc. {Signatures and seals of both parties.) 8. Grant of Right of Lateral Support for a Building Indenture made the day of between , of , party of the first part, and , of , party of the second part: [Recitals oe ownership, etc.] Whereas, the party of the first part is seised in fee simple of a piece of land which is described as (description), and which is hereinafter called the servient tenement; and whereas, the party of the second part is seised in fee simple of a piece of land adjoining the servient tenement, which is described as (description), and Cll. 15) EASEMENTS AND LICENSES 655 which is hereinafter called the dominant tenement; and whereas, the party of the second part is about to erect on the dominant tenement a building the stability of which will be largely dependent upon lateral support afforded by the servient tenement. Now, this indenture witnesseth as follows: 1. [Grant.] The party of the first part, in consideration of the sum of dollars to him paid by the party of the second part, the receipt whereof is hereby acknowledged, doth hereby grant unto the party of the second part, his heirs and assigns, full right and privilege forever hereafter to have whatever buildings the party of the second part may at amy time hereafter erect on the dominant tenement supported lat- erally by the subsoil of and the minerals in and under the servient tenement. 2. [Excavations on servient tenement.] Nothing here- in contained shall be construed to prevent the party of the first part from making excavations on the servient tenement for the purpose of laying foundations for any buildings which he may hereafter erect thereon, and which excavations might but for this proviso be a derogation from the grant hereby made, so long as he provides sufficient artificial support 'to the buildings for the time being erected on the servient tene- ment both during the progress and after completion of any buildings which he may so erect thereon. 3. [Grantee not to do damage, etc.] The party of the second part shall not do or suffer to be done anything where- by the premises of the party of the first part shall in any wise be rendered unstable or unsafe, and he shall not build on the dominant tenement to a greater height than feet. In witness, etc. 656 FORM BOOK (Ch. 15 9. Grant of Easement of Light This indenture made the day of between , party of the first part, and , party of the sec- ond part: [Grant.] Witnesseth that, in consideration of the sum of $ — ^ paid by the party of the second part to the party of the first part, the receipt whereof the party of the first part hereby acknowledges, the party of the first part hereby grants to the party of the second part and his heirs : [Extent op grant.] Full and free right to the uninter- rupted access, transmission, and enjoyment of light (to the extent of degrees from the zenith) over and across all that parcel of land (description), more particularly described and delineated in the plan annexed hereto and therein colored red, to the existing windows of the dwelling house erected upon a parcel of land of the party of the second part adjoin- ing the said first-mentioned parcel of land on the north side thereof, and more particularly described and delineated on the said plan and therein colored blue. [Habendum.] To hold the said easement hereby granted unto the party of the second part, his heirs and assigns. In witness, etc. '10. Agreement Between Adjoining Householders as to Right of Eavesdrop An agreement made the day of between , party of the first part, and , party of the sec- ond part : [Recital oE eavesdrop.] Whereas, the party of the sec- ond part is the owner of a dwelling house abutting against the southern wall of a dwelling house owned by the party of the Ch. 15) EASEMENTS AND LICENSES 657" first part situate in street, in the city of , and the party of the second part has affixed to the eastern side of his said house a gutter which conveys rainwater from the roof of his said house onto the eaves of the said house of the party of the first part and onto his adjoining land ; [Recital of disputes.] And whereas, disputes have aris- en between the said parties respecting the right of the party of the second part to affix the said gutter and pipe as afore- said. Now, it is hereby agreed as follows : 1. [Agreement that gutter is by license.] The gutter shall be deemed to have been originally affixed and to remain hereafter affixed as aforesaid, with the express license and consent of the party of the first part, to the intent that neither the party of the second part nor any person claiming under or through him shall acquire any right of eavesdrop or any easement or right in respect of the said gutter. 2. [Compensation for damage.] The party of the sec- ond part shall compensate the party of the first part in re- spect to any damage or injury that may at any time hereafter be done to the said house of the party of the first part or anything therein or to his said land, by reason of the said gut- ter being afifixed as aforesaid. 3. [Removal on notice.] The party of the second part shall within days after the service of a notice in writing on him by the party of the first part requiring him so to do take down and remove the said gutter and make good alL damage occasioned thereby. In witness, etc. {Signatu/res and seals of both parties^ TiFF.FOEMS — 42 658 FORM BOOK (Ch. 15 11, Agreement Between Adjoining Landowners as to En- croaching Fence and License Agreement made this day of (parties as in preceding form) : [RuciTal of owni;rship of lands.] Whereas, the party of the first part is the owner of a certain parcel of land de- scribed as {description) ; and whereas, the party of the second part is the owner of a certain other parcel of land adjoining thereto on the west side thereof described as {description) ; and whereas, the true boundary line between the said parcels of land is shown upon the plan hereto annexed; [Recital op fence.] And whereas, the party of the sec- ond part has by mistake built a fence running north and south across the said land of the party of the first part and inclos- ing a part thereof with the said land of the party of the sec- ond part, the location of which fence is correctly shown upon the said plan. Now, it is hereby agreed as follows : 1. [Admission of no right.] The party of the second part admits that the true boundary line between his said land and the said land of the party of the first part is as shown upon the said plan, and that the said fence stands upon the said land of the party of the first part. 2. [License to use.] The party of the first part agrees that the party of the second part may without further license on his part use and enjoy all that portion of the said land of the party of the first part which lies west from the said fence until this agreement shall be determined, and in the mean- tinie may maintain the said fence where it now is. 3. [Consideration.] In consideration of the foregoing the party of the second part will in every year during the Ch. 15) EASEMENTS AND LICENSES 659 continuance of this agreement pay to the party of the first part the sum of dollars, if demanded, as an acknowl- edginent that the enjoyment of the said land is under this agreement, and not otherwise. 4. [Agreement, how terminated.] The party of the first part may terminate this agreement at any time by giving days' notice in writing to that effect to the party of the second part, and thereupon the party of the second part shall immediately remove the said fence ; and, if he shall fail so to do, the party of the first part may remove or otherwise dispose of the same as he may see fit. 5. {To run with the land, as in form No. 5, cl. 5, p. 650.) In witness, etc. 12. Release of Right of Way or Other Easement — By In- dorsement This indenture is made this day of between , of the one part, and , of the other part: Whereas, the said and the said are respec- tively seised in fee as within mentioned. Now, this indenture witnesseth that, in consideration of the sum of $ paid by the said to the said , the receipt whereof is hereby acknowledged, the said here- by releases and abandons unto the said all that right of way {or other easement, describing the right granted) which by the within-written indenture was granted to the said — ■■ , to the intent that such right shall henceforth cease and determine. In witness, etc, {Signature and seal.) 660 FORM BOOK (Ch. 15 13. License to Fish I, the undersigned, in consideration of dollars, the receipt whereof is hereby acknowledged, do hereby grant unto full license and authority with a rod and line to fish for and to take and carry away fish of every kind in that portion of the brook, so-called, which crosses my farm in , and also to traverse and use the banks of the said brook for any purpose necessary to the proper exercise of this license, and to pass and repass on foot over the said farm be- tween the said brook and the road, so-called, from the day of to the day of . Dated {etc.) (Signature.) 14. License to Club to Use Land for Playing Baseball I, , of , as owner of the land hereinafter de- scribed, hereby license and authorize all members for the time teing of the Club, by themselves, their servants, agents, and friends, with all proper tools and appliances, to enter and go upon the said land at all times between the day of and the day of in every year, so long as this license shall be unrevoked, and there to practice and play at the game of baseball, and so far as may be proper for that purpose to cut and mow the grass growing there and to roll the said land, and to do all things incidental to practicing and playing the game of baseball, doing no unnecessary dam- age to the said land or anything being or growing thereon. The land above referred to is (description). Dated (etc.) (Signature.) Ch. 15) EASEMENTS AND LICENSES 661 15. License to Golf Club Reserving Rent and Revocable by Notice ^ This indenture made the day of between , of , hereinafter called the owner, of the one part, and the Golf Club, a corporation {etc.), hereinaft- er called the club, of the other part : Witnesseth as follows : 1. [License eor gole course.] The owner hereby licens- es and authorizes the club at 'all times during the continuance of this agreement to enter upon the land hereinafter described by its officers, members, servants, agents, and guests, and with all proper tools, machines, horses, carts, implements, and ap- pliances to lay out and maintain a golf course, and for that purpose to improve, dig up, roll, mow, and adapt the said land to that use, and there to play golf, subject to the condi- tions hereinafter contained. 2. [Restrictions as to waste.] The club shall not, ex- cept so far as may be reasonably necessary for laying out and maintaining the said lands for a golf course as aforesaid, com- mit any waste thereon, and in particular shall not without the permission in writing of the owner cut down or destroy or injure any bushes or trees. And the club shall be answer- able for any damage done to the land, except as is permitted by this agreement, by any persons entering upon the land in pursuance of this license. 3. [Fixtures.] The club may erect and fix in and upon the land any flags, posts, fences, bridges, sheds, and tents to be used exclusively for the purposes of the club, and shall 1 For lease of land for a golf coui-se, see Form No. 14a, p. 775. In the case of a club, a responsible guarantor for tlie payment of the rent and performance of the covenants is desirable. 662 FOEM BOOK (Ch. 15 at or before the determination of this agreement remove the same and make good all damage done thereby. 4. [Rent.] The club shall, so long as the license hereby granted shall not be determined in manner hereinafter pro- vided, pay to the owner the sum of ■ dollars on the — day of , the first of such payments to be made on the day of . 5. [OwNBR NOT TO INTERFERE WITH GOL?.] The owner will not pasture or turn out upon the said land any horse, cattle, or other animals, nor will he plow up any part of the said land, or grow hay or other crops thereon, or put any manure or dressing or do any other thing thereon so as to in- terfere with the playing of golf thereon. 6. [Determination oe agreement.] The owner may by notice in writing cancel this agreement and revoke the license hereby granted, if at any time the yearly sum agreed to be paid by the club be days in arrear, or if the club shall break any of the conditions herein contained; but, except as aforesaid, this agreement shall remain in force and be irrevo- cable until determined by either party by calendar months' notice in writing expiring on the day of in any year. Such notice may be given by the owner by delivering it to the secretary of the club or to any of its officers for the time being. In witness, etc. {Signatures and seals of both parties^ 16. Grant of Right to Construct Telephone Line in Street Know all men by these presents that I, of , in consideration of the sum of $ ^ to me paid by the Telephone Company, etc., do hereby grant unto the said company, its successors and assigns, the right to con- struct, operate, and maintain its lines of telephone, including Ch. 15) EASEMENTS AND LICENSES 663 the necessary poles and fixtures, in, upon, and over the roads, streets, or highways adjoining the following described land owned by me, to wit (description), and also the right to cut down or trim any trees in the said roads, streets, or highways necessary to keep the wires clear for at least inches, and the right to set therein the necessary guy and brace poles and to attach to trees therein the necessary guy wires. In witness, etc. 17. Grant of Right to Construct Telephone Line Over Owner's Land Indenture made the day of between , hereinafter called the owner, of the one part, and the Telephone Company, a corporation organized and existing ac- cording to the laws of the state of , hereinafter called the company, of the other part: [Recitai, of ownership Q-e land, etc.] Whereas the own- er is seised of the following described land {description), and the company is desirous of constructing its lines of telephone over, across, and upon the said land (the proposed location of the said lines and of the necessary poles and fixtures being shown upon the plan hereto annexed). Now, this indenture witnesseth as follows: 1. [Grant.] In consideration of the sum of $ paid by the company to the owner, the receipt whereof is hereby acknowledged {or, in consideration of the sum to be paid to the owner by the company as hereinafter expressed), the own- er hereby grants to the company, its successors and assigns, full and free right, liberty, and authority to enter upon, and to construct, operate, and maintain its lines of telephone, in- cluding the necessary poles, wires, guys, and fixtures, over, across, and upon the said land (from a point on the boundary thereof, etc., to a point on the southerly boundary 064 FORM BOOK (Ch. 15 thereof; or, in conformity with the location of the said lines and of the necessary poles and fixtures shown upon the said plan), and to cut down or trim any trees thereon as may be necessary to keep the wires clear for at least inches, and to attach guy wires to any trees thereon. 2. [Payment by company.] (In consideration of the fore- going the company will pay to the owner the sum of $ for each and every pole of the said lines to be placed by the company upon the said land, such payment to be made as soon as the number of poles so to be placed is ascertained.) 3. [Company to make good damage.] The company shall do as little damage as possible to the owner's said premises in the exercise of any right hereby granted, and shall make good as speedily as possible any damage to the said premises. In witness, etc. •Ch. 16) riEE INSUKANCB 605 CHAPTER XVI FIRE INSURANCE Policies of fire insurance are, of course, always prepared by "the companies issuing them, and in many states standard forms •are prescribed by statute. The policies sometimes provide for an immediate notice of loss to be given to the company by the insured. They always provide for a statement in writing, or proof of loss, to be signed and sworn to by the insured, and to be rendered to the company, setting forth the value of the property insured, the interest of the insured, all other in- surance on the property in detail, the purposes for which and the persons by whom the building insured or containing the property insured was used, the time at which the fire originated so far as known to the insured, and often other particulars. Forms of proof are usually furnished by the companies, but the policy should always be examined to see that the proof con- forms with the requirements. The following forms may be varied accordingly: Page 1. Notice of loss 665 2. Proof of loss 666 •3. Same — Another form 667 i. Same — Another form 669 5. Certificate of magistrate or notary 671 '6. Receipt on payment of loss 671 7. Agreement for submission to appraisers 672 8. Award of appraisers 673 Assignment of fire insurance policy, p. 170. 1. Notice of Loss To the Fire Insurance Company: Please take notice that on the day of the house '(or, building No. — ■ , — - — - street, in , or otherivise describe the premises or articles insured), insured in your company under policy No. , was damaged {or, destroy- ed ; or otherwise describe the nature of the damage or loss) ■hy fire. Proof of loss will be duly forwarded to you. Dated , {Signature.) 666 FORM BOOK (Ch. 16 2. Proof of Loss To the Insurance Company, of : By your policy of insurance No. , dated , is- sued to , by , your agent at , for the term of (and continued by renewal certificate No. to the day of ), you insured , against loss and damage by fire to the amount of dollars, as more fully appears by the printed or written portions and conditions of said policy, as follows, viz : . The property thus insured belonged to , and no other person or party had any interest therein. The building insured (or, containing the property destroyed or damaged) was also occupied in its several parts by , and for the following purposes, to wit: . A fire occurred on the day of , at about the hour of o'clock — . m., by which the property named in the policy was destroyed or damaged as hereinafter set forth in detail. The whole value of the property amounted to $ , which was the actual cash value at the time of the fire, and the whole amount of loss sustained is $ , as set forth in the annexed Schedule A. The whole insurance on said property at the time of the fire, including that above mentioned, was $ and no more, as set forth in the annexed Schedule B. claim of your company its proportion of said loss,. viz., $ , as per apportionment in Schedule B. The fire originated as follows, viz. (set forth the manner in which the fire originated, so far as known). Nothing has been done by or with privity or consent to violate the conditions of the policy or to render it void. Witness hand — at this day of .- (Signature.) Ch. 16) FIRE INSUKANCE 667 Statb oif County of 19 — , personally appeared -, the signer of the foregoing statement, and made solemn oath that said statement is just and true, according to the best of knowledge and belief, and that no material fact is withheld that the said company should be advised of. Before me , Notary Public (or other officer). Items Sound Value Loss First . Second Third , Schedule B statemetstt of insurance and apportionment of LOSS Name of Company- First Item Second Item Third Item Total o u S 1 m CO 111 3 a V d ca o To the I, — your — 3. Same — Another Form Insurance Company, of , the assured under your policy No. — agency, commencing , and expiring of f?68 FORM BOOK (Ch. m covering $ on , hereby certify : That I have sus- tained loss and damage to the amount of $ by fire, which occurred on the — day of and originated from That the v^^hole insurance on the property amounted to $ , as per schedule herewith. That the actual cash value of the property so insured at the time immediately preceding the fire was . That I am the sole owner of the property insured. That this policy is payable to , mortgagee. That nothing has been done by me or with my privity or consent to violate the conditions of insurance or avoid the. policy. That I claim of your company the sum of $ viz. : $ on . $- $- on on Dated at this day of (Signature.) Subscribed and sworn to, etc. I hereby certify that the above claim is just and true. , Agent. Schedule insurance and apportionment of loss Name of Company First Item Second Item Third Item Total o d CO u 1=1 Cfi a at D9 ED a DO ID £ Vt >> cd CI4 Ch. 16) FIRE INSURANCE CC9 4. Same — Another Form State of ■ ss. County of Be it known that on this day of , before me , a notary public duly commissioned and sworn, and re- siding in the of , in the county and state afore- said, personally appeared , who, being duly sworn, de- poses and says that the following statement and the papers therein referred to and signed with his own hand contain a par- ticular, just and true account of his loss in the words and fig- ures following, to wit : I. That on the day of — -, the Fire Insur- ance Company, of , by its policy of insurance numbered , issued by , their agent at , -in the state of , did insure the party herein and therein named against loss or damage by fire to the amount of ■- dollars (as more fully appears by the printed or written portion of said policy as follows, viz. : ) for the term of from the day of to the day of — ^ , at noon, which policy was subsequently continued in force by renewal until the day of , at noon. II. That, in addition to the amount covered by said policy of said company, there was other insurance made thereon to the amount of dollars, as specified in the accompany- ing Schedule A showing the name of each company, and the written portions of each policy, besides which there was no other insurance thereon {in the schedule give the name of each company, date and term of pvlicy, rate of premium, and entire written portion of each). III. That the actual cash value of the property so insured amounted to the sum of dollars at the time immediately preceding the fire, as will appear by the annexed Schedule B, 670 FOUM BOOK . (Ch. 16 showing a full and accurate description of each kind of prop- erty, and the value of the same, with the damage or loss on each stated separately. IV. That the property insured belonged to exclu- sively, and no other person had any interest therein. V. That the building insured or containing the property de- stroyed or damaged was occupied in its several parts by the parties hereinafter named, and for the following purposes, to wit, , and for no other purpose whatever. VI. That on the day of a fire occurred by which the property insured was injured or destroyed to the amount of dollars, as set forth in the statement and the several schedules and papers hereunto annexed, which the de- ponent declare to be a just and true account of — ■ ■ loss as far as ha — been able to ascertain the same. And the insured claim — of the the sum of $ as follows : \ on $ ^ — on . $ on . $ total amount claimed. • That the fire originated , and the said deponent — fur- ther declare — that the said fire did not originate by any act, design, or procurement on part, or in consequence of any fraud or evil practice done or suffered by , and that nothing has been done by or with privity or consent to violate the conditions of insurance or render void the policy aforesaid. Witness hand at , in the county of , and state of , this day of . (Signature.) Subscribed and sworn to, etc. Ch. 16) FIRE INSURANCE 671 5. Certificate of Magistrate or Notary State of ■ ss. County of I, , residing in most contiguous to the prop- erty hereinbefore described, hereby certify that I am not con- cerned in the loss or claim above set forth, either as creditor or otherwise, or related to the insured or sufferers ; that I have examined the circumstances attending the fire or damage as al- leged, and that I am well acquainted with the character and cir- cumstances of the insured, and do verily believe that ha — • by misfortune, and without fraud or evil practice, sus- tained loss and damage on the property insured to the amount of dollars. In testimony whereof I have hereunto set my hand and offi- cial seal this day of ■ . 6. Receipt on Payment of Loss $ . . 19—. Received from the Fire Insurance Company, of -, the sum of dollars in full payment and satis- faction of all claims for loss and damage by fire which occurred on the day of , under policy No. , renewal No. , issued at the agency of said company, and in consideration of said payment said policy is hereby satisfied and canceled to the extent of amount paid. A similar receipt has been signed on the policy. (Signature.) 672 FORM BOOK (Ch. 16 7. Agreement for Submission to Appraisers This agreement made the day of between , of the one part, and the Insurance Company, of the other part, witnesseth as follows : and , together with a third person to be ap- pointed by them in case of disagreement, who shall act on items of differences only, shall estimate and appraise at the true cash value the loss or damage by fire to the building (or, merchan- dise) described in policy No. of the said company and insured in the name of the said , and the estimate and appraisement, in writing of them or of any two of them, act- ing as hereinbefore provided, as to the amount of such loss or damage, shall be binding on the parties hereto ; it being under- stood that this submission is without reference to any other question or matter of difference within the terms and condi- tions of the insurance, and is binding only as to the actual cash value and damage to such property at the time of the fire, and that this agreement does not waive, and is without prejudice to, any of the terms and conditions of the said policy. The property on which loss or damage is to be estimated and appraised is {description of building or merchandise as the case may be). The said appraisers shall take into consideration the age, condition, and location of the said building (or, the condition and value of the said merchandise) previous to the fire, and also the value of the walls, materials, or any portion of the said building which may be saved (or, and also the value of the said merchandise or any portion thereof which may be saved), and after making an estimate of the cost of replacing the said build- ing (or, the said merchandise) a proper deduction shall be made by them for the difference between the value of a new or re- placed building and the one insured (or, between the value of Ch. 16) FIRE INSURANOB 673 new or replaced merchandise and that insured). The apprais- ers shall prepare their award in the form of a detailed item- ized statement, in accordance herewith, and return the same -to the said company. In witness whereof the parties hereto have set their hands the day and year first above written. 8. Award of Appraisers To the Fire Insurance Company: Having carefully estimated and appraised the loss or dam- age by fire to the property of agreeably to the forego- ing and attached appointment, we hereby report and return that we have appraised and determined the loss or damage thereon to be dollars, as shown by statement of items herewith. Witness our hands this day of . {Signature.) TiBT.FOBMS — 43 674 FORM BOOK (Ch..l7 CHAPTER XVII GIFTS Gifts are of three kinds, (1) gifts inter vivos, (2) testa- mentary gifts, and (3) gifts causa mortis; but only the first are included in this chapter. A gift of personal chattels must be by deed, unless the chattels are delivered. A gift of real property must conform with the requirements for the con- veyance of such property in other cases. The lack of con- sideration does not affect the validity of the transfer between the parties. The questions how far in the case of personal property delivery is essential to a transfer as against creditors and purchasers and under what circumstances gifts and vol- untary conveyances, although accompanied by delivery, are subject to attack by creditors, cannot be here considered. Voluntary subscriptions by a number of persons to pro- mote some object in which they have a common interest, such as subscriptions to charitable organizations, are usually in the form of mere promises to give; but they are generally sus- tained, at least when the subscription is acted upon, notwith- standing the difficulty or impossibility in many cases of finding consideration for the promises. By some courts they are sus- tained on the theory that the mutual promises of the subscrib- ers form the consideration. More generally, however, it is held, upon one theory or another, that the promises become binding after the beneficiary has incurred expense or liability in reliance thereon. Pago 1. Gift of personal chattels 674 2. Deed of gift of land 675 3. Subscription for a church building 675 4. Subscription to endow a college C76 5. Subscription to erection of factory 676 1. Gift of Personal Chattels Know all men by these presents that I, of , in consideration of natural love and affection, hereby assign to my daughter, , all the household furniture and effects, books, pictures, and all other personal chattels and effects what- Ch. 17) GIFTS 675 soever in my dwelling house at , to hold the said chat- tels and effects unto her the said absolutely. In witness, etc. {Signature and seal.) 2. Deed of Gift of Land This indenture, made this day of , between , of , party of the first part, and , of -, daughter of the said , party of the second part : Witnesseth that the said party of the first part, in consider- ation of his natural love and affection for the said party of the second part,^ doth hereby give, grant, convey, and confirm unto the said party of the second part, her heirs and assigns, all the following described parcel of land (description). To have and to hold the same, together with all and singular the hereditaments and appurtenances thereunto belonging, unto the said party of the second part, her heirs and assigns forever. In witness, etc. 3. Subscription for a Church Building We, the subscribers hereto, in consideration of the mutual promises contained herein and in any other papers of like ten- or and effect, do hereby agree with each other and with the subscribers hereof and of any such other papers, and with Church, a corporation, to pay to the trustees of the said Church the sums set opposite our respective names for the purpose of building a new church building which the said Church proposes to build upon the site of its present building. The said sums shall be payable by equal an- nual installments as follows (terms of payment). Dated the day of -. (Signatures and amounts.) 1 In most cases the deed states merely a nominal consideration of one dollar or the like. 676 FORM BOOK (Ch. 17 4. Subscription to Endow a College In consideration of the effort by the trustees of Col- lege to raise a fund of $ , and their agreement to receive, hold, and apply such fund as hereinafter provided, we, the sub- scribers, hereby bind ourselves to pay to the said trustees the sums opposite to our respective names, in four equal annual payments, the first to be made on the day of , The conditions of the subscription are the following: 1. That the moneys collected on it shall be permanently in- vested as a productive fund, the interest of which shall be ap- plied to the payment of the salaries of the officers. 2. That we shall not be holden to pay the sum subscribed by us unless the aggregate of our subscriptions and of contri- butions to this object shall by the day of amount to $ , nor until , of , shall certify that, in his judgment, responsible subscriptions or contributions amounting to $ shall have been made. Dated the day of . (Signatures and amounts.) S. Subscription to Erection of Factory Whereas, the Company proposes to erect a building and to operate the same as a shirt factory upon some centrally located lot within the city of , such building to be de- signed and well and substantially built for that purpose, and to be of sufficient size and capacity to place and operate there- in not less than sewing machines, and to be completed and fully equipped with that number of machines and with all fixtures, fittings, and appliances reasonably necessary for the operation thereof as a shirt factory on or before the day of ; and whereas, the said Company further proposes upon such completion and equipment as aforesaid to Ch. 17) GIFTS 677 execute to the undersigned a good and sufficient bond in the aggregate amount of their subscriptions hereunder with a sure- ty or sureties to be approved by the directors of the Business Men's Association of , conditioned that the said shirt factory shall be operated at its reasonable capacity during not less than months in each year for a period of not less than years : Now, in consideration of the premises and as an inducement to the said Company so to build and operate such factory, we, the undersigned, do hereby promise and agree to pay the sums set opposite our respective names to within days from the date hereof ; and we here- by authorize the said to pay over the said sums to the said Company, when such factory shall have been fully completed and equipped, and such bond shall have been duly executed and delivered to the said for us as above re- cited, but in default thereof all said sums are to be repaid to the undersigned subscribers, respectively. Dated this day of . {Signatures and a^nounts.) 678 FORM BOOK (Ch. 18 CHAPTER XVIII GOOD WII.I. In General The good will of a business may be local or personal, or both. Local good will attaches to the possession of the realty where the business is carried on, being based on the probability that old customers will continue to resort to the same place, and it is necessarily assignable only with the transfer of the realty. Personal good will is based on the reputation of the person by whom the business is carried on, and attaches to his business name. To a greater or less extent it may be trans- ferred or assigned to another by granting him the right to use the name under which the business has been carried on, as well as by the personal recommendation of the purchaser by the assignor. Upon an assignment of the good will, for the pur- pose of protecting the purchaser in carrying on the business, the assignor usually covenants not to carry on a similar busi- ness within certain limits. The good will is an asset of a part- nership, and partnership articles frequently contain provisions for its disposition on a dissolution. Post, pp.1020, 1039. Trade-Marks A "trade-mark" is a name, device, or symbol used by the proprietor on or in connection with goods of his manufacture for the purpose of identifying them and distinguishing them from like goods manufactured by others. A trade-mark is assignable only in connection with the good will of the busi- ness in which it is used. Statutes for the registration of trade- marks have been enacted in some states, but a trade-mark can be acquired and may exist independently of registration. The federal statutes provide for the registration of trade-marks used in commerce with foreign nations and among the several states and with Indian tribes, and for their protection. Act Feb. 20, 1905, c. 592, 33 Stat. 724, as amend. Act May 4, 1906, c. 2081, 34 Stat. 168; Act March 2, 1907, c. 2573, 34 Stat. 1252; Act Feb. 18, 1909, c. 144, 35 Stat. 627 (U. S. Comp. St. 1913, §§ 9485-9516). A registered trade-mark, as well as a mark for the registration for which application has been made, is assignable in connection with the good will of the Ch. 18) GOOD WILL 679 business in which the mark is used. The assignment must be by an instrument in writing and duly acknowledged accord- ing to the laws of the country or state in which it is executed ; and an assignment is void against any subsequent purchaser for a valuable consideration without notice, unless recorded in the Patent OfRce within three months from the date thereof. Act Feb. 20, 1905, c. 592, § 10, 33 Stat. 727. Certificates of registration may be issued to the assignee of the applicant, but the assignment must first be entered of record in the Patent Office. Ibid. § 11. Pago 1. Assignment of good will and assets of grocery business. . . . 679 2. Assignment by a firm of the good will and assets of their business to a corporation 681 3. Assignment of trade-marks with good will of busmess and trade-name 6S3 4. Assignment of trade-mark by separate instrument 6S4 5. Assignment of good will of medical practice 685 1. Assignment of Good Will and Assets of Grocery Business Indenture made this day of between , hereinafter called the vendor, of the one part, and . hereinafter called the purchaser, of the other part: [Recital of lease.] Whereas, by an indenture of lease dated {etc^, and recorded {etc), and made by to the vendor, a certain store and premises therein described, on street, in the said city of , were demised to the vendor, his executors, administrators, and assigns, from the day of for the term of years, and the said lessor has consented to an assignment of the said lease to the purchaser; [Recital oe business.] And whereas, the vendor has since the date of the said indenture carried on the grocery business situate at the store and premises aforesaid; [Recital oe agreement.] And whereas, the vendor has agreed with the purchaser for the sale to him of the said busi- ness, and the said lease, and the stock in trade, chattels, trade 680 FOEM BOOK (Ch. 18 fixtures, and utensils in or about the premises, and the book debts and contracts hereinafter mentioned, at the price of $ ; [ReciTAL OP ASSIGNMENT OP LEASE.] And whereas, by an indenture of even date herewith the vendor has assigned the said lease and the premises thereby demised to the purchaser for the residue of the said term. Now, this indenture witnesseth as follows: 1. [Assignment.] In further pursuance of the said agree- ment and in consideration of $ paid by the purchaser to the vendor, the receipt whereof the vendor hereby acknowl- edges, and in consideration of the purchaser's covenants here- inafter contained, the vendor hereby assigns unto the pur- chaser all the business of a grocer so carried on by the pur- chaser at aforesaid, and the good will thereof, and all the stock in trade, chattels, trade fixtures, and utensils now in or upon the premises, and all the book debts now owing to the vendor in respect thereof, and all contracts and engage- ments, benefits, and advantages which have been entered into by the vendor or to which he is entitled in respect to the said business, particulars of which book debts and contracts are specified in the schedule hereto. To hold the same unto the purchaser absolutely. 2. [Vendor's covenant not to compete, etc.] The ven- dor hereby covenants with the purchaser that the vendor will not within years from the date hereof, either solely or jointly with or as manager or agent for any person or corpora- tion, directly or indirectly carry on or be engaged or interested in the business of a grocer, or permit his name to be used in connection with any such business, within miles of aforesaid ; and that the contracts entered into by him and the book debts owing to him in respect to the said busi- ness are correctly specified in the schedule hereto; and, fur- Ch. 18) GOOD WILL 681 ther, that the vendor will from time to time and at all times hereafter use his best endeavors to promote the said business arid to give the purchaser the full benefit of the connection and custom of the vendor in the said business. 3. [Purchaser's covenant for indemnity, etc.] The purchaser hereby covenants with the vendor that the purchaser will perform the contracts specified in the schedule hereto and pay all future liabilities of every kind in connection with the said business, and will keep the vendor and his estate in- demnified against the same and all actions, proceedings, claims, demands, costs, damages, and expenses in relation thereto. In witness, etc. . {Signatures and seals.) Schedule , Assignment by a Firm of the Good Will and Assets of their Business to a Corporation This indenture is made this day of between and , of , partners under the firm name and style and constituting the partnership of A. B. & Co., parties of the first part, and the A. B. Company, a corpora- tion organized and existing under the laws of the state of , party of the second part: [Recital oe partnership.] Whereas, the parties of the first part have heretofore carried on the business of wholesale dealers and jobbers in dry goods in the city of at premises owned by them known and described as (description) ; [Recital oe agreement.] And whereas, the parties of the first part have agreed to sell their said business and the 682 FORM BOOK (Ch. 18 good will thereof to the party of the second part for the sum of dollars, and to sell and convey to the party of the second part the above-described real estate and premises for the further sum of dollars by deed of conveyance to be executed contemporaneously herewith. 1. [Assignment.] Now, this indenture witnesseth that the parties of the first part, in consideration of the premises and of the sum of dollars to them in hand paid by the party of the second part, the receipt whereof is hereby ac- knowledged, do hereby sell, assign, transfer, and set over unto the party of the second part all the above-recited business and the good will and the full benefit thereof, and the right to use the trade-name heretofore used by them in said business, to wit, the name of A. B. & Co., or the name of the A. B. Com- pany, together with all and singular the stock in trade, book and other accounts, contracts, credits, bills receivable, judg- ments, profits, moneys, assets, and effects of said partnership, including the furniture and property of every description now in the building upon the above-described premises. To have and to hold the same unto the party of the second part, its successors and assigns, absolutely. 2. [Assignors' covenants.] And the parties of the first part hereby covenant with the party of the second part that they will not, and that neither of them will, in the said city directly or indirectly carry on, or engage or be interested in, the same business heretofore carried on by them, nor permit the said name of A. B. & Co. or the name of either of the parties of the first part to be used in connection with any such business in the said city, and that they have not, except as appears by the books of the said partnership, contracted, incurred, or entered into any debt, liability, or obligation which can be made a charge upon or in any way affect the assets and effects of the said partnership. Ch. 18) GOOD WILL 683 3. [Assignee's covenants.] And the party of the second part hereby covenants with the parties of the first part that the party of the second part will pay, discharge, and perform all the debts, liabiHties, and obligations of said partnership heretofore contracted, incurred, or entered into by the said partnership in relation to the said business, as the same ap- pear upon the books of the said partnership, and will at all times keep indemnified the parties of the first part against all such debts, liabilities, and obligations, and all actions, pro- ceedings, costs, and expenses in respect thereof. In witness, etc. 3. Assignment ot Trade-Marks with Good Will of Business and Trade-Name This indenture made the day of between , of — , party of the first part, and , of , party of the second part: [Recital oe business and trade-marks.] Whereas, the party of the first part has for some years past carried on the business of a manufacturer of and dealer in at , in said city of , under the name or style of ; and whereas, the party of the first part did obtain certificates of registration of the United States of the following trade- marks used in the said business of the party of the first part for the following goods, to wit {description of goods), which certificates are numbered and bear date respectively as fol- lows, to wit, certificate numbered , and bearing date the day of , in the year {etc.) ; [Recital oe agreement eor sale.] And whereas, the party of the first part has agreed with the party of the second part for the sale to him for the sum of dollars of the good will of the said business and the stock in trade thereof 684 FORM BOOK (Ch. 18 and the said registered trade-marks and the right to use the said trade-name; [ReciTAL OF DEUVBRY OF STOCK IN TRADB.] And where- as, the party of the first part has delivered to the party of the second part the stoclc in trade of the said business. Now this indenture witnesseth as follows: 1. [Assignment.] In pursuance of the said agreement and in consideration of the sum of dollars to him in hand paid, the receipt whereof is hereby acknowledged, 'the party of the first part doth hereby assign and transfer unto the party of the second part all the said business of a manufac- turer and dealer in now carried on by the party of the first part at aforesaid and the good will thereof, together with the exclusive right, so far as the party of the first part can confer the same, to the name and style of , and also all the registered trade-marks hereinbefore described, to hold the same unto the party of the second part absolutely. 2. [Covenants, if required.] See Forms 1, 2, pp. 681, 679. In witness, etc. 4. Assignment of Trade-Mark by Separate Instrument (Following preceding form substantially to recital of agree- ment for sale) ; [Recitae of agreement for saeE.] And whereas, the party of the first part has agreed to sell to the party of the second part his said business and the said trade-mark for the sum of dollars; [ReciTae of assignment of good will.] And whereas, by an indenture of even date herewith, in consideration of the sum of dollars paid by the party of the second part to the party of the first part, the party of the first part assigned Ch. 18) GOOD WILL 685 to the party of the second part the good will of his said busi- ness. [Assignment.] Now, this indenture witnesseth that, in pursuance of the above-recited agreement and in considera- tion of the premises, the party of the first part hereby assigns and transfers to the party of the second part the said trade- mark hereinbefore described, to hold the same imto the party of the second part absolutely. In witness, etc. 5. Assignment of Good Will of Medical Practice Indenture made the ■ — day of , between , of , party of the first part, and , of , party of the second part : [Recitai< oif PRACTICE AND AGREEMENT.] Whcreas, the party of the first part for many years has carried on the prac- tice of a general medical practitioner at , and has agreed with the party of the second part for the sale to him of the said practice and the good will thereof and of the dwelling house wherein he has maintained his office as such practitioner at the price of dollars, of which dollars should be deemed the price of the said dwelling house, and dollars the price of the said practice; and whereas, the party of the first part has conveyed the said dwelling house to the party of the second part by deed of even date herewith. Now this indenture witnesseth as follows: [Assignment.] In pursuance of the said agreement and in consideration of dollars paid by the party of the sec- ond part, the receipt whereof is hereby acknowledged, the party of the first part hereby sells and assigns to the party of the second part all the said practice as a general medical practitioner so carried on by the party of the first part as 686 FORM BOOK (Ch. 18 aforesaid and the good will thereof. To hold the same unto the party of the second part absolutely. [Covenant of assignor.] The party of the first part hereby covenants with the party of the second part that he will introduce him to all the patients of the party of the first part and do all in his power to procure the full benefit of the said practice to the party of the second part and to insure his success therein, and that the party of the first part will not at any time hereafter, within miles from afore- said, practice as a physician, surgeon, or medical practitioner in 'any capacity, or attend any of his past or present patients. In witness, etc. Ch. 19) GUAHANTIES 687 CHAPTER XIX GUARANTIES A "guaranty" is a collateral undertaking by one person to be answerable for the payment of some debt or the performance of some contract or act for another person who stands first bound to pay or perform. The contract falls within the stat- ute of frauds, which, in the form in which it is usually enact- ed, provides that no action shall be brought whereby to charge the defendant upon any specisd promise to answer for the debt, default, or miscarriage of another person unless the agree- ment upon which the action shall be brought or some note or memorandum thereof shall be in writing and signed by the party to be charged, or some other person by him thereunto lawfully authorized. As a rule, the consideration must be stated. A contract of guaranty, at least if it be not under seal, must rest upon consideration. Therefore the guaranty of a pre-ex- isting debt must be based upon a new consideration, which, however, may be founded on an agreement to extend the time of payment or to forbear suit thereon. If money is lent or goods are delivered on the strength of an oral promise to guar- anty the payment, the guaranty may be reduced to writing subsequently, and is not without consideration or invalid for that reason. When a guaranty takes the form of an offer to guaranty future advances to be made or credit to be extended to a person, and the like, it is generally, though not universally, held that the oi?er does not ripen into a contract merely upon the making of the advances or extending of the credit, but that notice of acceptance by the person to whom the offer is made is essential. Page 1. For payment of money advanced 688 2. For payment of goods to be supplied 688 3. Same — Another form 689 4. For payment of debt in consideration of forbearance 689 5. For payment of note 689 6. For collection of note 689 7. For performance of contract 690 8. Ck)ntimiing guaranty for payment of goods to be supplied 690 688 WORM BOOK (Ch. 19 Page 9. Joint and several guaranty of advances, with right to with- draw 692 10. Continuing guaranty, limited in amount, for goods to be supplied, where guarantors are liable in unequal sums. . 693 For guaranty of rent, see Landlord and Tenant, post, pp. 815, 816, 1. For Payment of Money Advanced To : I hereby guaranty (to the extent of dollars) the pay- ment to you of the sum of dollars, which you have this day advanced to at my request and upon my prom- ise of such guaranty, with interest at the rate of per cent, per annum from the date of your sending by registered mail to me a written demand for payment of said sum of dollars, and this guaranty shall not be affected by your ffrantinsr time to the said . Dated (Signature.) 2. For Payment of Goods to be Supplied To & Co. : I hereby guaranty (to the extent of dollars) the pay- ment to you of whatsoever sums of money shall become due and payable to you by for any and all goods which you may supply to him in his business as a (retail grocer). This guaranty shall be effective without notification by you of your acceptance of the same, and shall continue until revoked by me by written notice to you, and shall not be affected by any change in the constitution of your firm or by your granting time or other indulgence given by you to him. It shall not be necessary for you to take proceedings against him before ap- plying to me for payment for any sum the payment of which is hereby guaranteed. Dated . (Signature.) Ch. 19) GUAEANTIES 689 3. Same — Another Form To : Please deliver to such goods as he may want from time to time, and for valuable considerations, which I hereby acknowledge to have received, I hereby agree to become fully responsible to you for any balance, not exceeding dol- lars, either in open accounts or in notes, which he may from time to time owe you for such purchases until you have written notice from me to the contrary. I waive all notice respecting your assent to this guaranty and all notice necessary to charge me as guarantor hereunder. Dated . (Signature.) 4. For Payment of Debt in Consideration of Forbearance To : In consideration of your having at my request agreed to forbear to bring any action or proceeding against to enforce payment of the sum of $ due by him to you for goods sold and delivered, I hereby guaranty the payment to you of that sum, with interest at the rate of per cent. per annum from the day of , within days from the date hereof. Dated . (Signature.) 5. For Payment of Note For value received I hereby guaranty the payment of the within note. (Signature.) 6. For Collection of Note For value received I hereby guaranty the collection of the within note. (Signature.) TiFF.FOKMS — i4 690 FOEM BOOK (Ch. 19 7. For Performance of Contract In consideration of the execution of the within contract by the party of the first part therein named, I hereby guaranty the due performance by the party of the second part therein named of all the covenants and agreements on his part therein con- tained, and the payment of all damages, costs, and expenses which by virtue of the said contract may become recoverable from him by the said party of the first part. Dated . (Signature.) 8. Continuing Guaranty for Payment of Goods to be Supplied This agreement, made this day of , between , hereinafter called the guarantor, of the one part, and , hereinafter called the creditor, of the other part, wit- nesseth that: Whereas, the creditor has at the request of the guarantor agreed to supply to , hereinafter called the debtor, from time to time in the course of his business of a retail grocer with goods on credit. Now, therefore, it is hereby agreed as follows : 1. [Undbrtaking of guarantor.] The guarantor will pay to the creditor such sum or sums of money as shall from time to time during the continuance of this agreement be- come due to the creditor from the debtor for goods so to be supplied, and not paid for by the debtor. The liability of the guarantor hereunder shall not at any time exceed dol- lars, but subject thereto this guaranty shall be a guaranty of the whole of such sum or sums. 2. [Nature and extent oI^ guarantor's liability.] The guaranty hereby given shall be a continuing guaranty, but the guarantor shall not at any time be responsible for or lia- Ch. 19) GUARANTIES 691 ble to pay to the creditor more than the balance which may for the time being be due to him from the debtor, not exceed- ing in, the whole the said sum of dollars, and no pro- ceeding whatever shall be taken against the guarantor for the recovery of such sum or sums, or any part thereof, until the expiration of days' notice, which shall be given in writing to him, of default having been made by the debtor in payment thereof, or of some part thereof, and requiring the guarantor to pay the same. 3. [Whbn creditor may require payment.] In the event of the debtor refusing or neglecting to pay any such sum or sums of money as may for the time being be due from him for goods so supplied, or of his becoming bankrupt or filing a petition in bankruptcy, or of his compounding or at- tempting to compromise with his creditors, the creditor shall resort to and recover from the debtor, or his estate, or any other securities held by the creditor, so much of the said sum or sums as can be obtained or recovered, before requiring payment thereof, or of any part thereof, from the guarantor. 4. [Indulgence To debtor.] The liability of the guar- antor shall not be affected by any time or other indulgence given to the debtor, or by the acceptance by the creditor of any negotiable or other securities from the debtor or others in respect of any sum for the time being owing. 5. [Creditor to keep guarantor informed.] The cred- itor will at all times during the continuance of this guaranty give to the guarantor when by the guarantor requested in writ- ing so to do full and accurate information as to the amount of the indebtedness of the debtor to the creditor. 6. [Determination.] This guaranty may be determined at any time by the guarantor by notice in writing given to the creditor to that effect and payment to the creditor of the amount, if any, for the time being owing by the debtor up to 692 FOEM BOOK (Ch. 19 the limit specified in paragraph 1 hereof. And this guaranty shall absolutely determine on the death of the guarantor. In witness, etc. 9. Joint and Several Guaranty of Advances, with Right to Withdraw In consideration of your having at our. request agreed to advance to any sums of money he may require during the period of one year from the date hereof not exceeding in the aggregate the sum of $ : [Undertaking to repay.] We, the undersigned, hereby guaranty to' you the repayment by the said of all sums of money advanced by you to him as aforesaid, with interest at the rate of per cent, per annum, subject as herein- after provided, that is to say: 1. [Notice of dEEaulT.] Notice in writing of any de- fault on the part of the said is to be given by you to us, and within days from its receipt payment shall be made by us of all sums then due from us under this guar- anty. 2. [Guaranty continuing.] This guaranty is a continu- ing guaranty within the limits aforesaid as to time and amount, and our Hability under it is joint and several. 3. [IviMiT OE LIABILITY.] Under no circumstances shall our total joint and several liability hereunder exceed in the aggre- gate the sum of $ . 4. [Withdrawal.] Each guarantor shall be at liberty at any time to withdraw from all liability hereunder on payment to you of the sum of $ or so much thereof as shall not already have been satisfied by payment or otherwise. In the event of the death of any surety his personal representa- tives shall be at liberty to exercise a like power of withdrawal, Ch. 19) GUAEANTIES 693 and shall thereby relieve his estate from future liability un- der this guaranty. Dated . (Signatures of guarantors.') To 10. Continuing Guaranty, Limited in Amount, for Goods to be Supplied, where Guarantors Are Liable in Unequal Sums In consideration of your having at our request agreed to supply of , hereinafter called the debtor, with goods in the way of his trade carried on by him at : We, the undersigned, agree with you as follows : 1. [ScoPB OF GUARANTY.] To guarantee to you the pay- ment by the debtor of all goods so supplied by you as afore- said, but subject to the limit on our aggregate and individual liability hereinafter expressed. 2. [Nature and extent oe liability.] This guaranty shall be a continuing guaranty, but our aggregate liability shall not under any circumstances exceed the sum of $ ; and the proportionate share or liability of each of us individually in respect of the said sum shall not (save in the event of any one or more of us becoming bankrupt, insolvent, or otherwise unable to discharge and satisfy his individual liability here- under, in which case any deficiency thereby caused shall be made good by the remainder of us in proportion to our in- dividual liability hereunder) exceed in amount the sum placed opposite our respective signatures at the foot hereof, and should the common liability be less than the said maximum aggregate sum, the share due from each one of us in respect thereof shall be in strict proportion to his individual liability hereunder, and not otherwise. 3. [Guaranty to apply to whole debt.] Within the aforesaid limits of liability this guaranty shall extend and be 694 FORM BOOK (Ch. 19 applicable to the whole debt that shall ultimately be due to you from the debtor in respect of goods supplied by you to him as aforesaid, and not merely to so much thereof as shall be coextensive with our aforesaid maximum aggregate lia- bility hereunder. 4. [Authority to grant Time to debtor.] You shall be at liberty without discharging us from our liability here- under to grant time or other indulgence to the debtor in re- spect of goods supplied by you to him as aforesaid, and to accept payment from him in cash or by means of negotiable instruments, and to treat him in all respects as though we were jointly liable with him as debtors to you instead of be- ing merely sureties for the debtor. 5. [Waiver oe rights oe suretyship.] In order to give full effect to the provisions of this guaranty we hereby waive and each of us hereby waives all suretyship and other rights inconsistent with such provisions and which we might other- wise be entitled to claim and enforce. 6. [Revocation.] This guaranty shall at our option be revocable by days' notice in writing given to you by us. Dated . (Signatures of guarantors.) (Amount guaranteed.) Ch. 20) HIBE OP GOODS 695 CHAPTER XX HIRE OF GOODS A contract for the hire of personal chattels is a contract of bailment, ' whereby the possession of the chattels is delivered by the owner, or bailor, to the hirer, or bailee, to be used for a corppensation to be paid by him, the ownership remaining in the bailor. Agreements are often drawn in the form of a contract for hire in which the owner undertakes that the goods shall become the property of the hirer conditionally on his making certain rent payments, which he obligates himself to make. These agreements are generally held to be "conditional sales" within statutes providing for the filing and record of such sales. A contract for hire giving the hirer a mere option to buy for a stipulated price, or providing that the goods shall become the property of the hirer or lessee if he makes a cer- tain number of periodical rent payments, but not obligating him to make them, is to be distinguished from a conditional sale. See Sale of Goods, p. 1191. Page 1. Agreement for hire of furniture , 695 2. Lease of personal property 697 3. Agreement for hire of pianoforte to become property of hirer if he makes optional payments 699 4. Agreement for hire of machinery with option to buy 700 1. Agreement for Hire of Furniture This agreement, made this day of , between ■ , hereinafter called the owner, of the one part, and , hereinafter called the hirer, of the other part: Witnesseth that it is hereby agreed as follows: 1. [Agreembnt for hire.] The owner will let and the hirer will hire the following described articles of furniture, to wit: (description), for the term of calendar months from the day of .^ 696 FORM BOOK (Ch. 20 2. [DELIVERY.] The owner shall deliver the said articles at his own expense at the house of the hirer at on the day of . 3. [Rent,] The hirer shall pay to the owner for the hire of the said furniture a rent of dollars for each month of the said term, payable on the day of each month, the first payment to be made on the day of next. 4. [Repairs, etc.] The hirer shall during the said term keep and maintain the said furniture in good state of condi- tion and repair, reasonable wear and tear excepted, and shall at the determination of the said term replace such of the said articles as may be broken or damaged, otherwise than by rea- sonable wear and tear, or lost, by others of a similar nature and of equal value {or, shall pay to the owner compensation on account of any of the said articles which may be broken or damaged, otherwise than as aforesaid, or lost). 5. [Insurance.] The hirer shall during the said term keep the said furniture insured against fire in the sum of dollars (and against burglary in the sum of ~ dollars) in companies to be approved by the owner, making the loss, if any, payable to him, and shall deliver the policies and premi- um receipts to him. 6. [Taxes.] The hirer shall promptly pay all taxes which shall become payable upon the said furniture during the said term. 7. [Not to be fixtures.] The hirer shall not cause or suffer any of the said articles to be affixed to the said house in such a way that they shall become fixtures. 8. [Not to remove.] The hirer shall not during the said term remove the said furniture or any thereof from the said house, or suffer the same to go out of his possession, except with the written consent of the owner. Ch. 20) HIRE OF GOODS 697 9. [Inspection.] It shall be lawful for the owner or his agent at all reasonable times to enter the said house for the purpose of viewing the state and condition of the said furni- ture. 10. [Determination.] Upon any breach by the hirer of any of the stipulations herein contained, or if any execution or other legal process shall be levied upon the said articles, the owner shall be at liberty without notice to determine this agreement. 11. [Rights of owner on determination.] Upon the determination of this agreement, whether by lapse of time or under the preceding clause, the owner shall be at liberty to enter the said house and remove and carry away the said ar- ticles, and for that purpose to do all things reasonably neces- sary for such removal without liability for any damage caused thereby, and without prejudice to the rights of the owner in respect to any rents due or to become due from the hirer un- der this agreement. In witness, etc. (^Signatures of both parties^ 2. Lease of Personal Property This indenture, made the day of , of , party of the first part, and , party of the second part: Witnesseth : 1. [Lease, term, and rent.] That the said party of the first part hereby lets to the said party of the second part all the following described personal property {description) for the term of months, commencing on the day of • , the said party of the second part paying therefor to the said party of the first part at the sum of dollars on the day of each month of the said term. 698 FOKM BOOK (Ch. 20 2. [Lessee's covenants.] And the said party of the sec- ond part hereby covenants with the said party of the first part to pay the said rent at the times and in the manner afore- said, and that, if the said rent or any part thereof shall at any time or times as hereinbefore provided be unpaid, the said party of the second part will pay to the said party of the first part interest on such arrears at the rate of per cent, per annum from the date of default in payment thereof until the said rent shall be paid, together with rea- sonable charges and expenses for collecting the said rents; to pay all taxes which may be imposed upon the said prop- erty while in the possession of the said party of the second part; to use the said property in a careful and prudent man- ner; not to sublet, mortgage, or in any manner dispose of the same tcr any person, or remove or attempt to remove the same, or suffer the same to come into the custody or control of any person other than the said party of the second part, without the consent in writing of the said party of the first part; not to suffer any legal process to be levied upon the same; to permit the said party of the first part at all rea- sonable times to enter upon the premises to inspect the said property; and to surrender the said property up to the said party of the first part at the expiration of the said term in as good condition as when he received the same, reasonable wear excepted. 3. [Lessor's remedies on default.] It is hereby agreed that if any rent hereunder shall be due and unpaid, or if de- fault shall be made in any of the covenants on the part of the party of the second part herein contained, then and in any such case the said party of the first part or his legal representatives may, immediately or at any time thereafter, take possession of the said property wherever it may be found, forcibly, if necessary, without being taken or deemed guilty Ch. 20) HIKE OF GOODS 699 of any manner of trespass, and without thereby rendering himself or themselves liable to refund any sums received as rent as aforesaid, and thereupon this lease shall determine, but without prejudice to any remedies which he or they might otherwise use for arrears of rent or any breach of the cove- nants of the said party of the second part herein contained. In witness, etc. 3. Agreement for Hire of Pianoforte to Become Property of Hirer if he Makes Optional Payments (Begin as in Form 1, p. 695): 1. [Ageeemsnt for hire.] The owner will let and the hirer will hire a pianoforte bearing the name of and No. , upon the terms and conditions following: 2. [Payments.] The hirer shall pay to the owner so long as the hirer thinks fit t£> continue the hire the sum of dollars per calendar month in advance, the first of such pay- ments to be made on the signing hereof, and the payment for each succeeding month to be made at the expiration of each succeeding month. 3. [Obligations of hirer.] The hirer shall keep the said pianoforte in good and substantial order, damage by fire in- cluded, in his own custody at his address as given herein, and shall not sell, mortgage, remove, or part with the possession of the same without the previous consent in writing of the •owner, and shall permit persons authorized by the owner at all reasonable times to inspect the condition of the said piano- forte. 4. [Resumption oe possession on default.] If default shall be made in the punctual payment of any of the monthly installments above specified, or if the hirer shall fail to ob- serve and perform all and every of the terms and conditions 700 FORM BOOK (Ch. 20 of this agreement, or shall do or suffer any act or thing where- by the owner's rights shall or may be prejudiced, it shall be lawful for the owner to resume possession of the said piano- forte, and for such purpose to enter any premises occupied by the hirer. 5. [Determination by hirer.] The hirer may put an end to the hiring by returning the said pianoforte at his own cost to the owner. 6. [When property to pass.] If monthly pay- ments shall be duly paid by the hirer in manner aforesaid, the said pianoforte shall become the property of the hirer, but until such payments shall have been made in full the same shall remain the property of the owner. 7. [Hire to be paid up to determination.] If the hir- ing is determined by either party as hereinbefore provided, all hire, as well as any damage suffered by the owner, up to the date of such determination, shall be paid by the hirer to the owner, and no repayment or credit on account of payments previously made shall be made or allowed. l^n witness, etc. 4, Agreement for Hire of Machinery with Option to Buy (Begin as in Form 1, p. 695) : 1. [Agreement for hire.] The owner shall let to the hirer and the hirer shall take and hire from the owner from the date hereof the machinery (description) which is speci- fied in the schedule hereto annexed. 2. [Receipt oe option money.] The owner hereby ac- knowledges the receipt of the sum of dollars for the option to purchase hereinafter contained. If the hirer shall exercise such option, credit will be given to him for such sum, but otherwise such sum shall belong absolutely to the owner. Ch. 20) HIRE OF GOODS TOl 3. [Rbnt.] So long as the hirer thinks fit to continue the hiring he shall pay to the owner without demand the sum of • dollars on the day of every calendar month as rent for the hire of the said machinery, the first of such payments to be made on the day of . 4. [Obligations op hirer.] The hirer shall keep the said machinery in good and serviceable order and condition and make good all damage, whether by fire or accident or other- wise; shall not sell, assign, mortgage, or part with the said machinery, or suffer the same to go out of his possession; shall keep the same free from all legal process ; shall permit the owner or his agent at all reasonable times to have access to the said machinery; shall duly and punctually pay all taxes payable in respect to the said machinery; and shall not without the written consent of the owner execute or suf- fer any mortgage or other incumbrance of the premises upon which the said machinery may be. 5. [Determination by hirer.] The hirer may at any time determine the hiring by delivering up the said machinery at his own risk and cost to the owner. 6. [Determination by owner.] If the hirer shall be in default in punctually paying any installment of rent, or shall fail to observe and perform any of the agreements and con- ditions on his part herein contained, then and in any such case it shall be lawful for the owner immediately to put an end to the hiring, and for that purpose to enter upon any premises in which the said machinery may be and to seize and carry away the same. 7. [Arrears oe rent and damages to be paid.] If the hiring shall be determined either by the hirer or by the owner, as hereinbefore provided, no credit or repayment shall be al- lowed or made to the hirer, but the hirer Shall pay to the 702 FORM BOOK (Ch. 20 owner all arrears of rent with interest thereon at the rate of per cent, per annum and any damages for the breach of this agreement up to the date of such determination. 8. [Option to purchase.] The hirer shall have the op- tion of purchasing the said machinery at any time during the hiring by paying the sum of dollars, and if the hirer shall exercise such option the owner shall give to the hirer credit against such purchase price for all payments thereto- fore made by him for rent, and also the sum paid on the sign- ing of this agreement. Until such price shall have been paid in full the said machinery shall remain the absolute property of the owner. 9. [Insurance by owner.] During the hiring the owner may for his own benefit insure the said machinery against loss or damage by fire in any sum not exceeding dol- lars, and the hirer shall pay to the owner on demand all sums which he may pay for effecting such insurance. If the owner shall receive under such insurance a sum in excess of the balance of the said sum of (purchase price), after deducting all sums theretofore paid by the hirer for rent and the amount paid on the signing of this agreement, then such excess shall be paid by the owner to the hirer. In witness, etc. Ch. 21) HUSBAND AND WIFE 703 CHAPTER XXI HUSBAND AND WIFE The forms here given include only marriage settlements and separation agreements. Marriage settlements are made in anticipation of marriage, their object being to vest property in trustees for the benefit of tlie spouses, or one of them, and usually of their issue. See Trusts, p. 1275. A marriage settlement is usually made by in- denture. The instrument should be executed by the settlor and by the trustees, in evidence of their acceptance of the trust; and it is expedient that both the spouses should execute it, as an agreement made in consideration of marriage, which under the statute of frauds must be in writing and signed by the par- ty to be charged. The property, real or personal, which is the subject of the settlement may be transferred to the trustee by the instrument of settlement or by separate instrument, or, in the case of securities or other property transferable by de- livery, by mere delivery, the effect in either case being to vest the property in the trustees upon the terms set forth in the instrument of settlement. Marriage is a good consideration, and consequently the transfer is not deemed voluntary as against creditors, at least in so far as the settlement does not go beyond providing for the spouses and their descendants. Mar- riage settlements are less common here than in England, and are most frequently made for the purpose of settling the prop- erty of a wife in such manner that it will be preserved for the benefit of herself and of her children. Separation agreements, although formerly deemed to be con- trary to public policy, are now generally held to be enforceable both as to their provisions relating to property and as to the agreement to live separately. It is necessary to the validity of the agreement that the separation has already taken place or else that the agreement contemplate and be immediately fol- lowed by actual separation. An agreement for a future separa- tion is invalid. Such agreements are usually made through the intervention of a trustee, but where the disability of a married woman from contracting directly with her husband and from bringing suit in her own name has been removed, the intervention of a trustee is unnecessary. 704 FORM BOOK (Ch. 21 Page 1. Marriage settlement of personal property of Intended wife. . 704 2. Marriage settlement of real and personal property of In- tended husband 708 3. Slarriage settlement of personal property of wife's father's personalty 712 4. Separation deed between husband and wife, the husband granting an annuity to the wife 714 5. Separation deed between husband and wife, the wife being otherwise provided for 716 1. Marriage Settlement of Personal Property of Intended Wife Indenture made the day of between (intend- ed husband), of the first part, (intended wife), of the second part, and and (trustees), of the third part: [Recital op intended marriage.] Whereas, a marriage is intended to be solemnized between the said (intended hus- band) and the said (intended wife) ; [Recital oe agreement to settle.] And whereas, in the treaty of such marriage it was mutually agreed that the said (intended wife) should settle in manner hereinafer ap- pearing the following described personal property, namely (de- scription) : [Recital oe Transeer.] And whereas, the said (intended zvife) has transferred the said personal property to the said (trustees), who have consented to act as trustees of these pres- ents. Now, this indenture witnesseth as follows: 1. [Interpretation.] In the construction of these pres- ents the following expressions shall respectively have the fol- lowing meanings: "The husband" shall mean the said (in- tended husband) ; "the wife" shall mean the said (intended wife) ; "the spouses" shall mean the said (intended husband) and the said (intended wife) collectively; "the trustees" shall mean and include the said (trustees), or the trustees of these Ch. 21) HUSBAND AND WIFB 705 presents for the time being, whether original or substituted; and "the trust fund" shall mean the said personal property and all other property in which the proceeds of the same or any part thereof may at any time be invested. 2. [Investment cIvAUSE.] The trustees may either retain the said personal property, or, with the consent of the spouses or the survivor of them, and after the death of such survivor at their own discretion, sell and convert the same or any part thereof from time to time, and in every such case shall invest the proceeds thereof with the like consent or at the like dis- cretion in such bonds, mortgages, and other securities as may be proper for the investment of trust funds, and the trustees may with the like consent or at the like discretion from time to time vary and transpose any such investments for others of a like nature. 3. [Income during joint lives to wiee.] During the joint lives of the spouses the trustees shall pay the income from the trust fund to the wife for her separate use without power of anticipation. 4. [Income to survivor for lieE.] After the death of either of the spouses the trustees shall pay the income of the trust fund to the survivor during his or her life. 5. [Trusts after death oe spouses.] After the death of the survivor of the spouses the trustees shall hold the trust fund upon the following trusts : (a) [For issue as spouses or survivor appoint.] Upon trust for all or such one or more of the issue of the spouses in such manner and form (subject to the law relating to per- petuities) as the wife {or, as the spouses may jointly by deed with or without power of revocation, or subject to any such joint appointment, as the survivor of them) may by deed with or without power of revocation or by will appoint. (b) [In default of appointment for children.] In de- fault of and subject to any such appointment in trust for all TiFF.FOEMS — i5 706 FORM BOOK (Ch. 21 the children or any the child of the spouses who, being male, shall attain the age of twenty-one years, or, being female, shall attain that age or previously marry, and, if more than one, as tenants in common, but so nevertheless that in default of appointment to the contrary no child shall be entitled to any share under this present trust without bringing into hotch- pot any share appointed to him or her or his or her issue un- der the power hereinbefore contained. (c) [In DBlFAUI^T OF ISSUE FOR WIFE OR HER APPOINTEES OR NEXT OF KIN.] If there shall be no child or issue of the spouses who shall attain a vested interest under the provi- sions aforesaid, then subject to the trusts aforesaid the trust fund shall be held in trust for the wife, if she shall survive the husband, absolutely, but if he shall survive her, then in trust for such persons as she may by will appoint, and in de- fault of any such appointment in trust for the persons or person who, if the wife had died a widow and intestate, would have been entitled to her personal estate and in the same shares and proportions. 6. [Maintenance and accumulation.] It is hereby de- clared that after the death of the survivor of the spouses the trustees shall apply the whole or such part as they may think fit and in such proportions as they may think proper of the income from the trust fund to which any children or child of the said intended marriage shall for the time being be entitled in expectancy under the trusts hereinbefore declared for or towards the maintenance or education of all or some or one of such children or of such child, if only one. And the trus- tees may either themselves apply the same or pay the same to the guardian or guardians of any such child for the pur- pose aforesaid without seeing to the application thereof. And during such suspense of absolute vesting as aforesaid the trustees shall accumulate the residue, if any, of the same in- come by way of compound interest by investing the same and Ch. 21) HUSBAND AND WIFE 707 the resulting income therefrom for the benefit of the person or persons who under the trusts herein contained shall become entitled to the fund or the share thereof from which the same income shall have been received, and may resort to the accu- mulations of any preceding year or years and apply the same for or towards the maintenance or education of the children or child for the time being presumptively entitled thereto in the same manner as such accumulations might have been ap- plied had they been income arising in the year in which they shall be so applied. 7. [Advancement.] It is hereby declared that the trustees shall have the power, with the consent in writing of the per- sons or person having any prior life interests or interest to raise any part or parts not exceeding together one-half of the presumptive or vested share of any child or issue of the spouses under the trusts aforesaid, and to pay or apply the same as the trustees may think best for the advancement or benefit of such child or issue. 8. [Purchase of house.] It is hereby further agreed and declared that the trustees skall have the power at the request of the spouses or the survivor of them to invest any part, not exceeding $ , of the trust fund in the purchase of a dwelling house with or without adjacent land, and to allow the spouses and the survivor of them to occupy the same. 9. [Trustees' indemnity.] Every trustee of these pres- ents shall be answerable only for his own receipts, payments, and willful defaults, and for nothing else, and one trustee shall not be answerable for another. 10. [Appointment oe new trustees.] The number of the trustees hereunder shall be kept up to two ; and whenever any vacancy shall occur there shall be nominated and appomt- ed a new trustee, and in such case the surviving or acting trustee for the time being, with the written consent of the spouses or of the survivor of them during their or his or 708 FORM BOOK (Ch. 21 her lifetime, shall by writing appoint a suitable person to be cotrustee in the place of the trustee dying, resigning, or ceas- ing or refusing for any cause to act, and in default of such appointment the vacancy shall be filled in the manner provided by law ; but during the continuance of a vacancy the surviving or remaining trustee shall have every power herein given to the two trustees. 11. [Settlement conditioned on marriage.] If the in- tended marriage shall not be solemnized within months from the date hereof, this settlement shall be void, and the trust fund shall be held in trust for the wife absolutely. In witness, etc. {Signatures and seals of all parties^ 2. Marriage Settlement of Real and Personal Property of Intended Husband Indenture made the day of , between , hereinafter called the husband, of the first part, , here- inafter called the wife, of the second part, and and , hereinafter called the trustees, of the third part: [Recital oe seisin oe real estate.] Whereas, the hus- band is seised in fee simple of a certain parcel of land with the buildings thereon {description); [Recital oe ownership oe personal property.] And whereas, the husband is absolutely entitled to the bonds, shares of stock, and securities specified in the schedule hereto an- nexed ; [Recital of intended marriage and agreement To set- tle.] And whereas, a marriage, hereinafter referred to as the marriage, is intended to be solemnized between the hus- band and the wife, hereinafter together referred to as the spouses, and it has been agreed between them that the prop- Ch. 21) HUSBAND AND WIFE 709 erty hereinbefore and in the said schedule described should be settled in manner hereinafter appearing. Now, this indenture witnesseth as follows: 1. [Conveyances and assignment To trustees.] Pursu- ant to the said agreement and in consideration of tbe said intended marriage, the husband doth hereby grant, remise, re- lease, and forever quitclaim, assign, transfer, and set over unto the trustees all and singular the real and personal prop- erty hereinbefore and in the said schedule described and speci- fied ; to have and to hold the same which, with all the invest- ments into which from time to time the same may be con- verted and the income therefrom, are hereinafter called "the trust fund," to the trustees and their successors or successor in the trust, in trust nevertheless to and for the uses, intents, and purposes hereinafter set forth. 2. [Trust during lives oe spouses or survivor.] Dur- ing the joint lives of the spouses and the life of the survivor of them the trustees shall hold the trust fund upon the trusts following : (1) [For husband till marriage.] Until the marriage shall be solemnized in trust for the husband. (2) [For husband for liEE.] From and after the sol- emnization of the marriage to pay so much of the net income of the trust fund as shall accrue in the lifetime of the hus- band to him. (3) [For wiee during widowhood.] If the wife shall survive the husband to pay so much of such net income as shall accrue after the death of the husband and while the wife shall remain a widow to the wife. (4) [For wife iE she remarry.] If tbe wife shall marry again, then from and after such subsequent marriage to pay one-half only of so much of such net income as shall there- after during her life accrue to the wife. 710 FORM BOOK (Ch. 21 3. [Trusts ai^ter death op spouses.] Subject to the trusts hereinbefore declared the trustees shall hold the trust fund and the income therefrom or so much thereof respective- ly as shall not have been applied as hereinbefore provided upon the trusts following : (1) [For issue as spouses or survivor appoint.] Upon trust for all or such one or more of the children or more remote issue of the spouses in all respects in such manner as the spouses by deed with or without power of revocation and new appointment shall at any time or times appoint; and in default of and until and subject to every such joint appoint- ment as the survivor of the spouses by deed, with or without power of revocation and new appointment, or by will or codicil, shall at any time or times appoint. (2) [In deeauet oe appointment for children equal- ly.] In default of and until any and subject to any and ev- ery such joint or sole appointment as aforesaid, in trust for all the children or any the child of the marriage who, being sons or a son, shall attain the age of twenty-one years, or, being daughters or a daughter, shall attain that age or marry under that age, and, if more than one, in equal shares: (3) [Hotchpot.] Provided, always, that unless the spouses or the survivor of them shall in manner aforesaid appoint to the contrary, no child of the marriage to whom or to whose issue any part of the trust fund shall have been appointed as aforesaid shall be entitled to any share of the unappointed part of the trust fund without bringing the part so appointed into hotchpot and accounting for the same accordingly. (4) [Trust in default of issue.] In the event of and after the determination and failure of the trusts hereinbefore declared, and in the meantime subject thereto, the trustees shall hold the trust fund and the income therefrom, or from so much of the same as shall not have become absolutely vest- Ch. 21) HUSBAND AND Wirffi 711 ed or applied under the trusts and powers hereinbefore con- tained, for the husband, his personal representatives or as- signs. 4. [Income; inaliBnable.] It is hereby declared that the income herein given sliall not be alienable by any beneficiary either by assignment or by any other method, and that the said income shall not be subject to be taken by his or her creditors or by any process whatsoever. 5. [Investment clause.] (As in the preceding form, with variations to include real property.) 6. [Power to sEel and transfer.] The trustees shall have power at any time or times with the consent of the spous- es or of the survivor of them and after the death of the sur- vivor at their own discretion to sell at public or private sale, or to mortgage, lease, or pledge, any portion or the whole of the estate, real and personal, which they may hold under the trusts hereby created, and to execute and deliver good and sufficient deeds and other instruments to convey and trans- fer the same. And whenever it may become necessary to" make any final distribution of any property held in trust un- der these presents, the trustees shall have like authority for the purpose of such distribution to sell and convert into mon- ey the whole or any portion of such property, whether real or personal. 7. [Trustees' INDEMNITY.] (See preceding form, clause 9.) 8. [Appointment op new trustees.] (See preceding form, clause 10.) 9. [Meaning oe trustees.] The term "trustees" herein shall mean and include the trustees of these presents for the time being, whether original or substituted. In witness, etc. {Signatures and seals of all parties.) 712 FORM BOOK (Ch. 21 3. Marriage Settlement of Personal Property of Wife's Father's Personalty This indenture is made the day of between , hereinafter called the husband, of the first part, , hereinafter called the wife, of the second part, , hereinafter called the father, of the third part, and and , hereinafter called the trustees, of the fourth part : [RBcitai< o? intended marriage.] Whereas, a marriage, hereinafter referred to as the marriage, is intended to be sol- emnized between the husband and the wife, hereinafter to- gether referred to as the spouses; [Recitai< oe agreement to settle.] And whereas, upon the treaty for the marriage it was agreed that the father, who is entitled for his own benefit to the bonds, stocks, and other personal property specified in the schedule hereto, should set- tle the same in the manner hereinafter appearing, whidi per- sonal property and the money and investments into which the ■ whole or any part thereof may from time to time be converted are hereinafter called the trust fund ; [Recital oe transfer.] And whereas, in part perform- ance of the said agreement the father has transferred to the trustees the said bonds, stocks, and other personal property described in the said schedule. Now, this indenture witnesseth as follows: 1. [Declaration oe trust.] In further performance of the said agreement, the father, in consideration both of his natural love for the wife and of the marriage, directs that the trustees shall stand possessed of the trust fund and from time to time of the income therefrom upon the trusts follow- ing: (a) [Till marriage Eor settlor.] Until the marriage shall be solemnized in trust for the father. Ch.21) HUSBAND AND WIFE 713 (b) [WiFB FOR LiFB.] From and after the solemnization of the marriage the trustees shall be entitled to so much of the income from the trust fund as shall accrue during the life of the wife in trust for her for her separate use, with- out power of anticipation during her said intended or any subsequent coverture. (c) [Aftbr death of wiFS AS SHE APPOINTS.] After the death of the wife the trustees shall stand possessed of the trust fund and of the subsequent income therefrom in trust for such persons or person as the wife by deed with or with- out power of revocation and new appointment or by will shall at any time or times appoint. (d) [In default of appointment to her next of kin.] In default of and subject to any and every such appointment the trustees shall stand possessed of the trust fund in trust for •the persons or person who, if the wife had died intestate, would have been entitled to her personal estate and in the same shares and proportions. (Add clauses for investment, trustees' indemnity, appoint- ment of new trustees, meaning of "trustees." See Form No. 1, P- 704.) In witness, etc. Schedule Above Referred to. (Description of bonds, stocks, and other personal property^ (Signatures and seals of all parties^ 714 FORM BOOK (Ch. 21 4. Separation Deed Between Husband and Wife, the Husband Granting an Annuity to the Wife. This indenture is made the day of between , hereinafter called the husband, of the first part, his wife, hereinafter called the wife, of the second part, and , hereinafter called the trustee, of the third part: [Recitai, OS' SEPARATION AGREEMENT.] Whereas, unhappy differences have arisen between the said husband and wife, and they have mutually agreed to live apart from each other, and the husband has agreed to pay to the wife an annuity of $ during her life for the maintenance and support of herself and , the son {or, daughter) of the said hus- band and wife, subject nevertheless to the provisions and con- ditions hereinafter contained. Now, this indenture witnesseth as follows: 1. [Covenants by husband.] In pursuance of the said agreement and in consideration of the premises the husband hereby covenants with the wife and also as a separate cove- nant with the trustee, as follows, that is to say : (1) [To AivLOW wiEE TO LIVE SEPARATELY.] That the wife may at all times hereafter live apart from the husband as if she were unmarried, and that she shall be free from the con- trol and authority of the husband, and may reside at such place as she shall think fit. (2) [Not to interfere with wiee.] That the husband shall not in any manner annoy, molest, disturb, or otherwise interfere with the wife, nor require or by legal proceedings endeavor to compel the wife to cohabit with him or to en- force any restitution of conjugal rights. (3) [Custody oe child.] That the wife shall at all times hereafter have the sole control, management, maintenance, and Ch. 21) HUSBAND AND WIFE 715 guardianship of the said child free from the control or au- thority of the husband : (Provided, that it shall be lawful for the trustee for the time being hereunder, if he in his uncon- trolled discretion see fit, from time to time to permit the hus- band to have access to the said child, not exceeding weeks in any one year, and subject to such restrictions as the trustee shall think fit.) (4) [To PAY wife's debts.] That the husband will within days from the date hereof pay to the trustee the sum of $ for necessaries already supplied to the wife. (5) [To PAY ANNUITY.] That the husband will during the life of the wife (on condition that and so long as she shall continue to lead a chaste life) pay to the wife or to such per- son or persons as she shall from time to time appoint in writ- ing the yearly sum of $ by equal quarterly payments, in advance, payable on the first days of January, April, July, and October, for the separate use and benefit of the wife and for the maintenance of herself and the said child. 2. [Covenants oe wife and trustee.] In consideration of the premises the wife and the trustee hereby jointly and severally covenant with the husband as follows: (1) [To indemnify against wife's debts.] That they will at all times keep the husband indemnified against all debts and liabilities which the wife may hereafter contract, and from all actions, claims, demands, costs, damages, and expenses on account thereof. (2) [Not to interfere with husband.] That neither the wife nor any person on her behalf shall at any time hereafter molest or disturb the husband, or by legal proceedings or oth- erwise endeavor to compel the husband to cohabit with the wife, or seek to enforce any restitution of conjugal rights, or to compel the husband to allow her any alimony or mainte- nance further than the said annuity as above provided. 716 FORM BOOK (Ch. 21 (3) That in case the husband shall at any time be called on to and shall pay any debt or debts which the wife shall hereafter contract, then and in every such case it shall be law- ful for the husband to retain out of the said annuity the amount of such debt or debts, with all costs, charges, and damages which he may incur on account thereof. In witness, etc. (Signatures of all parties.) 5. Separation Deed Between Husband and Wife, the Wife Being Otherwise Provided for {Begin as in preceding form.) [RecitaIv 03? AGREBMBNT FOR SEPARATION.] Whereas, un- happy differences have arisen between the husband and the wife by reasori whereof they have agreed to live separate and apart from each other and to enter into the arrangement here- inafter set forth; [Recital of issue.] And whereas, the husband has is- sue by the wife one child only, that is to say, , who was born on the day of ; [Recital oe settlement on wife.] And whereas, as one of the terms of the said separation the husband has this day paid and assigned to the wife for her own separate use money and securities of the amount and value of $ , the re- ceipt whereof is hereby acknowledged. [Mutual covenants.] Now, this indenture witnesseth that, in pursuance of the said agreement and for the consid- erations herein appearing, the husband, so far as the stipula- tions and provisions hereinafter contained ought to be per- formed or observed by him, hereby covenants- with the said wife, and also separately with the said trustee, and the said wife, so far as the stipulations and provisions hereinafter contained ought to be performed or observed by her, hereby Ch. 21) HUSBAND AND WIFE 717 covenants with the said husband, and as a separate covenant with the said trustee, and the said trustee, so far as the stip- ulations and provisions hereinafter contained ought to be per- formed or observed by the said wife or the said trustee, here- by covenants with the said husband as follows, that is to say : 1. [Wife to be allowed to live apart.] The said wife may at all times hereafter live separate and apart from the said husband as if she were unmarried and in all respects free from the control and authority of the said husband, and may live at such place or places and may be engaged in any business or businesses as she may think fit. 2. [Husband and wife not to molest Each other.] The said husband and wife shall not molest or annoy or in any way interfere with each other in respect of anything what- ever, nor shall either of them at any time hereafter require or by any means endeavor to compel the other to cohabit with him or her or seek to enforce any restitution of conjugal rights. 3. [Condonation of past offenses.] No proceedings shall be taken by or on behalf of the said husband or wife against the other of them in respect of any misconduct or alleged misconduct previous to the date of these presents, and any offense which may have been committed or permitted by either of them against the other is hereby condoned. 4. [Wife to maintain herself and child.] The wife shall out of the provision made for her as hereinbefore recited or otherwise support and maintain herself, and also her said child while he shall be living with her or be under her con- trol by virtue of these presents. 5. [Wife to have her separate property.] The wife shall be entitled for her sole use and separate use to all prop- erty, real and personal, which is now owned by her or which 718 FORM BOOK (Ch. 21 shall hereafter come to her, free from all rights of the hus- band by courtesy, survivorship, or otherwise, in all respects as if she were unmarried. And the husband will at his own expense, whenever requested by the trustee at any time act- ing hereunder, execute and do all such instruments and acts as shall be necessary or proper for giving effect to this clause. 6. [Guardian of child.] If the wife shall die in the lifetime of the husband, it shall be lawful for her by her will to appoint any person or persons to act as guardian or guard- ians of the said child after the death of the wife; and the husband will do all in his power to confirm such appointment, and will not interfere with such guardian or guardians in the custody of the said child. 7. [Custody of child.] The wife shall be entitled to the sole custody and control of said child until he shall come of age, and the husband shall not in any way interfere in the management or education of the said child. 8. [Indemnity against wife's debts.] The wife and the trustee and each of them will at all times hereafter keep the husband indemnified against all debts and liabiUties which the wife may hereafter contract or incur and against all actions, claims, demands, costs, and expenses in respect thereof. 9. [Proviso for avoidance.] If the husband and wife shall at any time hereafter come together and cohabit with each other, or if their marriage shall be dissolved, or they shall be judicially separated by reason of any misconduct (or, by reason of any misconduct of the husband occurring after the date hereof), then and in each such case all the covenants and provisions herein contained shall become void, but without prejudice to any act previously done hereunder or any pro- ceedings on the part of the parties hereto in respect to any breach then previously committed of all or any of the said Ch. 21) HUSBAND AND WIFE 719 covenants and provisions and without prejudice to the provi- sion made for her as hereinbefore recited. 10. [New TRUSTEE.] In the event of the death, resigna- tion, or inability to act of the trustee or of any trustee to be appointed in his place, the power of appointing new trustees of these presents shall be vested in the wife. In witness, etc. {Signatures and seals of all parties^ 72Q FOEM BOOK (Ch. 22 CHAPTER XXII INDEMNITIES _A contract of indemnity is one by which one person agrees with another to make good all damage which the other may suffer by doing some act, exercising some forbearance, or as- suming some liability at the request of the person who gives the indemnity. The contract may be in the form of a bond (ante, p. 250 et seq.), or of a mere personal agreement or cove- nant, as in the forms which follow. Provisions for indemnity are most frequently found in more comprehensive agreements. Page 1. Indemnity to corporation on issue of new stock certificate in lieu of lost certificate 720 2. Indemnity by legatee to executors on payment of legacy in case of insufficient assets 721 3. Indenture of indemnity by landlord where title is in dis- pute to tenant against consequences of paying rent 722 4. Indemnity by certain beneficiaries to trustees in respect to unauthorized investment 723 5. Indemnity to maker of note by comaker who has assumed payment thereof 724 6. Undertaking by drawer to provide for accommodation bill and to indemnify acceptor 725 1. Indemnity to Corporation on Issue of New Stock Certificate in Lieu of Lost Certificate ^ To the Company: In consideration of a duplicate certificate, numbered , for shares of the capital stock of the above-named com- pany, having this day been issued to me in lieu of the certificate numbered for the same shares previously is- sued to and now owned by me, which has been lost {or, acci- dentally destroyed) by me, I hereby undertake to refund to and to indemnify the said company against all costs and expenses 1 For bond of indemnity in such case, see Stock and Stockholders, post, p. 1267. Ch. 22) INDEMNITIES 721 and all loss which may be incurred by the said company in con- sequence of two certificates for the same shares being out- standing at the same time. (Signature.) 2. Indemnity by Legatee to Executors on Payment of Legacy in Case of Insufficient Assets Indenture made the day of between , of , party of the first part, and and , exec- utors of the will of , deceased, hereinafter called the executors, parties of the second part: [Recitals op will,, insufficiency of assets, and agree- ment FOR indemnity.] Whereas, by his will, dated the day of , and duly proved and admitted to probate in and by the probate court of the county of , and state of , the said , among other bequests, bequeathed to the party of the first part a legacy of $ , and appointed the said and to be executors of his said will ; and whereas, it has not yet been ascertained whether the assets will be sufficient to pay all the legacies bequeathed by the said will in full ; and whereas, at the request of the party of the first part the executors have paid to the party of the first part his said legacy upon having his agreement to give indemnity as hereinafter provided. [Covenant to repay if assets prove insufficient — In- demnity.] Now, this indenture witnesseth that, in pursuance of the premises, the party of the first part hereby covenants with the executors that, within days after notice in writ- ing shall have been given to him, his executors or administra- tors, or left at his or their last-known place of residence, stat- ing that the estate of the said is insufficient for the pay- ment in full of the said legacies, he will repay to the executors so much of the said legacy as shall be necessary to enable all the legatees to receive the same ratable proportions of their re- TIFF.FOEMS — 16 722 FORM BOOK (Ch. 22 spective legacies, and that he will at all times hereafter indem- nify the executors against all actions, proceedings, claims, and demands by reason or in respect of the payment of the said legacy. In witness, etc. {Signature and seal of legatee^ 3. Indenture of Indemnity by Landlord Where Title Is in Dispute to Tenant against Consequences of Paying Rent Indenture made the ■- day of between , of , hereinafter called the landlord, of the one part, and , of , hereinafter called the tenant, of the other part: [Recitals oif lease, pending action and agreement for INDEMNITY.] Whereas, by a certain lease dated the day of , certain premises described as {description) were demised by the landlord to the tenant for a term of years from the day of , subject to the payment of the yearly rent of $ ; and whereas, an action is now pending in the court, in which one is plaintiff and the landlord is defendant, in which the said claims to be the lawful owner of the said demised premises, and al- leges that the landlord's title, if any, to the said premises de- termined since the date of the said lease and before the rent next hereinafter mentioned became due, and that the said has notified the tenant not to pay the same to the land- lord; and whereas, the landlord, upon the tenant agreeing to pay him the rent of $ which fell due on the day of and the rent which will become due during the sub- sistence of the said lease, has undertaken to give to the tenant such indemnity as is hereinafter contained. [Covenant to indemnify.] Now, this indenture witnesseth that, in pursuance of the said undertaking and in consideration Ch. 22) INDEMNITIES 723 of the sum of $ , being the rent of the said premises for the year ending the day of , now paid by the ten- ant to the landlord, the receipt whereof the landlord hereby ac- knowledges, the landlord hereby covenants with the tenant that he, the landlord, will at all times hereafter indemnify and keep indemnified the tenant against all actions, proceedings, claims, demands, costs, damages, and expenses which may be brought or made against him or which he may pay, sustain, or incur by reason of his paying the said rent to the landlord as aforesaid. In witness, etc. (Signature and seal of landlord.) 4. Indemnity by Certain Beneficiaries to Trustees in Respect to Unauthorized Investment Indenture made the day of between , of , party of the first part, , of , party of the second part, and and , of , hereinafter called the trustees, parties of the third part : [Recitals 0? trust, etc., and unauthorized investment.] Whereas, by his last will, dated the day of , bequeathed certain property therein described unto the trustees in trust to pay the income thereof to his widow, who is the party of the first part, during her life, and from and after her death in trust to divide the same in equal shares among his children who should be living at his death; and whereas, the said testator died on the day of , and left him surviving the party of the second part, and , who is an infant of the age of years or thereabouts, and no other child; and whereas, the parties of the first and second part have requested the trustees to invest the sum of $ , now in their hands and being part of the trust estate, in the pur- chase of , and the trustees are in doubt whether the same is an investment authorized by the said will or by law, but have agreed so to do upon being indemnified as hereinafter provided. 724 FORM BOOK (Ch. 22 [Indemnity.] Now, this indenture witnesseth that, in con- sideration of the premises, the party of the first part and the party of the second part hereby jointly and severally covenant with the trustees that they, the said parties of the first and of the second part, will at all times hereafter indemnify and keep indemnified the trustees and each of them from all actions, pro- ceedings, claims, or demands by any person or persons whatso- ever in respect of the said investment of the said sum of $ in the manner aforesaid, and against all costs, dam- ages, or expenses which the trustees or either of them may pay, sustain, or incur by reason or in consequence of the said invest- ment, or otherwise in relation to the premises. In witness, etc. {Signatures and seals of parties of first and second part.) 5. Indemnity to Maker of Note by Comaker Who has Assumed Payment Thereof Indenture made the day of between • of , party of the first part, and , of , party of the second part: [RECITAI, of assumption of note and AGEEEMeNT FOE IN- DEMNITY.] Whereas, the party of the second part has con- veyed to tlie party of the first part by deed of even date here- with an undivided one-half interest in a certain tract of land described (description) ; and whereas, it was a part of the con- sideration of the said conveyance that the party of the first part should assume the full payment of a certain promissory note, dated the day of , whereby the parties hereto jointly and severally promised to pay to or order the sum of $ months after the date thereof, and that the party of the first part should give the party of the second part indemnity as hereinafter provided. Ch. 22) INDEMNITIES 725 [Covenant to pay note and indemnify.] Now, this in- denture witnesseth that, in consideration of the premises, the party of the first part hereby covenants with the party of the second part that he, the party of the first part will pay the said note at maturity thereof, and that the party of the first part will at all times hereafter indemnify the party of the second part against the payment of the said note and against all actions, proceedings, interest, damages, costs, and expenses on account thereof. In witness, etc. 6. Undertaking by Drawer to Provide for Accommodation Bill and to Indemnify Acceptor To : In consideration of your having at the request of me, the un- dersigned, and for my accommodation, accepted a bill of ex- change dated the day of , drawn by me on you, for the sum of $ , payable months after the date thereof to the order of , I hereby undertake and agree to provide you with sufficient moneys for the full payment thereof days before the same shall become due, and to indemnify you from all damages, interest, costs, charges, and expenses on account of or by reason of you having so accepted the said bill. Dated this day of . {Signature) 726 FORM BOOK (Ch. 23 CHAPTER XXIII LANDLORD AND TENANT Lease A lease is a contract by which one party, called the landlord or lessor, while reserving a reversion to himself, demises land to the other party, called the tenant or lessee, that is, confers upon him the right to the exclusive possession of land for a limited time, and receives a consideration, generally in the form of rent. Until possession is taken, the lessee has only a right of entry, but upon entry he has an estate in the land, and the relation of landlord and tenant is established. Agreement for Lease A lease is to be distinguished from an agreement, that is, an executory agreement, for a lease. Such an agreement does not operate by way of actual demise, but only binds the par- ties, the one to grant and the other to accept a tenancy ac- cording to the agreed terms; in other words, the agreement is intended only as preliminary, to be followed by the execu- tion of a formal lease upon the performance of certain con- ditions precedent. On the other hand, an agreement for a lease may be intended to operate by way of present demise and to be the only record of the contract; and in such case, if the agreement be for a present tenancy, and possession is taken, and the contract is one which the courts would specifically en- force, the tenant is in the same position as if the agreed lease had actually been executed. Form and Execution of Lease By the English statute of frauds leases for more than three years must be in writing. This is followed in many states, but in some the period is longer and in some shorter, while in still other states all leases must be in writing. Li most if not all states a deed is required for a lease creating a term of more than a specified period. It is generally provided that, for tlie purposes of the recording acts, a lease for more than a pre- Ch. 23) LANDLORD AND TENANT 727 scribed number of years is included in the term "conveyance," and consequently the particular provisions of the statute as to witnessing, sealing, and acknowledgment of deeds are ap- plicable to such a lease. A lease is executed by both lessor and lessee. Usually leases are executed in duplicate, each party retaining one of the coun- terparts. Contents of Lease A lease consists of the premises — that is, the date, the names and designation of the parties, the recitals, if any, the consid- eration, if specified, the operative words of demise, the de- scription of the land, and the exceptions or reservations, if any ; the habendum ; the reddendum ; the covenants ; and the provisos. Usually the consideration consists only of the rent and the lessee's covenants, which sufficiently appears from the subse- quent parts of the lease, and it is not necessary to refer in the premises to the consideration. The technical operative word in a lease is "demise." Some- times the word used is "let" or "lease," and sometimes the words "demise, grant, and farm-let" are used. Even in agree- ments which are not executory the words "agree to let" are often used. But no technical words are required to create an immediate demise; it is sufficient if the words show an intention that the lessor shall divest himself of the possession, and that the lessee shall come into exclusive possession for a certain time. The term for which the lease is granted is usually and prop- erly fixed by the habendum. The term may be expressed to be determinable by either party upon notice. In most states estates for years may be created for any length of time. In some states leases of lands for agricultural purposes for more than a limited period are prohibited. The nature and amount of the rent is fixed by the redden- dum, which specifies the dates of payment. Rent need not consist in the payment of money ; it may consist in the deliv- ery of chattels or the performance of services. In a lease for a long term it may be desirable to measure the rent otherwise than in actual money, as by making it so many grains of gold, or otherwise to provide for payment by a fixed standard of value. (Forms No. 12, cl. 1, p. 761, No. 9, cl. 1, p. 746.) 728 FORM BOOK (Ch. 23 The remedies of the landlord for recovery of rent are by distress and action. The remedy by distress, however, has been abolished in many states. The action for rent is upon the cove- nant to pay rent. Lessee's Covenants In nearly all cases the lease contains covenants on the part of the lessee for payment of the rent, not to make alterations, to permit the landlord to enter and view, to use the premises only for permitted purposes, not to assign or sublet without the landlord's consent, and to yield , up at the end of the term. What other covenants should be included will depend upon the nature of the premises, the length of the term, and the ob- ject of the demise. A covenant to pay the rent is almost invariably inserted, al- though without an express covenant a covenant to pay will be implied from the reservation of rent. In the absence of agree- ment or of a statute to the contrary, rent will continue to be payable notwithstanding destruction of the premises by fire or other unavoidable casualty, and it is therefore desirable to provide for abatement of the rent or termination of the lease where the premises are thus rendered uninhabitable. In many states it is provided by statute that, if the building is thus destroyed or injured so as to be untenantable, the lessee is not liable to pay rent unless otherwise expressly agreed, and may surrender possession. In the absence of express agreement, the landlord is in gen- eral not under liability to the tenant as to the state of the prem- ises, nor is he bound to repair or even to rebuild if the prem- ises are destroyed. The liability of the tenant, in the absence of express agreement, depends on the doctrine of waste. A tenant for years is bound to do what is necessary to preserve the buildings and enable him to yield them up in the same ten- antable condition as they were in at the beginning of the term, allowance being made for the operation of time. Ordinarily the lease contains covenants by the one party or the other as to repairs. In the lessee's covenants to repair and tof yield up at the end of the term it is usual to insert an exception of reason- able wear and tear, and also of damage by fire or the elements. In the absence of the last exception, if the lessee covenants to repair, he is liable to rebuild if the premises are burned down. Ch. 23) LANDLORD AND TENANT 729 Lessor's Covenants A covenant for quiet enjoyment is usually included, although the word "demise" and probably any word of leasing creates an implied covenant for quiet enjoyment during the estate of the lessor. Other covenants on the part of the lessor may sometimes be desirable, as a covenant to sell where the lease gives the lessee an option to purchase. Proviso for Re-entry A proviso for re-entry by the lessor for nonpayment of rent or nonperformance of the lessee's covenants is proper in all cases. Its effect is not to avoid the lease upon the lessee's default, but to make it voidable at the option of the lessor. The courts are, however, averse to enforcing a forfeiture, and, when the damages for breach of a covenant can be computed and readily compensated by money, will grant relief. Relief from forfeiture for nonpayment of rent is granted upon pay- ment to the lessor or bringing into court the rent in arrears, with interest and costs. The right of re-entry for nonpayment of rent is in many states regulated by statute. Eminent Domain If the demised premises are taken under the power of emi- nent domain, the tenancy determines ; while if only a part is tsken the tenancy continues ; and in either case the damages for the taking must be apportioned between the landlord and the tenant in proportion to the value of their estates. Where a part only is taken, as for the widening of a street, and a sub- stantial part of a building must be torn down, complicated, questions as to the rights and obligations of the lessor and the lessee arise, for which it is desirable to make provision, par- ticularly in a long lease. (See Forms No. 9, cl, 6, p. 751, and No. 12, cl. 5, p. 766.) Page 1. Agreement for lease of dwelling house 731 2. Agreement for lease of building for business purposes . . . 733 3. Agreement conferring option toi take lease 734 4. Agreement for lease to be granted on determination of ex- isting lease ; new tenant to make alterations 735 5. Agreement for tenancy of furnished house for short term and thereafter monthly 737 6. Short general form of lease 739 730 FORM BOOK (Ch. 23 Page 7. Same — With provision for distress 741 8. Lease of dwelling liouse wltli options for renewal and pur- chase 742 9. Lease of building for business purposes 746 10. Lease of warehouse providing for . alterations by lessee with option to determine 752 . 11. Lease with various covenants by lessee 756 12. Lease of land for ninety-nine years, providing for build- ing to be erected by lessee 760 13. Lease of offices 768 14. Lease of -suite of rooms in apartment house 771 14a. Lease of land for a golf course 775 15. Lease of farm / 777 16. Lease of farm on shares 779 17. Same — Short form 782 18. Agreement for farming on shares, the owner of the land retaining title to the crops until division 784 19. Lease (statutory) — District of Columbia and Maryland... 786 19a. Virginia and West Virginia 786 20. Lease by mortgagor and mortgagee 787 21. Same — Another form 789 22. Lease by joint tenants 789 23. Lease by tenants in common 790 24. Lease to joint tenants 791 25. Lease to tenants in common 792 26. Lease by way of renewal or extension of existing term... 792 26%. Deed of covenant for payment of additional rent in con- sideration of alterations to be made by lessor 794 27. Under lease varying covenants of superior lease 795 28. Mining lease 797 29. Same — Another form 799 29a. Same — Another form 800 29b. Mining lease (iron ore) 803 30. Bond and lease of mining property 809 31. Oil and gas leUse 811 32. Release and waiver by landlord of breaches of covenant by tenant 814 33. Guaranty of payment of rent and observance of terms of tenancy , 815 34. Same — By indorsement 815 35. Same — Another form 816 36. Same — By guarantors with unequal liability 816 37. Assignment of lease — ^By deed poll 817 38. Assignment of lease — By Indorsement 818 39. Assignment of lease and guaranty by assignor with as- sumption by assignee of lessee's covenants — By indorse- ment •••• Sl^ Ch. 23) LANDLORD AND TENANT 731 Page 40. Assignment of lease by indorsement, the lessor joining to release the lessee and taking new covenants from the as- . signee 819 41. Assignment of leaseholds by lessee 821 42. Assignment of an agreement for a lease 822 43. Same — By indorsement 823 44. Assignment of ground rents with a demise to enable pur- chaser to recover the rent 824 45. Conveyance in fee simple subject to a lease at ground rent with benefit of the lease 825 46. Surrender of lease 826 47. Same — By indorsement 827 48. License to assign ^ 827 49. License to underlet 827 49a. Same — By indorsement 828 50. Assent of lessor to assignment — By indorsement 828 51. Same — Another form 828 52. License to make alterations 828 53. Notice to quit by landlord or his agent 830 54. Notice to quit by tenant 830 55. Notice to quit by landlord to tenant from year to year. . . . 830 56. Notice to quit by tenant from year to year to landlord .... S31 57. Notice to landlord to determine lease in accordance with proviso in that behalf 831 58. Notice by landlord to tenant to repair where lease contains covenant to repair on notice 831 59. Notice to landlord of tenant's election to exercise option to purchase 832 60. Notice to landlord by tenant of election to take renewed lease 832 61. Notice by purchaser of premises requiring payment of rent to himself 833 1. Agreement for Lease of Dwelling House An agreement made the day of between , of , hereinafter called the landlord, of the one part, and . of , hereinafter called the tenant, of the other part : Whereby it is agreed as follows : 1. [Agreement to demise.] The landlord shall grant and the tenant shall accept a lease of the house and premises known as (description) for the term of years from the 732 FORM BOOK (Ch. 23 day of , at the yearly rent of $ , payable by equal monthly payments on the first day of each month. 2. [Tenant's covenants.] The tenant shall enter into the following covenants : To pay the rent as aforesaid ; to keep in repair outside and inside ; not to alter or add to the premises without the landlord's consent ; to permit the landlord to enter and view the condition of the premises; to use as a private dwelling hous^ only; not to assign or underlet without the landlord's written consent; to yield up the premises with all fixtures, other than tenant's fixtures, and additions at the deter- mination of the tenancy in as good condition, reasonable use and wearing and fire and other unavoidable casualties excepted, as the same now are or may be put in by the lessor (adding whatever other covenants may be desired). 3. [Covenant for quiet enjoyment.] The landlord shall covenant for quiet enjoyment in the usual form. 4. [Re-entry.] The lease shall contain a proviso for re- entry if any rent shall be in arrear for — '■ days or on breach of any of the lessee's covenants. 5. [Proviso in CASE OE EIRE, ETC.] The said lease shall con- tain a proviso that in case the premises or any part thereof be destroyed or damaged by fire or unavoidable casualty so as to be unfit for use and occupation, the rent or a just and propor- tional part shall abate until the premises have been restored or the said lease shall be determined at the option of the lessor. 6. [Execution OE LEASE.] The landlord shall cause the said lease and a counterpart thereof to be prepared at his own ex- pense, and the same shall be executed by the landlord and ten- ant respectively whenever required by either party, and until the execution of the said lease the parties shall be bound by the covenants and provisos herein specified as if the same had been actually executed. Ch. 23) LANDLORD AND TENANT 733 In witness whereof the said parties have hereunto and to an- other instrument of Hke tenor and effect set their hands and seals the day and year first above written. 2. Agreement for Lease of Building for Business Purposes This agreement made this day of between , of — , hereinafter called the lessor, of the one part, and , of , hereinafter called the lessee, of the oth- er part, witnesseth that it is hereby agreed as follows : 1. [Agreement TO demish;]. The lessor shall grant and the lessee shall accept a lease of all that tract or parcel of land de- scribed as (description), with the building thereon erected, and known as No. street, in the city of , for the term of years from the day of , at the yearly rent of $ r in gold coin of the United States of the present standard of weight and fineness, in equal monthly in- stallments in advance on the first day of each month, the first payment to be made on the day of . 2. [Lessee's COVENANTS.]^ Such lease shall contain the fol- lowing covenants on the part of the lessee (folloiiinff substan- tially, in abbreviated form, if desired, the lessee's covenants in Form No. 9, d. 2, p. 747). 3. [Covenant for quiet enjoyment.] The lessor shall covenant for quiet enjoyment in the usual form. 4. [Proviso for re-entry.] The said lease shall contain a proviso for re-entry in the usual form (or, if preferred, setting out the sanue more fully as in Form No. 9, cl. 4, p. 750). 5. [Determination in case of fire.] The said lease shall contain a proviso (setting out substantially the provisions of Form No. 9, cl. 5, p. 750). 1 In lieu of clauses 2-6 the agreement may simply provide: "Such lease shall be in the form hereto attached." 734 FORM BOOK (Ch. 23 6. [Determination in case op taking by eminent do- main.] The said lease shall contain a proviso {setting out sub- stantially the provisions of Form No. 9, cl. 6, p. 751). 7. [Execution oe lease.] The said lease and a counterpart thereof shall be prepared by the lessor solicitor at the expense of the lessor (or, of the lessee ; or, of the lessor and lessee in equal shares), and shall be executed by the lessor and lessee respectively on or before the day of (date of commencement of term). Pending such execution this agrees ment shall not be deemed to operate as a demise of the said premises. 8. [Lessee to provide surety.] (The lessee shall within • days from the date hereof procure some person satis- factory to the lessor to become surety for^the due payment of the said rent and performance of the lessee's covenants in terms to be approved by the lessor, failing which this agreement shall at the expiration of such period of days be void, save that the lessee shall pay all his costs incident to this agreement.) In witness, etc. (Signatures of both parties) 3. Agreement Conferring Option to Take Lease Agreement made the day of between , of , hereinafter called the Jessor, of the one part, and • , of , hereinafter called the lessee, of the other part: ' It is hereby agreed between the lessor and the lessee as fol- lows: 1. [Option to take lease.] In consideration of $ now paid by the lessee to the lessor, the receipt whereof is here- by acknowledged, the lessor shall have the option of taking a lease of the premises known as (description) for a term of years at the yearly rent of $ . Ch. 23) LANDLORD AND TENANT 735 2. [ExEECiSB OP OPTION.] Such option shall be exercisable by notice in writing by the lessee to the lessor at any time with- in months from the date hereof, and if and when so ex- ercised then the lessor shall grant and the lessee shall accept a lease of the said premises for the said term, which shall com- mence from the date of the exercise of the option, at the said rent. 3. [Form op lease.] The lease shall be in the form as here- to attached. 4. [Execution op lPase.] In the event of the option being exercised the lessor shall cause the lease to be prepared in du- plicate in conformity with the said form, and the lease shall be so executed by the lessor and the lessee, respectively, when- ever required by either party after the date of the exercise of the option ; and from such date until the execution of the lease the parties shall be bound by the covenants and agreements to be contained therein as if the same had been actually executed. In witness, etc. 4. Agreement for Lease to be Granted on Determination of Existing Lease; New Tenant to Make Alterations Agreement made the day of between (as in Form No. 3, p. 734) : [Recitals op existing lease and agreement por puture LEASE.] Whereas, the lessor is the owner of the premises here- inafter described, subject to an indenture of lease, dated the day of , and made between the lessor and , whereby the said premises were demised for a term of years, which will expire on the day of ; and whereas, the lessee is desirous of taking a lease of said prem- ises from the expiration of the said term, which the lessor is willing to grant upon the condition of the lessee making such 736 FORM BOOK (Ch. 23 alterations and repairs in the premises as are hereinafter speci- fied. Now, it is hereby agreed as follows : 1. [Agreement to demise.] The lessor shall grant and the lessee shall accept a lease of all that building and premises sit- uate at and described as (description), for the term of years from the ; — day of (day after expiration of existing lease), at the yearly rent of $ , payable by equal monthly payments, on the first day of each month, the first pay- ment to be made on the day of next. 2. [Alterations and repairs.] The lessee shall within ■ days after the said day of make the al- terations and repairs specified in the schedule hereto annexed {or, "the following alterations and repairs in the premises," specifying them). The tenant shall effect such repairs and al- terations to the satisfaction of the , the lessor's archi- tect, and pay his fees in the premises, not exceeding . The lessee shall be entitled to enter upon the premises on the day following the expiration of the said existing term therein, but the granting of the lease herein provided for is conditional upon the due making of the said alterations and repairs, time being of the essence of the contract ; and in the event that the same shall not be made within the period hereinbefore limited, the lessor shall be entitled to re-enter upon the premises, and thereupon all the interest of the lessee therein under this agree- ment shall determine, and the lessor may forthwith recover possession of the premises by legal process. 3. [Contents oe lease.] {See Form No. 2, els. 1-6, p. 733.) 4. [Execution oe lease.] The lessor shall cause the said lease to be prepared in duplicate, and it shall be so executed by the lessor and the lessee respectively when so required by either party after the completion of the alterations and repairs here- inbefore specified. In witness, etc. Ch. 23) LANDLORD AND TENANT 737 5. Agreement ''■ for Tenancy of Furnished House for Short Term and Thereafter Monthly This agreement made the day of between , of , hereinafter called the landlord, of the one part, and , of , hereinafter called the tenantj of the other part, witnesseth as follows : 1. [Letting, term, and rent.] The landlord lets and the tenant takes the dwelling house known as No. street, in the city of , with the furniture and effects now therein as specified in the inventory hereto annexed, to hold the same for calendar months from the day of and thereafter unless and until the tenancy shall be terminated by notice at the end of said period or subsequently, as hereinafter provided, at the monthly rent of $ , payable in advance on the first day of every month, the first payment to be made on the day of — > next. 2. [Tenant's covenants.] The tenant agrees as follows: (1) [To PAY RENT.] To pay the rent reserved at the times aforesaid. (2) [To KEEP IN REPAIR.] To keep in good refpair the glass, fittings, and fixtures belonging to the said premises. (3) [To PRESERVE EURNiTURE.] Not to remove from the premises any part of the said furniture and effects, but to preserve the same in their present condition, reasonable wear and tear and damage by fire and other unavoidable casualty excepted, and to replace with articles of the same sort and value all such parts of the said furniture and effects as shall be broken, injured, or destroyed, except by fire or other un- 2 Although the term "agreement" is used, this is a lease. It differs from a lease by indenture in that it is not under seaL TiFP.FoKMS — 47 738 FORM BOOK (Ch. 23 avoidable casualty, or at the option of the landlord to pay for all such articles their full value. (4) [To YiBLD UP PREMisKS.] At the determination of the tenancy peaceably to yield up the said dwelling house, in its present state of repair, and the glass, fittings, and fixtures, and also the said furniture and effects and any substituted furniture and effects, in such state of repair and condition as shall be in strict compliance with the provisions hereinbe- fore contained (and as to the furniture and effects so far as possible in accordance with the present state of arrangement as to rooms and position). (5) [To PERMIT LANDivORD TO EnT^R.] To permit the landlord at all reasonable times to enter upon the premises and to examine the condition of the said furniture and ef- fects. (6) [Not to assign.] Not to assign the benefit of this agreement without the written consent of the landlord. 4. [Right to re-enter.] It is mutually agreed that the landlord shall have the right to re-enter if any part of the said rent, whether formally demanded or not, shall be days in arrear, or if the tenant shall otherwise fail to observe the stipulations of this agreement. 5. [Determination oe tenancy.] Either party may ter- minate the tenancy at the end of the said period of months or at the end of any subsequent month by giving the other one month's previous notice in writing expiring on one of the days on which such rent is payable, but without preju- dice to any remedy which the party so giving such notice may have against the other in respect of any previous breach of this agreement. In witness, etc. Ch. 23) LANDLORD AND TENANT 739 6. Short General Form of Lease This indenture made the day of between , of , party of the first part, and , of , party of the second part, witnesseth: 1. [Demisb, term, and rent.] That the said party of the first part doth hereby lease and demise unto the said party of the second part that certain parcel of land described as (description), with the building thereon, known as No. in street, with the appurtenances, for the term of years, from the day of , at the yearly rent or sum of , to be paid in equal monthly payments on the first day of each month. 2. [Right op re-entry.] And it is hereby agreed that, if any rent shall be due and unpaid, or if default shall be made in any of the covenants on the part of the said party of the second part herein contained, then it shall be lawful for the said party of the first part to re-enter the said prem- ises and the same to have again, repossess, and enjoy. 3. [Lessee's covenants.] And the said party of the sec- ond part covenants with the said party of the first part to pay to the said party of the first part the said yearly rent as herein specified; that he, the said party of the second part, will not assign this lease, nor let or underlet the whole or any part of the said premises, nor make any alteration therein without the written consent of the said party of the first part ; that he will not occupy or use, or permit to be occupied or used, the said premises, for any business deemed extrahaz- ardous on account of fire or otherwise; that he will permit the said party of the first part or his agent to show the prem- ises wishing to hire or purchase, and on and after the day of preceding the expiration of the said term he will permit the usual notice of "To Let" or "For Sale" to 740 FORM BOOK (Ch. 23 be placed ulpon the walls or doors of fhe said premises and remain thereon without let or hindrance ; and that at the ex- piration of the said term he will quit and surrender the prem- ises hereby demised in as good state and condition as reason- able wear and tear thereof will permit, damage by the ele- ments excepted. 4. [Lessor's covenant for quiet enjoyment.] And the said party of the first part covenants with the said party of the second part that the said party of the second part, on paying the said yearly rent and performing the said cove- nants on his part, shall and may peaceably and quietly have, hold, and enjoy the demised premises during the term afore- said. 5. [Damage or dEstrucTon by Eire, etc.] And it is fur- ther agreed between the said parties hereto that, in case the building erected on the premises hereby demised shall be par- tially damaged by fire, the same shall be repaired as speedily as possible at the expense of the said party of the first part; that in case the damage shall be so extensive as to render the building untenantable, the rent shall cease until such time as the building shall be put in complete repair; but in case of the total destruction of the premises by fire or otherwise the rent shall be paid up to the time of such destruction, and then and from thenceforth this lease shall cease and come to an end : Provided, however, that such damage or destruction be not caused by the carelessness, negligence, or improper conduct of the said party of the second part, his agents or sei'vants. 6. [Covenants bind representatives.] And it is further agreed that the covenants and agreements herein contained are binding on the parties hereto and their legal representatives. In witness, etc. Ch. 23) LANDLORD AND TENANT 741 7. Another Form with Provision for Distress This agreement made the day of between , landlord, and , tenant, witnesseth : 1. [Demise, term, and rent.] That the said landlord leases to the said tenant all that (description) for the term of years, beginning on the day of , and ending on the day of , at the rent of $ per month, payable in advance on the first day of each and every month. 2. [Lessee's covenants.] And the said tenant hereby covenants with the landlord to pay the said rent at the times and in the manner hereinbefore specified ; not at any time to assign this agreement or to sublet the demised premises, or any portion thereof, without the written consent of the said landlord or his representatives; not to permit the use of the premises for purposes other than those of a ; to keep the premises in good order ; and to surrender the: possession of the premises at the end of the said term in as good con- dition as when received, reasonable wear and tear thereof and accidents happening by fire or other casualties alone excepted. 3. [Distress and waiver oe exemption.] It is hereby agreed that all personal property on the premises shall be lia- ble to distress, and also all personal property, if removed there- from, shall for days after such removal be liable to distress, and may be distrained and sold for rent in arrear; and the said tenant hereby waives all right to the benefit of any laws now made or hereafter to be made exempting per- sonal property from levy and sale for arrears of rent. 4. [Destruction or damage by eirE, etc.] It is hereby agreed that, if the building on the premises shall be destroyed or rendered untenantable by fire or other unavoidable acci- dent, all liability, for rent hereunder shall cease upon payment 742 FORM BOOK (Ch. 23 thereof proportionally to the day of such fire or unavoidable accident. 5. [Right o^ rE-EnTry, btc] It is further agreed that, if the rent shall be days in arrear, the landlord shall have the right to distrain for the same, and that in such case, or if the tenant shall violate any of his aforegoing covenants on his part, the landlord shall have the right without formal notice to re-enter and take possession. 6. [Continuation after expiration of term.] It is fur- ther agreed that this agreement shall continue in force from term to term after the expiration of the term above men- tioned : Provided, that either party shall have the right to ter- minate the same at the end of the term above mentioned or of any term thereafter by giving at least days' previ- ous notice in writing. In witness whereof, etc, 8. Lease of Dw^elling House with Options for Renewal and Purchase This indenture made the day of between , of , hereinafter called the lessor, which ex- pression, where the context so admits, shall include his heirs and assigns, of the one part; and , of , herein- after called the lessee, -yvhich expression shall include, where the context so admits, his executors, administrators, and as- signs, of the other part, witnesseth as follows: 1. [Demise.] In consideration of the rent and the lessee's covenants hereinafter reserved and contained, the lessor here- by demises to the lessee a certain dwelling house situate in the said city of and numbered on street. [Habendum.] To hold to the lessee for the term of years, commencing the day of . Ch. 23) LANDLORD AND TENANT .'743 [Reddendum.] Yielding and paying therefor during the said term rent at the rate of $ yearly and proportion- ally for any fraction of a year, by equal quarterly payments to be made on the first days of , , , and in each year, of which the first shall be made on the day of next. 2. [Lessee's covenants.] The lessee hereby covenants with the lessor as follows: (1) [To PAY RENT.] To pay the rent reserved on the days and in the manner aforesaid. (2) [To PAY TAXES, ETC.] To pay all taxes and assessments and water rates imposed or charged upon the demised prem- ises or upon the owner or occupier in respect thereof (except- ing assessments for any permanent benefit or improvement to the premises). (3) [To KEEP IN REPAIR.] To keep the demised premises in such repair as the same are at the commencement of the term or may be put in by the lessor during the continuance thereof, reasonable use and wear (and damage by fire or ottier unavoidable casualties) only excepted. (4) [Not to make alterations.] Not to make or per- mit to be made any alterations in or addition to the demised premises without the previous consent in writing of the lessor. (5) [Not to assign.] Not to assign, underlet, or part with the possession of the whole or any part of the demised prem- ises without first obtaining the written consent of the lessor (such consent, however, not to be unreasonably withheld in the case of a respectable and responsible person). (6) [To permit lessor to enter and repair.] To per- mit the lessor and his agents at all reasonable times to enter upon the premises and to examine the condition thereof and make necessary repairs. (7) [To YIELD UP premises in repair.] To yield up the demised premises and all addition thereto (except tenant's fix- 744 FORM BOOK . (Ch. 23 tures) at the determination of the tenancy in good and tenant- able repair, reasonable use and wear (and damage by fire and other unavoidable casualties and condemnation or appropria- tion by eminent domain) excepted, as the same now are or may be put in by the lessor. 3. [Lessor's covenants.] The lessor hereby covenants with the lessee as follows : (1) [For quiet enjoyment.] That the lessee, paying the rent hereby reserved and observing and performing the several covenants and stipulations herein on his part contained, shall peaceably hold and enjoy the demised premises during the said term without any interruption by the lessor or any per- son rightfully claiming under him. (2) [Option to lessee to have renewal,.] That the lessor will, on the written request of the lessee made calendar months before the expiration of the term hereby cre- ated, and if there shall not be at the time of such request any breach or nonobservance of any of the covenants on the part of the lessee hereinbefore contained, grant to the lessee a lease of the demised premises for the further term of years from the expiration of the said term at the same rent ipr, the yearly rent of dollars), and containing the like covenants and provisos as are herein contained, with the ex- ception of the present covenant for renewal, the lessee on the execution of such renewed lease to execute a counterpart there- of (and to pay the lessee the sum of dollars by way of premium). (3) [Option to lessee to purchase.] That if the lessee within years from the commencement of the terra lierety created shall give to the lessor calendar months' notice in writing that he desires to purchase the premises here- in demised, and if there shall not at the time of such notice te any existing breach or nonobservance of any of the cove- Ch. 23) LANDLORD AND TENANT 745 nants on the part of the lessee hereinbefore contained, the' lessor on the expiration of such notice will, upon payment of the sum of dollars and of all arrears of rent to the expiration of the notice and of interest on the said sum of dollars at the rate of per cent, per annum from the expiration of the notice until payment, by good and suf- ficient {warranty) deed convey the demised premises to the les- see in fee simple, free from incumbrances except taxes (and as- sessments), if any. The lessor shall within days from the giving of such notice deliver to the lessee an abstract of title to the said premises, and the lessee shall have days after the delivery of the abstract in which to examine the title. 4. [Proviso for re-enTry.] Provided, always, and these premises are upon this condition, that if the rent reserved or any part thereof shall be unpaid for days after be- coming payable, whether formally demanded or not, or if any covenant on the lessee's part herein contained shall not be performed or observed, or if the lessee shall become bank- rupt, then and in any of the said cases it shall be lawful for the lessor to re-enter at any time thereafter upon the demised premises or any part thereof in the name of the whole, and thereupon this demise shall absolutely determine, but without prejudice to the right of action of the lessor in respect of any breach of the lessee's covenants herein contained: 5. [Proviso in event oe damage by fire, etc.] And provided, also, that in case the buildings on the premises or any part thereof shall be damaged by fire or other unavoidable casualty, so that the same shall thereby be rendered unfit for use and occupation, then and in such case the rent hereby reserved or a just and proportional part thereof according to the nature and extent of the injury sustained, shall be abated until the premises shall have been duly repaired and restored 746 FORM BOOK (Ch. 23 by the lessor, or, in case the said premises shall be substan- tially destroyed, then at the election of the lessor (or, at the election of either the lessor or the lessee) the estate hereby created may thereupon be determined. In witness whereof the said parties hereto and to another instrument of like tenor have hereunto set their hands and seals the day and year first above written. 9. Lease of Building for Business Purposes This indenture made this day of between the Company, a corporation organized and existing under the laws of the state of , hereinafter called the lessor, which expression, where the context so admits, shall include the reversioner for the time being immediately expectant upon the term hereby created, party of the first part, and , of - — , hereinafter called the lessee, which expression, where the context so admits, shall include his executors, administra- tors, and assigns, party of the second part : 1. [Demise, term, and rent.] A¥itnesseth that, in consid- eration of the covenants herein contained on the part of the les- see to be observed and performed, the lessor doth hereby de- mise and lease unto the lessee all that tract or parcel of land described as (description), with the building thereon erected, and known as No. street, in the city of . To have and to hold the said premises unto the lessee, his executors, administrators, and assigns, for the term of years from the day of to the day of Yielding and paying as rent therefor the sum of $ yearly, payable at the office of the lessor in the said city of in gold coin of the United States of the present stand- ard of weight and fineness, or the equivalent thereof, in equal Ch. 23) LANDLORD AND TENANT 747 monthly installments in advance of $ on the first day of each month, and at that rate for fractions of a month, in every year during the said term, the first payment to be made on the day of . 2. [LBSSEB's covenants.] And the lessee, for himself, his heirs, executors, administrators, and assigns, doth hereby cove- nant with the lessor, its successors and assigns : (1) [To PAY RENT.] That the lessee will pay the said rent at the times and in the manner aforesaid, except only in case of fire or other unavoidable casualty as hereinafter provided. (2) [To SECURE RENT BY CHATTEL MORTGAGE.] That he will secure and keep secured the rent payable under this lease by a good and sufficient chattel mortgage to be executed and de- livered to the lessor upon and covering all the furniture and tenant's fixtures which are now or shall be placed in the said building by the lessee, and that the said mortgage shall at all times be maintained by the lessee a first lien upon the said fur- niture and fixtures. (3) [To PAY TAXES.] That he will pay the general taxes which shall be assessed and levied upon the demised premises during the said term as they shall fall due. (4) [To INSURE AGAINST FIRE — LoSS OE RENTS.] That he will during the said term insure and keep insured in the name of the lessor the said building from loss or damage by fire in at least the sum of $ (and also insure and keep insured the lessor against loss of rents hereunder resulting from fire in at least the additional sum of $ ) in insurance companies to be approved by the lessor, and that he will pay all the premiums necessary for those purposes within days after the same shall become due, and will promptly deliver to the lessor the policies of insurance and the receipts for such premiums : Pro- vided, that if the lessee shall at any time fail to insure or keep insured as aforesaid, the lessor may do all things necessary to 748 FORM BOOK (Ch.23 effect or maintain such insurance, and any moneys expended by him for that purpose shall be repayable by the lessee on de- mand, and may be recovered as rent in arrear. (5) [To PAY LIGHT AND WATER RATES.] That he wiU promptly pay all gas, electric light, and water rates or charges which may become payable during the continuance of this lease for gas, electric light, and water used on the said premises. (6) [To KEEP IN REPAIR AND REPEACE GEASS BROKEN.] That he will keep all and singular the said building and premises, in- cluding the plumbing and steam-heating plant and elevator, in such repair as the same are at the commencement of the said term or may be put in during the continuance thereof, reason- able wear and tear and damage by fire or other unavoidable casualty only excepted, and will promptly replace all glass there- of broken during the said term by other of the same size and quality. (7) [Not to injure or overload.] That he will not injure, overload, or deface or suffer to be injured, overloaded, or de- faced the premises or any part thereof. (8) [To INDEMNIFY against ACCIDENTS AND NEGLIGENCE — Snow and ice.] That he will save harmless and indemnify the lessor from and against all loss, liability, or expense that may be incurred by reason of any accident with the machinery, hatchways, elevator, gas or water or other pipes, or from any damage, neglect, or misadventure arising from or in any way ■growing out of the use, misuse, or abuse of the city water, or from the bursting of any pipes, or from any neglect in the use •of coalholes and covers, or in not removing snow and ice from the sidewalks or from the roof of the building. (9) [Not to suffer unlawful use, or to endanger in- surance, etc.] That he will not make or suffer any unlawful, improper, or offensive use of the premises, or any use or occu- pancy thereof contrary to any law of the state or any ordinance Ch. 23) LANDLORD AND TENANT 749 of the said city now or hereafter made, or which shall be inju- rious to any person or property, or which shall be liable to en- danger or affect any insurance on the said building or to in- crease the premium thereof. (10) [Not to make alterations, place signs, etc.] Not to make any alterations or additions in or to the premises with- out the written consent of the lessor, nor to suffer any holes to be made or drilled in the outside stone or brick work, nor to suffer any signs to be placed upon the building except such as the lessor shall in writing approve. (11) [Not TO ASSIGN.] Not to assign, underlet, or part with the possession of the whole or any part of the demised premises without first obtaining the written consent of the lessor. (12) [To PERMIT LESSOR TO ENTER.] That the lessor at all seasonable times may enter to view the premises and to make repairs which the lessor may see fit to make, or to show the premises to persons who may wish to lease or buy, and that during three months next preceding the expiration of the term he will permit the lessor to place and keep upon the front of the building a notice that the premises are for rent or for sale. (13) [To YIELD UP PREMISES.] That at the expiration of the said term the lessee will peaceably yield up to the lessor or those having his estate therein the premises and all erections and ad- ditions made upon the same, in good repair in all respects, rea- sonable use and wear and damage by fire and other unavoid- able casualties excepted, as the same now are or may be put in by the lessor. (14) [Property and persons on premises at lessee's RISK.] That all property of any kind that may be on the prem- ises during the continuance of this lease shall be at the sole risk of the lessee, and that the lessor shall not be liable to the lessee or any other person for any injury, loss, or damage to property or to any person on the premises. 750 FORM BOOK (Ch. 23 (IS) [Assent not waiver of future breach of cove- nants.] That no assent, express or implied, by the lessor to any breach of any of the lessee's covenants, shall be deemed to be a waiver of any succeeding breach of the same covenant. 3. [IwCssor's covenant for quiet enjoyment.] (Clause 4, Form No. 6, p. 740.) 4. [Proviso for re-entry.] Provided, always, and these presents are upon this condition, that if the lessee or his repre- sentatives or assigns shall neglect or fail to perform and ob- serve any covenant herein contained which on the lessee's part is to be performed, or if his leasehold estate shall be taken on execution, or if the lessee shall be declared bankrupt or insol- vent according to law, or shall make an assignment for the bene- fit of his creditors, then and in any such case the lessor, or those having its estate in the premises, lawfully may, imme- diately or at any time thereafter, and without notice or demand, enter into and upon the demised premises or any part thereof in the name of the whole, and repossess the same as of their former estate, and expel the lessee and those claiming under him and remove their effects, forcibly, if necessary, witliout being taken or deemed to be guilty of any manner of trespass, and thereupon this demise shall absolutely determine, but with- out prejudice to any- remedies which might otherwise be used by the lessor for arrears of rent or any breach of the lessee's covenants herein contained : 5. [Termination of demise or suspension of rent in case of fire, etc.] Provided, also, that in case the demised premises or any part thereof shall at any time during the said term be destroyed or damaged by fire or other unavoidable cas- ualty so as to be unfit for occupancy and use, and so that the premises cannot be rebuilt or restored by the lessor within days thereafter, then and in that case this demise shall determine ; but if the premises can be rebuilt or restored with- Cll. 23) LANDLORD AND TENANT 751 in days, the lessor will at his own expense and with due diligence so rebuild or restore the premises, and a just and pro- portionate part of the rents hereby reserved shall be paid by the lessee until the premises shall have been so rebuilt or re- stored : 6. [Termination of demise or suspension of rent in CASE OF TAKING BY EMINENT DOMAIN.] ^ Provided, also, that in case the whole or any part of the premises hereby demised shall be taken by the city or state or other public authority for any public use, then this demise shall determine (if only a part is taken, at the election of the lessee) from the time when possession of the whole or of the part so taken shall be re- quired for such pubHc use, and the rents, properly apportioned, shall be paid up to that time ; and the lessee (whether he elects that this demise shall so determine or not) shall not claim or be entitled to any part of the award to be made for damages for such taking for public use ; and such taking shall not be deemed a breach of the lessor's covenant for quiet en- joyment hereinbefore contained: (Provided, further, that if the lessee shall not so elect that this demise shall determine, the obligations and liabilities of the lessee upon his covenants hereinbefore contained shall continue in all respects notwith- standing such taking for public use) : 3 The followlBg may be used as an alternative for clause 6, where the nature of the lease may make it advisable: "Provided, also, that in. case the whole or any part of the demised premises shall be taken by the city or state or other public authority for public use, so that the premises cannot be substantially restored by the lessor within days from the time when possession of the whole or of the part so taken shall be required for such public use, then and in that case this demise shall determine ; but, if the premises can be sub- stantially restored within days, the lessor will at his own expense restore the premises, and a just proportion of the rents hereby reserved shall be abated until the premises have been so re- stored ; and in no case shall the lessee claim or be entitled to any part of the award of damages for such taking, but the lessor shall be entitled to the entire award of damages for such taking." 752 FORM BOOK (Ch. 2S 7. [LBSSEB's option to purchase.] Provided, further, that the lessee shall have, and the lessor hereby grants to the lessee, the exclusive right at his option, at any time during the term of this lease, to purchase the said premises for the sum of dollars to be paid to the lessor upon tender by the lessor of a good and sufficient (warranty) deed conveying to the lessee the fee simple of the said premises, free and' clear of all incum- brances, except such as may have been made or suffered by the lessee, and except taxes and assessments, if any, and this lease. In case the lessee shall elect to purchase the said premises, he shall signify his election by written notice served upon the les- sor within the time above limited; and thereafter the lessor shall deliver to the lessee an abstract of title to the said prem- ises within days from the date of the service of such notice, and the lessee shall have days after the delivery of such abstract in which to examine the title and to complete the purchase : Provided, always, however, that the right of the lessee to exercise the said option of purchase is expressly con- ditioned upon the faithful performance and observance by the lessee of all the covenants, agreements, and conditions on his part herein contained and the payment to the lessor of the rent hereby reserved up to the date of the completion of such pur- chase. In witness, etc. 10. Lease of Warehouse Providing for Alterations by Lessee with Option to Determine This indenture made the day of between (parties as in Form No. 8, p. 742) : Witnesseth as follows: 1. [Demise, term, and rent.] The lessor hereby demises unto the lessee all that warehouse situate on the north side Ch. 23) LANDLORD AND TENANT 75S of street, in the city of , together with the yard and offices appurtenant thereto, which premises are more fully described as (description of land). To hold to the lessee from the day of for the term of (twenty-one) years, but determinable as herein- after provided. Yielding and paying rent therefor (as in Form No. 8, cl. 1^ p. 743). 2. [Lessee's covenants.] The lessee hereby covenants with the lessor as follows : (1) [To PAY RENT.] On the days and in the manner afore- said. (2) [To PAY TAXES, ETC.] (See Form No. 8, cl. 2 (2), p. 743.) (3) [To MAKE SPECIEIED ALTERATIONS.] Within calendar months from the commencement of the said term to expend the sum of $ in the cost of labor and materials in making the alterations and additions to the said warehouse of which the plans and specifications, signed by the parties hereto, are hereto attached, and, if so required, to produce to the lessor proper vouchers for such expenditures. (4) [Not to make other alterations.] (As in Form No.. 4, cl. 4 (4) p. 743, prefixing the words, "save as aforesaid.") (5) [To KEEP IN repair.] To keep the demised premises and all additions thereto and the boundary walls and fences and the drains thereof in good and tenantable repair and con- dition. (6) [To paint.] To paint with two coats at least of good oil paint in a workmanlike manner in the year , and afterwards in every (third) year of the term, all the outside wood and metal work of the demised premises and any addi- tion thereto and other external parts usually painted; and also to paint with two coats at least of good oil paint in the TiFF.FOEMS — 48 754 FORM BOOK (Ch. 23 year and afterwards in every (seventh) year of the term all of the inside wood and iron work of the demised premises and any addition thereto. (7) [To CLEANSE AT END OF TENANCY.] During the calendar months immediately preceding the determination of the tenancy to cleanse and scour thoroughly the interior of the demised premises and any additions thereto, and to white- wash such parts of the interior as have heretofore usually been whitewashed. (8) [To PERMIT LESSOR TO ENTER,. ETC.] (Form No. &, c\. 2 (6), p. 743.) (9) [To INSURE AND REBUILD.] To insure forthwith and keep insured in the joint names of the lessor and lessee (or, in the name of the lessor) the demised premises from loss or damage by fire in some insurance company or companies ap- proved by the lessor in at least the sum of $ , and to pay all premiums necessary for that purpose within days after the same shall become due, and when required to produce to the lessor or his agent the policies of insurance and the receipts for the current year's premium, and to cause all moneys received by virtue of any such insurance to be laid out forthwith in rebuilding and reinstating the premises and to make up any deficiency out of his own moneys : Provided, that if the lessee shall at any time fail so to insure and keep insured the premises, the lessor may do all things necessary to effect and maintain such insurance, and the moneys expended by him for that pui'pose shall be repayable by the lessee on demand. (10) [Not to store dangerous materials or carry on OEFENSVE Trade, but to use only for specified business.] Not to keep or suffer to be kept on the premises any material of a dangerous or explosive nature or the keeping of which may contravene any law or ordinance or constitute a nuisance Ch. 23) LANDLORD AND TENANT 755 to the occupiers of neighboring property, and not to carry on .upon the premises any trade of a noxious or offensive nature, nor to permit the premises to be used as a residence or sleeping place by any person other than a caretaker, but to use the premises only as a warehouse in connection with the business of a or such other trade or business as shall be approved in writing by the lessor. (11) [Not to assign.] {Form No. 8, cl. 4 (5), p. 743.) (12) [To YIELD UP IN REPAIR.] (Fonii No. 8, cl. 4 (7), P- 743.) 3. [Lessor's covenant for quiet enjoyment.] (Form No. 8, cl. 3, p. 744.) 4. [Proviso for rE-Entrt.] (Form No. 8, cl. 4, p. 745.) 5. [Option to determine.] If the lessee (or, the lessor; or, either party) shall desire to terminate this demise at the expiration of the or years of the said term, and shall give to the lessor (or, lessee ; or, other party) calendar months' previous notice in writing to that effect (in case of determination by lessee add, and shall up to the time of such determination pay the rent and perform and observe the covenants on his part hereinbefore contained), then im- mediately on the determination of such or years, as the case may be, this demise and everything herein contained shall cease and be void, but without prejudice to the remedies of either party against the other in respect of any antecedent claim or breach of covenant. 6. [Service of notices.] Any notices required to be served hereunder shall be sufficiently served on the lessee, if left addressed to him on the demised premises, and shall also be sufficiently served on the lessee or on the lessor, if deliv- ered to him personally or forwarded to him by post to or left at his last-known address in the state of . A notice 756 FORM BOOK (Ch. 23 sent by post shall be deemed to be given at the time when in due course of post it would be delivered at the address to which it is sent. In witness, etc. 11. Lease with Various Covenants by Lessee This indenture, made this day of , between • , of , hereinafter referred to as the lessor, of the first part, and , of , hereinafter referred to as the lessee, of the second part: 1. [Demise, term, and rent.] Witnesseth that the lessor ■does hereby lease and demise unto the lessee the premises de- scribed as {description). To have and to hold the same unto the lessee for the term •of years from the day of ■ . Yielding and paying therefor the annual rent of $- payable in monthly installments of $ on the first day of each and every month during the said term in advance at the office of , or such other place as the lessor may designate, in the city of , the first payment to be made on the day of — ■. 2. [Lessee's covenants.] In consideration of the said demise the lessee covenants and agrees with the lessor as fol- lows: (1) [To PAY RENT.] To pay the said rent at the times and place and in the manner aforesaid. (2) [To PAY EGR WATER AND LIGHT.] To pay, in addition to the rents above specified, all water rates and gas and elec- tric light bills levied or charged on the demised premises dur- ing the said term, and, if no such rates or bills are levied or charged specifically thereon, to pay the part of all such rates and bills levied or charged on the building in which the Ch. 23) LANDLORD AND TENANT 757 said premises are situated; and in case any such rates or bills shall not be so paid when due, the lessor may pay the same, and the amounts so paid shall be due and payable by the lessee with the next installment of rent. (3) [Condition of premises — No representations.] That the lessee has examined and knows the condition of the premises and has received the same in good order and repair (except as herein otherwise specified), and that no representa- tions as to the condition or repair thereof have been made by the lessor or his agent prior to or at the execution of these presents (except as herein expressed or indorsed here- on). (4) [To keep in repair and sanitary.] To keep the premises in good repair, as the same are at the commence- ment of the term, replacing all broken glass with glass of the same size and quality as that broken, and to keep the premises and appurtenances, including catch-basins, vaults, and adjoining alleys, in a clean and healthful condition according to the city ordinances and the direction of the proper officers at his own expense. (5) [To remove snow and ice.] Without injury to the roof, to remove snow and ice from the same when necessary, and to clear the snow and ice from the sidewalks in front of the premises. (6) [Lessor not to be liable eor damage, etc.] That the lessor shall not be liable for any damage occasioned by failure to keep the premises in repair, or for any damage done or occasioned by or from plumbing, gas, water, steam, or other pipes, or sewerage, or the bursting, leaking, or running of any cistern, tank, washstand, water-closet, or waste pipe in or about the premises, or for damage occasioned by water, snow, or ice being upon or coming through the roof, sky- light, trapdoor or otherwise, or for any damage arising from 758 FOEM BOOK (Ch. 23 acts or neglects of cotenants or other occupants of the same building or the owners or occupants of adjacent or contigu- ous property. (7) [Not to kbep or use gasoi.inb, etc.] Not to keep or suffer to be kept on the premises gasoline, naphtha, ben- zine, benzole, benzine varnish, or any product in whole or part of either, or gunpowder, fireworks, nitroglycerine, phos- phorus, saltpetre, nitrate of soda, camphene, spirit gas, or- any burning fluid or chemical oils, without the written consent of the lessor, and not to generate or evaporate or use on the premises or contiguous thereto gasoline, benzine, naphtha, or any other substance for a burning gas or vapor for lighting, other than the ordinary city gas or kerosene of lawful test. (8) [To USE ONLY EGR WHAT PURPOSES, ETC.] Not tO al- low the premises to be used for any purpose other than . — , or for any purpose that will increase the rate of insurance thereon, or for any unlawful purpose, or any purpose that will injure the reputation of the same, or will disturb other tenants or the neighborhood; not to permit the building to remain vacant or unoccupied for more than consecu- tive days ; and not to allow any sign or placard to be posted or placed upon the premises without the lessor's written con- sent. (9) [No ALTERATIONS, ETC.] Not to permit any alterations of or upon the premises, except by written consent of the lessor, and that all alterations and additions to the premises shall remain for the benefit of the lessor, unless otherwise provided in such consent. (10) [To ALLOW ACCESS TO LESSOR, ETC.] To allow the lessor at all seasonable times free access to the demised prem- ises for the purpose of examining or exhibiting the same, and of making any needful repairs or alterations thereon which the lessor may see fit to malce, and to permit to be placed on Ch. 23) LANDLORD AND TENANT 759 the premises at all times notices of "For Sale" or "For Rent," and not to interfere with the same. (11) [Not to assign, stc] Not to assign this lease or let or underlet the premises or any part thereof, or to permit the same in whole or in part to be occupied by any other per- son without in each case the written consent of the lessor first had, and not to suffer any transfer by operation of law of the interest of the lessee in the premises" hereunder. (12) [To YIELD UP PREMISES.] At the termination of this lease by lapse of time or otherwise to yield up the premises to the lessor in as good repair and condition as the same are at the commencement of the said term, reasonable use and wear thereof and damage by fire or other casualty not occur- ring through the default of the lessee only excepted, and to deliver up the keys at . (13) [Lien eor rent— Distress.] That the lessor shall have at all times the right to distrain for rent due, and shall have a valid first lien upon all personal property of the lessee, whether exempt by law or not, as security for the payment of the rent herein reserved. (14) [To PAY COSTS, ETC.] To pay and discharge all rea- sonable costs, attorney's fees, and expenses that shall be made or incurred by the lessor in enforcing the covenants and agree- ments hereof : 3. [Proviso eor rE-Entry.] Provided, always, and these presents are upon the express condition, that if the lessee shall fail or neglect to perform and observe any or either of the covenants on his part herein contained, it shall be lawful for the lessor at any time thereafter and without notice or de- mand to enter into and upon the demised premises and repos- sess the same as of his former estate, and to expel the lessee and those claiming under him, forcibly, if necessary, and to remove their effects, without prejudice to any remedies which 760 FOEM BOOK (Ch. 2a might otherwise be used for arrears of rent or previous breach of covenant. 4. [Lessor's covenant for quiet enjoyment.] {See Form No. 8, cl. 3, p. 744.) 5. [Proviso in case oe fire, etc.] Provided, further,, that in case the said premises shall be damaged by fire or other unavoidable casualty not rendering the same untenanta- ble, the lessor shall at his own cost repair the same; but, if the premises shall thereby be rendered untenantable, the lessor at his option may terminate this lease, whereupon the rent shall cease, or may repair the premises within days, in whicli event the rent shall abate until the premises have so been made tenantable, and, if the lessor shall fail to repair the premises within the said days, this lease shall de- termine. 6. [Covenants bind representatives.] The covenants and agreements herein contained shall apply to and bind and inure to the benefit of the heirs, personal representatives, and assigns of the lessor and the personal representatives and li- censed assigns of the lessee. In witness, etc. 12. Lease of Land for Ninety-Nine Years Providing for Building to be Erected by Lessee This indenture made this day of — between , of , hereinafter called the lessor, party of the first part, and , of , hereinafter called the lessee, party of the second part: Witnesseth as follows : 1. [Demise.] In consideration of the rent and the lessee's covenants hereinafter reserved and contained the lessor hereby demises and leases unto the lessee all those certain premises 'Ch. 23) LANDLORD AND TENANT 761 •situate in the city of , county of , and state of , described as follows (description). [Habendum.] To have and to hold the said premises for and during the term of ninety-nine years from the day of . [Reddendum.] Yielding and paying therefor the yearly rent of grains of pure, unalloyed gold, in four quarter- yearly installments, ea,ch in advance, of grains each, at such office of the lessor or his agent or of such bank in the said •city of , as the lessor may from time to time designate, on the (first) days of , , , and in each and every year during the said term, the first payment to be made on the day of : Provided, however, that the lessor may from time to time, at his option, require, in lieu of such quarter-yearly payment as aforesaid, the payment at the time and place aforesaid, of the sum of dollars in such lawful currency of the country as the lessor may desig- nate. 2. [Lessee's covenants.] The lessee, to the intent that the obligations may continue throughout the term hereby cre- ated, covenants with the lessor as follows : (1) [To PAY RENT.] To pay the reserved rent on the days and in the manner aforesaid. (2) [To ERECT BUILDINGS, ETC.] At his own cost to crcct upon the premises hereby demised a building in accordance with the plans and specifications of , architect, signed by the parties hereto (and hereto annexed), the said building to cost not less than $ , and to complete the said building in all respects fit for immediate occupation on or before the day of , unless prevented by accident or unavoid- able causes, and in such case as soon after such date as is prac- ticable, to execute and deliver to the lessor within days- from the date hereof a bond, in form and with one or more 762 FORM BOOK (Ch. 23 sureties satisfactory to the lessor, conditioned for the indemnity of the lessor against all mechanics' and other liens which may arise or be created in or about the erection of the said building, and that, when completed as aforesaid, the said building and premises shall be free from all liens. (3) [To PAY TAXBS, ETC.] To bear, pay, and discharge all existing and future taxes, assessments, duties, impositions, and burdens whatsoever assessed, charged, or imposed, whether by the nation, state, city, or any other public authority, upon the demised premises or any erections thereon, or upon the owner or occupier in respect thereof, or payable by either in respect thereof, and to deliver to the lessor at all times promptly prop- er and sufficient receipts and other evidence of the payment and discharge of the same. (4) [Not to suffer liens or incumbrances, etc.] Not to suffer the demised premises or any erection or improvements thereon or the estate of the lessee in the same at any time dur- ing the said term to become subject to any lien,* charge, or in- cumbrance whatsoever, other than a mortgage as hereinafter provided, and to indemnify and keep indemnified the lessor against all such liens, charges, and incumbrances ; it being here- by expressly agreed that the lessee shall have no authority, ex- press or implied, to create any lien, charge, or incumbrance, other than a mortgage, as aforesaid, upon the demised prem- ises or the improvements thereon or upon the estate of the les- see in the same. (5) [Not to assign, except, etc.] Not to assign this lease, except with the lessor's written consent, until after the said building shall be completed and the said premises and building * Under the statutes of some states this provision would not be effective to prevent the creation of a lien for labor or materials per- formed or furnished in works required by the lease or authorized by tlie lessor. In such cases a bond of indemnity, as provided in the preceding subclause (2), ia desirablet Ch. 23) LANDLORD AND TENANT 763 shall be free and discharged of all liens and claims arising or incurred in or about or during the construction of the said building, and also not to assign this lease at any time, except with the lessor's written consent, unless all rent and all taxes, assessments, duties, impositions, and burdens which the lessee has hereinbefore covenanted to pay, and all liens, charges, and incumbrances, other than mortgages as hereinafter provided, shall have been duly paid and discharged, and unless the as- signee shall in the instrument of assignment expressly assume the lessee's covenants and obligations hereunder, and unless the instrument of assignment and assumption shall be legal and sufficient for that purpose, and shall have been first submitted to and left with the lessor for a period of days before the delivery thereof to the assignee, and unless the same shall be recorded at or about the time of such delivery thereof in the proper recorder's office ; it being hereby expressly agreed that any assignment, except by mortgage as hereinafter provided, or by devise, which shall be made or attempted to be made in breach of the lessee's covenants herein contained shall be void and of no effect: Provided, that the lessee may at any time by mortgage or deed in trust for that purpose mortgage his es- tate in the demised premises to secure any actual debt, and in such case may make (one-half) of the insurance on the build- ings and improvements erected on the premises payable, in case of loss, to such mortgagee or trustee. (6) [To INSURE.] To keep the buildings and improvements upon the said demised premises insured against loss or damage by fire (or, tornado), for their full insurable value in companies satisfactoiy to the lessor, and to furnish the lessor with a com- plete list of all such insurance ; to pay all the premiums neces- sary for those purposes immediately as they become due, and to deliver to the lessor the receipts therefor ; to make all insur- ance payable to the lessor, except so much thereof, not exceed- 764 FORM BOOK (Ch. 25 ing (one-half), as may be payable to a mortgagee or trustee, as hereinbefore provided, and to deliver to the lessor the policies of all insurance payable to the lessor : Provided, that if the les- see shall at any time fail to insure or keep insured as aforesaid,, the lessor may do all things necessary to effect or maintain such insurance, and any moneys expended by him for that purpose shall be repayable by the lessee, with interest at the rate of per cent, per annum on demand. (7) [To REPAIR AND RESTORE IN CASE OE DAMAGE OR DESTRUC- TION.] In case of damage or destruction, from time to time, by fire or otherwise, to repair, restore, or rebuild the buildings and improvements on the demised premises, in accordance with plans and specifications to be approved by the lessor, with all reasonable dispatch, and in any event within months- from the time of such damage or destruction: Provided, that in case of any such damage or destruction the lessor shall apply any insurance money recovered by or paid to him to such re- pair, restoration, or rebuilding under plans and specifications approved by the lessor : And provided, further, that all insur- ance money recovered and not paid to the lessor shall first be so applied : And provided, also, that in case the lessee shall not so repair, restore, or rebuild within months, then such insurance money recovered by the lessor may be retained by him as liquidated damages for the breach of the lessee's cove- nant so to repair, restore, or rebuild. (8) [To KEEP IN REPAIR.] To keep the said buildings so to be erected and all other buildings and erections which may at any time during the said term be erected upon the demised premises and the drains and appurtenances in good condition, and repair. (9) [Not to alter.] Not to make any alteration in the ex- ternal elevation or architectural design of the buildings for the time being on the demised premises, or to injure or remove any Ch. 23) LANDLORD AND TENANT 765 of the principal walls or timbers thereof without the consent in writing of the lessor. (10) [Not to erect new buildings except as approved.] Not to erect or permit to be erected on the demised premises any new buildings or to make or permit to be made any addi- tion to the said building so to be erected or to any buildings which may at any time during the said term be erected upon the land hereby demised, except in accordance with plans and specifications previously approved by the lessor. (11) [To PERMIT LESSOR TO ENTER.] To permit the lessor and his agents at all reasonable times to enter upon the demised premises to view the condition of the premises and buildings. (12) [Not to suffer unlawful use.] Not to make or suf- fer any use or occupancy of the demised premises contrary to any law or ordinance now or hereafter in force. (13) [To indemnify against costs, etc.] To indemnify the lessor against all costs and expenses, including counsel fees, lawfully and reasonably incurred in or about the premises, or in the defense of any action or proceeding, or in discharging the premises from any charge, lien, or incumbrance, or in' ob- taining possession after default of the lessee or the determina- tion of this demise. (14). [To YIELD up in REPAIR.] At the determination of the tenancy to yield up the demised premises with all buildings erected thereon and additions thereto and all landlord's fixtures affixed thereto within the last years of the said term in such repair and condition as shall be in accordance with the covenants hereinbefore contained. 3. [Lessor's covenants.] The lessor hereby covenants with the lessee as follows : (1) [For quiet enjoyment.] (Form No. 6, cl. 4, p. 740.) (2) [That lessee assigning shall be discharged.] That upon any assignment of this lease by way of absolute sale there- 766 FORM BOOK (Ch. 23 of made by the lessee for the time being in conformity with the lessee's covenants and the terms hereinbefore contained the les- see making such assignment shall be free from all further obli- gations hereunder : 4. [Power of re-entry.] Provided, always, and it is ex- pressly agreed, that if the rent hereby reserved shall be unpaid for days after becoming payable, whether formally de- manded or not, or if any covenant on the lessee's part herein contained shall not be performed or observed, then and in any of the said cases it shall be lawful for the lessor at any time to re-enter upon the demised premises or any part thereof in the name of the whole, and thereupon this demise shall absolutely determine, but without prejudice to the right of action of the lessor in respect of any of the lessee's covenants herein con- tained. No waiver by the lessor of any covenant hereunder shall be a waiver of any succeeding breach of the same cove- nant: 5. [Proviso in case op taking by eminent domain.] Pro- vided, that in case the whole of the demised premises shall at any time during the said term be taken by any public authority for any public use, the entire damages which may be awarded for such taking shall be apportioned between the lessor and the lessee, if they cannot agree upon such apportionment, by the arbitration of three persons, to whom such apportionment shall be referred, one of such persons to be nominated by the lessor, and one to be nominated by the lessee, and the third to be ap- pointed by writing under the hands of the two so nominated before the reference is proceeded with, and the decision of any two of the arbitrators shall be binding ; and, if either the lessor or the lessee shall refuse or neglect to appoint an arbitrator within days after the other shall have appointed an ar- bitrator and served written notice upon the other requiring him to appoint an arbitrator, then upon such failure the party mak- Ch. 23) LANDLORD AND TENANT 767 ing the request and having himself appointed an arbitrator may appoint another arbitrator to act on behalf of the party so fail- ing to appoint, and the arbitrator so appointed may proceed and act in all respects as if appointed by the party so failing to make such appointment: And provided, further, that in case a part only of the demised premises shall be so taken for public use, the rights, duties, and obligations of the lessor and the lessee in the premises shall be determined, if they cannot agree in the premises, by the arbitration of three persons to be notninated and appointed as hereinbefore provided, to whom such deter- mination shall be referred, and who shall have full power and authority to make any determination which they shall deem just and equitable, taking into consideration the quantity and value of the land taken, the extent of the injury thereby caused to the buildings, the cost of restoring the buildings and the value of the buildings if restored, the period of the unexpired term of this lease, and all the other facts and circumstances which the arbitrators shall deem material, including full power. and authority to determine, among other things, as they shall deem just and equitable, any one or more of the following matters, viz. : That the whole or any part of the damages which may be awarded by the public authorities for such taking shall be ap- plied to the restoration of the buildings which may be upon the premises at the time of such taking ; that such damages shall be apportioned between the lessor and the lessee or be paid to ei- ther one of them ; that the whole or any part of the rent shall be abated from the time of the taking thenceforth or for any less time ; that the lease shall be otherwise modified ; or that the lease shall determine — and to award and direct specific per- formance of any one or more of the said or any other matters which they shall determine, to the end that the rights, duties, and obligations of the parties shall be justly and equitably and finally determined upon all the facts and circumstances as thev 768 FORM BOOK (Ch. 23 shall then exist. The costs of the reference of the arbitrators shall be paid by the parties thereto in equal moieties. 6. [Covenants BIND REPRESENTATIVES.] It is hereby agreed that the covenants, stipulations, and conditions herein contained shall inure to the benefit of and shall be binding upon the heirs and assigns of the lessor and the heirs, executors, administra- tors, and assigns of the lessee. In witness, etc. 13. Lease of Offices This indenture made this day of between {parties as in Form No, 11, p. 756) witnesseth: 1. [Demise.] That the lessor doth hereby demise and lease unto the lessee the offices numbered in the building known as , on street, in the city of , con- sisting of rooms, said premises to be used for the pur- pose of . [Habendum.] To have and to hold the same for the term of years, beginning the day of . [Reddendum.] Yielding and paying rent at the rate of $ per annum, to be paid in equal monthly payments on the first day of each month, the first of such payments to be made on the first day of next, and at the same rate for any part of a month unexpired at the legal determina- tion of this lease. 2. [Lessee's covenants.] The lessee hereby covenants with the lessor as follows: (1) [To PAY rent.] To pay the rent reserved at the times and in the manner aforesaid. (2) [To PAY WATER RATES.] To pay all water rates levied or payable during the said term. (3j [Repairs, etc.] {See Form No. 8, cl. 3 (3), p. 743.) Ch. 23) LANDLORD AND TENANT 709 (4) [Additions and alterations.] Not to make or suf- fer any additions or alterations in or to the premises without the written consent of the lessor. (5) [Waste.] Not to make or suffer any waste of the premises. (6) [Signs, etc.] Not to suffer any holes to be drilled or made in the stone or brick work, nor any placard to be placed on the outer wall, nor any signs to be on the premises, except such as the lessor shall approve, and then only in such place and so affixed as the lessor shall prescribe. (7) [Improper use.] Not to make or suffer any unlawful, improper, or offensive use of the premises, nor any use there- of other than as herein specified. (8) [To conform to regulations.] To conform to such reasonable regulations as may be established from time to time by the lessor for the general convenience of the tenants of the building. (9) [Heating and lighting apparatus.] That any heat- ing or lighting apparatus which may be used on the premises shall be of such kind as the lessor shall approve. (10) [Not to increase insurance rate.] Not to suffer to be carried on upon the premises any trade or business, or anything to be done thereon, which shall increase the rate of premiums for insurance upon the building or its contents. (11) [Water damage, etc.] That the lessor or those hav- ing his estate in the premises shall not be liable for any dam- age or injury by water or otherwise to any merchandise or property upon the premises. (12) [To permit lessor to enter, etc.] To permit the lessor at all seasonable times to enter upon and examine the premises and make such repairs as he may think necessary for the protection thereof. TiPF.POEMS — i9 770 FOEM BOOK (Ch.23 (13) [Not to assign, etc.] Not to assign this lease or to underlet the whole or any part of the premises without the consent in writing of the lessor. (14) [To YIELD UP IN REPAIR.] At the end of the said term peaceably to deliver up to the lessor the demised prem- ises, with all future erections or additions upon or to the same, in such repair as aforesaid, and vacant and uniuQum- bered, and in good and tenantable order and condition. 3. [Lessor's covenants.] The lessor hereby covenants with the lessee as follows: (1) [Quiet enjoyment.] That the lessee shall peaceably hold and enjoy the demised premises as aforesaid. (2) [Steam heat and EEEvator.] That during business hours, except in case of unavoidable accident, the premises shall be kept duly warmed with steam heat, and that the eleva- tor shall be kept running : Provided, that the lessor shall be subject to no liability for injury or damage of any nature arising to person or property from the use of the elevator : 4. [Provisos.] Provided, always, and it is expressly agreed as follows: (1) [Re-entry.] In case of a breach of any of the cove- nants on the lessee's part herein contained, or in case the estate hereby created shall be taken from the lessee by pro- cess of law or by proceedings in bankruptcy or insolvency or otherwise, the lessor may, while the default shall continue, or at any time after such taking, and notwithstanding any license or waiver of any prior breach of condition, without notice or demand, enter upon the premises, and thereby determine this demise, and may thereupon expel and remove, forcibly, if nec- essary, the lessee and his effects. (2) [Lessee to indemnify.] In case of a determination of this demise by a re-entry as hereinbefore provided, the lessee shall indemnify the lessor for all loss or damage which Ch. 23) LANDLORD AND TENANT 771 he may suffer during the residue of the said term by reason of such determination, whether through loss or decrease of rent or otherwise. (3) [Abatement of rent in case oe Eire, etc.] In case the buildings on the premises or any part thereof shall at any time during the said term be damaged by fire or other unavoid- able casualty so as to be unfit for use and occupation, and in case of loss or damage by fire the policy or policies of insur- ance effected by the lessor shall not have been vitiated or pay- ment of the insurance moneys refused in consequence of some act or default of the lessee, the rent hereby reserved or a just and proportionate part thereof, according to the nature and extent of the damage sustained, shall be abated until the said premises shall have been duly repaired and restored by the lessor, or, in case the said buildings shall be substantially de- stroyed, then at the election of the lessor {or, of the lessee) this demise shall be determined. 5. [Interpretation oe "lessor" and "lessee."] It is hereby agreed that in the interpretation hereof, whenever the context so permits, the expression "the lessor" shall include his heirs and assigns, and the expression "the lessee" shall include his executors, administrators, and assigns; and that the covenants and stipulations hereof shall be binding upon and inure to the benefit of the persons included under the said expressions respectively as aforesaid. In witness, etc. 14. Lease of Suite of Rooms in Apartment House This indenture made this day of between (parties as in Form No. 11, p. 756) witnesseth as follows:' 1. [Demise, term, and rent.] The lessor hereby leases and demises unto the lessee the suite of rooms numbered on the floor of the building known as . 772 FORM BOOK (Ch. 23 on street, in the city of , consisting of (with the coal and wine cellars and ash bin situate in the cel- lar of the said building and appropriated to the said suite), together with the use in common with the lessor and the other tenants in the said building of the entrance hall, stairs, and elevators leading to the demised premises. To hold to the lessee from the day of for the term of years. Yielding and paying therefor yearly and proportionally for any fraction of a year the rent of $ , by equal monthly payments of $ , payable on the first day of each and every month during the said term, the first payment thereof to be made on the day of next. 2. [Lessee's covenants.] The lessee hereby covenants with the lessor as follows : (1) [To PAY RENT.] To pay the reserved rent at the times and in the manner aforesaid (at the office of the lessor with- out demand being made therefor). (2) [To OBSERVE REGULATIONS.]' To observe and strictly conform to the regulations (for the time being) governing all apartments or suites in the said building, a copy of which (as at present in force) is printed on the page hereof {or, to conform to such reasonable regulations as may from time to time be established by the lessor for the general convenience and comfort of the tenants and the welfare of the said build- ing). (3) [To PAY FOR GAS, ETC.] To pay all charges for gas {or, electric light) used in the demised premises as shown by the separate meter belonging thereto. (4) [To icEEP AND DELIVER UP IN REPAIR.] To keep the demised premises and all erections and additions made to or 5 Many of the lessee's covenants may be covered by the printed regulations and omitted In the body of the lease. Ch. 23) LANDLORD AND TENANT 773 upon the same in good order and condition as the same now are or shall be put in by the lessor, replacing with the same kind and quality any glass on the premises that may become broken or injured, ordinary wear and damage by fire and un- avoidable casualties excepted, and in the like order and con- dition, except as aforesaid, to deliver up the same at the termi- nation of the tenancy. (5) [Not to alter or injure.] Not to make or permit any alterations in the construction or arrangement of the demised premises without the previous consent in writing of the lessor, nor without like consent to cut, alter, drive nails or screws into, or otherwise mar or injure any of the walls, floors, plastering, woodwork, or any other part of the prem- ises. (6) [Not to make improper use — Animals.] Not to make or suffer any unlawful, improper, noisy or otherwise of- fensive use of the demised premises, nor any Use whatsoever other than as and for a private residence, and not to keep in or about the premises any dog or other animal. (7) [Not to obstruct halls.] Not to allow the halls and stairways to be obstructed or to be used for any purpose oth- er than for ingress and egress to and from the said suite. (8) [Not to waste heat or water — Leakage.] Not to allow the heat or water supplied to the demised premises to be wasted, and to pay all damages which may result to the building or to the property of tenants below from the leakage of water in or from the said apartment, caused or suffered by the lessee or others therein, and not to hold the lessor lia- ble for any damage by water or otherwise to any goods or property on the premises. (9) [To INDEMNIEY FOR DAMAGE.] To indemnify the les- sor for any damage done to the demised premises or to any part of the said building caused by misuse or carelessness 774 FORM BOOK (Ch. 23 on the part of the lessee or any member of his household or other person in the building by the invitation of the lessee. (10) [To PERMIT LESSOR TO bnter.] To permit the lessor at all seasonable times to enter upon and examine the prem- ises, and make necessary repairs and show the premises to others. (11) [Not TO ASSIGN.] Not to assign this lease nor under- let the whole or any part of the demised premises without the written consent of the lessor. 3. [Lessor's covenants — Quiet enjoyment — Water AND HEAT.] The lessor hereby covenants with the lessee that the lessee sball peaceably hold and enjoy the demised prem- ises, and that, except in the case of accident or during neces- sary repairs, the lessor will during the said term supply the said apartment with cold (and hot) water for ordinary house- hold purposes, and will furnish heat during the heating season to the various rooms in the said suite where radiators or registers are provided by lessor. 4. [Provisos.] (1) [Power to rE-Enter.] {See Form 8, el. 4, p. 745.) (2) [Proviso in event oe damage by Eire.] {See Form 8, cl. 5, p. 745.) 5. [Covenants extend to and bind, whom.] All cove- nants and agreements herein contained shall extend to and bind the heirs, executors, administrators (successors), and as- signs of each party hereto. In witness, etc. Ch. 23) LANDLORD AND TENANT 775 14a. Lease of Land for a Golf Course * This indenture made the day of between , of , hereinafter called the lessor, of the one part, and the Golf Club, a corporation {etc.), herein- after called the club, of the other part: Witnesseth as follows : 1. [Demise.] In consideration of the rent and covenants hereinafter reserved and contained, the lessor hereby demises unto the club all those certain tracts or parcels of land (de- scription). To hold the same unto the club for the term of years from the day of . Yielding there- for the yearly rent of , payable in four equal quarterly installments on the days of , , , and in each year, the first of such payments to be made on the day of next. 2. [Lessee's covenants.] The club hereby covenants with the lessor as follows: (1) [To PAY-RENT.] To pay the rent reserved on the days and in the manner aforesaid. (2) [To USE FOR GOLE ONLY.] Not to use the said land except as a golf course, and not at any time to erect thereon any dwelling house or other buildings except a golf clubhouse and sheds, outhouses, stables, garages, and other buildings for the use of the club and the members, guests and servants thereof. (3) [Waste — Repair oe damages.] Not at any time with- out the permission in writing of the lessor to cut down any trees on the said land, and not to sell or take off the said land any sand, gravel, soil, or minerals of any kind, and at or before the end of the term hereby granted to repair any dam- ages caused by the club to the said land, and to restore all ' For a license to a golf club, see Form No. 15, p. 661. 776 FORM BOOK (Ch. 23 turf cut or removed therefrom, and fill up or level down all bunkers made by the club. (4) [To YIELD UP.] At the end or sooner termination of the said term peaceably deliver up the land to the lessor. (5) {Other covenants, as may be agreed.) 3. [Lessor's covenants.] The lessor covenants with the club as follows: (1) [For quiet enjoyment.] That the club, paying the rent and observing and performing the covenants hereinbefore reserved and contained, shall peaceably and quietly enjoy the said land, and shall not be disturbed by any act of the lessor or any person claiming, under him. (2) [To PERMIT CERTAIN WASTE.] That he will permit the club for the proper laying out and maintaining of the said golf course to cut turf, to cut down or root up any hedges or bushes vipon the said land, and to commit any acts of waste thereon not expressly excluded by the covenants on the club's part hereinbefore contained. (3) [Removal oE fixtures.] That at or .before the ex- piration of the term hereby granted he will permit the club to remove any clubhouse, sheds, outhouses, stables, garages and buildings, and any flags, posts, fences, bridges, stiles, gates, and other fixtures placed by the club on the said land. 4. [Power oe re-Entry.] If the club shall commit or al- low to be committed any breach of any of the covenants on its part hereinbefore contained, or if the rent hereinbefore reserved or any quarterly payment thereof shall remain un- paid for days after the same shall become due, it shall be lawful in any such case for the lessor to re-enter upon the said land, and thereupon the term hereby granted shall be determined. In witness, etc. Ch. 23) LANDLORD AND TENANT 777 15. Lease of Farm This indenture made this day of (parties as in Form No. 11, p. 756) : Witnesseth as follows: 1. [Demise, habendum, and reddendum.] The lessor hereby leases and demises unto the lessee all tliat farm with the buildings thereon situate in and described as (de- scription) ; to hold the same to the lessee from the day of for the term of years. Paying therefor dur- ing the said term the yearly rent of $ by equal half- yearly payments on the day of and the day of , the first payment to be made on the day of . 2. [Lessee's covenants.] The lessee covenants as follows: (1) [To PAY rent.] To pay the rents hereby reserved on the days and in the manner aforesaid. (2) [To PAY TAXES.] To pay all taxes which may be im- posed upon the premises when and as the same shall become due and payable. (3) [To KEEP IN REPAIR.] To keep in repair all the build- ings on the premises (except the roofs, outer walls, and main timbers) and all fences, gates, and hedges, as the same now are or may be put in during the continuance hereof, reason- able wear and tear and damage by fire or other unavoidable casualty only excepted, and to clean and keep open and in working order all ditches, gutters, drains, sewers, and water courses. (4) [To FARM IN HUSBANDLIKE MANNER.] To farm, culti- vate, manure, and manage the whole of the premises in a good and husbandlike manner (according to the most approved methods of husbandry followed in the district), and to keep the whole in good condition (and not to allow any part of the 778 FORM BOOK (Ch. 23 land to become impoverished, and to have the arable land at all times clean and free from weeds, and never sown with any prejudicial crop). (5) [To cuLTivATp; GARDENS, ORCHARDS, ETC.] To keep all gardens and orchards and shrubberies properly cultivated, planted, stocked, and manured and in neat order, to keep well pruned and trained all fruit trees, bushes, vines, and shrubs, and to plant fresh ones of the best description of the several kinds in the place of those dying, becoming decayed, or un- profitable. (6) [To PRESERVE Timber.] To preserve all growing trees from injury by stock or otherwise, subject to the right of the lessee to cut timber as hereinafter provided. (7) [To INSURE.] To keep the buildings insured against loss or damage by fire in at least the sum of $ in a com- pany approved by the lessor and to deposit the policy with the lessor, and to send him the receipts for the premium immedi- ately after the same shall become payable, and to do no act which shall invalidate the policy. (8) [Not to assign.] Not to assign, underlet, or part with the possession of any part of the premises without the writ- ten consent of the lessor. (9) [Not to permit waste.] Not to commit spoil or waste in any part of the premises. (10) [To YiEi,D UP in repair, etc.] To yield up at the expiration of the tenancy all the demised premises in such a state of repair, cultivation, and management as shall be in compliance with the lessee's covenants hereinbefore contained. 3. [License to cut wood.] The lessor hereby gives to the lessee permission to cut on the woodland of the said farm so much of the timber other than nut trees as may be neces- sary for keeping the buildings and fences in repair and for firewood necessary to be consumed on the premises, all wood to be cut out clean, and the brush to be removed and burned : Ch. 23) LANDLORD AND TENANT 779 4. [Proviso i^or ru-untry.] Provided, always, that if any rent hereby reserved shall be in arrear for days, wheth- er demanded or not, or any covenant on the lessee's part here- in contained shall not be performed or observed, it shall be lawful for the lessor at any time thereafter to re-enter upon any part of the demised premises in the name of the whole, and thereupon this demise shall determine. 5. [Lessor's covenants.] The lessor hereby covenants with the lessee: (1) [For quiet enjoyment.] {See Form No. 8, cl. 4, p. 744.) (2) To do all necessary repairs to the roofs, outer walls (except windows), and main timbers. 6. [Meaning of "lessor" and "lessee."] Where the context so admits, the term "lessor" shall include his heirs and assigns, and the term "lessee" shall include his personal rep- resentatives and licensed assigns. In witness, etc. 16. Lease of Farm on Shares This indenture made this day of {parties as in Form No. 11, p. 756) : Witnesseth as follows: 1. [Demise, habendum, and reddendum.] The lessor here- by demises and leases to the lessee all that farm with the build- ings thereon situate in and described as {description), to hold the same to the lessee from the day of to the day of . Yielding and paying as rent therefor during the said term one equal (one-half) share of all the crops and produce which shall be produced upon the premises as hereinafter provided, or, in lieu thereof, at the election of the lessee the sum of $ , payable on the day of . 780 FORM BOOK (Ch. 23 2. [Lessee's covenants.] The lessee covenants with the lessor as follows : (1) [To PAY RENT.] To pay to the lessor as rent one equal (one-half) share in kind of all the crops and produce which shall be produced upon the premises during the said term, to be di- vided there according to the usual custom of making such divi- sion in the neighborhood, and to deliver such share to the lessor upon the premises or at such other place as the lessor may di- rect within miles of the premises within days after such crops and produce shall have been harvested and threshed, husked or otherwise put in marketable condition for delivery, and not later than the day of , or else at the election of the lessee, in lieu of such share, to pay to the lessor on the day of the sum of $ . (2) [To FARM IN "ilUSBANDI^IKE MANNER — -To RAISE GRAIN, ETC.] To farm and cultivate the premises in a good and farm- like manner ; to till and cultivate all the tillable land now under cultivation ; to seed not less than acres thereof to grain, and to raise the greatest amount of grain thereon the nature of the soil and the season will permit ; to haul out and distrib- ute upon the poorest soil all the manure and compost suitable to be used ; to care for all growing crops in a good and hus- bandlike manner; to harvest all crops in proper season; to thresh, husk, and otherwise put in proper marketable condition for delivery all the said crops and produce, and until delivery to take proper care of the lessor's share thereof. (3) [To KEEP UP PREMISES.] To preserve the fruit and orna- mental trees, bushes, shrubs, and vines that are now or may hereafter be planted upon the premises from injury by plow- ing, or by cattle or other stock or otherwise ; to keep the prem- ises free from brush, burrs, and thistles ; to mow or cut near the surface all weeds on the premises within the limits of the public roads thereon on or before the ^ — day of in Ch. 23) LANDLORD AND TENANT 781 each year; and to keep all ditches and drains plowed and cleaned out. (4) [To KEEP STRUCTURES, ETC., IN REPAIR.] To keep in re- pair all the buildings and fences and hedges on the premises (provided, that the lessor shall at his own cost furnish all ma- terial for such repairs not made necessary by the default or negligence of the lessee as the lessor shall consider needful.) "(5) [To PERMIT E-ESSOR TO ENTER.] That the lessor may at all seasonable times enter upon the premises for the purpose of viewing the premises or making improvements thereon, and shall have the right to plow the land after the crops thereon have been gathered. (6) [Not to assign.] {See Form No. 15, cl. 2 (8), p. 778.) (7) [Not to permit waste.] (See Form No. 15, cl. 2 (9), p. 778.) (8) [Not to dispose oE crops, etc.] Not to remove or sell or mortgage, or otherwise incumber or dispose of, any of the crops or produce raised or to be raised on the premises, or to suffer the same to be removed, attached, or levied upon under execution, while the rent herein specified or any part thereof remains unpaid. (9) [To YIELD UP premises.] To yield up at the expiration of the tenancy all the demised premises in such a state of re- pair, cultivation, and management as shall be in compliance with the lessee's, covenants, ordinary wear and tear and loss from fire or other unavoidable casualty only excepted. 3. [Lessor's covenant for quiet enjoyment.] (See Form No. 8, cl. 3, p. 744.) 4. [Proviso eor re-entry.] Provided, always, that if any covenant on the lessee's part herein contained shall not be per- formed or observed, the said sum of $ payable in lieu of the said share of the crops and produce, as hereinbefore pro- vided, or the balance thereof remaining after deducting there- 782 FORM BOOK (Ch. 23 from all or any share or shares of the said crops and produce theretofore delivered and paid to the lessor as rent, estimated at the market value thereof, shall immediately become due and payable, and it shall be lawful for the lessor to re-enter upon the premises, and thereupon this demise shall determine : 5. [Proviso for saIvE of crops on re-entry and appwca- TiON OF PROCEEDS.] Provided, further, that upon any such re- entry it shall be lawful for the lessor to take possession of all the crops and produce raised on the premises and then gath- ered (and not theretofore divided) ; and if any part of the crops on the premises shall not then be sufficiently matured for har- vesting, or shall be ungathered, it shall be lawful for the lessor, if he shall see fit, to cultivate, harvest, and gather the same, it being expressly agreed, however, that the lessor shall be under no obligation so to do, and in either or any such case it shall be lawful for the lessor to sell the crops and produce when gathered at private or public sale, and to apply the proceeds thereof to the payment of all expenses incurred by the lessor in cultivating, harvesting, gathering, and selling the same, and to the payment of the said rent and of all damages growing out of the failure of the lessee to perform his covenants, paying the surplus, if any, to the lessee. 6. [Meaning of "lessor" and "lessee."] {See Form No. 15, cl. 6, p. 779.) In witness, etc. 17. Same— Short Form This indenture made this day of between , of , party of the first part, and , of , party of the second part : Witnesseth that the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the Ch. 23) LANDLORD AND TENANT 783 second part, his executors, administrators, and assigns, has de- mised and leased to the said party of the second part all those premises situate, lying, and being in , known and de- scribed as follows, to wit (description). To have and to hold the said above-described premises, with all the privileges and appurtenances belonging to the same (except such as hereinafter mentioned as reserved for the use and benefit of the said party of the first part), unto the said party of the second part, his executors, administrators, and as- signs, for term of , commencing on the day of , and ending on the day of . And the said party of the first part makes the following res- ervation, to wit: Reserving (insert any reservations). And the said party of the second part, in consideration of the leasing of the premises aforesaid by the said party of the first part to the said party of the second part, doth covenant and agree with the said party of the first part, his heirs, executors, administrators, and assigns, to pay the said party of the first part, as rent for the said premises, in amount and manner as follows, to wit (insert provisions for payment of rent in kind). And it is further agreed by the said party of the second part that neither he nor his legal representatives will underlet said premises, or any part thereof, or assign this lease, without the written assent of the said party of the first part had and ob- tained thereto ; that he will at all times during the term of this lease, at his own expense (except so far as may be hereinafter agreed to the contrary), maintain and repair all the buildings and fences belonging to said premises, or which may at any time during said term be erected thereon, and the said premises, and every part thereof, in as good repair as they shall be in at the commencement of the term of this lease, will peacefully deliver up to the said party of the first part, his heirs, execu- tors, administrators, and assigns, at the termination of this 784 FORM BOOK (Ch. 23 lease, loss by fire, storm, and unavoidable accident and ordi- nary wear and tear only excepted. In witness, etc. 18. Agreement for Farming on Shares, the Owner of the Land Retaining Title to the Crops until Division This agreement made this day of between , party of the first part, and , owner of the real estate or farm hereinafter described, party of the second part : Witnesseth that the party of the first part hereby covenants and agrees to and with the party of the second part, for the consideration hereinafter named, well and faithfully to till and farm during the season of farming in the year , in good and husbandlike manner, and according to the usual course of husbandry, the following described premises and real estate {description). And the party of the first part further covenants and agrees to sow and plant the said lands in such crops as the said party of the second part shall direct. The party of the first part also agrees to furnish at his own cost and expense all proper and convenient tools, teams, uten- sils, farming implements, and machinery (except as hereinafter otherwise provided) ; to carry on and cultivate the said farm during the said season, and to furnish and provide all proper assistance and hired help in and about the cultivation and man- agement of the said farm, and to farm and cultivate the said land to the best advantage, and according to his best skill and judgement; to maintain and keep up the fences so as to pro- tect such crops from injury and waste, and to watch, care for, and protect the sam^e; to protect the fruit and shade trees there- on, and to cut no trees, and to commit no waste or damage on the said real estate, and to suffer none to be done ; to crop and cultivate the said lands, and to harvest, thresh, and secure the Ch. 23) LANDLORD AND TENANT 785 crops grown thereon in farmerlike style, and in the best pos- sible manner during said season ; to stack up on the said prem- ises the share of the party of the second part of the hay cut on the premises during the said season, and after taking off the crops to plow immediately, in good and proper manner, not less than inches deep, so much of such parts of the said farm suitable for a succeeding crop as shall be plowed at the time the said party of the first part takes possession thereof ;. to keep up and maintain in good repair all structures, stables,. cribs, fences, and improvements on the said farm; and gen- erally to do and perform all proper and ordinary work, labor,, care, and skill requisite, usual, or necessary to work and crop the said premises in a proper manner and style and to the best interests of the party of the second part; and further agrees not to remove any straw or manure from the said farm, and not to sell or remove, or suffer to be sold or removed, any of the product of the said farm or premises, of any kind, charac- ter, or description, until the division thereof, without the writ- ten consent of the party of the second part, and until such divi- sion the title and possession of all the hay, grain, crops and produce, raised, grown, or produced on the said premises shall be and remain in the party of the second part. In consideration of the faithful and diligent performance of the foregoing covenants and agreements by the party of the first part, the party of the second part agrees upon reasonable request thereafter made to give and deliver on the said farm one equal (one-half) share of all grains, vegetables, and other crops so raised and secured upon the said land during the said- season. In witness, etc. TiFF.FOKMS — 50 786 FOEM BOOK (Ch. 23 19. Statutory Form of Lease (District of Columbia ' and Maryland) This lease made this day of , in the year , between , of , and , of , witnesseth that the said doth lease unto the said , his ex- ecutor, administrator; and assigns, all that {here describe the property) for the term of years, beginning on the ~ day of , in the year , and ending on the day of , in the year , the said paying therefor the sum of on the day of in each and every year {or, month, as the case may be). Witness our hands and seals. . {Seal) . {Seal) 19a. Statutory Form of Lease (Virginia ^ and West Virginia) This deed made the day of , in the year -, between {here insert the names of parties), witnesseth that the said doth {or, do) demise unto the said ■ his personal representative and assigns, all, etc. {here describe the property), from the day of , for the term of , thence ensuing, yielding therefor during the said term the rent of {here state the rent and mode of payment). Witness the following signature and seal {or, signatures and seals). 7 Code 1901, as amend, to 1911, § 5i56. Substantially the same form is given in Maryland. Ann. Civ. Code 1910, art. 21, § 65. 8 Code 1904, § 2440. Substantially the same form Is glveai la West Virginia. Code 1906, § 3051. Ch. 23) LANDLORD AND TENANT. 787 20. Lease by Mortgagor and Mortgagee This indenture made the day of between , of , hereinafter called the lessor, of the first part, • , of , hereinafter called the mortgagee, of the second part, and , of , hereinafter called the lessee, of the third part, witnesseth: [Recital of mortgage.] Whereas, by a certain inden- ture of mortgage dated the day of , and record- ed in {set forth record), the lessor mortgaged to the mortgagee the premises hereinafter described, subject to the provisos in the said indenture of mortgage contained. 1. [Demise.] Now, therefore, the lessor hereby demises and the mortgagee at the request of the lessor hereby demises and confirms unto the lessee {description of premises, haben- dum, and reddendum a/s in, appropriate form of lease). 2. [Lessee's covenants.] The lessee for himself and his assigns and to the intent that the obligations may continue throughout the term hereby created covenants with the lessor, his heirs and assigns, and also as a separate covenant with the mortgagee, his heirs, personal representatives, and assigns, as follows : {Lessee's covenants as in appropriate form of lease; the covenant to insure providing for a policy with the appropriate mortgagee's clause, and the liberty to enter and view being conferred on the lessor, his heirs and assigns, un- til the giving of the notice hereinafter provided for, and there- after on the mortgagee^ 3. [Covenant eor quiet enjoyment.] Each of them, the lessor and the mortgagee, so far as relates to the acts of him- self and of persons claiming under him, covenants with the lessee that the lessee, paying the rent hereby reserved and per- forming and observing the several covenants and stipulations herein on his part contained, shall peaceably hold and enjoy the 788 FORM BOOK (Ch.23 demised premises during the said term without any interruption by the lessor or the mortgagee or any person claiming under ■either of them (or, if the mortgagee does not enter into the ■covenant, the lessor covenants with the lessee that, etc., "with- out any interruption by the lessor or any person claiming un- der him") : 4. [Provisos.] Provided, always, and it is expressly agreed as follows : (1) [Rent to be paid to lessor untie notice.] Until the mortgagee shall by notice in writing given to the lessee require payment to himself of the reserved rent, the same shall be paid to the lessor, his heirs and assigns, whose re- ceipt shall be a sufficient discharge therefor. (2) [Premises to be yielded up to lessor, unless no- tice.] If at the expiration of the tenancy no such notice as aforesaid shall have been given, the lessee shall deliver up the demised premises under his covenant in that behalf hereinbe- fore contained to the lessor, his heirs or assigns. (3) [Powers oe lessor until notice.] Until such no- lice as aforesaid has been given, any consent or act required to be given or done or any notice required to be given by or to the lessor hereunder may be effectually given or done by or given by or to the lessor, his heirs or assigns. (4) [Power oe re-entry.] {As in appropriate form of lease, the power being given until such notice as aforesaid to the lessor, his heirs or assigns, and thereafter to the mort- gagee.) ■ In witness, etc. Ch. 23) LANDLORD AND TENANT 789 21. Same — Another Form ' This indenture made this day of between , of , hereinafter called the lessor, of the first part, , of , hereinafter called the lessee, of the second part, and , of , hereinafter called the mortgagee, of the third part, witnesseth: [Recital oi? mortgagee.] (See Form No. 20, cl. 1, p. 787.) [Recital oe mortg4.gee'S consent.] And whereas, at the request of the lessor the mortgagor has consented to execute these presents to the end that this lease shall have priority over the said mortgage. 1. [Demise, habendum, reddendum, lessee's covenants, lessor's covenants, proviso for re-entry, etc.] (As in appropriate form of lease in ordinary cases.) 2. [Mortgagee's consent that lease shall have prior- ity.] The mortgagee hereby consents and agrees that this lease shall have priority over the said indenture of mortgage to all intents and purposes as if this lease had been first exe- cuted, and the said indenture of mortgage had by its express terms been made subject to this lease. In witness, etc. 22. Lease by Joint Tenants This indenture made this day of between and , of , hereinafter called the lessors. of the one part, and , of , hereinafter called the lessee, of the other part, witnesseth as follows: 9 This form may be appropriately used in states where a mortgage creates a mere lien. In many cases the securing of a good lease may be an inducement to the mortgagee to consent to give it priority over his mortgage, and the lessee may make this a condition to his exe- cution of the lease. 790 FORM BOOK (Ch. 23 1. [DemisB, etc.] The lessors hereby demise unto the lessee (description of premises, habendtmi, reddendum, and lessee's covenants as in appropriate form of lease). 2. [Lessors' covenants.] The lessors hereby covenant with the lessee that the lessors or one of them will {covenants as in appropriate form of lease, substituting in the covenant for quiet enjoyment, "without interruption by the lessors or any person lawfully claiming under them or either of them"). 3. [Provisos.] {As in appropriate form of lease, the power of re-entry being given to, and any proviso for notice provid- ing for service on, "the lessors or either of them.") In witness, etc. 23. Lease by Tenants in Common This indenture made this day of between and , of , who are seised in fee simple as tenants in common in equal shares of the hereditaments hereby demised, and who are hereinafter called the lessors, of the one part, apd , of , hereinafter called the lessee, of the other part, witnesseth as follows : 1. [Demise, etc.] The lessors according to their several estates and interests do and each of them doth hereby demise unto the lessee {description of premises, habendum, and red- dendum as in appropriate form of lease). 2. [Lessee's covenants.] The lessee for himself and his assigns hereby covenants with the lessors and also covenants separately with each of them {covenants as in appropriate form of lease). 3. [Lessors' covenants in general.] The lessors here- by covenant with the lessee as follows {as in appropriate form of lease, except covenant for quiet enjoyment). Ch. 23) LANDLORD AND TENANT 791 4. [QuALiMED COVENANT FOR QUIET ENJOYMENT.] Each of the lessors separately and so far only as regards his re- spective share of the demised premises, and in respect only of the acts and defaults of himself and persons claiming un- der him, covenants with the lessee that the lessee, paying the rent hereby reserved and performing the covenants on his part herein contained, shall peaceably hold and enjoy the de- mised premises without any interruption by the lessors or ei- ther of them or any person claiming under them or either of them. 5. [Provisos.] (As in appropriate form of lease, the pow- er of re-entry being given to, and any proviso for notice pro- viding for service on, "the lessors or either of them.") In witness, etc. 24. Lease to Joint Tenants This indenture made the day of between , of , hereinafter called the lessor, of the one part, and and , of , hereinafter called the lessees, of the other part, witnesseth as follows: 1. [Demise.] The lessor hereby demises unto the lessees (description). [Habendum.] To hold unto the lessees for the term of years from the day of as joint tenants (reddendum as in appropriate form of lease). 2. [Lessees' covenants.] The lessees for themselves and the survivor of them and their and his executors, adminis- trators, and assigns hereby (jointly and severally) covenants with the lessor (lessees' covenants as in appropriate form of lease). 3. [Lessor's covenants.] (As in appropriate form of lease.) 4. [Provisos.] (As in appropriate form of lease) In witness, etc. 792 FORM BOOK (Ch. 2S 25. Lease to Tenants in Common This indenture made this day of between (parties as in Form No. 24, p. 791), witnesseth as follows : 1. [Demise;.] The lessor hereby demises unto the lessees {description). [Habendum.] To hold unto the lessees for the term of years from the day of as cotenants in common {reddendum as in appropriate form of lease). 2. [Lesse;e;s' covenants.] The lessees for themselves and their respective executors, administrators, and assigns jointly and severally covenant with the lessor {covenants as in ap- propriate form of lease). 3. [Lessor's covenants.] The lessor hereby covenants with the lessees and also a separate covenant with each of them {covenants as in appropriate form of lease). 4. [Provisos.] {As in appropriate form of lease.) In witness, etc. 26. Lease by Way of Renewal or Extension of Existing Term — By Indorsement Indenture made this day of between , the lessor named in the within-written indenture of lease, of the one part, and , the lessee named therein, of the other part: [Recital oe agreement for renewal.] Whereas, the lessee has requested the lessor to grant a lease to him (in ac- cordance with the lessor's covenant in that behalf contained in the within-written indenture) of the premises therein de- scribed for the term of years from the {last day of existing term) on the terms hereinafter expressed, which the lessor has agreed to do. Ch. 23) LANDLORD AND TENANT 793 Now, this indenture witnesseth as follows: 1. [Demise.] In pursuance of the premises the lessor demises unto the lessee all and singular the premises described in and demised by the within-written indenture. To hold unto the lessee from the day of , subject to the payment on the same days and in like manner of a yearly rent of the same amount as reserved by the within written indenture, the first payment of rent hereunder to be made on the day of , and subject to and with the benefit of the like covenants on the part of the lessor and the lessee respectively (other than the covenant for renewal) and such provisos and conditions in all respects, including the proviso for re-entry, as are contained in the within-wr-itten indenture. 2. [Mutual covenants to perform.] It is hereby mu- tually covenanted and agreed between the lessor and lessee, and so that the obligations hereunder shall continue throughout the term hereby ci^eated and be binding on their respective successors in interest, that they will respectively perform and observe the several covenants, provisos, and stipulations in the within-written indenture contained as fully as if the same had been herein repeated in full, with such modifications only as are necessary to make them applicable to this demise : 3. [Proviso in case oe re-entry under old lease.] Provided, that if the term of years created by the with- in-written indenture shall be determined under the proviso tor re-entry therein contained, these presents shall become abso- lutely void. In witness, etc. 794 FOEM BOOK (Ch. 23 261/8. Deed of Covenant for Payment of Additional Rent in Consideration of Alterations to be Made by Lessor This indenture made the day of (parties as in Form No. 8, p. 742) : [RuciTAi, OF I.EASE.] Whereas, by an indenture of lease dated (etc.) and made between the lessor, of the one part, and the lessee, of the other part, all that (description) was demised unto the lessee for the term of years from the day of , at the yearly rent of dollars, subject to the lessee's covenants and the conditions therein contained. Now, this indenture witnesseth as follows : 1. [Lessor to ExjscuT:^- alterations.] In consideration of the covenants of the lessor and the provisions hereinafter contained, the lessor hereby covenants with the lessee to ex- ecute, in conformity with the plans and specifications of , architect, already approved and initialed by the lessor and lessee, and to complete within months from the date hereof, the following alterations and additions of and to the above-described premises, to wit (specify the same). 2. [Covenant to pay -additional rent.] In considera- tion of the covenant of the lessor hereinbefore contained, the lessee covenants with the lessor to pay to the lessor, from and after the due execution of the said alterations and additions, during the residue of the term granted by the said lease, the yearly rent of dollars by equal monthly payments upon the days appointed for the payment of the rent by the said lease ; the said yearly rent of dollars to be paid in ad- dition, and not in substitution, for the yearly rent of dollars reserved by the said lease. 3. [Covenants in lease to apply.] Upon the due com- pletion in manner aforesaid of the said alterations and addi- tions, the lessee's covenants and the provisions and stipula- Ch. 23) LANDLOED AND TENANT 795 tions contained in the said lease which are now apt^licable to the said premises shall continue to be applicable and enforce- able in respect to the said premises when so altered, and shall extend to all additions which may be made thereto hereunder. 4. [Right of re-entry.] The right of re-entry by the said lease reserved to the lessor shall be exercisable by the lessor, as well in case of the nonpayment of the said additional rent or of the breach of any of the covenants on the part of the lessee herein contained as in case of nonpayment of the rent reserved by the said lease or of a breach of any of the cove- nants on the part of the lessee therein contained. In witness, etc. 27. Under Lease Varying Covenants of Superior Lease This indenture made the day of between (parties as in Form No. 8, p. 742) : Witnesseth as follows : 1. [ReciTai, of superior LEASE.] Whereas, by an inden- ture of lease dated the day of (and recorded, etc.), between , who is hereinafter referred to as the superior lessor, and the above-named lessor as lessee there- under, the premises hereinafter described were demised to the lessor for the term of years, subject to the covenants and provisos thereof. 2. [Demise, term, and rent.] Now, therefore, the lessor hereby demises unto the lessee all the land and premises situ- ate in described as (description). To hold to the lessee from the day of ■ for the term of years, being the unexpired term of the above-recited indenture of lease. Yielding and paying therefor (as in Form No. 8, cl. 1, p. 743). 796 FORM BOOK (Ch. 2a 3. [Lessee's covbnants.] The lessee for himself and his assigns hereby covenants with the lessor as follows : (1) [To PAY RENT.] To pay the rent hereby reserved on the days and in the manner aforesaid. (2-4) (Insert covenants, similar to those in superior lease^ e. g.: T.o pay taxes, etc.; To keep in repair; Not to make alterations. See Form No. 8, el. 2 (2-4), p. 743. // necessary, the covenants of the superior lease must be varied so as to im- pose on the underlessee in direct terms the obligations of the superior lease.) (5) [To PERMIT LESSORS To ENTER AND REPAIR.] To per- mit the lessor, the superior lessor, and their respective agents {as in Form No. 8, cl. 2 (6), p. 743). (6) [Not to assign.] Not to assign, underlet, or part with the possession of the whole or any part of the demised prem- ises without first obtaining the written consent of the lessor and the superior lessor. (7) [To perform covenants of lessee in superior lease.] To perform and observe the covenants and stipula- tions on the part of the lessee in the said indenture of lease, excepting the covenant for the payment of rent reserved there- by {excepting also other covenants, if necessary), and to keep the lessor indemnified against all claims, damages, costs, and expenses in respect of the nonperformance or nonobservance thereof. 4. [Lessor's covenants.] The lessor hereby covenants with the lessee as follows : (1) [For quiet enjoyment.] That the lessee, paying the rent hereby reserved and performing and observing the cove- nants and stipulations herein on his part contained, shall peace- ably enjoy and hold the demised premises during the term hereby created without any interruption by the lessor or su- Ch. 23) LANDLORD AND TENANT 797 perior lessor or either of them or any person rightfully claim- ing from or under either of them. (2) [To PAY RENT AND OBSERVE COVENANTS IN SUPERIOR LEASE.] To pay the rent reserved by the above-recited in- denture of lease as therein provided (and to perform and ob- serve the lessee's covenants and stipulations contained in the said indenture so far as the same ought to be performed and observed by the lessor herein). 5. [Proviso for re-Entry.] {See Form No. 8, cl. 4, p. 745.) 6. [Proviso in evEnt oe damage by Eire, etc.] {See Form No. 8, cl. 5, p. 745.) In witness, etc. 28. Mining Lease This indenture made the — ■ day of between , hereinafter called the lessor, of the first part, and , hereinafter called the lessee, of the second part, wit- nesseth : 1. [Demise and term.] That the lessor, in consideration of the rents, royalties, covenants, and agreements hereinafter reserved and expressed to be paid and performed by the lessee, hereby lets and demises unto the lessee the following described mine and mining property, situated in mining district, in the county of , and state of , to wit {descrip- tion), together with the appurtenances. To have and to hold unto the lessee for the term of years from the date hereof, expiring on the day of . 2. [I^ESSEE'S COVENANTS.] And the lessee covenants with the lessor as follows, to wit: (1) [To WORK MINE.] To enter upon the said mine or premises and work the same in manner necessary to good and economical mining, so as to take out the greatest amount of 798 FOKM BOOK (Ch. 23 ore possible, with due regard to the safety, development, and preservation of the said premises as a workable mine. (2) [To WORK CONTINUOUSLY.] To work and mine the said premises as aforesaid steadily and continuously from the date of this lease; it being expressly agreed that any failure to work the said premises with at least persons em- ployed underground for the space of consecutive days shall be deemed a breach of this covenant. (3) [To KEEP ACCOUNTS, ETC.] To keep correct accounts and to render to the lessor monthly [or, quarterly) statements, accompanied by vouchers, showing the amount of all ore taken from the premises and the yield thereof, and the cost of haul- ing and milling the same, and to pay to the lessor as rent for the said premises [set forth payments to be made). (4) [To TIMBER.] Sufficiently to timber the said mine and to repair all old timbering wherever necessary. (5) [To AI.L0W LESSOR TO ENTER.] To allow the lessor and his agents to enter into all parts of said mine to inspect it. (6) [Not to assign.] Not to assign this lease, or any in- terest thereunder, and not to sublet the said premises or any part thereof, without the written assent of the lessor, and not to allow any other person to take possession of the said prem- ises or any part thereof under any pretense whatever. (7) [To HOLD cross-lodes, etc., of lessor.] To occupy and hold all cross or parallel lodes, dips, spurs, feeders, crev- ices, or mineral deposits of any kind which may be discovered in working under this lease, or in any tunnel run to intersect the said lode, by the lessee or any person or persons under him in any manner at any point within feet of the center line of the said lode, as the property of the lessor, with the privilege to the lessee of working the same as appur- tenance to the said premises during the term of this lease, and not to locate or record the same, or allow the same to be lo- cated or recorded, except in the name of the lessor. Ch. 23) LANDLORD AXD TENANT 799 (8) [To KBEP DRAINED, ETC.] To keep at all times the drifts, shafts, tunnels, and other passages and workings of the said premises thoroughly drained and clear of loose rock and rubbish of all kinds. (9) [To DELIVER UP.] To deliver up to the lessor the said premises, with the appurtenances and all improvements, in good order and condition, with all shafts and tunnels and other passages thoroughly clear of rubbish and drained, and the mine in all points ready for immediate continued working (ac- cidents not arising from negligence alone excusing) without demand or further notice, on the said day of , • at noon or at any time previous, upon demand for forfeiture. 3. [Right op re-Entry.] Upon the violation by the lessee or any other person under him of any covenant herein con- tained, the term of this lease shall at the option of the lessor expire, and the lease and premises, with the appurtenances, shall become forfeited to the lessor, and the lessor may there- upon demand possession of and re-enter upon the said prem- ises and dispossess all persons occupying the same, with or without force, and with or without process of law. In witness, etc. 29. Same — Another Form This indenture made the day of between , party of the first part, and , party of the sec- ond part, witnesseth : [Demise and term.] That the said party of the first part, for and in consideration of the covenants and agreements hereinafter contained on the part of the said party of the sec- ond part, and of one dollar in hand paid to the said party of the first part, the receipt whereof is hereby acknowledged, doth hereby grant and convey to the said party of the second part, his heirs, executors, administrators, and assigns, the right of SOO FORM BOOK (Ch. 23 entering in and upon the lands hereinafter described for the purpose of searching for mineral and fossil substances and of conducting mining and quarrying operations, to any extent he may deem advisable (but not to hold possession of any part of the said lands for any other purpose whatsoever), for the term of years from the date hereof, paying for the site of such buildings or works as may be necessary thereto a reasonable rent. The said lands are situated (description). [LvESSEE's covenants.] And the said party of the second part hereby covenants that he, his heirs, executors, adminis- trators, or assigns, will pay, or cause to be paid, to the said party of the first part, his heirs or assigns (set forth payments to be made) ; and that no damage shall be done to or upon the said lands and premises other than may be necessary in con- ducting the said operations : [Determination oe lease.] Provided, and this indenture is made under the express condition, that if no mineral or fossil substance be mined or quarried, as now contemplated hy the said parties, within the period of years from the present time, then these presents and everything con- tained therein shall determine and be forever null and void. In witness, etc. 29a. Same — Another Form This agreement made this day of between , of , party of the first part, and , of , party of the second part, witnesseth: 1. [Demise and TEEM.] That the party of the first part, for and in consideration of the sum of one dollar to him in hand paid, the receipt whereof is hereby acknowledged, and for oth- er valuable considerations hereinafter set forth, doth hereby grant, demise, and let unto the said party of the second part, his executors, administrators, and assigns, the sole and exclusive Ch. 23) LANDLORD AND TENANT 801 right of digging, boring, and otherwise prospecting for coal, iron, salt, petroleum, lead, or other valuable mineral substances upon the following described tracts of land (description). To have and to hold the said premises for the said purposes only unto the said party of the second part, his executors, adminis- trators, and assigns, for and during the full term of years next ensuing from the day and year first above written. Hereby granting to the said party of the second part, his ex- ecutors, administrators, and assigns, the right to search, dig, bore, mine, and excavate f or^the said coal, iron, salt, petroleum, lead and other valuable mineral substances in as many places as they may deem proper, and to extract and remove the same from the said premises, and the right to use and occupy so much of the said tracts for buildings and improvements as may be necessary for the efficient and economical working of the same, and also all such rights of way through and across the said tracts of land as may be necessary to obtain and remove therefrom the coal, iron, salt, petroleum, lead, and other min- erals, together with all other rights and privileges necessary for, or incident to, obtaining, preserving, removing, and dis- posing of the said coal, iron, salt, petroleum, lead, and other substances in and upon the said demised premises in the most convenient, suitable, and advantageous manner. 2. [Royalties, etc.] In consideration of said grant and de- mise, the said party of the second part covenants and agrees to commence and make search for coal, iron, salt, petroleum, lead, and other minerals in and upon the said demised prem- ises within months from the date hereof; and to pay and render unto the said party of the first part, his legal rep- resentatives or assigns, for each and every bushel of mer- chantable coal of pounds, mined or produced, except such coal as may be removed in digging pits, shafts, or entries into such mines, or shall be used as fuel in the working of the mines, a royalty of for each bushel, and for all other TlFF.FORMS — 51 802 FORM BOOK (Ch. 23 valuable minerals mined or produced a royalty of part of the amount thereof, said royalties to be paid on the day of each month for all the coal or minerals pro- duced in the month preceding. 3. [Lessee not to cause unneceJssary injury, etc.] And the said party of the second part further covenants and agrees not to molest, injure, or interfere with the said party of the first part, or his heirs or assigns, in the full use, occupation, and enjoyment of the said lands and the buildings and im- provements thereon further than, it may be necessary for the efficient and successful working of the said mines, and to pay any damages that may be done to any crops or other property on the said premises, if the same shall be caused by the neg- ligence or other fault of the said party of the second part: Provided, that such damage shall be determined by three arbitrators, one to be chosen by each of the parties to this agreement, and the other by the two arbitrators so elected, and, furthermore, that no shaft, pit, or entry to any mine shall be made or sunk within yards of any dwelling house on the said premises without the consent of the party of the first part, his heirs, legal representatives, or assigns being first had and obtained. 4. [Lessee's eight ot remove fixtures and terminate.] It is also mutually covenanted and agreed that the said party of the second part, his legal representatives or assigns, may at any time during the continuance of this agreement move or cause to be removed from the demised premises any buildings, fixtures, machinery, or materials which he or they shall have placed upon the said premises, and that, should they fail to find such valuable substances as would, in their judgment, jus- tify a further development, or from any cause desire to terminate this agreement, they shall have the right to do so by first giving notice in writing to the party of the first part, his heirs or assigns, and upon payment in full of any and all Ch. 23) LANDLORD AND TENANT 803 royalties which may have become due this agreement shall be considered at an end and of no binding force upon either of the parties hereto. In witness, etc. 29b. Mining Lease (Iron Ore) ^' This indenture made this day of between , party of the first part, and , party of the second • part: Witnesseth as follows : 1. [Demise.] The party of the first part, in consideration of the sum of one dollar to him paid by the party of the sec- ond part, the receipt whereof is hereby acknowledged, and in further consideration of the covenants aild conditions herein contained to be performed and observed by the party of the second part, doth hereby lease and demise to the party of the second part the following described land and premises situate in the county of and state of (description), which premises are leased to the party of the second part for the purpose of exploring for, mining, taking out, and removing therefrom the merchantable shipping iron ore which is or which may hereafter be found on, in, or under the said land, together with the right to construct all buildings, and to make all excavations, openings, ditches, drains, railroads, wagon roads, and other improvements upon the said premises which are or may become necessary or suitable for the mining and removing of iron ore from the said premises, and the right during the continuance of this lease to cut and use the timber found upon that portion of the said premises, consisting of acres and described as (description) so far as may be necessary for fuel for other than smelting purposes, and also m This follows substantially the so-called Longyear lease common- ly used In Minnesota. 804 FORM BOOK (Ch. 23 for the construction of all buildings required in the operation of any mine or mines found on the premises hereby demised, and also for drains, tramways, supports, and railroads within such mine or mines or connecting such mine or mines with the main line or lines of railroad over or upon which the said ore may be transported. To have and to hold the premises hereby demised unto the party of the second part for the term .of years from and after the day of , but subject to determination as hereinafter provided. 2. [Covenants oE lessee.] The party of the second part, in consideration of the premises, hereby covenants and agrees to and with the party of the first part as follows: (1) [Royalties.] The party of the second part will on the days of -, — , , , and in each year, or on the day following if that day falls on Sunday or on a legal holiday, during the said term, or during the period which this lease shall continue in force, pay to or for the use of the party of the first part, at such bank in the city of as the party of the first part may from time to time in writing designate, for all the ore mined and removed from the said land during the three months next preceding the first day of the month in which such payment is to be made as aforesaid at the rate of cents per ton up to thousand tons and at the rate of cents per ton for all the ore exceeding said thousand tons so mined and removed in any one year, each ton to be reckoned at 2,240 pounds. (2) [Statements and accounts.] The party of the second part at the time of such payment shall render and transmit to the party of the first part a true and exact statement of the amount of iron ore removed during the period for which such payment shall be made. The party of the second part shall cause the ore so taken away by the party of the second part to be weighed by the railroad company transporting the same Ch. 23) LANDLORD AND TENANT 805 from the said land, which weights shall determine the quantity as between the parties hereto, and the party of the second part shall furnish the party of the first part monthly statements showing the aforesaid weights ; the right, however, being con- ceded to the party of the first part to inspect, review, and test the correctness of such railroad company's scales and weights at any time and in such manner as the party of the first part sees fit to adopt, it being understood that any error in these respects, when ascertained, shall be recognized and corrected in the accounts of the parties hereto. (3) [Minimum amount to be mined and paid eor.] Dur- ing the period of the continuance of this lease there shall be mined and removed from the said land at least thousand tons of iron ore within one year from the first day of next, and at least thousand tons for each and every year thereafter; and in case the party of the second part shall not remove from the said land the quan- tity of iron ore per annum as herein stipulated, commencing from the time specified, the party of the second part shall nevertheless pay to the party of the first part a royalty of cents per ton upon thousand tons per annum up to and until this lease shall expire or be terminated in manner hereinafter expressed : Provided, however, that if in any one or more years more iron ore is thus paid for than is actually mined and removed in such year or years, then and in such case the iron ore so paid for and not removed may be removed in any subsequent year during the continuance of this lease without other payment therefor, but such ore so permitted to be removed in any subsequent year in consideration of such prepayment must be in excess of the stipulated thou- sand tons agreed to be annually taken from the said land under this lease. (4) [Amount in excess of minimum to be mined and PAID FOR.] The party of the second part shall each and every 806 FORM BOOK (Ch. 23 year take out and remove as much iron ore in excess of the thousand tons aforesaid as can be mined and removed profitably to the party of the second part, paying therefor at the quarter dates aforesaid and at the rates aforesaid for each and every ton so mined g,nd removed. (5) [Taxes.] The party of the second part shall pay all tax- es, general and specific, upon the land so demised which may be assessed either against the said land or the improvements there- on, or on the ore produced thereon, or on any personal prop- erty at the said mines, from and after the day of during the continuance of this lease. (6) [Mines to be properly worked.] The party of the sec- ond part shall open, use, and work the said mines in such man- ner only as is usual and customary in skillful and proper min- ing operations of similar character when conducted by the pro- prietors' themselves, and so as not to do, cause, or permit any unnecessary or unusual permanent injury to the same, or in- convenience or hindrance in the subsequent operating of the same mine or mines, and in the working of -the said mines the party of the second part shall deposit all earth, rocks, and other useless material and rubbish in such places and in such manner as will not conflict with or embarrass the future operating of the said mines. (7) [Right of ier cent, per annum, shall become so much additional indebtedness, secured by this deed of trust, and shall be paid out of the proceeds of the sale of the lands and premises aforesaid, if not otherwise paid by said part — of the first part. And it is stipulated, covenanted and agreed that in case of default in any of said payments of principal or interest, ac- cording to the tenor and effect of said promissory note — ■ aforesaid, or any of them, or any part thereof, or of a breach or violation of any of the covenants or agreements herein, by the part — of the first part, executors, administrators, or assigns, then and in that case the whole of said principal sum hereby secured, and the interest thereon to the time of sale, may at once, at the option of the legal holder thereof, be- come due and payable, and the said premises be sold in the Ch. 24) MORTGAGES (ebal estate) 881 manner and with the same effect as if the said indebtedness had matured. This deed of trust is executed and deHvered under an act of the General Assembly of the state of Colorado entitled "An act concerning deeds of trust and other instruments of like pur- port, and repealing all acts and parts of acts in conflict there- with," approved March 5, 1894, and all of the provisions of said act are hereby made applicable to this deed of trust. In witness whereof the said part — of the first part ha — hereunto set hand — (and seal — ) the day and year first above written. CONNECTICUT Mortgage Deed To all people to whom these presents shall come, greeting: Know ye that I, , of , for the consideration of dollars received to my full satisfaction of , of , do give, grant, bargain, sell, and confirm unto the said all that parcel of land (descriptipn). To have and to hold the above granted and bargained prem- ises, with the appurtenances thereof, unto him, the said grantee, his heirs and assigns forever, to his and their own proper use and behoof. And also I, the said grantor, do for myself, my heirs, executors, and administrators, covenant with the said grantee, his heirs and assigns, that at and until the ensealing of these presents I am well seised of the premises, as a good in- defeasible estate in fee simple, and have good right to bargain and sell the same in manner and form as is above written, and that the same is free from all incumbrances whatsoever. And, furthermore, I, the said grantor, do by these presents bind myself and my heirs forever to warrant and defend the above granted and bargained premises to him, the said grantee, TiFP.FoBMs — 56 882 FOEM BOOK (Ch. 24 his heirs and assigns, against all claims and demands whatso- ever. The condition of this deed is such that whereas, the said grantor is justly indebted to the said grant«e in the sum of dollars, as evidenced by his promissory note for dollars of even date herewith, payable to said grantee or order {stating other terms). Now, therefore, if said note shall be well and truly paid ac- cording to its tenor, then this deed shall be void, otherwise to be and remain in full force and effect. In witness whereof I have hereunto set my hand and seal this day of . DELAWARE Mortgage This indenture made the day of between , party of the first part, and , party of the second part: Whereas, the said party of the first part in and by a certain obligation or writing obligatory under his hand and seal duly executed, bearing even date herewith, stands bound unto the said party of the second part in the sum of dollars lawful money of the United States of America, conditioned for the payment of the sum of dollars {state terms of payment), as by reference to the said recited obligation and the condition thereof will more fully appear. Now, this indenture witnesseth that the said party of the first part, for and in consideration of the aforesaid debt or princi- pal sum of dollars, and for the better securing the pay- ment of the same, with interest as aforesaid, unto the said party of the second part, his executors, administrators, and as- signs, in discharge of the said recited obligations, as also of Ch. 24) MORTGAGES (bbal bstate) 883 the further sum of fifty cents unto the said party of the first part now paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, enfeoffed, released, and confirmed, and by these pres- ents doth grant, bargain, sell, alien, enfeofif, release, and con- firm, unto the said party of the second part, his heirs and as- signs, all that (description). Together with all and singular the improvements, ways, woods, waters, water courses, rights, liberties, privileges, here- ditaments, and appurtenances whatsoever thereunto belonging, or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof. To have and to hold the said improvements, hereditaments, and premises hereby granted or mentioned, or intended so to be, with the appurtenances, unto the said party of the second part, his heirs and assigns, to and for the only proper use and behoof of the said party of the second part, his heirs and as- signs forever : Provided always, nevertheless, that if the said party of the first part, his heirs, executors, administrators, or assigns, shall and do well and truly pay or cause to be paid, unto the said party of the second part, his executor^, administrators, or as- signs, the aforesaid debt or principal sum of dollars on the day and time hereinbefore mentioned and appointed for the payment thereof, with interest, according to the condition of the said recited obligation, without any fraud or further delay, and without any deduction, defalcation, or abatement to be made of anything, for or in respect of any taxes, charges, or assessments whatsoever, that then and from thenceforth as well this present indenture and the estate hereby granted as the said recited obligation shall cease, determine, and become ab- solutely void and of no efifect, anything hereinbefore contained to the contrary thereof in any wise notwithstanding. 884 FORM BOOK (Ch In witness whereof the said party of the first part has h( unto set his hand and seal the day and year first above writ DISTRICT OF COLUMBIA Mortgage, With or Without Power of Sale (Statutory This mortgage made this day of , in the y , witnesseth that whereas, I, , of , am debted unto , of , in the sum of , payj • , for which I have given to said my {promiss notes or bonds, pr other instruments) (here describe obh tion). Now, in consideration thereof, I hereby grant unto said all that {here describe property), provided, tha I shall punctually pay said {notes or other instruments) acco ing to the tenor thereof, then this mortgage shall be void. I if I shall make default in such payment the said hereby authorized and empowered to s«ll said property public auction on the following terms {here insert the and out of the proceeds of sale to retain whatever shall rem unpaid of my said indebtedness and the costs of such sale, ; the surplus, if any, to pay to me. Given under my hand and seal. . {Seal. Code 1901, as amend. 1911, § 556. Deed of Trust (Statutory) {Form, ante, p. 533.) Deed of Trust — Another Form This deed, made this day of , A. D. by and between , of , part — of the first part, i , of , part — of the second part: Ch. 24) MORTGAGES (kBAL ESTATE; 885 Whereas, the part — of the first part Justly indebted unto in the full sum of dollars, as evidenced by promissory note — (state terms) ; And whereas, the part — of the first part desire — to secure the prompt payment of said debt, and interest thereon, when and as the same shall become due and payable, and all costs and expenses incurred in respect thereto, including reasonable counsel fees incurred or paid by the said part — ■ of the second part or substituted trustee, or by any person hereby secured, on account of any litigation at law or in equity which may arise in respect to this trust or the property hereinafter mentioned, and of all money which may be advanced as provided herein, with interest on all such costs and advances from the date thereof. Now, therefore, this indenture witnesseth that the part — of the first part, in consideration of the premises and of one dollar, lawful money of the United States of America, to in hand paid by the part — of the second part, the re- ceipt of which, before the sealing and delivery of these pres- ents, is hereby acknowledged, ha — granted, and do — hereby grant unto the part — of the second part, or the survivor of them, the following described land and premises, situate in the of , District of Columbia, known and distin- guished as (description), together with all the improvements in any wise appertaining, and all the estate, right, title, interest, and claim, either at law or in equity, or otherwise however, of the part — of the first part of, in, to, or out of the said land and premises. In and upon the trusts, nevertheless, hereinafter declared, that is to say : In trust to permit said , or assigns, to use and occupy the said described land and premises, and the rents, issues, and profits thereof to take, have, and apply to and for ■ their sole use and benefit until default be made in 886 FORM BOOK (Ch. 24 the payment of promissory note — hereby se- cured or any installment of interest thereon, when and as the same shall become due and payable, or any proper cost or ex- pense in and about the same as hereinafter provided. And upon the full payment of all of said note — and the in- terest thereon, and all moneys advanced or expended as herein provided, and all other proper costs, charges, commissions, half commissions, and expenses, at any time before the sale hereinaft'cr provided for, to release and reconvey the said de- scribed premises unto the said , or assigns, at their cost. And upon this further trust, upon any default or failure being made in the payment of note — or of any install- ment of principal or interest thereon, when and as the same shall become due and payable, or upon default being made in the payment, after demand therefor, of any money advanced as herein provided for, or of any proper cost, charge, commis- sion, or expense in and about the same, then and at any time thereafter the said part — of the second part or the trus- tee acting in the execution of this trust shall have the power and it shall be or his duty thereafter to sell, and in case of any default of any purchaser to resell the said described land and premises at public auction, upon such terms and con- ditions, in such parcels, at such time and place, and after such previous public advertisements as the part — of the second part, or the trustee acting in the execution of this trust shall deem advantageous and proper, and to convey the same in fee simple, upon compliance with the terms of sale, to and at the cost of the purchaser or purchasers thereof, who shall not be required to see to th€ application of the purchase money, and of the proceeds of said sale or sales : Firstly, to pay all proper costs, charges, and expenses, including all fees and costs herein provided for, and all moneys advanced for Ch. 24) MORTGAGES (real estate) 887 taxes, insurance, and assessments, with interest thereon as provided herein, and all taxes, general arid special, due upon said land and premises at time of sale, and to retain as com- pensation a commission of per centum on the amount of the said sale or sales ; secondly, to pay whatever may then remain unpaid of said note — , whether the same shall be due or not, and the interest thereon to date of payment, it being agreed that said note — shall, upon such sale being made before the maturity of said note — , be and become immediately due and payable at the election of the holder thereof ; and, lastly, to pay the remainder of said proceeds, if any there be, to said or assigns upon the delivery and surrender to the pur- chaser, his, her, or their heirs or assigns, of possession of the premises so as aforesaid sold and conveyed, less the expense, if any, of obtaining possession. And the said do — hereby agree at own cost, during all the time wherein any part of the matter hereby se- cured shall be unsettled or unpaid, to keep the said improve- ments insured against loss by fire in the full sum of dollars, in the name and to the satisfaction of the part — of the second part, or substituted trustee, in such fire insurance com- pany or companies as the said part — of the second part may select, who shall apply whatever may be received therefrom to the payment of the matter hereby secured, whether due or not, unless the party entitled to receive shall waive the right to have the same so applied, and also to pay all taxes and assessments, both general and special, that may be assessed against or be- come due on said land and premises during the continuance of this trust, and that upon any neglect or default to so insure, or to pay taxes and assessments, any party hereby secured may have said improvements insured and pay said taxes and assess- ments, and the expense thereof shall be a charge hereby se- 888 FORM BOOK (Ch. 24 cured, and bear interest at the rate of per centum per annum from the time of such payment. And it is further agreed that if the said property shall be ad- vertised for sale as herein provided, and not sold, the trustee or trustees acting shall be entitled to one-half the commission above provided, to be computed on the amount of the debt here- by secured. And the said part — of the first part covenant — that will warrant specially the land and premises hereby conveyed, and that will execute such further assurances of said land as may be requisite or necessary. In witness whereof the said part — of the first part ha^ hereunto set hand — and seal — on the day and year first hereinbefore written. FLORIDA Mortgage This indenture made this day of between , hereinafter called the mortgagor, and , herein- after called the mortgagee : Witnesseth that the mortgagor, for and in consideration of the sum of one dollar to him in hand paid by the said mort- gagee, the receipt whereof is hereby acknowledged, has granted, bargained, and sold to the mortgagee, his heirs and assigns for- ever, the following described land {description). And the mort- gagor doth hereby fully warrant the title to said land, and will defend the same against the lawful claims of all persons whom- soever : Provided, always, that if mortgagor, his heirs, executors, administrators, or assigns shall pay unto the mortgagee, his executors, administrators, or assigns, a certain promissory note, dated the day of , for the sum of ■ Ch. 24) MORTGAGES (real estate) 889 dollars, payable {state terms pf payment), by the mortgagor, and shall perform, comply with, and abide by each and every the stipulations, agreements, conditions, and covenants of said promissory note and of this mortgage, and shall pay all taxes which may accrue on said land and all costs and expenses the mortgagee may be put to in collecting said promissory note by foreclosure of this mortgage or otherwise, including a reason- able attorney's fee, then this mortgage and the estate hereby created shall cease and be null and void. In witness whereof the mortgagor hereunto sets his hand and seal the day and year first above written. GEORGIA A mortgage executed in the state must be executed in the presence of, and attested by or proved before, a notary public, or justice of any court in the state or a clerk of the superior court, and must be executed in the presence of one other wit- ness. Civ. Code 1910, § 3257. If executed without the state the same rules apply as to deeds (ante, p. 536), except that clerks of courts of record and notaries public are not included among the officers by whom it may be attested or before whom it may be acknowledged. Ibid. § 3264. A mortgage creates a mere lien, and is not good against the wife's dower, which she cannot waive. Ibid. § 5254. Mortgage State of Georgia, County of In consideration of the sum of dollars to paid, as well as for the better securing the payment of the debt hereinafter mentioned, , of the county of , here- by sell and convey unto , of the county of , heirs and assigns, the following described property, to wit (descrip- tion), with all the rights and appurtenances to said property 890 FORM BOOK (Ch. 24 belonging; to have and to hold said property to said , heirs and assigns forever. But this conveyance is made for the following purpose, and none other: indebted to said , in the sum of dollars, which is evidenced by payable as fol- lows, , with interest at per cent, per annum, and this conveyance is made to secure the payment of that debt. hereby waive and renounce for and famil — any and all homestead and exemption rights that may have under the Constitution or Laws of the United States or of the state of Georgia in or to said property as against the debt above mentioned. Now, if shall pay said debt, with its interest, when it shall become due, then this deed to be void, but, if should not thus pay the same, then this deed to be of force; and the right to foreclose the same for said principal debt and interest, and the cost and expenses of collection, including ten per cent, attorney's fees, shall exist. In witness whereof have hereunto set hand — and affixed seal — this day of 19 — . IDAHO Mortgage This indenture made the day of , 19 — , be- tween , of , the part — of the first part, and , of , the part — of the second part: Witnesseth that the said part — of the first part, for and in consideration of the sum of dollars to in hand paid by the said part — > of the second part, the receipt whereof is hereby acknowledged, do — hereby grant, bargain, sell, and convey unto the said part — of the second part, and to heirs and assigns forever, all that (description), together with Ch. 24) MORTGAGES (real estatb) 891 the tenements, hereditaments, and appurtenances thereto be- longing or in any wis^e appertaining. This grant is intended as a mortgage to secure the payment of a certain promissory note of even date herewith executed and delivered by the said part — of the first part to the said part — of the second part (state terms of payment or copy). And these presents shall be void if such payment be made. But in case default shall be made in the payments of said prin- cipal sum of money, or any part th'sreof, as provided in said note, or if the interest be not paid as herein specified, then it shall be optional with the said part — of the second part, executors, administrators, or assigns, to consider the whole of said principal sum expressed in said note as immediately due and payable, and immediately to enter into and upon all and singular the above-described premises, and to sell and dispose of the same according to law, and out of the moneys arising from such sale to retain the principal and interest which shall then be due on the said promissory note, together with the costs and charges of foreclosure suit, including dollars attorney's fees, and also the amounts of all such payments of taxes, assessments, incumbrances, or insurance as may have been made by said part — of the second part, heirs, executors, administrators, or assigns, with the interest on the sam« as hereinafter provided, rendering the overplus of the purchase money if any there shall be, unto the said , part — of the first part, heirs, executors, administrators, or assigns. (Add provisions for payment of taxes, assessments, incum- brances, and insurance as may be desired) In witness whereof the said part — of the first part ha — hereunto set hand — and seal — the day and year first above written. 892 FOEM BOOK (Ch. 24 ILLINOIS Mortgage (Statutory) The mortgagor {here insert name or names) mortgages and warrants to {here insert name \pr names of mortgagee or mort- gagees), to secure the payment of {here recite the nature and amount of indebtedness, showing when due and the rate of in^ terest, and whether secured by note or otherwise), the following described real estate {here insert description therepf), situated in the county of , in .the state of Illinois." Dated this day of , A. D. 19—. A. B. {L. S.) If the mortgage contains the words "and warrants," the same shall be construed the same as if full covenants of seisin, good right to convey, against incumbrances, of quiet enjoy- ment, and general warranty, as expressed in section 9 (ante, p. 542), were fully written therein; but if the words "and war- rants" are omitted, no such covenants shall be implied. Hurd's Rev. St. 1911, c. 30, § 11. Mortgage — With Power to Appoint Receiver ■{Follow preceding form, and add the following:) hereby re- leasing and waiving all rights under and by virtue of the home- stead 'exemption laws of the state of Illinois, and all right to retain possession of said premises after any default in pa3'ment or breach of any of the covenants or agreements herein con- tained. But it is expressly provided and agreed that, if default be made in the payment of the said promissory note — , or of any part thereof, or the interest thereon, or any part thereof, at the time and in the manner above specified for the payment thereof, or in case of waste or nonpayment of taxes or assess- As to release of homestead, ante, p. 42. Ch. 24) MORTGAGES (real estate) 893 ments on said premises, or of a breach of any of the covenants or agreements herein contained, then and in such case the whole of said principal sum and interest secured by the said promissory note — in this mortgage mentioned shall thereupon, at the option of the said mortgagee — , heirs, ■executors, administrators, attorneys, or assigns, become im- mediately due and payable. And this mortgage may be im- mediately foreclosed to pay the same by said mortgagee — , ' heirs, executors, administrators, attorneys, or assigns. And it shall be lawful for the said mortgagee — , heirs, executors, administrators, attorneys, or assigns, to enter into and upon the premises hereby granted, or any part thereof, and to receive and collect all rents, issues, and profits thereof. Upon the filing of any bill to foreclose this mortgage in any court having jurisdiction thereof, such court may appoint or any proper person receiver, with power to collect the rents, issues, and profits arising out of said premises during the pendency of such foreclosure suit, and until the time to redeem the same from any sale that may be made under any decree foreclosing this mortgage shall expire ; and such rents, issues, and profits, when collected, may be applied toward the payment of the indebtedness and costs herein mentioned and described. And upon the foreclosure and sale of said premises there shall be first paid out of the proceeds of such sale all ex- penses of advertisement, selling, and conveying saicl premises, and dollars attorneys' or solicitors' fees, to be included in the decree, and all moneys advanced for taxes, assessments, and other liens ; then there shall be paid the principal of said note—, whether due and payable by the terms thereof or not, and the interest thereon. Dated, etc. 894 FORM BOOK (Ch. 24 Trust Deed This indenture witnesseth that the grantor — , , of , for and in .consideration of the sum of dollars in hand paid, convey — and warrant — to , trustee, of county, Illinois, and to his successors in trust herein- after named, the following described real estate (description). Hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of the state of Illinois. In trust, nevertheless, for the purpose of securing perform- ance of the covenants and agreements herein. Whereas, the grantor justly indebted upon principal promissory note — (state terms). The grantor — covenant — ' and agree— as follows : To pay said indebtedness, and the interest thereon as herein and in said notes provided; to pay promptly all taxes and assessments against said premises, and, on demand, to exhibit receipts therefor; that waste to said premises shall not be committed or suffered; and to keep all buildings at any time on said premises insured against loss by fire, in companies to be ap- proved by the holder of, and in amount equal to, said indebted- ness, and deliver to the holder of said indebtedness the policies for that amount, payable in case of loss to the holder of said indebtedness as his interest may appear. In the event of fail- ure so to insure, or pay taxes or assessments, the grantee or the holder of said indebtedness may procure such insurance, or pay such taxes or assessments, or discharge or purchase any tax lien or. title affecting said premises; and all money ex- pended in so doing, the grantor — agree — to repay immediate- ly, without demand, and the same, with interest thereon from the date of payment, at per cent, per annum, shall be so much additional indebtedness secured hereby. In the event of a breach of any of the aforesaid covenants Ch. 24) MORTGAGES (real estate) 895 or agreements the whole of said indebtedness, including princi- pal and all accrued interest, shall, at the option of the legal holder thereof, without notice, become immediately due and payable, and with interest thereon from the time of such breach, at per cent, per annum, shall be recoverable by foreclosure hereof, or by suit at law, or both, the same as if all of said indebtedness had then matured by express terms. It is agreed by the grantor — that all expenses and disburse- ments paid or incurred in behalf of complainant in connection with proceedings for the foreclosure hereof, including reason- able solicitor's fees and cost of procuring or completing ab- stract, shall be paid by the grantor — ; and the like expenses and disbursements occasioned by any suit or proceeding wherein the grantee, or any holder of any part of said indebtedness, as such, may be a party, shall also be paid by the grantor — . All such expenses and disbursements shall be an additional lien upon said premises, and included in any decree that may be rendered in such foreclosure proceeding, which proceeding shall not be dismissed, nor a release hereof given, until all such expenses and disbursements have been paid. The grantor — waive — all right to the possession of, and income from, said premises pending such foreclosure proceedings, and until the period of redemption from any sale thereunder expires, and agree — that a receiver shall be appointed to take possession or charge of said premises, and collect such income, and the same, less receivership expenses, pay to the person entitled to a deed under the certificate of sale, or in reduction of the redemption money if said premises be redeemed. In the event of the death or absence from said — county of the grantee, or of his refusal or failure to act, then , of said county, is hereby appointed to be first successor in this trust, and invested with all the powers granted to said grantee, and if for any like cause said first successor fail or re- 896 FOEM BOOK (Ch. 24 fuse to act, the person who shall then be the acting recorder of deeds of said county is hereby appointed to be second successor in this trust with like powers. And when all the aforesaid covenants and agreements are performed, the gran- tee, or his successor in trust, shall release said premises to the party entitled, on receiving his reasonable charges. Witness the hand — and seal — of the grantor — this day of , A. D. 19—. INDIANA Mortgage (Statutory) A. B. mortgages and warrants to C. D. {here describe the premises), to secure the repayment of {here recite the sum for which the mortgage is granted, \or the notes or other evidences of debt, or a description thereof, sought to be secured, also the date of the repayment). Such mortgage, dated, signed, "sealed, and acknowledged, is a good and sufficient mortgage, with warranty of perfect title in the grantor and against all previous incumbrances. If the words "and warrants" are omitted, the mortgage is good, but without warranty. Burns' Ann. St. 1908, § 3961. IOWA Mortgage (Statutory) {Ante, p. 545.) Mortgage — Another Form This indenture made this day of between . , of , of the first part, and , of , of the second part : Witnesseth that the said part — of the first part, for the con- sideration of dollars, the receipt whereof is hereby ac- Ch. 24) MORTGAGES (real estate) 897 knowledged, do — by the&e presents grant, bargain, sell, and convey unto the said part — of the second part, heirs and assigns forever, the following described real estate (de- scription). To have and to hold the premises above described, with all the appurtenances thereunto belonging, unto the said second part — , and to ■ ■ — heirs and assigns forever ; the said part — of the first part hereby covenanting that the above-described premises are free from any incumbrance, and will war- rant and defend the title unto the said part — of the second part, ■ — heirs and assigns, against all persons whomsoever law- fully claiming the same. This grant is intended as security for the payment of • certain promissory note — (state terms). And the said part — of the first part hereby agree — to pay all taxes that may be assessed upon said premises before they become delinquent, and also at own expense to keep the buildings on said premises insured against fire in an in- surance company approved by and for the benefit of said part — of the second part, personal representatives or assigns, in the amount of $ , until this mortgage is paid or other- wise extinguished; and in case it shall become necessary by reason of the failure of the said part — of the first part so to do for the mortgagee, his personal representatives or assigns, to pay such taxes or insurance, the part — of the first part here- by agree — to refund to all sums so expended, with in- terest at the rate of per cent, per annum, and this mort- gage shall be security for all sums so expended. Now, therefore, if the said part — of the first part shall well and truly pay or cause to be paid the said note — with the in- terest thereon, according to tenor and effect, and shall perform the other things agreed herein to be performed by the said part — of the first part, then these presents shall be null TIFF.FOEMS — 57 898 FORM BOOK (Ch. 24 and void ; otherwise of full force and virtue. If the said part — of the first part shall fail to pay any portion of the above-men- tioned sums, either principal or interest, at the times they shall become due respectively as aforesaid, or shall neglect to pay all taxes assessed on said property before the sam^e shall become delinquent, or shall neglect to keep the said buildings insured as herein provided, then the whole sum, both principal and in- terest, shall at once become due and payable, and the said part — of the second part, heirs or assigns, may proceed by foreclosure, or in any other lawful mode, to make the amount of said note — , together with all interest and costs, and all insurance, taxes, and assessments accrued or paid by said part — of the second part on said real estate, together with in- terest at the rate- of per cent, per annum on all insur- ance, taxes, and assessments so paid by the said part — of the second part, together with a reasonable fee for plaintiff's at- torney, out of the aforesaid real estate. And hereby relinquishes all contingent rights includ- ing dower, homestead, or distributive share, in and to the real estate herein mentioned, subject to the above reservations and conditions. In witness, etc. KANSAS Mortgage (Statutory) A. B. mortgages and warrants to C. D. {here describe the premises), to secure the payment (here insert the sum for which the mortgage is granted or the nptes or other evidences of debt, or description thereof, sought to be secured, also the date of payment). Such mortgage, dated, signed, and acknowledged, is a good and sufficient mortgage to the grantee, his heirs,- assigns, exec- utors, and administrators, with warranty from the grantor and Ch. 24) MOETGAGES (eeal estate) 899 his legal representatives of a perfect title and against all pre- vious incumbrances. If the words "and warrants" are omitted, tl:e mortgage is good without warranty. Gen. St. 1909, § 5196. KENTUCKY A mortgage must refer to the source of title. Ante, p. 549. The name, residence, and post office address of the person or corporation owning the debt secured and liable for the taxes thereon must be stated in the mortgage as a condition of rec- ord. An assignment of the mortgage must give the same in- formation, or the original owner remains liable for the taxes to accrue thereon. Acts 1906, c. 22. The wife joins to bar dower. Homestead should be waived. Mortgage This indenture made and entered into this day of , 19 — , between , of , of the first part, and , of , whose post office address is , of the second part : Witnesseth that the party of the first part, for and in con- sideration of dollars indebtedness to the party of the second part as follows {state terms), and to secure the pay- ment of the same, has granted, bargained, and sold, and by thes* presents doth grant, bargain, and sell, to the party of the second part, all of the following described real estate (descrip- tion), being the same property conveyed to the party of the first part by deed dated the day of and recorded in the county court in deed book No. , p. (pr otherwise state the source of title). To have and to hold to the party of the second part, his heirs and assigns forever, with general warranty. This indenture is conditioned as follows : Whereas, the party of the first part is indebted to the party of the second part as aforesaid. 900 FORM BOOK (Ch. 24 Now, if party of the first part, or any one for him, shall pay said indebtedness at maturity, then this indenture shall be void, else remain in full force. And the party of the first part here- by waives and relinquishes to the party of the second part all claims he has or may have to said property under the home- stead laws of this state. In testimony whereof the party of the first part has hereunto subscribed his name the day and year first above written. LOUISIANA {See Deeds, ante, p. 550.) Mortgage Unitbd States op America,] State oe Louisiana, V Parish of Orleans. J Be it known that on this twenty-fifth day of the month of May, in the year of our L-ord one thousand nine hundred and 'fifteen, and of the independence of the United States of America the one hundred and thirty-ninth : Before me, Theodore A. Schuber, a notary public, duly com- missioned and qualified, in and for parish of Orleans, La., therein residing, and in the presence of the witnesses herein- after named and undersigned, personally came and appeared August Faber, of lawful age, and a resident of New Orleans, La. Which said appearer declared and acknowledged that he is justly and truly indebted unto James Smith in the full and true sum of five thousand dollars, borrowed money, which the said James Smith has this day loaned and advanced to the said Au- gust Faber,, and for the reimbursement whereof the said August Faber, has made and subscribed his one (1) certain Ch. 24) MORTGAGES (eeal estate) 901 promissory note for the sum of five thousand dollars, payable to the order of and indorsed by himself, dated this day and made payable at the city of New Orleans in one year (1 yr.) after date, with interest thereon at the rate' of seven per cent, per annum from date until paid, which said note, after having been paraphed "Ne varietur," by me, notary, to be herewith identified, was delivered unto James Smith, here present here- by acknowledging the receipt thereof. Now, in order to secure the full and punctual payment of above-described note in capital and interest, together with all attorney's fees and premiums of insurance, as hereinafter specified, the said August Faber declares that he does by these presents mortgage, effect, and specially hypothecate, in favor of the said James Smith, and to inure to the use and benefit of any and all holder or holders of the said note, the said James Smith being here present and accepting the following described property, to wit (description). The said property so to remain mortgaged and hypothecated until the full and final payment of the aforesaid promissory note in capital and interest, the said mortgagor hereby binding himself not to sell, alienate, mortgage, or incumber the same to the prejudice of these presents. And the said rrtortgagor moreover binds himself, in case it should become necessary to institute suit for the recovery of the amount of said note or any part thereof, to pay the fees of the attorney at law who may be employed for that purpose, which fees are hereby fixed at ten per cent, on the amount sued for. The said mortgagor further binds himself to keep the build- ings on above-described property constantly insured against the loss by fire, and to transfer such insurance to the mortgagee or any other holder or holders of above-described note up to the full amount of such note, said mortgagor hereby authoriz- 902 FOEM BOOK (Ch. 24 ing said mortgagee or any holder or holders of above-described note to cause said insurance to be effected on his default at a premium not exceeding three per cent. And the said mortgagor did further declare that he does by these presents consent, agree, and stipulate that in the event of said promissory note not being punctually paid at its maturi- ty it shall be lawful for, and he does hereby authorize, the said mortgagee or any other holder or holders thereof, to cause all and singular the said hereinbefore described and herein mort- gaged property to be seised and sold by executory process without appraisement, to the highest bidder, payable cash. And in the event of all taxes not being punctually paid by the mortgagor herein when they become due, the mortgagee or holder or holders of said note is authorized to pay same with full subrogation to all the mortgagee's rights thereunder. Now, to secure the faithful performance of the foregoing obligations, and the reimbursement and payment of said note and lawyer's fees and premiums of insurance, as above speci- fied, the mortgagor does by these presents further specially mortgage and hypothecate the hereinbefore described property unto and in favor of said mortgagee or holder or holders of said promissory note, hereby confessing judgment for the full amount of said note in capital and interest, together with all costs, attorney's fee, taxes, and premiums of insurance. According to the certificates of register of conveyances and recorder of mortgages in and for Orleans parish annexed hereto, it appears that said property has not been heretofore alienated by the present mortgagor and is clear of all incum- brances. According to city and state tax researches hereto annexed all taxes are paid up to and inclusive of those due in the year 1915. Ch. 24) MORTGAGES (real estate) 903 According to certificates from the United States district and circuit courts hereto attached there are no unsatisfied judg- ments standing in those courts against the mortgagor herein. The mortgagor declared on oath that he has been married but once, and that time to Elizabeth Berley, who is still alive, and living with him in this city. The mortgagee declared on oath that he has never been mar- ried. Thus done and passed in my office at New Orleans, La., on the day, month, and year herein first above written, in the pres- ence of Messieurs Edgar M. Cahn and Wm. F. Conkerton, competent witnesses, who hereunto sign their names with the said appearers, and me, notary, after reading of the whole. Witnesses : Edgar M. Cahn. August Fabbr. Wm. F. Conkerton. James Smith. Theodore A. SchubeR, Notary Public. (Seal.) Mortgage Note $5,000.00 New Orleans, La., May 2Sth, 1915. One year after date I promise to pay to the order of myself, five thousand dollars ($5,000.00) at New Orleans, La., with interest at the rate of seven (7%) per centum per annum from date until paid for value received. (Signed) August Faber. (Indorsed) August Faber. Across the face of the note should appear the following words and figures: "Ne varietur. To identify it with an act of mortgage passed before me this dav. New Orleans, La., May 25, 1915. (Signed) Theodore A.' Schuber, Notary . Public." 904 FORM BOOK (Ch. 24 MAINE Mortgage Know all men by these presents that , of , in consideration of dollars paid by , of , the receipt whereof do hereby acknowledge, do hereby give, grant, bargain, sell, and convey unto the said , heirs and assigns forever (description). To have and to hold the afore granted and bargained prem- ises, with all the privileges and appurtenances thereof, to the said , heirs and assigns, to and their use and behoof forever. And do covenant with the said grantee — , heirs and assigns, that lawfully seised in fee of the premises ; that they are free of all incumbrances ; that have good right to sell and convey the same to the said gran- tee — to hold as aforesaid ; and that — ■ and heirs shall and will warrant and defend the sam* to the said , heirs and assigns forever, against the lawful claims and demands of all persons : Provided, nevertheless, that if the said , heirs, executors, or administrators, pay to the said , heirs, executors, administrators, or assigns, the sum of dollars from the day of the date hereof, with interest on said sum at the rate of ■ — — — • per centum per annum, during said terms and for such further time as said principal sum or any part thereof shall remain unpaid, payable annually, then this deed, as also certain promissory note — bearing even date with these presents, given by the said to the said ■ • to pay the sum and interest at the time aforesaid, shall be void ; otherwise shall remain in full force. In witness whereof , the said and , wife Ch. 24) MORTGAGES (keal estate) 905. of the said ■ — joining in this deed as grantor — , and relin- quishing and conveying right by descent and all other, rights in the above-described premises, have hereunto set hand — and seal — this day of . MARYLAND No mortgage shall be valid except as between the parties thereto, unless there be indorsed thereon an oath or affirmation of the mortgagee that the consideration in said mortgage is true and bona^fide as therein set forth ; and unless there be indorsed on all mortgages executed since March 27, 1902, the following additional oath or affirmation, to wit: — that the mortgagee has not required the mortgagor, his agent or attorney, or any person for the said mortgagor to pay the tax levied upon the interest covenanted to be paid in ad- vance, nor will he require any tax levied thereon to be paid by the mortgagor or any person for him during the existence of this mortgage. This affidavit may be made at any time before the mort- gage is recorded, before any one authorized to take the ac- knowledgment of a mortgage, and the affidavit shall be record- ed with the mortgage. Ann. Civ. Code 1910, art. 21, § 32. This mortgage tax has been abolished except as to certain coun- ties. Ibid. art. 81, § 187 et seq. The affidavit required by the preceding section may be made by one of several mortgagees, by any agent of a mortgagee. When made by an agent, he shall, in addition to the affidavit above mentioned, make affida- vit, to be indorsed upon the mortgage, that he is agent of the mortgagee or mortgagees, or some one of them. The presi- dent or other officer of a corporation, or the executor of the mortgagee, may make such affidavit. Ibid. art. 21, § 33. .906 FORM BOOK (Ch. 24 Acknowledgment of Mortgage with Affidavit of Mortgagee or Agent ' State op , County of ^ I hereby certify that on this day of , in the year , before the subscriber (insert the style of the offi- cer) personally appeared , the mortgagor named in the foregoing mortgage, and acknowledged the foregoing mort- gage to be act. And at the same time appeared , the mortgagee — • named in the foregoing mortgage {or, the agent of the mortgagee named in the foregoing mortgage) and made oath in due form of law that (he is the agent of the aforesaid mortgagee, and that) the consideration in said mort- gage is true and bona fide as therein set forth. Forms The following forms or forms to like effect are sufficient; and any covenant, limitation, restriction, or proviso allowed by law may be added, annexed, or introduced. Any other forms conforming to the rules hereinbefore laid down, or to the rules of law, are sufficient. Ann. Civ. Code 1910, art. 21, §§ 66, 67. Deed of Trust to Secure Debts, Indemnify Securities, or Other Purposes (Statutory) This deed made this day of , in the year , by me, , witnesseth, that whereas {here insert the consideration for making the deed), I, the said — , do grant unto , as trustee, the following property {here describe the property), in trust for the following purposes ' The assignee of a mortgage must make a similar oath. Ch. 24) MORTGAGES (real estatb) 907 (here insert the purposes of the triist, and any covenant that may he agreed upon). • Witness my hand and seal. Test: A. B. (Seal.) Ibid. § 57. Mortgage of Real Estate (Statutory) This mortgage made this day of by me, , witnesseth, that in consideration of the sum of dollars now due from me, the said , to , I, the said , do grant unto the said (here describe the property) : Provided, that if I, the said , shall pay, on or before the day of , to the said , the sum of dollars, with the interest thereon from , then this mortgage shall be void. Witness my hand and seal. (Seal.) Ibid. § 62. Mortgage — Fee (City of Baltimore) This mortgage made this day of by and be- tween , of the city of Baltimore, in the state of Mary- land, of the first part, and , of , of the second part: Whereas (recite the indebtedness and any promissory notes accompanying the mortgage). Now, this mortgage wifnesseth that, in consideration of the premises and of the sum of one dollar, the said do — grant and convey unto the said , heirs and assigns in fee simple all that parcel of ground (description). To have and to hold the aforesaid parcel of ground and premises unto and to the proper use and benefit of , 908 FORM BOOK (Ch. 24 ■heirs and assigns forever. Together with the buildings and im- provements thereupon, and the rights, alleys, -ways, waters, privileges, appurtenances, and advantages thereto belonging or in any wise appertaining: Provided, that if the said , executors, administrators, or assigns, shall well and truly pay, or cause to be paid, the aforesaid principal sum of dollars, and all the install- ments of interest thereon, when and as each of them shall respectively be due and payable as aforesaid, and shall per- form each and all of the covenants herein on part to be performed, then this mortgage shall be void. And the said do — hereby declare assent to the passing of a decree by the circuit court of Baltimore City or the circuit court number two of Baltimore city for a sale of the property hereby mortgaged, in accordance with chapter 123, sections 720 to 732, inclusive, of the Laws of Maryland, passed at the January session in the year 1898, or any supple- ments or additions thereto. And in case of any default being made in the payment of the aforesaid mortgage debt, prin- cipal or interest, in whole or in part, at the time or times lim- ited and mentioned for the payment of the same, as aforesaid, or in case "of any default being made in any covenant or con- dition of this mortgage, then the whole mortgage debt hereby intended to be secured shall be deemed due and payable, and sale of said mortgaged property may be made by the trustee or trustees named in such decree as may be passed as aforesaid for the sale of said property, or upon such default as afore- said a sale may be made by the saidpart — of the second part, executors, administrators, or assigns, or by or agent, under article LXVI, sections 6 to 10, inclusive, of the Maryland Code Public General Laws, or under any other gen- eral or local law of the state of Maryland relating to mort- gages. And upon any sale of said pioperty under the powers Ch. 24) MORTGAGES (eeal estatb) 909 hereby granted, the proceeds shall be applied as follows, to wit : First, to the payment of all expenses incident to said sale, including a commission to the party making sale of said prop- erty equal to the commission usually allowed trustees for mak- ing sale of property by virtue of a decree of a court having equity jurisdiction in the state of Maryland, and a reasonable attorney's fee to the attorney instituting or conducting the foreclosure proceedings ; second, to the extinguishment of all claims of the part — of the second part, executor, ad- ministrators, or assigns hereunder, whether the same shall have then matured or not ; and, third, the balance, if any, to the said part — of the first part, executors, administra- tors, or assigns. And it is agreed that until default be made in the premises the said part — of the first part, executors, adminis- trators, or assigns, shall possess the aforesaid property upon paying, in the meantime, all taxes and assessments, public dues and charges levied or assessed, or to be levied or assessed, on said hereby mortgaged property, which taxes, mortgage debt, and interest, public dues, charges, and assessments , the said part— of the first part, covenant — to pay when legally payable. And the said, part — of the first part further covenant — to insure, and pending the existence of this mortgage to keep in- sured, the improvements on the hereby mortgaged property to the amount of at l^ast dollars, and to cause the policy to be effected thereon to be so framed or indorsed as, in case of fire, to inure to the benefit of the said , ex- ecutors, administrators, or assigns, to the extent of lien or claim hereunder. ■Witness hand — and seal — . Test. 910 FORM BOOK (Ch. 24 Assignment of Mortgage (Statutory) I hereby assign the within mortgage to the assignee. Witness my hand and seal this day of (Seal.) Ibid. § 34. No assignment of any mortgage executed since March 27, 1902, except for the purpose of foreclosure, shall be valid, ex- cept as between the parties thereto, unless there be indorsed thereon the following oath or affirmation, to wit: "That the assignee has not required the mortgagor," etc., following the form given in section 32, supra. This oath or affirmation may be made by any agent or attorney of the assignee, who shall, in addition thereto, make oath or affirmation that he is the agent or attorney of the assignee. Ibid. § 35. Release of Mortgage (Statutory) I hereby release the above (or, within) mortgage. Witness my hand and seal this day of . (Seal.) Ibid. § 36. Such release may be written by the mortgagee or his as- signee upon the record of the mortgage, and attested by the clerk of the court, or may be indorsed on the original mortgage. Ibid. §§ 37, 38. MASSACHUSETTS Mortgage (Statutory) , of county, for consideration paid, grant to , of , with mortgage covenants, to secure the pay- ment of dollars in years, with per cent. interest per annum, payable semiannually, as provided in note of even date, the land in (description and incum- brances, if any). This mortgage is upon the statutory condi- Gh. 24) MORTGAGES (real estate) 911 tion, for any breach of which the mortgagee shall have the statutory power of sale. , wife of said mortgagor, release to the mort- gagee all rights of dower and homestead and other interests in the mortgaged premises. Witness hand — and seal — this day of (Acknowledgment.) (Seal.) Acts 1912, c. 502, § 6. Every mortgage in substance in the above form has eflfect of a mortgage deed to the use of the mortgagee and his heirs and assigns, with mortgage covenants as defined in section 18 of this act (post, p. 912), to secure the payment of the money or the performance of any obligation therein specified. Ibid, c. 502, § 6. Condition Provided, nevertheless, except as otherwise specifically stat- ed in the mortgage, that if the mortgagor, or his heirs, execu- tors, administrators, or assigns, shall pay unto the mortgagee, or his executors, administrators, or assigns, the principal and interest secured by the mortgage, and shall perform any ob- ligation secured, at the time provided in the note, mortgage, or other instrument or any extension thereof, and shall perform the condition of any prior mortgage, and until such payment and performance shall pay when due and payable all taxes, charges, and assessments to whomsoever and whenever laid or assessed, whether on the mortgaged premises or on any interest therein, or on the debt or obligation secured thereby, shall keep the buildings on said premises insured against fire in a sum not less than the amount secured by the mortgage, or as otherwise provided therein for insurance, for the benefit of the mortgagee, and his executors, administrators, and assigns, in such form and at such insurance offices as they shall ap- prove, and at least two days before the expiration of any pol- 012 FORM BOOK (Ch. 24 icy on said premises shall deliver to him or them a new and sufficient policy to take the place of the one so expiring, and shall not commit or suffer any strip or waste of the mort- gaged premises, or any breach of any covenant contained in the mortgage or in any prior mortgage, then the mortgage deed, as also the mortgage note or notes, shall be void. Power But upon any default in the performance or observance of the foregoing or other condition, the mortgagee, or his execu- tors, administrators, successors, or assigns, may sell the mort- gaged premises or such portion thereof as may remain subject to the mortgage in case of any partial release thereof, either as a whole or in parcels, together with all improvements that may be thereon, by public auction on or near the premises, or at such place as may be designated for that purpose in the mortgage, first complying with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale, and may convey the same by proper deed or deeds to the purchaser or purchasers absolutely and in fee simple; and such sale shall forever bar the mort- gagor and all persons claiming under him from all right and interest in the mortgaged premises, whether at law or in equity. The foregoing "condition" shall be known as the statutory condition, and may be incorporated in any mortgage by refer- ence. The foregoing "power" shall be known as the statutory pow- er of sale, and may be incorporated in any mortgage by refer- ence. The parties may insert in such mortgage any lawful agree- ment or condition. Ibid. c. 502, § 6. In a conveyance of real property the words "mortgage cove- nants" shall have the full force, meaning, and effect of the fol- lowing words, and shall be applied and construed accordingly : "The mortgagor for himself, and his heirs, executors, admin- istrators, and successors, covenants with the mortgagee, and Ch. 24) MORTGAGES (eeal estate) 913 his heirs, successors, and assigns, that he is lawfully seised in fee simple of the granted premises ; that they are free from all incumbrances, that the mortgagor has good right to sell and convey the same, and that he will, and his heirs, executors, administrators, and successors shall, warrant and defend the same to the mortgagee, and his heirs, successors, and assigns, forever against the lawful claims and demands of all persons, and that the mortgagor, and his heirs, successors, or assigns, in case a sale shall be made under the power of sale, will upon request execute, acknowledge, and deliver to the purchaser or purchasers a deed or deeds of release confirming such sale, and that the mortgagee, and his heirs, executors, administrators, successors, and assigns, are appointed and constituted the at- torney or attorneys irrevocable of the said mortgagor to exe- cute and deliver to the said purchaser a full transfer of all policies of insurance on the buildings upon the land covered by the mortgage at the time of such sale." Ibid. c. 502, § 18. Mortgage in Common Use Know all men by these presents that I, , of , in consideration of dollars to me paid by , of , the receipt whereof is hereby acknowledged, do here- by give, grant, bargain, sell, and convey unto the said all that parcel (description). To have and to hold the granted premises, with all the priv- ileges and appurtenances thereto belonging, to the said , and heirs and assigns, to their own use and behoof forever. And hereby, for , and heirs, executors, and administrators, covenant with the grantee — , and heirs and assigns, that ■ — lawfully seised in fee simple of the granted premises ; that they are free from all incumbranc- es; that have good right to sell and convey the same as aforesaid ; and that will, and heirs, execu- tors, and administrators shall, warrant and defend the same to the grantee — and heirs and assigns forever against the lawful claims and demands of all persons : TiFF.FOKMS — 58 914 FORM BOOK (Ch. 24 Provided, nevertheless, that if , or heirs, ex- ecutors, administrators, or assigns, shall pay unto the gran- tee — ; or executors, administrators, or assigns, the sum of dollars in years from this date, with interest semiannually at the rate of per cent, per annum, and until such payment shall pay all taxes and assessments to whomsoever laid or assessed, whether on the granted premises or on any interest therein or on the debt secured hereby, shall keep the buildings on said premises insured against fire in a sum not less than dollars for the benefit of the gran- tee — , and executors, administrators, and assigns, in such form and at such insurance offices as they shall ap- prove, and at least days before the expiration of any policy on said premises shall deliver to or them a new and sufficient policy to take the place of the one so expiring, and shall not commit or suffer any strip or waste of the granted premises, or any breach of any covenant herein con- tained, then this deed, as also note of even date here- with, signed by , whereby promise to pay to the grantee — or order the said principal sum and installments of interest at the times aforesaid, shall be void. But upon any default in the performance or observance of the foregoing condition the grantee — , or executors, administrators, or assigns, may sell the granted premises, or such portion thereof as may remain subject to this mortgage in case of any partial release hereof, together with all improve- ments that may be thereon, by public auction in said , first publishing a notice of the time and place of sale once each week for three successive weeks in some one newspaper published in said , and may convey the same by proper deed or deeds to the purchaser or purchasers absolutely and in fee simple;, and such sale shall forever bar and all persons claiming under from all right and interest in Ch. 24) MORTGAGES (heal estate) 913 the granted premises, whether at law or in equity. And out of the money arising from such sale the grantee — or rep- resentatives shall be entitled to retain all sums then secured by this deed, whether then or thereafter payable, including all costs, charges, and expenses incurred or sustained by them by reason of any default in the performance or observance of the said condition, rendering the surplus, if any, to , or heirs or assigns ; and hereby, for , and heirs ahd assigns, covenant with the grantee — , and heirs, executors, administrators, and assigns, that, in case a sale shall be made under the foregoing power, or they will upran request execute, acknowledge, and deliver to the purchaser or purchasers a deed or deeds of release confirm- ing such sale, and said grantee, and assigns, are hereby appointed and constituted the attorney or attorneys irrevocable of the said grantor to execute and deliver to the said pur- chaser a full transfer of all policies of insurance on the build- ings upon the land covered by this mortgage at the time of such sale. And it is agreed that the grantee — , or executors, administrators, or assigns, or any person or persons in or their behalf, may purchase^ at any sale made as aforesaid, and that no other purchaser shall "be answerable for the ap- plication of the purchase money, and that, until default in the performance of the condition of this deed, , and heirs and assigns, may hold and enjoy the granted premises and receive the rents and profits thereof. And for the consideration aforesaid I, , wife of the said , do hereby release unto the grantee — , and heirs and assigns, all right of or to both dower and homestead in the granted premises, and all other rights and interests therein. In witness whereof , the said , hereto set ■ hand — and seal — this day of . 91fi FORM BOOK (Ch. 24 MICHIGAN Mortgage (Statutory) A. B. mortgages and warrants to C. D. {here describe the premises), to secure the repayment of {here recite the sum for which the mortgage is granted, or notes or other evidences of debt, or a description thereof, sought to be secured, also the date of repayment). Such mortgage, dated, signed, sealed, and acknowledged, is a good and sutticient mortgage to the grantee, his heirs, as- signs, executors, and administrators, with warranty of perfect title in the grantor, and against all previous incumbrances. If the words "and warrants" are omitted, the mortgage is good, but without warranty. C. L. § 9017. Unless a mortgage con- tains an express covenant for the payment secured, no such covenant is implied, and unless a bond or other separate in- strument to secure such payment be given, the mortgagee's remedies are confined to the mortgaged lands. Ibid. § 8960. To entitle it to record, a mortgage must contain the name and address of the mortgagee. Acts 1887, No. 262. A tax of 50 cents for each $100 or major fraction thereof of the principal debt is imposed, which must be paid before record. Acts 1911, No. 91. Another Form — With Interest, Tax, and Insurance Clauses , of , part — of the first part, mortgage — and warrant — to , of , part — of the second part, the following described land and premises situated in the of , county of , state of Michigan, viz. {descrip- tion), together with all tenements, hereditaments, and appur- tenances thereunto belonging, to secure the repayment of the sum of dollars, with interest at the rate of ■ per cent, per annum, payable annually on the day of . after the date hereof, according to the conditions of certain promissory notes bearing even date herewith, executed by said to said part — of the second part, to which Ch. 24) MOETGAGES (real estatb) 917 these presents are collateral, and also to secure the fulfillment of the following agreements on the part of said part — of the first part, made in consideration of said sum of money, the receipt of which is hereby acknowledged, viz. : It is agreed that, if the interest — above stipulated to be paid shall remain unpaid for the space of days after the same shall fall due, the whole amount of principal, viz., dollars, as well as said interest, shall thereupon become due and payable forthwith, notwithstanding the time first above limited for the payment of said principal shall not then have expired. It is agreed that said part — of the first part shall pay all taxes and assessments which shall be levied on said premises whenever the same shall be payable, and in case said part — of the second part shall pay the same the amount so paid shall be a lien on said premises, secured hereby and payable forthwith with interest at the rate of per cent, per annum. It is agreed that, should any proceeding be taken to fore- close this mortgage, said first part — shall pay to said second part dollars attorney fee. It is further agreed that the said part — of the first part shall and will keep the buildings erected and to be erected upon the lands above conveyed insured against loss or damage by fire in an amount and by insurers approved by said part — of the second part, and assign the policy and certificates thereof to the said part — of the second part; and in default thereof the whole amount of principal, viz., dollars, as well as the interest thereon, shall thereupon become due and payable forthwith, at the option of the said part — of the second part, notwithstanding the time first above limited for the payment of said principal shall not then have expired. Upon default being made in any agreement herein or in case of nonpayment of said sum of dollars, or the interest 918 FORM BOOK . (Ch. 24 or any part thereof, at the time, place, and in the manner above specified, it shall be lawful for said part — of the second part, heirs, executors, administrators, or assigns, and said part — of the first part do — empower said part — of the second part, heirs, executors, administrators, or as- signs, to grant, bargain, sell, and convey said premises at pub- lic vendue and on said sale to make and execute to the pur- chaser, his heirs and assigns, forever, good and sufficient deeds of conveyance pursuant to the statute, rendering the surplus moneys (if any there should be) to said part — of the first part, heirs, executors, or administrators, after deduct- ing the amount then due, said attorney fee, and the costs and charges of said vendue. In witness whereof said part — of the first part ha — here- unto set hand — and seal — this day of , in the year . MINNESOTA A tax of 15 cents is imposed on each $100, or fraction there- of, of the principal debt. If it matures more than five years from the date of the mortgage, the tax is at the rate of 25 cents. The tax is payable at or before the time of filing for record or registration. Gen. St. 1913, §§ 2302-2307. Mortgage This indenture made this day of between , of , part — of the first part, and , of , part — of the second part: Witnesseth that the said part — of the first part, for and in consideration of the sum of dollars to — -. in hand paid by the said part — of the second part, the receipt of which is hereby acknowledged, do — by these presents grant, bargain, sell, and convey to the said part — of the second part, heirs and assigns forever, all tract — or par- cel — of land (description). Ch. 24) MORTGAGES (real estatb) 919 To have and to hold the same, together, with all the heredita- ments and appurtenances thereunto belonging or in any wise appertaining, to the said part — of the second part, heirs and assigns forever. And the said , part — of the first part, for , heirs, executors, and administrators, do — covenant with the said part — of the second part, heirs and as- signs, as follows: First, that lawfully seised of the said premises ; second, that ha — good right to convey the same ; third, that the same are free from all incumbrances ; fourth, that the said part — of the second part, heirs and assigns, shall quietly enjoy and possess the same; and, fifth, that the said part — of the first part will warrant and defend the title to the same against all lawful claims: Provided, nevertheless, that if said , part — of the first part, or heirs, executors, administrators, or as- signs, shall pay to the said part — of the second part, or executors, administrators, or assigns, the sum of dol- lars, according to the terms of promissory note — of even date herewith, executed by the said , part — of the first part, to the order of the said part — of the second part, for the sum of dollars, payable (state terms), and shall also keep and perform all and singular the covenants and agree- ments hereinafter contained, then this deed shall be null and void ; but otherwise shall remain in full force and effect. And the said part — of the first part, for heirs, ex- ecutors, administrators, and assigns, do — further covenant and agree with the said part — of the second part, ex- ecutors, administrators, and assigns, that will pay the said sum of money and interest thereon at the times and in the manner above specified, together with all costs and expenses of collection, if any there shall be ; that will pay, as part of the debt hereby secured, in case of any foreclosure of this 920 FORM BOOK (Ch. 24 mortgage, begun or completed, all costs and expenses thereof, and dollars as an attorney's fee; that will insure the buildings now on said premises and any which may be erected thereon and keep the same insured against loss by fire until the debt hereby secured is paid for at least the sum of dollars, in a company or companies approved by the said part — of the second part, and will deliver to the policies for said insurance, making and keeping the same payable in case of loss to the said party of the second part; that will pay all taxes and assessments levied upon said premises, or any part thereof, at least days before any penalty would accrue thereon by law, and will produce to the said part — of the second part the receipts for such pay- ments ; that will permit no waste nor do nor permit to be done anything which may in any way impair the security of this mortgage; and that if the said part — of the first part shall fail so to insure said premises, or to deliver said poHcies, or to pay said taxes and assessments, or to produce upon re- quest said evidences of payments, then and in either or any such event the said part — of the second part, heirs, ex- ecutors, administrators, or assigns, may, without notice, effect such insurance, and pay such taxes and assessments, and the sum or sums of money so paid for any of such purposes, with interest thereon from the time of such payment at the rate of per centum per annum, shall be immediately due and payable, and shall be deemed a part of the debt secured here- by, and shall be collectible with, as part of, and in the same manner as the original debt which this mortgage is given to secure. And the said part — of the first part do — further agree that if default shall be made in the payment of said principal sum or of any installment of interest, or in the performance of any of the covenants or agreements of the said part — of the first Ch. 24) MOETGAGES (real estate) 921 part herein contained (and such default shall continue for days), then and in either or any such case, and in addi- tion to the remedies hereinbefore provided, the said part — of the second part, , executors, administrators, or as- signs, may elect, without notice, that the principal sum hereby secured, together with the interest accrued thereon, shall be immediately due and payable, and may enforce payment there- of, and of all sums expended under the terms of this indenture, by foreclosure or otherwise, and that then, and in either or any such event, the said part — of the second part, •, executors, administrators, or assigns, are hereby authorized and fully empowered to sell the hereby granted premises at public auction, and to convey the same to the purchaser in fee simple, agreeably to the statute in such case made and pro- vided, and out of the moneys arising from such sale to retain the principal sum hereby secured, the interest then accrued, all such sums as shall have been paid for insurance, taxes, or assessments, with interest thereon as hereinbefore provided, and all other sums which shall then be due under the terms of this mortgage, together with all statutory costs and charges for such foreclosure, and the attorney's fee hereinbefore men- tioned, and to pay the overplus, if any there be, to the said part— of the first part. In witness whereof the said part — ■ of the first part ha — hereunto set hand — the day and year first above writ- ten. 922 FORM BOOK (Ch. 24 MISSISSIPPI Deed of Trust (Statutory) {See ante, p. 575.) Deed of Trust with Power of Sale Whereas, , of , owe , of , the sum of dollars, evidenced by {state particulars); and whereas, anxious to secure the payment of said in- debtedness at the maturity thereof : Therefore, in considera- tion of five dollars to paid by (trustee), the receipt whereof is hereby acknowledged, convey and warrant unto said (trustee) the land described as {de- scription). This conveyance is in trust. Should pay said in- debtedness and interest owing thereon at maturity, this con- veyance shall be void ; otherwise, at the request of said or either of them, the said (trustee), or any successor appointed in his place, shall sell said land, or a sufficiency thereof to satisfy the indebtedness aforesaid then unpaid, after having published notice of the time, place, and terms of sale in some newspaper published in said county for three con- secutive weeks next preceding the date of said sale, and by posting one notice thereof at the county courthouse door of said county for said time, and out of the proceeds arising from such sale the costs and expenses of executing this deed of trust shall be first paid, next the amount of said indebtedness then remaining unpaid, and, lastly, any balance remaining shall be paid to . The said , or either of them hereby author- ized to appoint another trustee in the place of said (trustee), if from any cause the said '■ (trustee), shall Ch. 24) MOETGAGBS (real estatb) 923 not be present, able, and willing to execute this trust; and such appointee shall have full power as trustee herein. Witness signature the day of . MISSOURI Deed of Trust This deed of trust made and entered into this day of , by and between , of , part — of the first part, , of , part — of the second part, and , of , part — of the third part: Witnesseth that the said part — of the first part, in con- sideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to paid by the said part — of the second part, the receipt of which is here- by acknowledged, do — by these presents grant, bargain, and sell, convey, and confirm, unto the said part — of the second part, the following described real estate (description). To have and to hold the same, with the appurtenances, to the part — of the second part, and to successor or successors in this trust, and to , and grantees and assigns, forever. In trust, however, for the following purposes : Whereas, the said , part — of the first part, ha — this day executed and delivered to the said part — of the third part prom- issory note (state terms). Now, therefore, if the said part — of the first part or any one for shall well and truly pay off and discharge the debt and interest expressed in the said note, with all the inter- est thereon, when the same become due and payable, accord- ing to the true tenor, date, and effect of said note, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said part — of the first 924 FORM BOOK (Ch. 24 part. But should the said part— of the first part fail or re- fuse to pay the said debt, or the said interest, or any part thereof, when the same shall become due and payable accord- ing to the true tenor, date, and efifect of said note, then the whole of said principal and accrued interest shall, at the option of the legal holder — of said note, become at once due and payable, and this deed shall remain in force; and the said part — of the second part, at the request of the legal holder — of the said note, may enter into possession of the property hereinbefore described, and sell the same or any part thereof, at public vendue, to the highest bidder, at , in the of , county of , and state of Missouri, for cash, first giving days' public notice of the time, terms, and place of said sale, and of the property to be sold, by adver- tisement in some newspaper printed and published in the county of , and state of Missouri, and upon such sale shall execute and deliver a deed in fee simple of the property sold to the purchaser or purchasers thereof, and receive the proceeds of said sale ; and any statement of facts or recital by the said trustee — in relation to the nonpayment of the money secured to be paid, the advertisement, sale, receipt of the money, and the execution of the deed to the purchaser, shall be received as prima facie evidence of such facts, and such trustee — shall out of the proceeds of said sale pay : First, the cost and expenses of executing this trust, including legal com- pensation to the trustee — for services ; and, next, shall apply the proceeds remaining over to the payment of said debt and interest ; and the remainder, if any, shall be paid to the said part — of the first part, or legal repre- sentatives. And the said part — of the second part covenant — faith- fully to perform and fulfill the trust herein created. In witness whereof the said parties have hereunto set their hands the day and year first above written. Ch. 24) MORTGAGES (eeal estate) 925 Mortgage Know all men by these presents that , of , for and in consideration of the sum of dollars, to the said in hand paid by , of , do — hereby grant, bargain, and sell unto the said the following {descrip- tion). To have and to hold the property and premises hereby con- veyed, with all the rights, privileges, and appurtenances there- unto belonging or in any wise appertaining, unto the said , heirs and assigns forever, upon this express condition: Whereas, the said on the day of executed and delivered to the said cer- tain promissory note (state terms). Now, if the said , executors or administra- tors, shall pay the sum of money specified in said note and all the interest that may be due thereon, according to the tenor and effect of the said note, then this conveyance shall be void ; otherwise it shall remain in full force and virtue in law. In witness, etc. MONTANA Mortgage (Statutory) This mortgage made the • ■ day of , in the year , by A. B., of , mortgagor, to C. D., of , mortgagee, witnesseth: That the mortgagor mortgages to the mortgagee {here describe the property), as security for the payment to him of dollars on {or, before) the day of , in the year , with interest there- on {or, as security for the payment of an obligation, describing it, etc.). A. B. Rev. Codes 1907, § 5748. 926 FORM BOOK (Ch. 24 NEBRASKA Mortgage Know all men by these presents that , of , in consideration of dollars in hand paid, do hereby grant, bargain, sell, and convey unto the following described real estate (description). Together with all the appurtenances thereunto belonging; and do hereby covenant with the said , heirs and assigns, that lawfully seised of said premises, that they are free from incumbrance, and do hereby covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever : Provided, always, and these presents are upon this condi- tion, that whereas, said executed' and delivered to said promissory note — for the payment of (state terms). Now, if the said shall well and truly pay, or cause to be paid, the said sum of money in said note mentioned, with the interest thereon, according to the tenor and effect of said note — , then these presents to be null and void. But if said sum of money, or any part thereof, or any interest thereon, is not paid when the same is due, then and in that case the whole of said sum and interest shall, and by this indenture does, im- mediately become due and payable without notice; or, if all taxes and assessments levied upon said real estate, including all taxes and assessments levied upon this mortgage, or the debt secured by this mortgage, are not paid at the time when the same are by law made due and payable, then in like man- ner the whole of said sum shall immediately become due and payable without notice, at the election of the mortgagee, executors, administrators, or assigns, and in case of such de- Ch. 24) MORTGAGES (eEAL ESTATE) 927 fault in payment of any installment of principal or interest, or of taxes, ■ may forthwith proceed to foreclose this mortgage. Signed this day of . NEVADA {See California, ante, p. 874.) NEW HAMPSHIRE Mortgage with Release of Dower and Homestead Know all men by these presents that , of for and in consideration of the sum of dollars to — in hand before the delivery hereof well and truly paid by , of , the receipt whereof do hereby ac- knowledge, have granted, bargained, and sold, and by these presents do give, grant, bargain, sell, alien, enfeoff, convey, and confirm unto the said • •, heirs and assigns forever {description). To have and to hold the said granted premises, with all the privileges and appurtenances to the same belonging, to , the said , and heirs and assigns, to and their only proper use and benefit forever. And , the said , and heirs, executors, and administrators, do hereby covenant, grant, and agree to and with the said , and heirs and assigns, that until the delivery hereof the lawful owner of the said premises, and seised and possessed thereof in own right in fee simple, and have full power and lawful authority to grant and convey the same in manner aforesaid; that the premises are free and clear from all and every incumbrance whatsoever ; and that , and heirs, executors, and administra- 928 FORM BOOK (Ch. 24 tors, shall and will warrant and defend the same to the said , and heirs and assigns, against the lawful claims and demands of any person or persons whomsoever. And I, , wife of the said , in consideration aforesaid, do hereby relinquish my right of dower ii> the be- fore-mentioned premises. And we and each of us do hereby release all rights of home- stead secured to us or either of us by chapter 138 of the Pub- lic Statutes of New Hampshire, or any other statute of said state. Nevertheless, it is to be considered, and the condition of the foregoing deed is such, that if the said , heirs, executors, and administrators shall well and truly pay unto the said '■ , heirs and assigns, the sum of dollars (state terms), then the foregoing deed is to be void and of no effect; otherwise to remain in full force and virtue. In witness whereof have hereunto set hand — and seal — this day of . NEW JERSEY Mortgage with Insurance Clause This indenture made the day of between , of , of the first part, and , of , of the second part: Witnesseth that the said part — of the first part, for and in consideration of the sum of dollars to in hand well and truly paid by the said party — ■ of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said part — of the first part, therewith fully satisfied, contented and paid, ha — given, granted, bargained, sold, aliened, enfeoffed, conveyed. Ch. 24) MORTGAGES (real estatb) 929 and confirmed, and by these presents do — give, grant, bargain, sell, alien, enfeoff, convey, and confirm to the said part — of the second part, and to heirs and assigns forever, all tract or parcel of land and premises (description). Together with all and singular the profits, privileges, and ad- vantages, with the appurtenances to the same belonging, or in any wise appertaining. Also all the estate, right, title, inter- est, property, claim, and demand whatsoever of the said part — of the first part of, in, and to the same, and of, in, and to every part and parcel thereof. To have and to hold all and singular the above-described tract — or lot — of land and premises, with the appurtenances, unto the said part — of the second part, heirs and assigns, to the only proper use, benefit, and behoof of the said part — of the second part, heirs and assigns forever: Provided, always, and it is agreed by and between the par- ties to these presents, that if the said , heirs, executors, or administrators, do and shall well and truly pay or cause to be paid to the sg-id part — of the second part, or to certain attorney or attorneys, heirs, executors, adminis- trators, or assigns, the sum of dollars in year — from the date hereof, with lawful interest for the same, at the rate of per centum per annum, payable semiannu- ally, according to the condition of a certain bond bearing even date herewith, in the penal sum of dollars, without any deduction or defalcation for taxes, assessments, or any other imposition whatsoever, then and from thenceforth these pres- ents and said obligation, and everything herein and therein contained, shall cease and be void, anything herein and there- in contained to the contrary in anywise notwithstanding. And the said part — of the first part, heirs, executors, and administrators, do — covenant and grant to and with the said part — of the second part, heirs and assigns, that Tiff. Forms — 59 930 FORM BOOK (Ch. 24 the said part — of the first part heirs and assigns, shall not nor will claim or demand or be entitled to receive any credit or credits on the interest payable hereon or on the moneys to secure payment of which this mortgage is made, for so much of the taxes assessed against said lands as is equal to the tax rate applied to the amount due on this mort- gage or any part thereof, and that the said part — of the second part, heirs and assigns, shall and may from time to time, and at all times after default shall be made in the performance of the proviso or condition herein contained, peaceably and quietly enter into, have, hold, use, occupy, pos- sess, and enjoy all and singular the above granted and bar- gained premises, with the appurtenances, without the let, suit, trouble, hindrance, or denial of the said part — of the first part, heirs or assigns, or of any other person or per- sons whatsoever. And it is also agreed by and between the parties to these presents that the said part — of the first part shall and will keep the buildings erected and to be erected upon the lands above conveyed insured against loss or damage by fire in some safe and responsible insurance company or companies, to an amount not less than ■■ — dollars, and assign the policy and certificate thereof to the said party of the second part as collateral security for the payment of the principal and inter- est aforesaid, and in default thereof it shall be lawful for the said part — of the second part to effect such insurance, and the premium and premiums paid for effecting the same shall be a lien on the said mortgaged premises, added to the amount of the said bond or obligation, and secured by these presents, and payable on demand, with legal interest. In witness whereof the said part — of the first part ha — hereunto set hand — and seal — the day and year first above written. Ch. 24) MORTGAGES (real estatb) 931 NEW MEXICO Mortgage This indenture made this day of between , of , of the first part, and , of , of the second part: Witnesseth that the said part — of the first part, for and in consideration of the sum of dollars, to in hand paid by the said part — of the second part, the receipt whereof is hereby confessed and acknowledged, and for the further consideration of the debt and trust hereinafter mentioned and created, ha — granted, bargained, sold, conveyed, and confirm- ed, and by these presents do — grant, bargain, sell, convey, and confirm, unto the said part — of the second part, and to heirs and assigns forever, all the following described lot — , tract — , and parcel — of land (description). Together with all and singular the lands, tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertain- ing, and the reversion and reversions, remainder and re- mainders, rents, issues, and profits thereof, and all the estate, right, title, interest, claim, and demand whatsoever of the said part — of the first part, either in law or in equity, of, in, and to the above granted, bargained, sold, and described prem- ises with the appurtenances, to have and to hold the said prem- ises above granted, bargained, sold, and described, with the appurtenances, unto the said part — of the second part, and heirs and assigns forever: Provided, however, and these presents are upon the condi- tion: Whereas, the said part — of the first part justly indebted unto the said part — of the second part in the sum of dollars, as evidenced by promissory note — bearing date (state terms) ; and whereas, the said part — of the 932 FORM BOOK (Ch. 24 first part anxious to secure the payment of said sum of money in said promissory note — mentioned, when the same shall become due and payable, with all interest that may accrue thereon. Now, therefore, if the said part — of the first part, heirs, executors, administrators, or assigns, shall pay all taxes and assessments due and to become due, and that may accrue on said property during the continuance of this mortgage, when the same are legally payable, and shall well and truly pay or cause to be paid to the said part — of the second part, or to order, the said sum of money in said promissory note — specified, when the same shall become due and payable, together with all interest that may have accrued thereon, ac- cording to the tenor and effect of said promissory note — , then and in that case this indenture shall be and become void and of no effect, but in case of default by the said part — of the first part, heirs, executors, administrators, or assigns, in the payment of any tax or assessment as aforesaid, when the same shall be due and payable, or in the payment of the said principal sum — of money or any part thereof in said promissory note — specified, or in the payment of any interest that may have accrued thereon, when the same shall become due and payable, then and in each of said cases all of said in- debtedness, principal and interest, whether the same be due and payable according to tenor and effect of said promissory note — • or not, shall, at the option of said part — of the second part, immediately become and be due and payable, and then and in that case the said part — of the second part, or agent or legal representative, shall be and hereby authorized and empowered to enter upon and take possession of said granted, bargained, sold, and described premises, and after having given notice of the time, place, and manner of sale thereof, by hand bills posted in public places in the Ch. 24) MORTGAGES (eeal estatb) 933 county of at least days prior to the sale, or by a notice of said sale published in some newspaper printed in the county of for at least days prior to the time of said sale, expose and sell at public auction to the highest bidder for cash the said granted, bargained, sold, and described premises, provided that the said part — of the sec- ond part may be a purchaser at any such sale, and execute and deliver to the purchaser or purchasers thereof good and suffi- cient deed or deeds therefor, and out of the proceeds of such sale to pay the costs and expenses of said sale and the pro- ceedings relative thereto, including dollars attorney's fees, and the said indebtedness and promissory note — and interest accrued thereon and unpaid, and including all sums paid by the said part — of the second part for taxes, and the residue or remainder of said proceeds, if any there are, to pay over to the said part — of the first part, heirs, ex- ecutors, administrators or assigns. In witness, etc. NEW YORK The following form of mortgage is provided, but the use of other forms is not invalidated (Consol. Laws 1909, c. 50, § 258): Mortgage (Statutory) This indenture made the day of , in the year nineteen hundred and , between , of , party of the first part, and , of , party of the second part : Whereas, the said is justly indebted to the said party of the second part in the sum of dollars lawful money of the United States, secured to be paid by his certain bond or obligation, bearing even date herewith, conditioned 934 FORM BOOK (Ch. 24 for the payment of the said sum of dollars on the day of , nineteen himdred and , and the interest thereon, to be computed from , at the rate of per centum per annum, and to be paid . It being thereby expressly agreed that the whole of the said principal sum shall become due after default in the payment of any installment of principal, interest, taxes, or assessments as hereinafter provided. Now, this indenture witnesseth that the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, and also for and in consid- eration of one dollar paid by the said party of the second part, the receipt whereof is hereby acknowledged, doth hereby grant and release unto the said party of the second part, and to his heirs {or, successors) and assigns forever (description), together with the appurtenances, and all the estate and rights of the party of the first part in and to said premises. To have and hold the above-granted premises unto the said party of the second part, his heirs and assigns forever: Provided, always, that if the said party of the first part, his heirs, ex- ecutors, or administrators, shall pay unto the said party of the second part, his executors, administrators, or assigns, the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, that then these pres- ents, and the estate hereby granted, shall ce^se, determine, and be void. And the said party of the first part covenants with the party of the second part as follows: 1. That the said party of the first part will pay the indebt- edness as hereinbefore provided, and if default be made in the payment of any part thereof, the party of the second part shall have power to sell the premises therein described accord- ing to law. Ch. 24) MORTGAGES (rbal bstate) 935 2. That the said party of the first part will keep the build- ings on the said premises insured against loss by fire for the benefit of the mortgagee. 3. And it is hereby expressly agreed that the whole of said principal sum shall become due at the option of the said party of the second part after default in the payment of any installment of principal or of interest for days, or after default in the payment of any tax or assessment for days after notice and demand. In witness whereof the said party of the first part hath here- unto set his hand and seal the day and year first above writ- ten. In the presence of Ibid. c. 50, § 258. In mortgages of real property, and in bonds secured thereby, the following or similar covenants must be construed as follows : 1. The words "and it is hereby expressly agreed that the whole of the said principal sum shall become due at the option of said mortgagee or obligee after default in the payment of any installment of principal or of interest for days, or after default in the payment of any tax or assessment for days after notice and demand," must be construed as meaning that, should any default be made in the payment of any installment of principal or any part thereof, or in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, or should any tax or assessment which now is or may be hereafter imposed upon the premises hereinafter described become due or payable, and should the said interest remain unpaid and in arrear for the space of days, or such tax or assessment remain un- paid and in arrear for days after written notice by the mortgagee or obligee, his executors, administrators, suc- cessors, or assigns, that such tax or assessment is unpaid, and demand for the payment thereof, then and from thenceforth, that is to say, after the lapse of either one of said periods, as the case may be, the aforesaid principal sum, with all arrearage of interest thereon, shall, at the option of the said mortgagee or obligee, his executors, administrators, successors, or assigns, become and be due and payable immediately there- 936 FORM BOOK (Ch. 24 after, although the period above limited for the payment there- of may not then have expired, anything thereinbefore contained to the contrary thereof in any wise notwithstanding. 2. A covenant that the mortgagor "will pay the indebtedness, as provided in the mortgage, and if default be made in the pay- ment of any part thereof, the mortgagee shall have power to sell the premises therein described, according to law," must be construed as meaning that the mortgagor for himself, his heirs, executors, and administrators or successors, doth cove- nant and agree to pay to the mortgagee, his executors, ad- ministrators, successors, and assigns, the principal sum of money secured by said mortgage, and also the interest there- on as provided by said mortgage. And if default shall be made in the payment of the said principal sum or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the mortgagee, his executors, administrators, or successors, to enter into and upon all and singular the premises granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said mortgagor, his heirs, executors, ad- ministrators, successors, or assigns therein, at public auction, according to the act in such case made and provided, and as the attorney of the mortgagor for that purpose duly authorized, constituted, and appointed, to make and deliver to the purchaser or purchasers thereof a good and sufficient deed or deeds of conveyance for the same in fee simple (or otherwise, as the case may be), and out of the money arising from such sale to retain the principal and interest which shall then be due, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase money, if any there shall be, unto the mortgagor, his heirs, executors, administrators, successors, or assigns, which sale so to be made shall forever be a perpetual bar both in law and equity against the mortgagor, his heirs, successors, and assigns, and against all other persons claiming or to claim the premises, or any part thereof, by, from, or under him, them, or any of them. 3. A covenant "that the mortgagor will keep the buildings on the said premises insured against loss by fire, for the benefit of the mortgagee," must be construed as meaning that the mort- gagor, his heirs, successors, and assigns, will, during all the time until the money secured by the mortgage shall be fully paid and satisfied, keep the buildings erected on the premises insured against loss or damage by fire to an amount and in a Ch. 24) MORTGAGES (eeal estate) 937 company to be approved by the mortgagee, and will assign and deliver the policy or policies of such insurance to the mort- gagee, his executors, administrators, successors, or assigns, so and in such manner and form that he and they shall at all time and times, until the full payment of said moneys, have and hold the said policy or policies as a collateral ard further security for the payment of said money, and in default of so doing that the mortgagee, or his executors, administrators, suc- cessors, or assigns, may make such insurance from year to year, in a sum not exceeding the principal sum for the pur- poses aforesaid, and pay the premium or premiums therefor, and that the mortgagor will pay to the mortgagee, his execu- tors, administrators, successors, or assigns, such premium or premiums so paid, with interest from the time of payment, on demand, and that the same shall be deemed to be secured by the mortgage, and shall be collectable thereupon and thereby in like manner as the principal moneys, and in default of such payment by the mortgagor, his heirs, executors, administrators, successors, or assigns, or of assignment and delivery of poli- cies as aforesaid, the whole of the principal sum and interest secured by the mortgage shall, at the option of the mortgagee, his executors, administrators, successors, or assigns, immediate- ly become due and payable. 4. A covenant that the mort- gagor "will execute any further necessary assurance of the title to said premises, and will forever warrant said title," must be construed as meaning that the mortgagor shall and will make, execute, acknowledge, and deliver in due form of law, all such further or other deeds or assurances as may at any time hereafter be reasonably desired or required for the more fully and effectually conveying the premises by the mortgage described, and thereby granted or intended so to be, unto the said mortgagee, his executors, administrators, successors, or assigns, for the purpose aforesaid, and unto all and every per- son or persons, corporation or corporations, deriving any es- tate, right, title, or interest therein, under the said indenture of mortgage, or the power of sale therein contained, and the said granted premises against the said mortgagor, and all per- sons claiming through him, will warrant and defend. Ibid, c. 50, § 254. As to the construction of the words "together with the ap- purtenances," etc., ante, p. 596. The use of the following form of instrument for mortgages on leases of real property is lawful, but this section does not prevent or invalidate the use of other forms : 938 FORM BOOK (Ch. 24 Mortgage on Lease of Real Property (Statutory) This indenture piade the day of , in the year one thousand hundred and , between , of {insert residence), of the first part, and , of (insert res- idence), of the second part: Whereas, did, by a cer- tain indenture of lease, bearing date the day of , in the year one thousand nine hundred and , demise, lease, and to farm-let unto , and to executors, administrators, and assigns, all and singular the premises here- inafter mentioned and described, together with their appur- tenances ; to have and to hold the same unto the said , and to executors, administrators, and assigns, for and during and until the full end and term of years from the day of , one thousand nine hundred and , fully to be complete and ended, yielding and paying therefor unto the said , and to or assigns, the yearly rent or sum of ; And whereas, the said part — of the first part justly indebted to the said part — of the second part in the sum of law- ful money of the United States of America, secured to be paid by certain bond or obligation bearing even date here- with, conditioned for the payment of the said sum of on the day of , nineteen hundred and , and the interest thereon to be computed from at the rate of per centum per annum and to be paid . It being thereby expressly agreed that the whole of the said principal sum shall become due at the option of the mortgagee or obligee after default in the payment of interest, taxes, or assessments or rents as hereinafter provided. Now, this indenture witnesseth that the said part — of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or ob- Ch. 24) MORTGAGES (eeal estate) 939 ligation, with interest thereon, and also for and in considera- tion of the sum of one dollar paid by the said part — of the second part, the receipt whereof is hereby acknowledged, doth grant and release, assign, transfer, and set over unto said part — of the second part, and to his heirs {or, successors) and assigns forever (description). Together with the appurtenances and all the estate and rights of the part — of the first part of, in, and to said prem- ises under and by virtue of the aforesaid indenture of lease. To have and hold the said indenture of lease and renewal and the above-granted premises unto the said part — of the second part, his heirs and assigns, for and during all the rest, residue, and remainder of the said term of years yet to come and unexpired in said indenture of lease and in the renewals therein provided for, subject, nevertheless, to the rents, cov- enants, conditions, and provisions in the said indenture of lease mentioned: Provided, always that if the said part — of the first part shall pay unto the said part — of the second part, the said sum of money mentioned in the condition of the said bond or ob- ligation, and the interest thereon, at the time and in the man- ner mentioned in the said condition, that then these presents and the estate hereby granted shall cease, determine, and be void. And the said part — of the first part covenant — with the said part — of the second part as follows : First. That the part — of the first part will pay the indebt- edness as hereinbefore provided. And if default shall be made in the payment of any part thereof the said part — of the second part §hall have power to sell the premises therein described according to law. Second. That the said premises now are free and clear of all incumbrances whatsoever, and that ha— good right 940 FOEM BOOK (Ch. 24 and lawful authority to convey the same in manner and form hereby conveyed. Third. That the part — of the first part will keep the build- ings on the said premises insured against loss by fire for the benefit of the mortgagee. Fourth. That the part — of the first part will pay the rents and other charges mentioned in and made payable by said in- denture of lease within days after said rent or charges are payable. Fifth. And it is hereby expressly agreed that the whole of the said principal sum shall become due at the option of the said mortgagee or obligee after default in the payment of any installment or principal, or after default in the payment of interest for — days, or after default in the payment of any rent or other charge made payable by said indenture of lease for days, or after default in the payment of any tax or assessment for days after notice and demand. In witness whereof the said part— of the first part to these presents ha — hereunto set hand — and seal — the day and year first above written. Sealed and delivered in the presence of Ibid. c. SO, § 273. In any mortgage on a lease of real property the words "to- gether with the appurtenances and all the estate and rights of the part — of the first part of, in, and to said premises under and by virtue of the aforesaid indenture of lease" must be construed as meaning together with all and singular the edifices, buildings, rights, members, privileges, and appurtenances there- unto belonging or in any wise appertaining, and also all the estate, right, title, interest, term of years yet to come and un- expired, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said mortgagor or obligor of, in, and to the said demised premises, and every part and parcel thereof, with the appurtenances, and also the said in- denture of lease, and the renewal therein provided for, and every clause, article and condition therein expressed and con- tained. Ibid. c. 50, § 272. Ch. 24) MORTGAGES (eeal estatb) 941 In mortgages on leases of real property and in bonds se- cured thereby the following or similar covenants or agreements must be construed as follows : 1. In Default of Payment Mortgagee to Have Power to Sell. — A covenant that the mort- gagor "will pay the indebtedness as provided in the mortgage, and if default be made in the payment of any part thereof, the mortgagee or obligee shall have power to sell the prem- ises therein described, according to law," must be construed as meaning that the mortgagor or obligor shall well and truly pay unto the mortgagee or obligee the said sum of money men- tioned in the condition of the said bond or obligation, and the interest thereon, according to the condition of the said bond or obligation. And if default shall be made in the payment of the said sum of money therein mentioned, or in the interest which shall accrue thereon, or of any part of either, that then and from thenceforth it shall be lawful for the said mortgagee or obligee, his legal representative or assigns, to sell, transfer, and set over all the rest, residue, and remainder of the said term of years then yet to come, and all other, the right, title, and interest of the said mortgagor or obligor of, in, and to the same, at public auction, according to the act in such case made and provided, and, as the attorney of the said mortgagor or obligor for that purpose by these presents duly authorized, constituted, and appointed, to make, seal, execute, and deliver to the purchaser or purchasers thereof a good and sufficient assignment, transfer, or other conveyance in the law, for the said premises, with the appurtenances, and out of the money arising from such sale to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase money (if any there shall be) unto the said mortgagor or obligor, his legal representatives or assigns, which sale so to be made shall for- ever be a perpetual bar, both in law and equity, against the said mortgagor or obligor, and against all persons claiming or to claim the premises or any part thereof by, from, or under him or them, or any of them. 2. Mortgagor to Keep Build- ings Insured. — A covenant "that the mortgagor will keep the buildings on the, said premises insured against loss by fire for the benefit of the mortgagee" must be construed as mean- ing that the said mortgagor or obligor shall and will keep the buildings erected and to be erected upon the lands above con- veyed insured against loss and damage by fire, by insurance, and in an amount approved by the said mortgagee or obligee 942 FOEM BOOK (Ch. 24 and his assigns, and either assign the policy and certificates thereof or have such insurance made payable to the said mort- gagee or obligee or his assigns, and in default thereof it shall be lawful for the said mortgagee or obligee and his assigns to effect such insurance, and the premium and premiums paid for effecting the same shall be a lien on the said mortgaged premises, added to the amount of the said bond or obligation, and secured by these presents, and payable on demand, with legal interest. 3. Mortgagor to Pay Rent and Charges on Premises. — A covenant that the mortgagor "will pay the rent and other charges mentioned in and made payable by said in- denture of lease within days after said rent or charges are payable" must be construed as meaning that the said mort- gagor or obligor and his legal representatives and assigns will pay or cause to be paid and discharge all rent and rents men- tioned in and made payable by the indenture of lease afore- said, and also all tcixes, assessments, or other charges that now are a lien, or hereafter shall or may be levied, assessed, or im- posed and become a lien upon the premises above described or any part thereof, and in default thereof, for the space of after such taxes or assessments or after the said rent or rents or any of them shall have become due and payable by the terms of said lease or by law, then and in each and every such case the said mortgagee or obligee, his legal representatives or assigns, may, at option, and without notice, pay such rent, or rents, taxes, assessments, or other charges and expenses, and the amount so paid, and interest thereon, from the time of such payment, shall forthwith be due and payable from the said mortgagor or obligor, his legal representatives or assigns, to the said mortgagee or obligee, his legal representatives or as- signs, and shall be deemed to be secured by these presents, and shall be collectable in the same manner and at the same time and upon the same conditions as the interest then next maturing upon the principal sum hereinbefore mentioned. 4. Agreement That Whole Sum Shall Become Due. — The words "and it is hereby expressly agreed that the whole of the said principal sum shall become due at the option of said mortgagee or obligee after default in the payment of any installment of principal or after default in the payment of interest for days, or after default in the payment of any rent or other charge made payable by said indenture of lease for days, or after default in the payment of any tax or assessment for days after notice and demand," must be construed as Ch. 24) MORTGAGES (eeal estate) 943 meaning that, should any default be made in the payment of any installment of principal or any part thereof, or of said interest or any i>art thereof, or of any rent or other charge made payable by said indenture or lease, on any day whereon the same is made payable, or should any tax or assessment, which now is or may be hereafter imposed upon the premises hereinafter described, become due and payable, and should the said interest, rent, or other charge aforesaid remain unpaid and in arrear for the space of — days, or such tax or assess- ment remain unpaid and in arrear for days after writ- ten notice by the mortgagee or obligee, his executors, admin- istrators, or assigns, that such tax or assessment is unpaid, and demand for the payment thereof, then and from thenceforth, that is to say, after the lapse of either one of said periods, as the case may be, the aforesaid principal sum, with all ar- rearage of interest thereon, rent, and other charges paid by the mortgagee or obligee, shall, at the option of the said mort- gagee or obligee, his executors, administrators, or assigns, be- come and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything thereinbefore contained to the contrary thereof in any wise notwithstanding. Ibid. c. 50, § 271. NORTH CAROLINA Mortgage North Caroi,ina, County. This indenture made this — day of by and be- tween and , his wife, of , parties of the first part, and , of , part — of the second part : Witnesseth that whereas, said , parties of the first part, are justly indebted to said part — of the second part in the sum of dollars, as evidenced by bond — of even date herewith, bearing interest from date at per cent, per annum, and due and payable on the day of And whereas, said parties of the first part are anxious to secure the payment of said bond — at maturity : 944 FOEM BOOK (Ch. 24 Now, therefore, in consideration of the premises and for the purposes aforesaid, and for the sum of ten dollars to the parties of the first part paid by the part — of the second part, the receipt of which is hereby acknowledged, said parties of the first part have given, granted, bargained, sold, aliened, con- veyed, and confirmed, and by these presents do hereby give, grant, bargain, sell, alien, convey, and confirm, upon said part — of the second part, heirs and assigns forever, a certain piece or tract of land {description). To have and to hold said land and premises to the said part — of the second part, heirs and assigns forever. And said , parties of the first part, do covenant to and with said part — of the second part, heirs and assigns : That the owner — and seised of said premises in fee simple ; that ha — the right to convey the same ; that the same are free of any incumbrance whatsoever; and that will forever warrant and defend the title to the same from the lawful claims of all persons whomsoever. But this deed is made on this special trust : That if said par- ties of the first part shall well and truly pay to said part-:— of the second part, or — ■ Legal representatives, the bond — hereinbefore described at maturity, then this deed to be null and void. But if default shall be made in the payment of said bond — , or the interest on the same, or any part of either, at maturity, then and in that event it shall be lawful for and the duty of said part — of the second part to sell said land hereinbefore described to the highest bidder for cash at the courthouse door in — county, first advertising said sale by posting notice thereof at the courthouse door and three other public places in said county for thirty days immediately preceding such sale, and also publishing said notice for four weeks in some news- paper published in said county, and convey the same to the Ch. 24) MOKTGAGES (real estatb) 945 purchaser in fee simple, and out of the moneys arising from said sale to pay said bond — and interest on same, together with costs of sale, and pay surplus (if any) to said parties of the first part, or legal representatives. In testimony whereof said parties of the first part hereto subscribe their names and affix their several seals. NORTH DAKOTA A mortgage of real property may be made substantially in the following form: Mortgage (Statutory) This mortgage made the day of — , in the year , by A. B., of , mortgagor, to C. D., of , mortgagee, witnesseth : That the mortgagor mortgages to the mortgagee {here de- scribe the property) as security for the payment to him of dollars on or before the — day of , in the year , with interest thereon {or, as security for the pay- ment of an obligation, describing it). A. B. Rev. Codes 1905, § 6174. OHIO Mortgage Know all men by these presents that I, , of , in consideration of dollars to me paid by , of , the receipt whereof is hereby acknowledged, do here- by grant, bargain, sell, and convey to the said , heirs and assigns forever {description), and all the estate, title, and interest of the said grantor, either in law or equity, of, in, and to the said premises, together with all the privileges and TiFF.FORMS — 60 946 FORM BOOK (Ch. 24 appurtenances to the same belonging, and all the rents, issues, and profits thereof ; to have and to hold the same to the only proper use of the said , heirs and assigns for- ever. And the said , for himself, and his heirs, executors, and administrators, doth hereby covenant with the said , heirs and assigns, that he is the true and lawful owner of the said premises, and has full power to convey the same, and that the title so conveyed is clear, free, and unincumbered ; and, further, that he doth warrant, and will defend the same against all claim or claims of all persons whomsoever : Pro- vided, nevertheless, that if the said shall pay to the said the sum of dollars according to the terms of a certain promissory note {state terths of payment), then this mortgage shall be void. In witness whereof the said and , his wife, who hereby releases all her right and expectancy of dower in the said premises, have hereunto set their hands this day of . OKLAHOMA A mortgage may be substantially in the following form : , Mortgage (Statutory) Know all men by these presents that and , of county, in the of , part — of the first part, have mortgaged and hereby mortgage to , of county, of , part — of the second part, the following described real estate and premises, situated in county, state of Oklahoma, to wit, , with all the improvements thereon and appurtenances thereunto belonging, and warrant the title to the same . This mortgage is given to secure the principal sum of dollars, with in- Ch. 24) MORTGAGES (real estatb) 947 terest thereon at the rate of per centum per annum, payable annually from according to the terms of certain promissory note — , described as follows, to wit, . Dated this day of , 19 — . Rev. Laws, 1910, § 4015. OREGON Mortgage This indenture made this day of between , of , party of the first part, and , of , party of the second part, witnesseth that the said par- ty of the first part, for and in consideration of th« sum of dollars to him in hand paid, the receipt whereof is here- by acknowledged, has bargained, sold, and conveyed, and by these presents doth bargain, sell, and convey, unto the said party of the second part, the following described premises (de- scription). Together with tenements, hereditaments, and ap- purtenances thereunto belonging or in any wise appertaining. To have and to hold the same, with the appurtenances, unto the said party of the second part, his heirs and assigns forever. This conveyance is intended as a mortgage to secure the payment of the sum of dollars in accordance with the tenor of a certain promissory note (state terms). Now, if the sums of money due upon the said promissory note shall be paid according to the terms thereof, this convey- ance shall be void ; but in case default shall be made in pay- ment of the principal or interest as above provided, then the said party of the second part, his executors, administrators, and assigns, may sell the premises above described, with all and every of the appurtenances, or any part thereof, in the manner prescribed by law, and out of the money arising from 948 FORM BOOK (Ch. 24 such sale retain the said principal and interest, together with the costs and charges of making such sak, and a reasonable sum as attorney's fees, and the overplus, if any there be, pay over to the said party of the first part, his heirs or as- signs ; and the said party of the first part, for hims^elf , his heirs, executors, and administrators, doth covenant and agree to pay said party of the second part, his executors, administrators, or assigns, the said sum of money as above mentioned. In witness whereof the said party of the first part has here- unto set his hand and seal the day and year first above written. PENNSYLVANIA Mortgage This indenture made the day of between , of , of the first part, and , of , of the other part: Whereas, the said , in and by a certain obligation or writing obligatory under hand — and seal — duly exe- cuted, bearing even date herewith, stand — bound unto the said in the sum of dollars lawful money of the United States of America, conditioned for the payment of the just sum of dollars lawful money as aforesaid, within years from the date thereof, together with interest thereon, payable at the rate of per cent, per an- num, and also all premiums paid by the said , executors, administrators, or assigns, for maintaining an in- surance against loss or damage by fire, to an amount not ex- ceeding dollars, upon the premises hereinafter describ- ed, and for the production to the said , execu- tors, administrators, or assigns, on or before the day of in each year of receipts for all taxes of the current Ch. 24) MORTGAGES (real estate) 949 year assessed upon the mortgaged premises, without any fraud or further delay: Provided, however, and it is thereby ex- pressly agreed, that if at any time default shall be made in the payment of any interest on the said sum for the space of after the same shall fall due, or in the payment of any premium of insurance as aforesaid, or in the production of any such receipts for taxes as aforesaid, then and in such case the whole principal debt aforesaid shall, at the option of the said ■ — , executors, administrators, or assigns, become due and payable immediately; and payment of said principal and all interest thereon may be enforced and recovered at once, anything therein contained to the contrary thereof not- withstanding : And provided, further, however, and it is there- by expressly agreed, that if at any time thereafter, by reason of any default in payment either of said principal sum at maturity or of said interest, or of premiums of insurance, or in the production of any such receipts for taxes, within the time specified, a writ of fieri facias is properly issued upon the judgment obtained upon said obligation, or by virtue of said warrant of attorney, or a writ of scire facias is properly issued upon this indenture of mortgage, an attorney's commis- sion for collection, viz., per cent., shall be payable, and shall be recovered in addition to all principal and interest, and premiums of insurance then due, besides costs of suit, as in and by the said recited obligation and the condition — thereof, relation being thereunto had may more fully and at large appear. Now, this indenture witnesseth that the said , as well for and in consideration of the aforesaid debt or sum of dollars, and for the better securing the payment of the same, with interest, unto the said , executors, administrators, and assigns, in discharge of the said recited ob- ligation, as for and in consideration of the further sum of one 950 FORM BOOK (Ch. 24 dollar unto in hand well and truly paid by the said at and before the sealing and delivery hereof, the re- ceipt whereof is hereby acknowledged, granted, bar- gained, sold, aliened enfeoffed, released, and confirmed, and by these presents grant, bargain, sell, alien, enfeoff, release, and confirm unto the said , • heirs and assigns, all that certain lot or piece of ground, with the messuage or tenement thereon erected situate (description). Together with all and singular the ways, waters, water cours- es, rights, liberties, privileges, improvements, hereditaments, and appurtenances whatsoever thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof. To have and to hold the said hereditaments and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto the said — — — , heirs and assigns, to and for the only proper use and behoof of the said , heirs and assigns forever : Provided always, nevertheless, that if the said , heirs, executors, administrators, or assigns, do and shall well and truly pay, or cause to be paid, unto the said , executors, administrators, or assigns, the afore- said debt or principal sum of dollars on the day — and time^ hereinbefore mentioned and appointed for pay- ment of the same, together with interest and premiums of in- surance as aforesaid, and shall produce to him or them all such receipts for taxes as aforesaid, without any fraud or further delay, and without any deduction, defalcation, or abate- ment to be made of anything for or in respect of any taxes, charges, or assessments whatsoever, that then and from thence- forth, as well this present indenture, and the estate hereby granted, as the said recited obligation — shall cease, determine, and become void, anything hereinbefore contained to the con- Ch. 24) MOETGAGES (real bstatb) 951 trary thereof in any wise notwithstanding : Provided, further, that in case of default in the payment of the aforesaid debt or principal sum or of interest thereon as aforesaid, or in the payment of any premium of insurance as aforesaid, or in the production of any such receipts for taxes as aforesaid, there- upon it shall be lawful for the said , executors, administrators, or assigns, to sue out forthwith a writ of scire facias upon this present indenture of mortgage, and to pro- ceed at once thereon to recover the principal moneys hereby secured, and all interest or premiums of insurance due there- on, together with an attorney's commission for collection, viz., per cent., besides costs of suit, without further stay, any law or usage to the contrary notwithstanding. In witness whereof the said part — of the first part to these presents hereunto set hand — and seal — . Dated the day and year first above written. RHODE ISLAND Mortgage Know all men by these presents that I, — , of , hereinafter called the mortgagor, in consideration of dollars to me paid by , of , hereinafter called the mortgagee, the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell and convey unto the said mort- gagee, and his heirs and assigns forever all that (description). To have and to hold the afore-granted premises, with all the privileges and appurtenances thereunto belonging, unto and to the use of the said mortgagee, and his heirs and assigns, forever. And I, the said mortgagor, do hereby for myself and for my heirs, executors, and administrators, covenant with the said mortgagee and his heirs and assigns that I am lawfully seised 952 FORM BOOK (Ch. 24 in fee simple of the said granted premises ; that the same are free from all incumbrances ; that I have good right, full power, and lawful authority to sell and convey the same in manner as aforesaid ; that the said mortgagee and his heirs and assigns shall by these presents at all times hereafter peaceably and quietly have and enjoy the said premises ; and that I, the said mortgagor, will, and my heirs, executors, and administrators shall, warrant and defend the same to the said mortgagee, and his heirs and assigns forever, against the lawful claims and de- mands of all persons. And for the consideration aforesaid I, , the wife of the said mortgagor, do hereby release all my right of dower in and to the said granted premises unto the said mortgagee, and heirs and assigns forever : Provided, nevertheless, and this conveyance is made upon the express condition, that if the said mortgagor, or his heirs, executors, administrators, or assigns, shall pay unto the said mortgagee, or executors, administrators, or assigns, the sum of — ■ dollars, wherefor the said mortgagor has made his negotiable promissory note for said sum, bearing even date with these presents, and made payable to the order of ■ in years from the date her«of, with interest thereon at the rate of per centum per annum, payable semiannually, until said principal svim is paid, whether at or after maturity, and all installments of interest in arrear, wheth- er before or after maturity, to bear interest at the rate afore- said until paid, and shall also pay all taxes and assessments of every kind levied or assessed upon or in respect of said prem- ises, then this deed, as also said promissory note, shall become and be absolutely void to all intents and purposes whatsoever. But if default shall be made in the payment of the said prin- cipal sum or of said interest, at the time or times and in the manner aforesaid, or of the taxes or assessments aforesaid, as Ch. 24) MORTGAGES (rbal bstate) 953 the same become payable, or of any or either of them, or of any part thereof, or if breach shall be made of the covenant for insurance hereinafter contained, then it shall be lawful for the said mortgagee, his executors, administrators, or assigns, to sell together or in parcels, all and singular the premises hereby granted or intended to be granted, or any part or parts thereof, at public auction upon the premises, , and to bid for and become the purchaser or purchasers at any such sale (and no other purchaser or purchasers shall be answer- able for the application of the purchase money), first giving notice of the time and place of sale by publishing the same at least once each week for three successive weeks in som^e one of the public newspapers published in , with power to adjourn such sale from time to time, provided that the publish- ing of said notice shall be continued, together with a notice of the adjournment or adjournments, at least once each week in the same newspaper, and in his or their own name or names, or as the attorney or attorneys of the said mortgagor (for that purpose by these presents duly authorized and appointed with full power of substitution and revocation), to make, execute, and deliver to the purchaser or purchasers at such sale a good and sufficient deed or deeds of said premises in fee simple, and to receive the proceeds of such sale or sales, and from such proceeds to retain all sums hereby secured, whether then due or to fall due thereafter, or the part thereof then remaining unpaid, and also the interest then due on the same, together with all expenses incident to such sale or sales, and for fees of counsel and attorneys, and all costs or 'expenses incurred in the exercise of said powers, and all taxes, assessments, and pre- miums for insurance, if any, either theretofore paid by the said mortgagee, his executors, administrators, or assigns, or then remaining unpaid, upon said granted premises, rendering and paying the surplus of said proceeds of sale, if any there be, 954 FORM BOOK (Ch. 24 over and above the amounts so to be retained as aforesaid, to- gether with a true and particular account of such sale or sales, expenses and charges, to the said mortgagor, and his heirs, executors, administrators, or assigns, which sale or sales made as aforesaid shall forever be a perpetual bar both in law and equity against the said mortgagor, his heirs, executors, ad- ministrators, and assigns, and all persons claiming said prem- ises so sold by, from, or under him, them, or any of them. And I, the said mortgagor, for myself, and for my heirs, executors, administrators, and assigns, hereby covenant with the said mortgagee, and, his heirs, executors, administrators, and assigns, that I and they will upon request execute such deed or deeds confirmatory of said sale or sales as may be required. And, furthermore, I, the said mortgagor, for myself, and for my heirs, executors, administrators, and assigns, hereby cove- nant with the said mortgagee, and his executors, administra- tors, and assigns, that insurance against loss by fire shall be kept and maintained on the buildings now or hereafter erected on the premises aforesaid in such office or offices as the said mort- gagee, and his executors, administrators, or assigns, shall ap- prove, in a sum not less than dollars, and that the policy or policies of such insurance shall be assigned and trans- ferred or made payable in case of loss to the said mortgagee, or his executors, administrators, or assigns, as collateral se- curity hereto, and in default thereof hereby agree that the said mortgagee, or his executors, administrators, or assigns, may effect such insurance in the name of the said mortgagor, and his heirs and assigns, payable in case of loss to the said mortgagee, and his executors, administrators, or assigns, and that the premium or premiums paid therefor shall be a further charge upon said granted premises secured by these presents. In witness whereof I have hereunto set my hand and seal this day of . Ch. 24) MORTGAGES (real estate) 955 SOUTH CAROLINA Mortgage Ths State of South Carolina, County of . To all whom these presents may concern I, of , send greeting : Whereas, I, the said , in and by a certain bond or obligation bearing date the day of , stand firmly held and bound unto , of , in the penal sum of dollars, conditioned for the payment of the full and just sum of dollars (state terms), as in and by the said bond and condition thereof reference being thereunto had, will more fully appear. Now, know all men that I, the said , in consideration of the said d€bt and sum of money aforesaid, and for the better securing the payment thereof to the said ac- cording to the condition of the said bond, and also in considera- tion of the further sum of three dollars to m«, the said , in hand well and truly paid by the said at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, and re- leased, and by these presents do grant, bargain, sell, and re- lease, unto the said , all that {description). Together with all and singular the rights, members, heredit- aments, and appurtenances to the said premises belonging or in any wise incident or appertaining. To have and to hold all and singular the premises above men- tioned unto the said • , his heirs and assigns forever. And I do hereby bind myself, my heirs, executors, and ad- ministrators, to warrant and forever defend all and singular the said premises unto the said , his heirs and assigns. 956 FORM BOOK (Ch. 24 against myself, and my heirs, and against every person law- fully claiming or to claim the same, or any part thereof. And it is agreed by and between the said parties that the said mortgagor, his heirs, executors, or administrators, shall and will forthwith insure the buildings on the said prem- ises and keep the same insured from loss or damage by fire in at least the sUm of dollars, in a company or com- panies to be approved by the said mortgagee, and assign the policy of insurance to the said mortgagee, his executors, ad- ministrators, or assigns, and in default thereof the said mort- gagee, his executors, administrators, or assigns, may cause the same to be insured in his or their own name, and reimburse themselves for the premium and expenses of such insurance under the mortgage : Provided, always, nevertheless, and it is the true intent and meaning of the parties to these presents, that if the said mort- gagor, his heirs, executors, or administrators, shall well and truly pay or cause to be paid unto the said mortgagee, his exec- utors, administrators, or assigns, the said debt or sum of money aforesaid, with interest thereon, if any shall be due, ac- cording to the true intent and meaning of the said bond and condition thereunder written, and all sums of money provided to be paid by the mortgagor, his heirs, executors, adminis- trators, or assigns, under the covenants of this mortgage, then this deed of bargain and sale shall cease, determine, and be utterly null and void; otherwise it shall remain in full force and virtue. And it is agreed by and between the said parties that the said mortgagor, his heirs and assigns, shall hold and enjoy the said premises until default of payment shall be made. And it is further agreed and covenanted by and between the said parties that until the debt hereby secured be paid the said mortgagor, his heirs, executors, administrators, or assigns, shall and will pay all taxes on the property hereby mortgaged. Ch. 24) MORTGAGES (eeal estath) 957 when due and payable, and in case he or they fail to do so, the said mortgagee, his executors, administrators, or assigns, may pdy said taxes, together with any costs or penalties incurred thereon or any part thereof and reimburse themselves for the same under this mortgage. And it is further agreed and covenanted between the said parties that in case the debt secured by this mortgage or any part thereof is collected by suit or action, or this mortgage be foreclosed or put into the hands of an attorney for collection, suit, action, or foreclosure, the said mortgagor, his heirs, execu- tors, administrators, or assigns, shall be chargeable with all costs of collection, including per cent, of the principal and interest on the amount involved as attorney's fees, which shall be due and payable at once, which charges and fees, to- gether with all costs and expenses, are hereby secured and may be recovered in any suit or action hereupon or hereunder. Witness my hand and seal this day of , in the year of our Lord , and in the year of the sover- eignty and independence of the United States of America. SOUTH DAKOTA Mortgages shall be in substantially the following forms. In order to be entitled to record, a mortgage or an assignment must contain the post office address of the mortgagee or as- signee. Mortgage (Statutory) This mortgage made this day of , in the year 19 — , by , of county, and state of , mort- gagor, to , of P. O., county of , and state of , mortgagee : Witnesseth that said mortgagor — hereby mortgage — to said mortgagee — the following described premises situated in the 958 FORM BOOK (Ch. 24 county of , and state of South Dakota, to wit, — ^ , as security for tlie payment to said mortgagee — at , of the principal sum of dollars, and interest thereon at per cent, per annum from date, according to certain promissory note — bearing even date herewith, due , 19-. Said mortgagor — further agree — to pay all taxes and as- sessments that may be levied upon said premises before the same shall become delinquent (and to keep the buildings, if any, upon said premises safely insured for the benefit of said mortgagee — in the sum of dollars against loss by fire , and deliver the insurance policies to said mortgagee — ). In case of the mortgagor's failure to pay said taxes or as- sessments before the same become delinquent, or to pay in- surance premiums for insurance on said buildings, said mort- gagee — or assignee may do so, and the amounts so paid, with interest at per cent, from date of payment, shall be added to and deemed a part of the money secured by this mort- gage. Said mortgagor — hereby relinquish — rights of home- stead in said premises, and warrant — that — ^he the owner — in fee of said premises, and that the same are free from all incumbrances . In case of default in the payment of said principal sum of money or any part thereof or interest thereon at the time or times above specified for payment thereof, or in case of non- payment of any taxes, assessments, or insurance as aforesaid, or of breach of any covenant or agreement herein contained, then and in either case the whole, principal and interest, of said note — , shall at the option of the holder thereof im- mediately become due and payable, and this mortgage may be foreclosed by action, or by advertisement as provided by chap- ter 28 of the Code of Civil Procedure of the Revised Codes of 1903, State of South Dakota, and this paragraph shall be Ch. 24) MORTGAGES (eeal estate) 959 deemed as authorizing and constituting a power of sale as pro- vided in said chapter and any acts amendatory thereof. (Acknowledgment.) (Signature) . Laws 1911, c. 257, § 3. TENNESSEE Mortgage and Deed of Trust (Statutory) (Ante, p. 622.) I Deed of Trust For and in consideration of one dollar to paid, the receipt of which is acknowledged, and the other considerations hereinafter mentioned, have this day bargained and sold, and do hereby transfer and convey, to , and his successors in trust, certain property in the state of Tennessee, county, , described as follows, to wit (descrip- tion). To have and to hold said property to the said , trus- tee, and his successors in trust, forever. covenant that lawfully seised of the said property, have a good right to convey it, and that the same is unincumbered. fur- ther covenant and bind , heirs and representa- tives, to warrant and defend the title to said property to the said , or his successor in trust and his assigns, forever, against the lawful claims of all persons. But this conveyance is made in trust for the following uses and trusts, and for no other purpose, to wit (state terms). Now, if shall pay the sum — aforesaid when due, ac- cording to the terms of said note — , then this instrument is to be of no further force or effect. But if fail to pay the said sum — of money when due as aforesaid, or any part of said sum — , according to the terms above expressed, then, 960 FORM BOOK (Ch. 24 upon such default, this conveyance remains in full force and effect, and the said trustee, or his successor in trust, is hereby- authorized and empowered, upon giving days' notice, by publication in , county, Tennessee, to sell said property at the courthouse door in said county to the highest bidder, for cash, and free from the equity of redemp- tion, homestead, dower, and all other exemptions of every kind, which are hereby expressly waived, and the said trustee, or his successor in trust, is authorized to make a deed to the purchaser. The creditor may bid at any sale under this con- veyance. agree that the trustee may at any time after default in payment of principal or interest as each falls due respectively enter and take possession of said property, and shall only account for net rents received by him. And agree to keep all the buildings on said property insured in some reliable fire insurance company or companies for the sum of $ until the sum herein secured is fully paid, and to have the loss made payable on the policy to said trustee for the benefit of the owners and holders of the debt herein secured. agree to keep the improvements on said property in good repair and preservation, and to pay all taxes and assessments, and to pay them when due, and in case fail to do either, then said trustee, or the creditor here- in secured, may do either, and charge and treat the amount so expended as a part of the debt herein secured. In case of sale under this deed of trust, the proceeds will be applied by the trustee: First. To pay all the costs and charges of executing this trust, including attorney's fees and the expense of any litiga- tion which may arise on account of the execution and enforce- ment of this trust. Second. To pay said debt, or any balance thereof then re- maining unpaid. Ch. 24) MORTGAGES (rbal estatb) 961 Third. The residue to be paid to or order. And in case of the death, absence, inabihty, or refusal to act of the said trustee at any time when action under the foregoing pow- ers and trusts may be required, the owner of the debt herein secured is hereby authorized to name and appoint a successor to execute this trust, and the title herein conveyed to — shall be vested in said successor. In the event of a sale of said property under and by virtue of this trust, then the said part — of the first part, and all per- sons holding under , shall be and become the tenants at will of the purchaser of the same from and after the execution and delivery of a deed to such purchaser, said tenancy to be 'determined at the option of said purchaser upon five days' written notice. This day of , 19 — . {Signatures^ TEXAS Deed of Trust The State ot Texas, ~ County of Know all men by these presents that , of , for and in consideration of the sum of one dollar in hand paid by , of , trustee, and of the indebtedness hereinafter mentioned, have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said , trus- tee, his successors and assigns forever the following described property, to wit {description). To have and to hold said premises unto him, the said , trustee, his successors or assigns forever, together with all and singular the rights, tenements, hereditaments, and appurtenanc- es thereunto belonging or in any wise appertaining. And ; do hereby bind , heirs, executors, and TiFF.FOKMS — 61 962 FORM BOOK (Ch. 24 administrators to warrant and forever defend all and singular the said premises unto the said trustee, his assigns and suc- cessors, against every person whomsoever lawfully claiming or to claim the same or any part thereof. This conveyance is in trust, however, for the following purposes, and upon the following conditions, to wit: If , the said , shall well and truly pay or cause to be paid, when the same shall become due according to the tenor and effect thereof, promissory note — executed by , payable to the order of , and described as follows (state terms), and the agreements and covenants on part shall be well and truly performed, then this con- veyance shall become null and void, and shall be released at the cost of the said . But if default shall be made in the payment of said note — , or any of them, or any installment of interest thereon, when the same shall become due, or in case of the breach of any of the agreements or covenants here- in mentioned, or in any case herein provided, then at the re- quest of the legal holder of said note — , or any of them, the said trustee, or his successor or successors appointed here- under, is hereby authorized and empowered to sell, the property above described to the highest bidder, for cash in hand, at the time and place and in the manner and after the advertisement now required by law. And it is hereby agreed that the said trustee, or his successor, may sell said property together or in lots or parcels, as to him shall seem expedient, and after said sale as aforesaid shall execute and deliver to the purchaser or purchasers thereof good and sufficient deed or deeds in law to the property so sold, in fee simple, with the usual war- ranties, and shall receive thejiroceeds of said sale, and out of the same shall pay: First, all charges, costs and expenses of executing this trust, including a reasonable fee to the trustee ; second, the note — above described, and all stuns of money due or to become due hereunder, with interest as agreed; and, Ch. 24) MORTGAGES (rbal estatb) 963 third, shall render the overplus, if any, unto , ' legal representatives or assigns, upon reasonable request. And further covenant with said trustee that — will at all times during the continuance of this trust keep the buildings and improvements now on, or hereafter to be erect- ed on, said premises, insured against loss by fire to the extent insurance can be obtained thereon, in companies acceptable to and with loss payable to said trustee, or his successors, for the benefit of the holder or holders of said note — , and deliver the policies to said trustee, or his successors, and to pay, before the same shall become delinquent, all taxes and assessments that may be laid within the state of Texas upon said premises or any part thereof. And it is agreed that if the said grantor — shall fail to effect said insurance and deliver such policies as herein provided, or to pay such taxes, then the said insurance may be effected, and said taxes may be paid by the legal holder of said note — -, or any of them, and sums so expended shall become part of the debt hereby secured, and shall draw inter- est at the rate of per cent, per annum from date so ex- pended until paid. And it is specially agreed that if default be made in the payment of any principal or interest on said note — , or any of them, or in the performance of the covenants or agreements herein contained, or any of them, then, at the option of the legal holder of said note — , the whole of the debt herein se- cured shall become due and payable, and may be collected by suit or by proceeding hereunder. And it is stipulated and agreed that in case of any sale here- under all prerequisites to said sale shall be presumed to have been performed, and that in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of money secured, or as to the request of the trus- tee to enforce this trust, or as to the proper and due appoint- 964 FOEM BOOK (Ch. 24 merit of any substitute trustee, or as to the advertisement of sale, or time, place, and manner of sale, or as to any other pre- liminary act or thing, shall be taken in all courts of law or equity as prima facie evidence that the facts so stated or re- cited are true. And it is further stipulated and agreed that in case of the death, resignation, removal, or absence of said trustee from the county of , Texas, or his refusal or failure or in- ability to act, then such person as may be appointed by the holder of said note — , or any of them, shall be and is hereby appointed and made successor in trust to said trustee, with all powers herein conferred upon said trustee. Witness hand — this day of , A. D. 19—. UTAH A mortgage may be in substantially the following form : Mortgage (Statutory) A. B., mortgagor (here insert name or names and place of residence), hereby mortgages to C. D., mortgagee (here insert name or names and place of residence), for the sum of dollars, the following described tract — of land in county, Utah (here describe the premises). This mortgage is given to secure the following indebtedness (here state anwunts and form of indebtedness, maturity, rate of interest, by and to whom payable, and where). The mortgagor agrees to pay all taxes and assessments on said premises, and the sum of dollars attorney's fee in case of foreclosure. Witness the hand of said mortgagor this day of — ■ , A. D. 19—. And, when executed as required by law, shall have the ef- fect of a conveyance of the land therein described, together Ch. 24) MOETGAGES (eeal estatb) 965 with all the rights, privileges, and appurtenances thereunto be- longing, to the mortgagee, his heirs, assigns, and legal repre- sentatives, for the payment of the indebtedness therein set forth, with covenant from the mortgagor that all taxes and assessments levied and assessed upon the land described dur- ing the continuance of the mortgage shall be paid previous to the day appointed for the sale of such lands for taxes, and may be foreclosed as provided by law and with the same effect, upon any default being made in any of the conditions thereof as to payment of either principal, interest, taxes, or assess- ments. Comp. Laws 1907, § 1983. VERMONT Mortgage Know all men by these presents that , of , for the consideration of dollars received to full satisfaction of , of , do give, grant, bargain, sell, and confirm unto the said , heirs and assigns, a certain piece of land in , in the county of , and state of Vermont, described as follows (description). To have and to hold the above granted and bargained prem- ises, with the appurtenances thereto, unto , the said , heirs and assigns forever, to them and their own proper use, benefit, and behoof. And also , the said , do for -, heirs, executors, and ad- ministrators, covenant with the said , heirs and assigns, that at and until the ensealing of these presents well seised of the premises as a good, indefeasible estate in fee simple, and have good right to bargain and sell the same in manner and form as above written, and that the same is free from all incumbrances whatsoever. And, furthermore, , the said — ■ , do by these presents bind , and heirs forever, to warrant and defend the s?me against all lawful claims and demands whatsoever. The conditions of this deed are such that if the said 966 FORM BOOK (Ch. 24 shall pay (state terms), then this deed to be null and void; otherwise to remain in full force and virtue. In witness whereof have hereunto set hand and seal this day of . VIRGINIA A deed of trust to secure debts or indemnify sureties may be in the following form or to the same effect : Deed of Trust (Statutory) This deed made the day of , in the year , between (the grantor), of the one part, and (the trustee), of the other part, witnesseth: That the said (the grantor) doth (or, do) grant unto the said (the trvistee) the following property (here describe it). In trust to secure (here describe the debts to be secured or the sureties to be indemnified, and insert covenants, or any other provisions the parties may agree upon). Witness the fol- lowing signatures and seals (or, signature and seal). Code 1904, § 2441. Deed of Trust — Another Form This deed made this day of , in the year between (the grantor or grantors), part — of the first part, and (the trustee or trustees), part — of the second part : Witnesseth that said part — of the first part do — grant unto the said part — of the second part, with general warranty, the following property, to wit (description), in trust to secure to the holder of the hereinafter described promissory notes the payment of the sum of dollars (state terms). In the event that default shall be made in the payment of the Ch. 24) MORTGAGES (real estatb) 967 above-mentioned notes as they shall become due and payable, then the trustees, or either of them, on being required so to do by the holder of the said notes, his executors, administra- tors, or assigns, shall sell the property hereby conveyed. And it is covenanted and agreed between the parties afore- said that in case of a sale the same shall be made after first advertising the time, place, and terms thereof for , and upon the following terms, to wit : For cash as to so much of the proceeds as may be necessary to defray the expenses of executing this trust, including a trustee's commission of five per centum, the fees for drawing and recording this deed, if then unpaid, and to discharge the amount of money then pay- able upon the said notes, and if at the time of such sale any of the said notes shall not have become due and payable, and the purchase money be sufficient, such part or parts of the said purchase money as will be sufficient to pay off and discharge such remaining notes shall be made payable at such time or times as the said remaining notes will become due, the pay- ment of which part or parts shall be properly secured, and in case the net proceeds of sale shall be insufficient to pay off all of the said notes in full, then the same shall be applied towards the payment of the said notes in the order of their maturity, it being intended hereby to create a priority in favor of each of said notes over any other note which may become due and payable subsequent thereto; and if there be any residue of said purchase money, the same shall be made payable at such time and secured in such manner as the said part — of the first part, executors, administrators, or assigns, shall prescribe and direct, or, in case of failure to give such direction, at such time and in such manner as the said trus- tees, or either of them, shall think fit. The said part — of the first part covenant — to pay all taxes, assessments, dues, and charges upon the said property hereby conveyed so long as ■ , or heirs or assigns, shall hold the same, and 968 FOEM BOOK (Ch. 24 further covenant — and agree — to keep the buildings on the property hereby conveyed insured for the full amount of $ '■ for the further protection of the said holder of the said notes, and in the event of failure to do so, then the trustees, or either of them, or the beneficiary under this deed, may effect or renew such insurance from time to time, so long as the said debt or any part thereof remains unpaid ; and the insurance premiums shall constitute a part of the lien created by this deed, to be paid out of the proceeds of the property, if sold, or to be recoverable by all the remedies in law or equity by which the debt aforesaid may be recoverable. If no default shall be made in the payment of either of the above-mentioned notes or insurance premiums, then upon the request of the part — of the first part a good and sufficient deed of release shall be executed to — at own proper costs and charges. Witness the following signature— and seal — , Release of Trust Deed This deed made this day of , in the year , between {trustee), of the first part, (beneficiary), of the second part, and (grantor in trust deed), of the third part: Whereas, the said , in order to secure the said the payment of the sum of dollars, did by deed bearing date on the day of , and recorded in the office of the clerk of , in D. B. No. , page , convey in trust to the said , heirs and assigns, certain real estate described in the said deed, as follows (description) ; and whereas, the said sum of money has been fully paid by the said , and he, the said ■ '—, desires that the said property should be released from the said deed of trust. Now, therefore, this deed witnesseth that for and in consid- Ch. 24) MORTGAGES (rbal estate) 96ft eration of the premises, and in further consideration of one dollar to them in hand paid, the said and do release unto the said all their claim upon the said prop- erty. Witness the following signatures and seals. WASHINGTON Mortgages may be in the following form, substantially: Mortgage (Statutory) The mortgagor {here insert name or names) mortgages to {here insert name or names of mortgagee or mortgagees') to secure the payment of {here recite the nature and amount of indebtedness, showing whefi due, rate of interest, and whether secured by note or not) the following described real estate {here insert description), situated in the county of ^-, state of Washington. Dated this day of , 19 — . Every such mortgage, when otherwise properly executed, shall be deemed and held a good and sufficient conveyance and mortgage to secure the payment of the money therein specified. The parties may insert in such mortgage any lawful agreement or condition. Rem. & Bal. Ann. Codes & St. § 8750. Mortgage (Another Form) This indenture made this day of between , part — of the first part, and , part — of the second part: Witnesseth that the said part — of the first part, for and in consideration of the sum of — ■ dollars to in hand paid by the said part — of the second part, the receipt whereof is hereby acknowledged, do — by these presents grant, bargain, sell, convey, and confirm unto the said part — of the second 970 FORM BOOK (Ch. 24: part, and to heirs and assigns, the following described real estate (description), together with all and singular tene- ments, hereditaments, and appurtenances thereunto belonging. This conveyance is intended as a mortgage to secure the pay- ment of dollars, together with interest thereon at the rate of per cent, per from date until paid, ac- cording to the terms and conditions of certain promis- sory note — bearing date , made by , payable to the order of . And these presents shall be void if such payment be made according to the terms and conditions there- of. But in case default be made in the payment of the prin- cipal or interest of said promissory note — , or any part thereof, when the same shall become due and payable, according to the terms and conditions thereof, then the said part — of the second part, executors, administrators, and assigns, are hereby empowered to sell the said premises, with all and every of the appurtenances, or any part thereof, in the manner pre- scribed by law, and out of the money arising from such sale to retain the whole of said principal and interest, whether the same shall be then due or not,, together with the costs and charges of making such sale, and the overplus, if any there be, shall be paid by the part — making such sale, on demand, to the said part — of the first part, heirs or assigns. And in any suit or other proceeding that may be had for the recov- ery of said principal sum and interest, on either said note — or this mortgage, it shall and may be lawful for the said part — of the second part, heirs, executors, administrators, or assigns, to include in the judgment that may be recovered counsel fees and charges of attorneys and counsel employed in such foreclosure suit, the sum of dollars (or in case of settlement or payment being made after suit has been com- menced, and before the final decree has been entered thereon, an attorney's fee of dollars shall be taxed as part of the costs in such suit), as well as all payments that the said part — Ch. 24) MORTGAGES (real bstatb) 971 of the second part, executors, administrators, or as- signs, may be obliged to make for or their security by insurance or on account of any taxes, charges, incumbrances, or assessments whatsoever on the said premises or any part thereof. In witness whereof the said part — of the first part ha — hereunto set hand — (and seal — ) the day and year first above written. WEST VIRGINIA Deed of Trust (Statutory) (A form of deed of trust to secure debts or indemnify sure- ties is provided by statute. Such deed may be in the form given or to the same effect. Code 1906, § 3052. The form is the same as that of Virginia, ante, p. 966.) Trust Deed This deed made this day of , 19 — , between , of the first part, and , trustee, of the second part: Witnesseth that the said , for and in consideration of dollars, do — grant unto the said , trustee, the following described property (description). And the said part — of the first part do — covenant and agree to warrant, generally, the title to the property hereby conveyed, to the said , trustee, in trust to secure the payment of several promissory notes for the sum of dol- lars each, bearing even date herewith, executed by the said , and payable to the order of , with interest thereon from date (state terms). And the said do — hereby covenant and agree that, in case — he — make default in the payment of the whole or any part of any of the said promissory notes and the interest thereon,, when the same becomes due, then the said 972 FORM BOOK (Ch. 24 may sell at public auction, for cash, the property hereby con- veyed, giving notice of such sale as prescribed by law. Witness the following signature — and seal — the day and year above written. WISCONSIN A mortgage may be in substantially the following form : Mortgage (Statutory) A. B., mortgagor, of county, Wisconsin, hereby mortgages to C. D., mortgagee, of county, Wisconsin, for the sum of dollars, the following tract of land in county (here describe the premises): This mortgage is given to secure the following indebtedness (here state amount or amounts and form, of indebtedness , whether on note, bond, or otherwise, time or times when due, rate of interest, by and to whom payable, etc.). The mortgagor agrees to pay all taxes and assessments on said premises, and the sum of dollars attorney's fees in case of foreclosure thereof. Witness the hand and seal of said mortgagor this day of 19—. In presence of: . (Seal.) . ■ . (Seal.) Such mortgage, when executed and acknowledged as re- quired by law, shall have the effect of a conveyance of the land therein described, together with all the rights, privileges, and appurtenances thereunto belonging in pledge to the mortgagee, his heirs, assigns, and legal representatives for the payment of the indebtedness therein set forth, with covenant from the mort- gagor that all taxes and assessments levied and assessed upon the land described during the continuance of the mortgage shall be paid previous to the day appointed by law for the sale of lands for taxes as fully as the. forms of m.ortgage now and heretofore in common use in this state, and may be foreclosed Ch. 24) MOETGAGBS (kbal estate) 973 in the same manner and with the same effect upon any de- fault being made in any of the conditions thereof as to payment of either principal, interest, or taxes. Stat. 1911, § 2209. WYOMING Mortgages of lands may be substantially in the following form: Mortgage Deed (Statutory) A. B., mortgagor {here insert the name or names and place of residence of the mortgagor or mortgagors), to secure the payment of {here insert the amount of the mortgage indebted- ness, when due, the rate of interest, and whether or not a note has been given therefor), does hereby mortgage to C. D., mortgagee {here insert the name and pla<:e of residence of the mortgagee), the following described real estate situate in the county of {here insert the name of the county in which the lands mortgaged are situated), state of Wyoming, to wit {here insert a description of the property mortgaged). The mortgagor agrees to pay all taxes and assessments on said premises and to keep the buildings thereon insured in a sum not less than {here insert the amount of the insurance to be carried) during the life of this mortgage, in favor of and payable to the mortgagee; and in case the mortgagor shall fail to pay such taxes and assessments, and to keep said prem- ises insured as aforesaid, the mortgagee may insure said build- ings and pay said taxes and assessments, and all sums so paid shall be added to and considered as a part of the above indebt- edness hereby secured, and shall draw interest at the same rate. In case default shall be made in the payment of the above sum hereby secured, or in the payment of the interest thereon, or any part of such principal or interest, when the same shall become due, or in case default shall be rnade in any of the 974 FORM BOOK (Ch. 24 covenants and agreements hereof, then the whole indebtedness hereby secured, with the interest thereon, shall become due and payable, and the mortgagee may proceed, pursuant to law, to foreclose on and sell said property, and out of the proceeds of such sale he shall pay all sums due hereunder, together with all costs of sale and foreclosure, including dollars as attorney's fees. (And where the right of homestead is re- leased, add the following :) Hereby relinquishing and waiving all rights under and by virtue of the homestead exemption laws of said state. Dated this day of , A. D. . In presence of: A. B. Comp. St. 1910, § 3666. Every mortgage of lands in substance in the above form, when otherwise duly executed, shall be deemed and held a good and sufficient mortgage in fee to secure the payment of the moneys therein specified ; and if the same shall contain after the word "mortgage" where it first appears in said form the words "and warrants," such mortgage shall be construed the same, to all intents and purposes, as if full covenants of seisin, good right to convey against incumbrances, quiet enjoyment, and general warranty, as expressed in sections 3658 and 3659, were fully written therein; but if the words "and warrants" are omitted, no such covenants shall be implied. Ibid. § 3667. A deed of trust to secure debts or indemnify sureties may be in the following form, or to the same effect : Deed of Trust (Statutory) This deed made the day of , in the year of , between (the grantor), of the one part, and (the trustee), of the other part, witnesseth: That the said (the grantor) doth (or, do) grant unto the said (the trustee) the following property (here describe it), in trust to secure (here describe the debts to be secured or the Ch. 24) MOKXGAGES (eeal estatb) 975 sureties to be indemnified, and insert covenants or any other provisions the parties may agree upon). Witness the following signatures and seals (or, signature and seal). Ibid. § 3688. Ill Mortgage Notes and Bonds Mortgage Note $ . , 19-. years after date, for value received, promise to pay to the order of the sum of dollars (at ), with interest thereon at the rate of per cent. per annum, payable semi-annually, during said term, and for such further time as said principal sum or any part thereof shall remain unpaid. (^Signature.) Secured by mortgage on . Mortgage Coupon Note No. . , 19—. $ . after date, for value received, promise to pay to the order of the sum of dollars, at the Bank in , with interest thereon at the rate of per cent, per annum from date until said principal sum is fully paid, said interest being payable semiannually on the days of and in each year, according to the tenor of interest coupon notes of dollars each attached hereto and bearing even date herewith. And it is ex- pressly agreed that if default be made in the payment of any one of the installments of interest aforesaid, at the time and place aforesaid, and such default shall continue for days, then and in that event said principal sum of dol- lars shall at the election of the holder at once and without no- 976 FORM BOOK (Ch. 24 tice become due and payable, anything hereinbefore contained to the contrary notwithstanding. (Signature.) Secured by mortgage on real estate of even date herewith. Interest Coupon No. of Note . Coupon No. . $ . 19— On the day of , 19 — , promise to pay to the order of dollars, at the Bank in , being for interest due on that day according to the tenor of a principal note of $ of even date herewith. This coupon to draw interest at per cent, per annum after maturity. Value received. . Mortgage Coupon Note $ . , 19—. On the day of , 19 — , for value received, I promise to pay to the order of , at the , in United States gold coin of the present' standard weight and fineness, the principal sum of dollars, with current ex- change on New York City, and interest on said principal sum from the date hereof until paid at the rate of per cent. per annum, payable semiannually according to the terms of interest coupon notes executed simultaneously herewith and attached hereto. It is hereby agreed that, if any installment of said interest is not paid when due, then at the option of the holder of this note the said principal sum, with all interest due or accrued thereon, shall become due and payable at once without notice. (Signature.) Ch. 24) MOKTGAGES (real estate) 977 Interest Coupon $ . , 19—. No. . On the day of , for value received, I promise to pay to the order of , at the , the sum of dollars in United States gold coin of the present standard weight and fineness, with current exchange on New York City, being the interest due at maturity hereof on principal note for $ of even date herewith. Mortgage Bond (New York) Know all men by these presents that I, , of , am held and firmly bound unto , of , in the sum of dollars, lawful money of the United States, to be paid to the said , or his executors, administrators, or assigns, for which payment to be made I bind myself, and my heirs, executors, and administrators, firmly by these presents. Sealed with my seal. Dated the day of . The condition of the above obligation is such that, if the above-bounden , his heirs, executors, or administrators, shall pay or cause to be paid unto the above-named -^ , his executors, administrators, or assigns, the sum of • dollars on the day of , 19 — , with interest there- on at the rate of per cent, per annum, payable semi- annually (etc.), then the above obligation to be void ; otherwise to remain in full force and virtue. And it is hereby expressly agreed that the whole of said principal sum shall become due at the option of the said ob- ligee after default in the payment of interest for days, or after default in the payment of any tax or assessment which may be levied or imposed upon the premises described in the mortgage accompanying this bond for days after notice and demand. TiFF.FOKMS— 62 978 FORM BOOK (Ch. 24 And it is also agreed that the said party of the first part will keep the buildings on the premises described in said mort- gage insured against loss by fire for the benefit of the mort- gagee therein. And it is further understood and agreed that, if default shall be rnade in the payment of said principal sum, or any part there- of, or of any interest which shall accrue thereon, or any part thereof, or of any taxes and assessments on the premises above referred to, or any part thereof, or of the interest thereon, or any part -thereof, at the respective times herein specified for the payment thereof, the said obligee, and his legal representa- tives or assigns, shall have the right forthwith, after any such default, to enter upon and take possession of the said mort- gaged premises, and receive the rents, issues, and profits there- of, and apply the same, after payment of all necessary charges and expenses, on account of the principal and interest of this bond and the mortgage accompanying the same ; and the said obligee, and his legal representatives or assigns, shall be at liberty and have the right immediately after any such default, upon a complaint filed or any other legal proceedings com- menced for the foreclosure of said mortgage, to apply for, and shall be entitled as a matter of right and without regard to the value of the premises, or the solvency or insolvency of said obligor or any owner of the mortgaged premises, and on days' notice to said obligor, his legal representatives or assigns, in any court of competent jurisdiction, to have granted a receiver of the rents, issues, and profits of the said mortgaged premises, with power to lease said premises for a term to be approved by the court, with power to pay taxes and assess- ments which are or may become a lien on said premises, and to keep the same insured, and with power to take proceedings to dispossess tenants, and make all necessary repairs, and with such other powers as may be deemed necessary, who, after de- Ch. 24) MOETGAGES (hbal estate) 979 ducting all charges and expenses attending the execution of the said trust as receiver, shall apply the residue of said rents and profits to the payment and satisfaction of this bond and the mortgage accompanying the same, or to any deficiency which may arise after applying the proceeds of the sale of said premises to the amount due, including interest and costs and expenses of the foreclosure and sale. Bond and Warrant (Pennsylvania) Know all men by these presents that , of , held and firmly bound unto , of , in the sum of dollars lawful money of the United States of America, to be paid to the said , certain attorney, executors, adminis- trators, or assigns, to which payment well and truly to be made bind sel — , heirs, executors, and administrators, firmly by these presents. Sealed with seal — . Dated the day of . The condition of this obligation is such that, if the above- bounden , heirs, executors, administrators, or any of them, shall and do well and truly pay or cause to be paid unto the above-named , certain attorney, executors, administrators, or assigns, the just sum of dollars law- ful money as aforesaid, in years from the date hereof, together with interest thereon, payable annually at the rate of per cent, per annum, and also all premiums paid by the said , executors, administrators, or assigns, for maintaining an insurance against loss or damage by fire, to an amount not exceeding dollars, upon the premises described in the accompanying indenture of mortgage, without any fraud or further delay, and shall produce to the said , executors, administrators, or assigns, on or before the day of of each and every year, re- ceipts for all taxes of the current year assessed upon the mort- 980 FORM BOOK (Ch. 24 gaged premises, then the above obligation to be void, or else to be and remain in full force and virtue: Provided, however, and it is hereby expressly agreed, that if at any time default shall be made in the payment of interest on said sum for the space of after the same shall fall due, or in the payment of any premium of insurance as aforesaid, or in such production to the , executors, administrators, or assigns, on or before the day of of each and every year, of such receipts for such taxes of the current year upon the premises mortgaged, then and in such case the w^hole principal debt aforesaid, shall, at the option of the said , executors, administrators, or assigns, become due and payable immediately, and payment of said principal, and all interest thereon, may be enforced and recovered at once, any- thing herein contained to the contrary thereof notwithstand- ing : And provided, further, however, and it is hereby express- ly agreed, that if at any time hereafter, by reason of any de- fault in payment, either of said principal sum at maturity, or of said interest, or of said premiums of insurance, or in produc- tion of said receipts for taxes within the time specified, a writ of fieri facias is properly issued upon the judgment ob- tained upon this obligation, or by virtue of the warrant of attorney hereto attached, or a writ of scire facias is properly issued upon the accompanying indenture of mortgage, an at- torney's commission for collection, viz., per cent., shall be payable, and shall be recovered in addition to all principal, interest, and premium of insurance then due, besides costs of suit. And, further, do by these presents empower , of , or any other attorney of any court of record in the state of or elsewhere, to appear for therein and confess judgment against for the said penal sum, with costs of suit and release of all errors, and do hereby Ch. 24) MORTGAGES (real estatb) 981 waive the right of inquisition on real estate, and all laws ex- empting real or personal property from levy and sale on exe- cution. (Signature and Seal.) Sealed and delivered in the presence of us. IV Assignment o£ Mortgage An assignment of a mortgage or deed of trust usually takes the form of a deed poll which in terms assigns the mortgage deed or deed of trust and the promissory note or bond there- by secured, and an assignment in this form, executed with the formahties prescribed for a conveyance, would appear to be everywhere sufficient. It is generally enough to describe the mortgage by reference to the parties, date, and record without describing the land. Covenants on the part of the assignor, as that so much is owing, and that he has good right to as- sign, are often added; and the instrument sometimes includes a power of attorney running to the assignee. The forms in use in the different states differ somewhat. In several states a short form of assignment which may be used is given by statute. Assignment of Mortgage Know all men by these presents that I, , of , in consideration of the sum of dollars to me paid by , of , the receipt whereof is hereby acknowledged, do hereby assign, transfer, and set over unto the said a certain indenture of mortgage made by to me, dated the day of , and filed for record on the day of , and recorded in the (registry of deeds) in book , page , together with all and singular the premises therein described and the note (or, bond) or obligation therein mentioned and the moneys due and to become due thereon, with the interest. In witness whereof I have hereunto set my hand and seal this day of . 982 FORM BOOK (Ch. H Same — By Assignee Know all men by these presents that I, , of , in consideration of the sum of dollars, to me paid by {assignee), of , the receipt whereof is hereby acknowl- edged, do hereby assign, transfer and set over unto the said (as- signee) a certain indenture of mortgage made by , of , as mortgagor to of , as mortgagee, dated the day of , and filed for record in the (registry of deeds) on the day of , and recorded therein in book — , page , and assigned by the said mortgagee to me by deed of assignment dated the day of , and filed for record in the said (registry of deeds) on the day of , and recorded therein in book , page , together with all and singular the premises in said mortgage described and the note (or, bond) or obligation therein mentioned and the moneys due and to become due thereon, with the interest. In witness, etc. Same — With Power of Attorney and Covenant by Assignor (Follow as in preceding form, adding as follows:) [PowgR Of ATTORNEY.] And I hereby appoint the said (assignee) my attorney irrevocable, in my name or otherwise, but at his own cost, to take all proper ways and means for the recovery of the said moneys and interest, and in case of pay- ment to discharge the said mortgage as fully as I could do if these presents were not made. [Covenants oe assignor.] And I do, for myself, my heirs, executors, and administrators, covenant with the said , his executors, administrators, and assigns,^ that there is now 8 The following Is a fuller form: "That the said note and mort- gage are valid and subsisting ; that I have good right to assign the Ch. 24) MORTGAGES (ee3Al estate) 983 owing on the said note {or, bond) and mortgage the principal sum of dollars, with interest thereon from the day of , and that I have good right to sell and assign the same. In witness, etc. Same — By Indorsement In consideration of the sum of dollars to me paid by , the receipt whereof is hereby acknowledged, I, , the within-named mortgagee, do hereby sell, assign, transfer, and set over unto , of '■ — , the within indenture of, mortgage, together with the note or obligation therein men- tioned and the moneys due and to become due thereon. In witness, etc. Assignment of Mortgage (Illinois) Know all men by these presents, that I, , of - the party of the first part, in consideration of the sum of dollars, to me in hand paid by , of , the party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged do hereby grant, bargain, sell, assign, transfer, and set over unto the said party of the second part, his heirs, executors, administrators, and assigns, a certain indenture of mortgage bearing date the day of , made by , of ^, to me, and all my right, title, and interest to the premises therein describ- ed, as follows, to wit (description), which said mortgage is re- corded in the recorder's office of the county of , in the state of Illinois, in book No. of mortgages, at page same; that I have not done or suffered any act or thing whereby the said mortgage has been released or discharged In whole or in part; and that the sum of dollars, with interest from the day of . remains unpaid thereon." 984 FORM BOOK (Ch. 24: Together with the note or obligations therein described, and the money due or to grow due thereon, with the interest, to have and to hold the same unto the said party of the second part, his executors, administrators, or assigns, forever, subject only to the provisos in the said indenture of mortgage con- tained. And I do, for myself, my heirs, executors, and administra- tors, covenant with the said party of the second part, his heirs, executors, administrators, and assigns, that there is now actu- ally due and owing on said note and mortgage, in principal and interest, dollars, and that I have good right to assign the same. And I do hereby make, constitute, and appoint the said party of the second part, his true and lawful attorney, irrevocably, in my name or otherwise, but at his own proper costs and charges, to have, use, and take all lawful ways and means for the recovery of the said money and interest, and, in case of payment, to discharge the same as fully as I might or could do if these presents were not made. In witness whereof I have hereunto set my hand and seal this day of . Assignment of Mortgage (Maryland) ° This deed made this day of , in the year , by me, , of , witnesseth that, in consider- ation of the sum of dollars, I, the said do here- by grant and assign unto , of , all my right, title, and interest in a certain mortgage made to me by , of , dated the day of , and recorded among 9 Statutory form of assignment by indorsement, ante, p. 910. As to the oath to be made by the assignee, ante, p. 910. Ch. 24) MORTGAGES (eeal estate) 985 the land records of in liber No. , folio , etc. Witness my hand and seal the day and year first above writ- ten. MASSACHUSETTS Assignment of Mortgage (Statutory) ■ , holder of a mortgage from — to , dated , recorded with deeds, book , page , assign said mortgage and the note and claim secured thereby to . Witness hand and seal this — ■ day of . {Acknowledgment) {Seal.) Acts 1912, c. 502, § 9. In an assignment of a mortgage of real property the word "assign" shall be a sufficient word to transfer the mortgage, without the words "transfer and set over." Ibid. c. 502, § 20. Same — Another Form Know all men by these presents that I, ■ — , of , the mortgagee named in a certain mortgage given by , of , to me, dated the day of , and record- ed with deeds, libro • , folio , in considera- tion of dollars paid by , of ■■ — , the receipt whereof is hereby acknowledged, do hereby assign, transfer, and set over unto the said the said mortgage deed, the real estate thereby conveyed, and the note and claim thereby secured. To have and to liold the same to the said and his heirs and assigns to their own use and behoof forever, subject, nevertheless, to the conditions therein^ contained and to re- demption according to law. In witness whereof I hereto S'ct my hand and seal this day of . FORM BOOK (Ch. 24 Assignment of Mortgage (New Jersey) Know all men by these presents that I, , of - party of the first part, in consideration of the sum of dollars lawful money of the United States of America to me in hand paid by — , of , party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bar- gained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer and set over, unto the said party of the second part a certain indenture of mortgage bearing date the day of , made by , of , to me on lands in to secure the pay- ment of the sum of dollars, which mortgage is recorded in the clerk's (or, register's) office of the county of , in book of mortgages, pages ; together with the bond or obligation therein described, and the money due and to grow due thereon, with the interest. To have and to hold the same unto the said party of the second part, his heirs, ex- ecutors, administrators, and assigns forever, subject only to the proviso in the said indenture of mortgage mentioned. And I do hereby make, constitute, and appoint the said party of the second part my true and lawful attorney irrevocable, in my name or otherwise, but at his proper costs and charges, to have, use, and take all lawful ways and means for the re- covery of all the said money and interest, and in case of pay- ment to discharge the same as fully as I might or could do if these presents were not made. And I do hereby covenant, promise, and agree to and with the said party of the second part that there is now due and owing upon the said bond and mortgage the sum of dollars, with interest thereon from the day of . In witness whereof I have hereunto set my hand and seal the day of . Ch. 24) MOETGAGBS (rBAL ESTATE) 987 Assignment of Mortgage (New York) Know all men by these presents that I, , of , party of the first part, in consideration of the sum of dol- lars to me in hand paid by , of , party of the sec- ond part, at or before the ensealing and delivery of these pres- ents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer and set over, unto the said party of the second part, a certain inden- ture of mortgage bearing date the day of , made by '■, of , to me, and duly recorded in the office of the of the , county of , on the day of , in liber of mortgages, page , together with the bond or obligation therein described, and the money due and to grow due thereon, with the interest. To have and to hold the same unto the said party of the second part, his ex- ecutors, administrators, and assigns forever, subject only to the proviso in the said indenture of mortgage mentioned. And I do hereby make, constitute, and appoint the said party of the second part my true and lawful attorney irrevocable, in my name or otherwise, but at his proper cost and charges, to have, use, and take all lawful ways and means for the recovery of the said money and interest, and in case of payment to dis- charge the same as fully as I might or could do if these presents were not made. The part — hereto of the second part reside — as follows (state residence). In witness whereof I have hereunto set my hand and seal the day of . 988 FORM BOOK (Ch. 24 Assignment of Bond and Mortgage (Pennsylvania) Know all men by these presents that I, , of , the mortgagee named in the indenture of mortgage here- inafter mentioned, for and in consideration of the sum of dollars lawful money unto me in hand paid by , of , at the time of the execution hereof, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, assign, transfer, and set over unto the said , his heirs, executors, administrators and assigns, a certain indenture of mortgage given and executed by , of , dated the day of , and recorded in the office of the re- corder of deeds in the county of ; also the bond or obligation in the said indenture of mortgage recited, and all moneys due and to grow due thereon, with the warrant of at- torney to the said obligation annexed, together with all rights, remedies, and incidents thereunto belonging, and all my right, title, interest, property, claim, and demand in and to the same. To have, hold, receive, and take all and singular the heredita- ments and premises hereby granted and assigned, or mention- ed and intended so to be, with the appurtenances, unto the said , his heirs, executors, administrators, and assigns, to and for their only proper use, benefit, and behoof for- ever, subject, nevertheless, to the equity of redemption of said , mortgagor in the said indenture of mortgage named, and heirs and assigns therein. In witness whereof I have hereunto set hand and seal this day of . Sealed and delivered in the presence of us : {Two tvitnesses) Ch. 24) MOETGAGES (rbal estath) 989 SOUTH DAKOTA Assignment of Mortgage (Statutory)^" For and in consideration of dollars to in hand paid, do — hereby assign unto , of P. O., a certain indenture of mortgage and the notes secured thereby, executed by to on the day of ■ , A. D. 19 — , upon , and recorded in book of mortgages on page , in the office of register of deeds of county, state of South Dakota, on the • day of , 19 — , at o'clock — m. Dated this day of , A. D. 19—. (Acknowledgment.) (Signature). Laws 1911, c. 257, § 4. WISCONSIN An assignment of a mortgage may be substantially in the following form: Assignment of Mortgage (Statutory) For value received I, A. B., of , Wisconsin, hereby assign to C. D., of , Wisconsin, the within mortgage (or, a certain mortgage executed to by C. F. and wife, of county, Wisconsin, the day of , 19 — , and recorded in the oiifice of the register of deeds of • county, Wisconsin, in volume of mortgages, on page ), together with the and indebtedness therein mentioned. Witness my hand and seal this day of , 19 — . In presence of : A. B. (Seal.) 10 Ante, p. 95T. 990 POEM BOOK (Ch. 24 Such assignment is sufficient to vest in the assignee for all purposes all the rights of the mortgagee under the mortgage described and the amount of the indebtedness due thereon at the date of the assignment. Such assignment, when indorsed upon the original mortgage, shall not require an acknowledg- ment in order to entitle the same to be recorded. St. 1911, § 2210. Satisfaction of Mortgage In states where a mortgage has the character of a conveyance of the legal estate, a release, discharge, or satisfaction usually has the form of a deed of reconveyance or release of the mort- gaged premises. In other states the instrument often takes the form of a certificate certifying that the debt has been paid. In either case the instrument should in most states be executed with the formalities prescribed for conveyances. In many states by statute a mortgage may also be released by entry in the margin of the record signed by the holder. In several states a short form of satisfaction which may be used is given by statute. Satisfaction of Mortgage (California) Know all men by these presents that I, , of , do hereby certify that a certain mortgage bearing date the day of , made and executed by , of , party of the first part therein, to me, the party of the second part therein, and recorded in the office of the county recorder of the county of , state of California, in book of mortgages, on page — , on the day of , together with the debt thereby secured, is paid in full and discharged. In witness thereof I have hereunto set my hand the day of . Ch. 24) MORTGAGES (rbal estatb) 991 Release of Mortgage (Maryland) ^^ This release of mortgage made this day of by , of- : Whereas, the said is the holder of a mortgage from to — dated the day of , and record- ed among the records of in liber No. folio ; and whereas, the said , having fully paid and satisfied the said mortgage, is entitled to have the property thereby affected released from the operation and effect thereof : Wherefore, now, this release witnesseth that, for and in con- sideration of the premises and the sum of one dollar, the said doth hereby release the said mortgage and grant the property thereby affected unto the said , to be held by in the same manner as if the said mortgage had never been made. Witness the hand and seal of the said releasor. MASSACHUSETTS Discharge of Mortgage (Statutory) -, holder of a mortgage from ■ — to , dated -, recorded with deeds, book , page ■ acknowledged satisfaction of the same. Witness hand — and seal — this day of {Acknowledgment.) (Seal.) Acts 1912, c. 502, § 10. 11 Statutory fona. ante, p. 914. 992 FORM BOOK (Ch. 24 Same — Apother Form Know all men by these presents that I, , of , the mortgagee named in a certain mortgage given by to me, dated the day of , and recorded with deeds, book , page , do hereby acknowl- edge that I have received from , the mortgagor named in said mortgage, full payment and satisfaction of the same; and in consideration thereof I do hereby cancel and discharge said mortgage, and release and quitclaim unto the said • -, and his heirs and assigns forever, the premises thereby con- veyed. In witness whereof I hereunto set my hand and seal this ' day of . Satisfaction of Mortgage by Assignee (Minnesota) I hereby certify that the debt secured by that certain mort- gage executed by , as mortgagor, to , as mort- gagee, bearing date the day of , filed for record in the office of the register of deeds in and for the county of , and state of Minnesota, on the day of , at o'clock minutes — m., and recorded in book of — , on page thereof, and by said mort- gagee assigned to me by deed of assignment bearing date the day of , filed for record in the office of the said register of deeds on the day of , at o'clock minutes — m., and recorded in book of , on page thereof, has been paid and satisfied in full, and that I hereby authorize and direct the said register of deeds to discharge the said mortgage of record. In witness whereof I have hereunto set my hand this day of . Ch. 24) MORTGAGES (ehal estate) 993 MISSOURI Mortgages and deeds of trust may be satisfied on the margin of the record. If satisfied by the assignee, the notes must be produced for cancellation, or affidavit of their payment and loss must be made. Discharge of Mortgage (New Jersey) Know all men by these presents that I, , of , do hereby certify that a certain mortgage bearing date the day of , mad« and executed by , of , to me, and recorded in the office of the clerk {or, regis- ter) of the county of , in book of mortgages. page , on the day of , at o'clock — m., is paid and satisfied; and I do hereby consent that the same may be discharged of record. Witness my hand and seal this day ot . Satisfaction of Mortgage by Assignee (New York) State o? New York, County of • ^ ' I do hereby certify that a certain indenture of mortgage bear- ing date the day of , made and executed by , of , and recorded in the office of the clerk {or, register) of the county of , in liber of mortgages, page , on the day of , and assigned to me by assignment dated the day of , and recorded in said office in liber of mortgages, page , is paid ; and I do hereby consent that the same be discharged of record. Dated the day of . TIFF.FOKMS — 63 994 FORM BOOK (Ch.24 NORTH CAROLINA When satisfied, the mortgagee, his agent or assigns, must enter satisfaction on the record. On exhibition of the mort- gage', accompanied by the bond or note a secured, with the in- dorsement of payment and satisfaction thereon, by the payee, mortgagee, or assignee, the register shall enter satisfaction on the margin of the record. Revisal 1905, § 1046. Satisfaction of Mortgage (Ohio) Know all men by these presents that I, , of , do hereby certify that a certain mortgage deed, dated the day of , recorded on the day of , in record of mortgages, volume , page , in the office of the recorder of county, Ohio, executed by , of , to me, on the following real estate, situated in the said county of {descriptipn), has been fully paid and satisfied, and the recorder is authorized to discharge the same of record. In testimony whereof I have hereunto set my hand this ' day of . Satisfaction of Mortgage (Pennsylvania) Know all men by these presents that I, , of , do hereby certify that a certain indenture of mortgage bearing date .the day of , made and executed by , of ', to secure the payment of dollars, and re- corded in the office of the recorder of deeds, etc., in and for said county of , in mortgage book , page , on the day of , the receipt of the payment there- of and satisfaction in full of debt and interest on the above- stated mortgage do hereby acknowledge. And I do by these presents authorize the recorder of deeds in and for said county Ch. 24) MORTGAGES (heal bstath) 995 of to enter satisfaction in full of the above-stated mort- gage and discharge the same from record. In witness whereof I have hereunto set my hand and seal this day of . SOUTH CAROLINA A mortgage is discharged by satisfaction indorsed thereon by the mortgagee executed with the formalities of a deed. Satisfaction of Mortgage The bond which the within mortgage was executed to secure having been paid in full, I hereby declare the said mortgage satisfied and the lien thereof discharged. Witness my hand and seal this day ot . SOUTH DAKOTA Satisfaction of Mortgage (Statutory) , of , state of , hereby certifies that a certain mortgage, bearing date the day of , 19 — , executed by to , of , upon the following real property situated in the county of , in the state of South Dakota, to wit, the , and recorded in the office of the register of deeds of said county in book of mortgages, page , on the day of , 19 — , at o'clock and minutes — m., is, with the indebtedness thereby secured, fully paid, satisfied, and discharged. Dated this day of , 19—. {Acknowledgment.) (Signature.) . Laws 1911, c. 257, § 5. 996 FORM BOOK (Ch. 24 Release of Trust Deed (Virginia) This deed made this day of between , of , of the first part, and — — — , of , of the second part, and , of , of the third part : Whereas, the said party of the third part in order to secure to the said party of the second part the payment of the sum of dollars, did by deed bearing date on the day of , and re- recorded in the ofiSce of the clerk of in deed book No. , page , convey in trust to the said party of the first part, his heirs and assigns, certain real estate described in the said deed as follows (description) ; and whereas, the said sum of money has been fully paid by the said party of the third part to the said party of the second part, and he, the said party of the second part, desires that the said property should be released from the said deed of trust. Now, therefore, this deed witnesseth that for and in consid- eration of the premises, and in further consideration of one dollar to him in hand paid, the said party of the first part, with the consent of the said party of the second part doth release unto the said party of the third part all his claim upon the said property. Witness the following signatures and seals. Discharge of Mortgage (Vermont) I hereby certify that the following described mortgage is paid in full and satisfied, viz. : A mortgage given by , as mortgagor, to me, as mort- gagee, dated the day of , and recorded in book ■ , page , of the land records of the town of . Witness my hand and seal this day of Ch. 4) MORTGAGES (EEAL ESTATE) 997 Satisfaction of Mortgage (Washington) Know all men by these presents that I, , of , mortgagee, do hereby certify that the mortgage made and exe- cuted by , of , as mortgagor, to me, as mortgagee, to secure the payment of dollars, and of record in the office of the auditor of county, Washington, in volume of mortgages, on page , with the note secured thereby, is fully paid and satisfied; and I do hereby consent that the same be fully discharged of record. Witness my hand this day of . Release of Mortgage or Trust Deed (West Virginia) I, A. B., hereby release a mortgage (or, deed of trust) made by C. D. to me (or, to E. F., my trustee ; or, to and as- signed to me), dated the day of , and recorded in the office of the county court of county. West Virginia, in deed book , page . (Signed.) Acknowledged before the subscriber this day of , 19 — . , Justice (or Notary Public, etc.). Satisfaction of Mortgage (Wisconsin) Know all men by these presents that I, , of , do hereby certify and acknowledge that a certain mortgage bearing date on the day of , made and executed by to me, and recorded in the office of the register of deeds in and for county, in the state of Wisconsin, on the day of , at o'clock — m., in volume of mortgages, on page , document No. , is fully paid, satisfied and discharged. And the register of 998 FORM BOOK (Ch. 24 said county is hereby authorized to enter this satisfaction of record. In witness whereof I have hereunto set my hand and seal this day of . WYOMING A cancellation or discharge of mortgage or deed of trust may be in the following form, substantially : Certificate of Discharge (Statutory) This certifies that a (mortgage or deed of trust, as the case may be) from to , dated , A. D. and recorded in book of , on page , has been fully satisfied by the payment of the debt secured thereby, and is hereby canceled and discharged. Signed in th'C presence ot , county clerk of county. Filed and recorded , A. D. , at m. County Clerk. Such cancellation or discharge shall be entered in a book kept for that purpose and signed by the mortgagee or trustee, his attorney in fact, executor, administrator, or assigns, in the presence of the county clerk, or his deputy, who shall sub- scribe the same as a witness, and such cancellation or discharge shall have the same effect as a deed of release duly acknowl- edged and recorded. Comp. St. 1910, § 3669. Ch. 24) MORTGAGES (REAL ESTATE) 999 VI Partial Release of Mortgage MASSACHUSETTS Partial Release of Mortgage (Statutory) ^^ , the holder of a mortgage by , to , dated , recorded with deeds', book , page , for consideration paid, release to all interest acquired under said mortgage in the following described portion of the mort- gaged premises (description). Witness hand and seal this day of . (Acknowledgment.) (Seal.) Same — Another Form Know all men by these presents that I, , of , the mortgagee named in a certain mortgage given by , of , to me, dated the day of , and record- ed with deeds, book , page , in considera- tion of dollars paid by the said , the receipt whereof is hereby acknowledged, do hereby remise, release, and forever quitclaim unto the said all the right, title, and interest which I acquired under the aforesaid mortgage in or to that portion of the premises therein conveyed, which is de- scribed as follows, namely (description). To have and to hold the same to the said , and his heirs and assigns, to their own use and behoof forever. But this release shall not in any way affect or impair our right to hold under the said mortgage and as security for the sum remaining due thereon, or to sell under the power of 12 Statute form, Acts 1912, c. 502, § 8. 1000 FORM BOOK (Ch. 24 sale in said mortgage contained, all the remainder of the prem- ises therein conveyed and not hereby released. In witness whereof I hereunto set my hand and seal this day of . Partial Release of Mortgage (New York) This indenture made the day of between , of , party of the first part, and , of , party of the second part : Whereas , of , by indenture of mortgage bear- ing date the day of , recorded in the office of the clerk (or, register) of the county of in liber of mortgages, page , on the day of , for the consideration therein mentioned and to secure the payment of the money therein specified, did convey certain lands and tene- ments of which the lands hereinafter described are part unto , of ; and whereas, the said party of the first part, at the request of the said party of the second, part, has agreed to give up and surrender the lands hereinafter described unto the said party of the second part, and to hold and retain the residue of the mortgaged lands as security for the money remaining due on the said mortgage : Now, this indenture wit- nesseth that the said party of the first part, in pursuance of the said agreement and in consideration of dollars to him duly paid at the time of the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, doth hereby grant, release, quitclaim, and set over unto the said party of the second part all that part of the said mortgaged lands described as follows (description). Together with the hereditaments and appurtenances there- unto belonging, and all the right, title, and interest of the said party of the first part of, in and to the same, to the intent that Ch. 24) MORTGAGES (REAL ESTATE) 1001 the lands hereby conveyed may be discharged from the said mortgage, and that the rest of the lands in the said mortgage specified may remain to the said party of the first part as here- tofore. To have and to hold the lands and premises hereby released and conveyed to the said party of the second part, his heirs and assigns, to his and their ovirn proper use, benefit, and behoof forever, free, clear, and discharged of and from all lien and claim under and by virtue of the paid indenture of mort- gage. In witness v^rhereof the said party of the first part to these presents has hereunto set his hand on the day and year first above written. Partial Release of Mortgage (Pennsylvania) To all to whom these presents shall come I, , of — • , send greeting: Whereas, , of , by indenture of mortgage bear- ing date the day of , and recorded in the of- fice for recording of deeds in and for the county of , in mortgage book No. , page , granted and con- veyed unto me, the said , and my heirs and assigns, the premises therein particularly described, to secure the payment of a certain debt or principal sum of dol- lars lawful money, with interest, as therein mentioned; and whereas, the said requested me, the said , to release the premises hereinafter described, being part of said mortgaged premises, from the lien and operation of the said mortgage: Now, therefore, know ye that I, the said ■ , as well in consideration of the premises as of the sum of dollars lawful money to me in hand paid by the said • at the time of the execution hereof, the receipt whereof is hereby acknowledged, have remised, released, quitclaimed, exonerated, and discharged, and by these presents do remise. 1002 FOEM BOOK (Ch. 24 release, quitclaim, exonerate, and discharge unto the said , his heirs and assigns, all that part of the mortgaged premises described as (description). To hold the same, with the appurtenances, unto the said , his heirs and assigns, forever freed, exonerated, and discharged of and from the lien of said mortgage, and every part thereof: Provided, always, nevertheless, that nothing herein contained shall in any wise affect, alter, or diminish the lien or incumbrance of the aforesaid mortgage on the re- maining part of said mortgaged premises, or the remedies at law for recovering thereout or against the said , his heirs, executors, administrators, or assigns, the (remainder of the) principal sum, with interest, secured by said mortgage. In witness whereof the said parties to these presents have hereunto set their hands and seals this day of . VII Extension of Mortgage Agreement for Extension of Mortgage This agreement made the day of between , of , party of the first part, and , of , party of the second part, witnesseth : [Recitals of note and mortgage, etc.] Whereas, the said party of the second part executed his certain promissory note dated the day of , whereby he promised to pay to or order the sum of dollars on the day of , with interest thereon at the rate of per cent, per annum ; and whereas, to secure the said note the said party of the second part executed to the said a certain mortgage, dated the day of , and recorded on Ch. 24) MOETGAGES (real estate) 1003 the day of in the (registry of deeds) in book of mortgages, at page ; and whereas, the said party of the first part is now the holder of the said note and mortgage, and tlie said party of the second part is now the owner of the said mortgaged premises {or, of the equity of re- demption in the said mortgaged premises). [AgrbBmSnt of Extension.] Now, therefore, the said parties hereto, for themselves, their heirs, executors, ad- ministrators, and assigns, hereby mutually agree that the time for the payment of the said principal sum be and the same is hereby extended for th€ term of years from the day of , and the said principal sum shall bear interest from that date at the rate of per cent, per annum, pay- able on the day of and the day of in each year. [Subsistence oE mortgage.] It is expressly understood and agreed that the said mortgage shall remain in full force and effect in all respects as if the said principal sum had orig- inally been payable on the day of , and that nothing herein shall affect or impair any rights and powers which the said party of the first part may have thereunder for the recovery of the said mortgagee debt, with interest, in case of the nonfulfillment of this agreement. [Mortgagor's covenants.] And the said party of the second part hereby covenants that he will pay the said principal sum on the day of and the interest thereon at the times hereinbefore specified, and that he will perform and observe all the covenants, agreements, stipulations, and condi- tions on the part of the mortgagor in the said mortgage con- tained in all respects as if the said principal sum had by the terms thereof been payable on the last-mentioned day. In witness whereof the said parties have hereunto set their hands and seals the day and year first above written. 1004 FORM BOOK (Ch. 24 Same — Short Form This agreement made the day of between , the holder of a mortgage dated (etc.), and recorded (etc.), of the first part, and , the owner of (the equity of redemption of) the said mortgaged premises, of the second part: Witnesseth that the said parties do hereby, each for himself, his heirs, executors, administrators, and assigns, mutually agree that the time provided in said mortgage for payment of the principal sum now secured thereby, namely, dollars, is hereby extended to the day of , and that the rate of interest thereon shall hereafter be per cent, per annum ; and the said party of the second part hereby covenants and agrees that he will perform and observe the covenants and conditions of the said mortgage so extended, and that he will pay the principal and interest secured thereby when due here- under. In witness, etc. Same — Another Form Agreement made this day of between , of , party of the first part, and , of , party of the second part : [ReClTALS OF BOND AND MORTGAGE AND REQUEST FOR EX- TENSION.] Whereas, the party of the second part holds the bond of , of , bearing date the day of , conditioned for the payment of the principal sum of dollars, on the day of , and the interest thereon, together with a mortgage securing payment thereof, made and executed by the said unto , of , bearing even date with said bond, and recorded in the (registry of deeds) on the day of , in book of Ch. 24) MOETGAGES (eEAL ESTATE) 1005 No. , at page ; and whereas, the said party of the first part is now the owner of the premises described in the said mortgage, and has requested tliat the time of payment of the said principal sum of dollars, secured to be paid there- by be extended for years from the day of [Agreement to extend.] Now this agreement witness- eth that the said parties of the first and second parts, in con- sideration of the premises and of the sum of one dollar each to the other in hand paid, the receipt whereof is hereby ac- knowledged, do hereby covenant and agree as follows : The said party of the second part hereby extends the time of pay- ment of the said principal sum of dollars secured to be paid by the said bond and mortgage to the day of : Provided, that the interest thereon, according to the tenor of the said bond or obligation, is punctually paid semian- nually on the day of and of in each and every year until said principal sum is fully paid : And provid- ed, further, that nothing herein contained shall in any wise impair the security now held for the said debt. And the said party of the first part hereby agrees to the extension of the time of payment of the principal of said bond hereinbefore stated and fixed, and for his heirs, executors, and administrators hereby covenants and agrees to pay the same on the day of , and to pay the interest thereon on the days on which the same becomes due, as hereinbefore mentioned. [Option on deeault.] And it is further mutually agreed that, should the said interest, or any part thereof, remain due and unpaid for the space of days, or should any tax or assessment remain due and unpaid for the space of days after the same shall have become due and payable, then the whole of the said principal sum shall, at the option of the said party of the second part, or of his legal representatives, be- 1006 FORM BOOK (Ch. 24 come due and payable immediately thereafter, anything herein- before stated to the contrary notwithstanding. In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written. Extension of Mortgage — Massachusetts (Statutory) , holder of a mortgage by to , dated '—, recorded with deeds, book , page , and , owner of the equity of redemption of the mortgaged premises, agree each for sel — , heirs and representatives and assigns, that th'C time provided in said mortgage for payment of the principal sum now secured thereby, namely, dollars, is hereby extended to , and the rate of interest hereafter shall be per cent, per annum, and said owner agrees to perform and observe the con- dition and covenants of said mortgage as so extended, and to pay the principal and interest secured thereby when due here- under. Witness hand and seal this day of . (Acknowledgment) {Seal.) Acts 1912, c. 502, § 7. Ch. 25) NOVATION 1007 CHAPTER XXV NOVATION Where a new contract is substituted for an existing contract by a change in one of the parties, as where it is agreed that a new debtor shall be substituted for a former debtor, whom the creditor releases, there is said to be a novation. Such a substitution can be made only by the agreement of all three. The agreement need not be evidenced by writing ; the promise of the new debtor is not a promise to answer for the debt of another within the statute of frauds. Only novations of the character above mentioned are here included. Page 1. Novation between an original contractor, a substituted con- tractor, and a contractee 1007 2. Novation between executor of deceased partner, continuing and new partner, and a creditor 1008 3. Novation between partners who have transferred their busi- ness to a corporation, the corporation, and a creditor. . . . 1009 1. Novation Between an Original Contractor, a Substituted Contractor, and a Contractee An agreement made this day of between , party of the first part, and , party of the second part, and , party of the third part : [Recital of original agreement and proposed substitu- tion.] Whereas, an agreement dated the day of was made between the party of the first part and the party of the third part, and the party of the first part desires to be released and discharged from the contract contained in the said agreement, and the party of the third part has agreed to release and discharge the party of the first part therefrom upon the terms of the party of the second part undertaking to perform the said contract and to be bound by the terms of the said agreement. 1008 FORM BOOK (Ch. 25 Now, therefore, it is hereby agreed as follows : 1. [Undertaking of substituted contractor.] TRe party of the second part undertakes to perform the said contract and to be bound by the terms of the said agreement in all respects as if the party of the second part were a party to the said agreement in lieu of the party of the first part. 2. [Release oe original contractor and agreement eor substitution oe new contractor.] The party of the third part releases and discharges the party of the first part from all claims and demands whatsoever in respect to the said agree- ment, and accepts the liability of the party of the second part upon the said agreement in lieu of the liability of the party of the first part, and agrees to be bound by the terms of the said agreement in all respects as if the party of the second part were named in the said agreement as a party thereto in place of the party of the first part. . In witness, etc. 2; Novation Between Executor of Deceased Partner, Con- tinuing and New Partner, and a Creditor An agreement made this day of between , executor of the will of , deceased, party of the first part, and and {continuing and new part- ners), carrying on business under the style and firm of ■ — , parties of the second part, and , party of the third part: [Recitals oe relationship oe parties.] Whereas, the said , deceased, hereinafter called the decedent, former- ly carried on business with the said {continuing partner) un- der the style and firm of & Co., hereinafter called the old firm; and whereas, the decedent died on the day of , and his will was duly proved and admitted to pro- bate in and by the probate court of , and the said is the executor of the said will, duly appointed by the said Ch. 25) NOVATION 1009 court; and whereas, the said (continuing partner) is carry- ing on business in partnership with the said (new partner) un- der the style and firm of & Co., hereinafter called the new firm; and whereas, the party of the third part has had dealings with the old firm, and the old firm is or may be indebted to the party of the third part upon a balance of such dealings. Now, it is hereby agreed as follows: 1. [Undertaking of new firm to discharge eiabiuty OF OLD firm.] The new firm accepts the liability, if any, of the old firm to the .party of the third part in respect to the said dealings, and undertakes duly to discharge the same. 2. [Release of creditor of estate of deceased part- ner.] The party of the third part releases and forever dis- charges the said executor and the estate and effects of the decedent from all claims and demands whatsoever in respect to the said dealings, and accepts the liability of the new firm in lieu of the Uability to him of the said executor and the es- tate and eflfects of the decedent. In witness, etc. 3. Novation Between Partners Who Have Transferred Their Business to a Corporation, the Corpo- ration, and a Creditor An agreement made this day of between and , heretofore carrying on business at as partners under the firm name of , parties of the first part, the Company, a corporation of the state of ■ , party of the second part, and , party of the third part: Witnesseth that the parties hereto do hereby agree that, the parties of the first part having sold and transferred the TIFF.FORMS — 64 1010 FORM BOOK (Ch. 25 said business heretofore carried on by them to the party of the second part, the party of the second part shall alone be liable to the party of the third part for all debts and liabilities of the parties of the first part to the party of the third part heretofore contracted, and the party of the third part accepts the party of the second part as his sole debtor, and hereby releases and discharges the parties of the first part from all claims and demands for or on account of the said debts and liabilities. In witness, etc. Ch. 26) PARTNERSHIP 1011 CHAPTER XXVI PARTNERSHIP While a partnership agreement need not be in writing, the relations of partners to each other are usually made the sub- ject of written agreements or articles of partnership. The purpose of such an agreement is primarily to define the rights of the partners, which, in the absence of express agreement, are to a greater or less extent determined by law, but also to furnish a code of directions to which the partners may refer as a guide, and thereby settle among themselves differences which may arise. The contents of the articles will depend largely upon the nature of the business. Usually the articles contain provisions in respect to the following matters: The nature of the business, upon which the extent of the implied authority of the partners largely depends ; the duration of the partnership, which if the term is not fixed may be dissolved at the will of any partner; the firm name; the capital and how it is to be contributed, and the separate ownership of any property which is to be used by the firm without becoming part- nership property ; the shares of the partners in the capital and profits, as well as in the losses, which, unless otherwise agreed, would belong to them and be borne by them equally ; the ac- counts to be kept; and the manner of accounting from year to year and upon the termination of the partnership. Among other matters often provided for are: The banking account of the firm, and who is to sign checks, etc. ; the amounts which the partners may draw from time to time ; the time and atten- tion to be given by the partners to the business, and other duties of the partners, both positive and negative, including things not to be done without the consent of all; details of management; the retirement and expulsion of partners; the dissolution of the partnership in certain contingencies; the method of winding up on dissolution; the taking over of the share of a deceased or outgoing partner, and the valuation of the good will ; and the arbitration of differences. Every member of an ordinary partnership is liable for the whole amount of the partnership debts. The statutes of the several states, however, very generally authorize a form of 1012 FORM BOOK (Ch. 26 partnership, called a limited partnership, the essential feature of which is that there must be one or more partners, called general partners, liable for all the debts, and one or more part- ners, called special partners, whose liability is limited to the amounts respectively contributed by them to the capital at the time of entering into the partnership. The statutes usually require the persons forming a limited partnership to execute a certificate, which must state certain facts, and which must be acknowledged, recorded, and published, and an affidavit by one of the general partners, which must state that the sums speci- fied in the certificate as contributed by the special partners have actually been paid in cash, and which must be filed with the certificate. The general partners alone may transact busi- ness for and bind the partnership, and the rights of the special partners are strictly limited. There must be exact conformity with the statutory requirements, both as to the formation of a limited partnership and as to the conduct of its affairs, or the special partners will be liable as general partners. The statutes differ, and in drawing an agreement for a limited part- nership the particular statute must always be consulted. Page 1. Articles of partnership in commercial business (short form) 1013 2. Same — Another form 1015 3. Partnership between three persons — Longer form 1020 4. Partnership between manufacturers, one of whom is a dor- mant partner 1030 5. Partnership between lawyers 1039 6. Same — Longer form 1040 7. Articles on introduction of a new partner 1044 8. Articles of partnership in relation to a single adventure (syndicate agreement) 1046 9. Agreement to continue partnership — By indorsement on ar- ticles 1049 10. Indenture extending term of partnership with modifications of original articles 1049 11. Dissolution of partneirship — By indorsement on articles. . . . 1050 12. Deed of dissolution of partnership; one partner retiring and assigning his share to the continuing partners.... 1050 13. Notice of dissolution 1053 14. Notice of retirement 1054 15. Limited partnership, where a person is admitted by two general partners as special partner 1054 16. Limited partnership between one general and two special partneirs 1059 Ch. 26) PARTNERSHIP 1013 1. Articles of Partnership in Commercial Business (Short Form) Articles of agreement made the day of be- tween , of , of the one part, and , of , of the other part, witnesseth as follows : 1. [Business, place, firm, and term.] The said parties will become, and by these presents do agree to be, partners together under the name or firm of , in the business of retail grocers, in the buying and selling all sorts of goods, wares, and merchandise to the said business belonging. The business to be carried on in the city of , in the store heretofore occupied by the said , or in such other store as they shall hereafter determine. The partnership to commence on the day of , and to continue years. 2. [Capital.] To that end and purpose the said has contributed the sum of dollars in cash, and the said has contributed the lease of the said store in and the stock of goods and good will of the business there heretofore carried on by him, which are together estimated and valued by the parties at the like sum of dollars, the capital so formed to be used and employed in common between them, for the support and management of the said business, to their mutual benefit and advantage. 3. [Attention to business.] At all times during the con- tinuance of their partnership they will give their attendance, and do their best endeavors, and to the utmost of their skill and power exert themselves for their joint interest and ad- vantage, and will buy, sell, and merchandise with their joint stock and the increase thereof in the business aforesaid. 4. [To SHARE PROFITS AND LOSSES.] And they will at all times during the partnership bear, pay, and discharge equally 1014 FORM BOOK (Ch. 26 between them all rents and other expenses that may be re- quired for the support and management of the said business. All gains, profit, and increase from or by means of the said business shall be divided between them equally; and all loss to their business shall be borne between them equally. 5. [Accounts.] There shall be kept at all times during the continuance of their partnership full and correct books of ac- count, wherein the partners shall enter, as well all money by them or either of them received, paid, laid out, and expended in and about the said business, as also all goods, wares, com- modities, and merchandise by them or either of them bought or sold by reason or on account of the said business, and all other matters and things whatsoever to the said business and the management thereof in any wise belonging, which said books shall be used in common between the said partners, so that either of them may have access thereto without any inter- ruption or hindrance of the other. It is further agreed that the said partners once in each year, to wit, on the day of , or oftener, if necessary, shall make a full and correct inventory and account of all profits and increase by them made and of all losses by them sustained, and also all payments, receipts, disbursements and all other things by them made, received, disbursed, acted, done, or suffered in their said business, and, the same account so made, will clear, ad- just, pay, and deliver, each to the other at the time, their just share of the profits, and pay and bear their just share of the expenses and losses so made as aforesaid. 6. [Not to become surety.] Neither partner shall indorse any note or otherwise become surety for any person or per- sons whomsoever without the consent of the other partner. 7. [Final account.] At the end or sooner determination of the partnership the partners, each to the other, shall make a true, just, and final account of all things relating to their Ch. 26) PARTNERSHIP 1013 said business, and in all things adjust the same ; and all stock, as well as the gains and increase thereof, which shall appear to be remaining, either in money, goods, wares, fixtures, debts, or otherwise, shall be divided between them equally. (Add any other stipulations which may be desired!) In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written. 2. Same — Another Form This agreement made this day of between , party of the first part, and , party of the sec- ond part: Witnesseth that it is hereby mutually agreed that the par- ties hereto shall become partners upon the terms hereinafter set forth, namely : 1. [Business and place..] The partnership business shall be that of , and shall be carried on at or at such other place or places as the partners may from time to time agree upon. 2. [Term.] The duration of the partnership shall be years from the date hereof. 3. [Firm name.] The firm name shall be . 4. [Bankers.] The bankers of the partnership shall be 5. [Capital.] The capital of the partnership shall consist of the following items: (a) The net value of the stock in trade, books debts, and other assets of the business of heretofore carried on by the said party of the first part at aforesaid, less the outstanding liabilities of that business. For purposes of com- putation the said assets shall be taken to be of the gross value of • dollars, and the said outstanding liabilities of the 1016 FORM BOOK (Ch. 26 said business of the value of dollars. The balance, viz., the sum of dollars, shall be credited to the said party of the first part as his share of the capital. (But this shall be subject to readjustment in the event of the said lia- bilities ultimately proving to be more or less than the said estimated sum of dollars.) (b) The sum of dollars cash brought into the busi- ness by the said party of the second part, which shall be cred- ited to him as his share of the capital. (c) Any further sums which either partner shall with the consent of the other from time to time contribute for capital purposes, which shall be credited to his capital account. 6. [Interest on capital.] Interest at the rate of per cent, per annum shall be paid to each partner on the capital for the time being standing to his credit out of the gross profits of the business, and such interest shall be cumulative, so that any deficiency in one year shall b.e made up out of the gross profits of any succeeding year or years. 7. [Shakes in proeits and losses.] The net profits of the business shall be divided between the partners equally and they shall in like proportion bear all losses, including loss of capital. 8. [Books oi? account.] The usual books of account shall be kept properly posted up, and shall not be removed from the place of business without the consent of both partners. Each partner shall have free access to them at all times, and shall be at liberty to make such extracts therefrom as he may think fit. 9. [Annual account.] On the day of , and on the day of in each succeeding year during the continuance of the partnership, an account shall be taken (by , of , accountants, or by some other account- ant or accountants to be agreed upon by the partners) of all the Ch. 26) PARTNERSHIP 1017 capital, assets, and liabilities for the time being of the partner- ship, and a balance sheet and profit and loss account making due allowance for depreciation and for recouping any lost capital shall be prepared (by such accountants), and a copy thereof furnished to each of the partners, who shall be bound thereby unless some manifest error shall be discovered within three calendar months, in which case such error shall be rec- tified. Immediately after the preparation of the said balance sheet and profit and loss account, the net profits, if any, shown by such account shall be divided. 10. [Drawings.] Each partner may during the continuance of the partnership draw out of the partnership account at the bank the monthly sum of dollars on account of his share of profits ; but if, when the said annual account is taken at the end of each year, it shall appear that either partner has drawn any sum in excess of his share of the profits, he shall forthwith repay such excess to the said partnership account. 11. [Duties of partners.] Each partner shall: (a) Diligently attend to the business and devote his whole time and attention thereto. (b) Punctually pay his separate debts and indemnify the other partner and the assets of the firm against the same and all expenses on account thereof. (c) Forthwith pay all moneys, checks, and negotiable in- struments received by him on account of the firm into the said bank to the firm account. (d) Be just and faithful to the other of them, and at all times give to such other full information and truthful ex- planations of all matters relating to the affairs of the part- nership, and afford every assistance in his power in carrying on the business for their mutual advantage. 12. [Acts not to be done without consent.] Neither partner shall without the consent of the other: 1018 FORM BOOK (Ch. 26 (a) Either directly or indirectly engage in any other busi- ness. (b) Employ or dismiss any agent or servant of the firm. (c) Lend any of the moneys or deliver upon credit any of the goods of the firm to any person or persons whom the other partner shall have previously in writing forbidden him to trust. (d) Give any security or promise for the payment of money on account of the firm unless in the ordinary course of busi- ness. (e) Enter into any bond, or become bail, indorser, or surety for any person, or knowingly cause or suffer to be done any- thing whereby the partnership property may be seized, at- tached, or taken on execution or endangered. (f) Assign, mortgage, or charge his share in the assets or profits of the partnership or any part of such share. (g) Draw, accept, or indorse any bill of exchange or prom- issory note on account of the firm. (h) Sign any check on behalf of the firm for a sum exceed- ing dollars. (i) Buy, order, or contract for any goods or property ex- ceeding the value of dollars on behalf of the partner- ship. (j) Compromise, or compound, or, except upon payment in full, release or discharge any debt due to the partnership. [Indemnity against breach oe stipulations.] Any partner committing any breach of any of the foregoing stip- ulations shall indemnify the other of them from all losses and expenses on account thereof. 13. [Determination by notice in certain events.] If either partner shall: (a) Commit any breach of any of the provisions of clauses- 11 and 12 of these presents; or Ch. 26) PARTNERSHIP 1019 (b) Commit any act of bankruptcy; or (c) Become physically or mentally unfit to attend to the business ; or (d) Commit any criminal offense ; or (e) Do or suffer any act which would be a ground for the dissolution of the partnership by the court, then and in any such case the other partner may within calendar months after becoming aware thereof by notice in writing determine the partnership, and in that case he shall have the option, to be exercised at the time of giving such notice, of purchasing the share of the other partner in the ■capital and assets of the business upon the like terms as are set forth in the next clause hereof in relation to the purchase by a surviving partner of the share of a deceased partner. 14. [Survivor to purchase; share op deceased part- 2^ER.] If either partner shall die during the continuance of the said partnership, the survivor shall purchase the share of the deceased partner in the capital and assets of the business on the following terms: (a) The purchase price shall be the amount at which such share shall stand in the last balance sheet which shall have been prepared prior to the death of the deceased. (b) In addition to the purchase money, the surviving partner «hall pay a sum equal to interest on the amount mentioned in subclause (a), computed from the date of the then last pre- ceding annual account up to the date of the death of the de- ceased at the rate of per cent, per annum in lieu both ■of interest on capital, including any arrears of such interest for preceding years, and profits during such period, credit being given for any sums drawn out by the deceased partner during the then current year under the provisions of clause 10 hereof. (c) The said sum in lieu of interest on capital and profits '^hall be paid forthwith, but the purchase money shall be paid 1020 FORM BOOK (Ch. 26 by equal installments at intervals of calendar months, the first installment to be paid at the expiration of calendar months after the death of the deceased, to- gether with interest on the amount for the time being remaining owing at the rate of per cent, per annum. (d) The surviving partner shall also enter into a covenant to indemnify the personal representatives of the deceased from the debts, engagements, and liabilities of the partnership both existing and future. 15. [Winding up.] If the surviving partner shall not ex- ercise the option of purchasing the share and interest of the deceased, or if the partnership shall be determined or expire during the joint lives of the partners, the partnership shall be wound up, and the assets distributed. In witness, etc. 3. Partnership Between Three Persons — Longer Form This indenture made the day of between , party of the first part, , party of the second part, and , party of the third part: Witnesseth that the said parties hereto hereby mutually agree to become partners in the business of for the period and upon the terms hereinafter expressed, that is to say: 1. [Term.]-. The partnership shall commence on the date hereof (or, on the day of -; or, where a past date is mentioned, shall be deemed to have commenced on the day of ), and shall continue for the term of years from that date, unless previously determined as hereinafter provided. 2. [Firm name.] The style or firm name of the partner- ship shall be . Ch. 26) PARTNERSHIP 1021 3. [Death or retirement op partner.] The death or retirement of any partner shall not dissolve the partnership as to the other partners. 4. [Shares.] Subject to the provisions hereof, the part- ners shall be entitled to the capital and property for the time being of the partnership, and the good will of the business, in equal shares {or, in the following shares, that is to say, etc.). 5. [Capital.] The capital of the partnership shall be the sum of dollars, to be contributed by the partners in equal shares {or, in the shares in which they are hereinbefore declared to be entitled to the capital and property of the part- nership), and each partner shall forthwith pay into the Bank to the credit of the partnership his aforesaid share of the capital, that is to say, the party of the first part the sum of ^ dollars, the party of the second part the sum of dollars, and the party of the third part the sum of dollars. 6. [Further capital.] If any further capital shall at any time or times be considered by the partners to be necessary or desirable for efficiently carrying on the business, it shall be contributed by the partners in the shares in which they shall be for the time being entitled to the existing capital of the partnership. 7. [Loans by partners to pirm.] If any partner shall with the consent in writing of the other partners or partner advance any sum of money to the firm over and above his due contribution to the capital, the same shall be a debt due from the firm to such partner, and shall carry interest at the rate of per cent, per annum. No sum so lent shall be deemed an increase of the capital of the partner advancmg the same or entitle him to any increased share of the profits of the partnership. Every such sum, together with the in- terest for the time being due thereon, shall be repaid by the 1022 FORM BOOK (Ch.26 firm, and received by such partner, at the expiration of months from the time when by notice in writing the firm shall have signified to such partner their intention of making, or such partner shall have signified to such partner his intention of demanding, such repayment. 8. [Bank.] The bank of the partnership shall be the Bank or such other bank as the partners shall from time to time agr^e upon. 9. [Payment into bank — Checks.] All partnership mon- eys not required for current expenses, and all notes, bills, checks, and other negotiable securities for money shall as and when received be paid into or deposited in the bank to the credit of the partnership account. All checks on such account shall be drawn in the firm name, and may be so drawn by any partner. 10. [Expenses.] All rents, taxes, costs of repairs, altera- tions, or improvements, insurance, and all other costs, charges, and expenses which shall be incurred in or about the busi- ness or in any wise relating thereto, and all losses which shall happen in respect to the business, shall be paid out of the income or capital of the partnership, and in case of any de- ficiency thereof by the partners in equal shares (or, in pro- portion to their respective shares for the time being in the capital and property of the partnership). 11. [Shares in net profits.] The net profits of the part- nership, after payment of the expenses thereof hereinbefore provided for and the interest on current loans, if any (and sub- ject to the creation and maintenance of the reserve fund here- inafter provided for), shall belong to the partners in equal shares (or, in the following shares, that is to say, etc.). 12. [Reserve eund.] (So much of the net profits in each year as shall be equal to per cent, thereof {or, as shall exceed the sum of dollars) shall be carried into a re- Ch. 26) PARTNERSHIP 1023 serve fund and invested in such manner as the partners shall determine as a fund to provide against extraordinary or ex- ceptional losses or expenses until the same shall amount to the sum of dollars; and whenever such fund shall be reduced below the last-mentioned sum by payments there- from for any of the purposes aforesaid, the net profits in each year shall to the extent aforesaid be applied in making up such deficiency. The income arising from such reserve fund shall be divisible as net profits.) 13. [Drawings.] Each partner shall be at Hberty to draw out for his separate use the sum of dollars in every month on account of his accruing share of the net profits for the current year. If in any year the aggregate amount drawn out by any partner shall on the taking of the annual account be found to exceed his share of the net profits for that year, he shall repay the excess to the partnership. 14. [Duties of partners.] Each partner shall {follow- ing Form No. 2, cl. 11, p. 1017). 15. [Acts not to be done without consent.] No part- ner shall without the written consent of the other partners or partner (following Form No. 2, cl. 12, p. 2117). 16. [Execution oe securities.] Every bond, bill of ex- change, promissory note, or other security given on account of the partnership, other than checks drawn on the partner- ship account in the regular and ordinary course of business or for the purpose of a partner's authorized drawings, shall, unless otherwise unavoidable in the interest of the partner- ship, be signed, indorsed, accepted, or executed by all the partners; and any such instrument or security signed, in- dorsed, accepted, or executed by any partner in breach of this provision shall be deemed to be given on the separate account of such partner, who shall pay and discharge the same out of his own moneys and indemnify the other part- 1024 FORM BOOK (Ch. 26 ners against the payment thereof and against all actions, pro- ceedings, costs, and claims in respect thereof. 17. [Partners' private debts.] Each partner shall at all times duly and punctually pay and discharge his separate and private debts and engagements, whether present .or future, and keep indemnified therefrom, and from all actions, proceedings, costs, claims, and demands in respect thereof, the partnership property and the other partners. 18. [Accounts.] Proper books of account shall be kept wherein shall be entered particulars of all moneys, goods, or effects belonging to or owing to or by the partnership, or paid, received, or sold or purchased in the course of the partner- ship business, and of all such other transactions, matters, and things relating to the said business as are usually entered in books of account kept by persons engaged in a business of the like character. The said books of account, together with all letters, papers, or documents concerning or belonging to the partnership (except such as may properly be kept elsewhere for safe-keeping) shall be kept at the place of business of the partnership, and each partner shall at all times have free ac- cess to and the right to inspect and copy the same. 19. [Annual account, and vaIvUation.] As soon as prac- ticable after the day of in each year during the continuance of the partnership a general account and valua- tion shall be taken and made up to said day of the stock in trade, credits, property, affects, debts, and liabilities of the partnership, and of all transactions, matters, and things usual- ly comprehended in a general account of the like nature. Such account and valuation shall be balanced, and agreed to and signed by all the partners, and, when so signed, shall be bind- ing on all the partners, except that, if any manifest error be detected and pointed out by any partner to the others within months after such signature, such error shall be forth- Ch. 26) PARTNERSHIP 1025 with corrected. Immediately after the signing and settling of such account and valuation each partner shall be entitled to draw out and receive his share of the net profits of the busi- ness for the then past year on bringing into the account all monthly sums previously drawn out by him under the pro- visions in that behalf hereinbefore contained. 20. [Winding up on determination.] Upon the deter- mination of the partnership by lapse of time or by another event not herein otherwise provided for, a full and general ac- count shall be taken of the assets, credits, debts, and liabil- ities of the partnership and of the transactions and dealings thereof, and with all convenient speed such assets and credits shall be sold, realized, and collected, and the procegds applied in paying and discharging such debts and liabilities and the expenses of winding up the partnership affairs, and, subject thereto, in paying to each partner any unpaid profits (or, in- terest on capital) which may be due him and his share of the capital, and the balance, if any, of such proceeds shall be di- vided between the partners in equal shares (or, in the shares in which they are entitled to the net profits of the partner- ship) ; and the partners shall execute and concur in all neces- sary and proper instruments, acts, and things for effecting and facilitating the matters in this clause provided for and for the mutual release or indemnity of the partners. (21. [Valuation op good wili. on determination.] Up- on any such determination as aforesaid of the partnership the good will of the partnership business shall not be sold, but each partner shall be at liberty to commence and carry on a similar business in his own or any other name not being iden- tical with the name of the firm : Provided, that if upon such determination of the partnership the business thereof shall be sold as a going concern, the good will of the partnership shall be treated as a partnership asset, and no partner, unless TlFF.FOKMS — 65 J 026 FORM BOOK (Ch. 26 he shall be the purchaser of such business, shall for years thereafter directly or indirectly carry on or be concerned in the business of , as principal or agent, within — miles from the then principal place of the business of the part- nership.) 22. [Purchase of share op deceased partner.] If any partner shall die during the continuance of the partnership, the surviving partners or partner shall as and from the dat€ of such death, and, if more than one, in the proportions in which they were at such date entitled to share in the net profits of the partnership, succeed to the share of the deceased partner in the partnership business and the property and good will thereof, and shall assume all the debts, liabilities, and obliga- tions of the partnership, and pay to the representatives of the deceased partner the net value of such share at the date of such death, after providing for the then debts and liabilities of the partnership, such value in case of dispute to be determined by arbitration under the provision in that behalf hereinafter con- tained : Provided, that the surviving partners may ekct not to ■purchase such share on giving notice in writing of such elec- tion to the representatives of said deceased partner, or, if there be none, on leaving such notice at the place of business of the partnership within months after his death, and in that case the partnership shall be deemed to have determined at the date of the giving or leaving such notice as aforesaid, and thereupon the partnership shall be wound up as hereinbefore provided in the case of the determination of the partnership, and in the meantime the business shall be deemed to have been carried on by the surviving partners on the joint account of themselves and representatives of the deceased partner. In the event of the purchase of such shares by the surviving partners or partner, no value shall be placed on the good will of the business as a partnership asset (or, the good will of the busi- Ch. 26) PARTNERSHIP 1027 ness shall be regarded as a partnership asset, and' the partners shall be deemed to be interested therein in the shares in which they were prior to such death entitled to the net profits of the partnership, and the value of such good will shall be deemed times the average annual net profits of the partnership for the then preceding years, or from the commence- ment of the partnership, whichever is the shorter period, and the value of the share in such good will of the deceased partner shall be added to and form part of the sum payable as provided in the preceding clause to the representatives of the deceased partner in respect to his share in the partnership business and the property and good will thereof). The total sum payable under this clause to the representa- tives of a deceased partner shall be paid as soon as conven- iently may be after the death, and in any case within months thereafter, and the surviving partners or partner shall by their or his bond indemnify the representatives and estate • of the deceased partner from the debts and liabilities of the partnership, and upon such payment being made and indemnity given the representatives of the deceased partner shall do all things necessary and proper for vesting the share of the de- ceased partner in the surviving partners or partner and en- abling them to recover and collect the outstanding assets of the partnership. 24. [RETIREMENT OE PARTNERS.] Any partner may, at the end of the or any subsequent year of the partnership, retire therefrom on giving not less than months' previ- ous notice in writing to the other partners or partner, and at the expiration of such year the partnership shall determine accordingly as to the partner giving such notice, and thereupon the provisions of the last preceding clause hereof shall (with the substitution of the continuing partners or partner for the surviving partners or partner, and of the retiring partner for 1028 FOEM BOOK (Ch. 26 the representatives of the deceased partner, and other conse- quential modiUcations) apply as if the retiring partner had died at the expiration of such year. (The retiring partner, in the event of the purchase of his share under the said provi- sions, shall not for years from the date of his retire- ment directly or indirectly carry on or be concerned or inter- ested in the business of , as principal or agent, within miles from the then principal place of business of the partnership.) 25. [Expulsion.] If any partner shall sell, assign, or other- wise part with or incumber his share in the partnership or any part thereof, or shall suffer the same to be incumbered, seized, attached, or taken on execution, or shall become bank- rupt or a lunatic or otherwise permanently incapable of at- tending to the partnership business, or shall act in any manner inconsistent with the good faith observable between partners, or shall be guilty of any conduct which would be a ground for dissolution of the partnership by tlie court, or shall absent himself from the partnership business more than days in any one year without the consent of the other partners, then and in any such case the other partners may, by notice in writing to the offending or incapacitated partner or his trustee or guardian, terminate the partnership so far as concerns such partner, whereupon the partnership shall determine accordingly, and the provisions of clause 22 hereof shall {with the sub- stitution of the continuing partners or partner for the surviv- ing partners or partner, and of the offending or incapacitated partner or his guardian for the representatives of the de- ceased partner, and other consequential modificatiofis) apply as if the offending or incapacitated partner had died at the date when such notice shall talte effect. 26. [NoTicB OF dUTERMinaTion.] Upon the determination of the partnership or the retirement of any partner by ex- Ch. 26) PARTNERSHIP 1029 pulsion or otherwise, due notice of the fact of such determina- tion or retirement shall be given by advertisement and by circulars to the customers of the firm, and such partner shall sign and concur in all proper notices thereof, and on any part- ner refusing to do so any other partner may sign the name of such refusing partner to any such notice. 27. [NoTicBS, HOW GivBN.] Any notice by these presents authorized to be given shall be deemed to be duly given if de- livered personally to the person to whom it is authorized to be given or if sent by mail in a registered letter addressed to him at his usual or last known place of abode. 28. [Arbitration.] All disputes and questions whatsoever which shall arise, either during the partnership or afterwards, between the partners or their respective representatives, or be- tween any of the partners and the representatives of any other partner, touching these presents, or the construction or ap- plication thereof, or on any account, valuation, or division of assets, debits, or liabilities to be made hereunder, or any act or omission of any partner, or any other matter in any way relating to the partnership business or the affairs of the part- nership, or the rights, duties, and liabilities of any person here- under, shall be referred to a single arbitrator if the parties agree upon one, otherwise to a board of three arbitrators, of whom one shall be selected by each party to the difference, and a third person shall be selected by those two ; and the decision and award of such single arbitrator, or of any two of such board, as the case may be, shall be final and binding upon the said parties and their respective representatives. In witness, etc. 1030 FORM BOOK (Ch. 26 4. Partnership Between Manufacturers, One of Whom is a Dormant Partner This indenture is made the day of between , party of the first part, and . party of the sec- ond part: [Recital op es-jablishment o? business.] Whereas, the party of the first part is the owner in fee simple of certain land and premises (description), together with the buildings there- on, consisting of a factory for the manufacture of ; and [Recital oe agreement eor partnership.] Whereas, the party of the first part has agreed to admit the party of the sec- ond part into partnership with him in the said manufacturing business, and it has been further agreed that the party of the second part should pay to the party of the first part for his own use and benefit the sum of dollars, being one-half of the estimated and agreed value of the said premises and fac- tory, and the machinery, fixtures, fittings, and appurtenances thereof, and that each of the said parties should contribute as capital the sum of dollars, to be secured or paid as hereinafter provided ; and [Recital op payment oe consideration.] Whereas, in pursuance of the said agreement the party of the second part has paid to the party of the first part the said sum of dollars, the receipt whereof by the party of the first part is hereby acknowledged ; and [Recital oe contributions oe capital.] Whereas, in fur- ther pursuance of the said agreement, the party of the first part has secured his said payment of his said contribution to the capital of the said partnership by executing to the party of the second part three several promissory notes each for the sum of dollars and payable respectively, with interest Ch. 26) PARTNERSHIP 1031 thereon at the rate of per cent, per annum, , and months from the date hereof, the receipt whereof by the party of the second part is hereby acknowl- edged, and the party of the second part has paid his said con- tribution of dollars to the capital of the said partner- ship into the ■ — — — Bank to the credit of an account in the firm name hereinafter mentioned of the said intended partner- ship, the payment whereof in manner as aforesaid is by the party of the first part hereby acknowledged. Now, this indenture witnesseth that, in further pursuance of the said agreement and in consideration of the premises, the said parties hereby mutually covenant and agree as follows : 1. [Business and term.] The said party of the first part and the party of the second part will become and continue partners in the said business of the manufacture of from the date hereof for the term of years. 2. [Place o? business and firm name.] The said busi- ness shall be carried on at the said factory and premises under the firm and style of . 3. [Premises to be partnership property.] The said premises and factory shall be partnership property, and shall belong to the partners in equal shares, and shall forthwith at the cost of the firm be conveyed to and vested in the partners in joint tenancy as part of their partnership estate, and in the meantime shall be held in trust by the party of the first part. 4. [Capital.] The capital of the partnership shall be the sum of dollars, contributed and secured or paid by the partners respectively as aforesaid. 5. [Increase oe capital.] The capital may be increased from time to time as the par;tners shall determine, and the amount of any such increase shall be contributed by the part- ners in such proportions as may be agreed. If the proportion of the capital for the time being contributed by either partner 1032 FORM BOOK (Ch. 26 shall at any time exceed the proportion contributed by the other partner, the amount of such excess for the time being shall be considered a debt due from the partnership and bear interest at the rate of per cent, per annum, payable be- fore any division of the profits, and may be withdrawn by the partner entitled thereto on giving not less than months' previous notice in writing to the other partner, and shall be withdrawn on like notice by the other partner, and in either case, if the same shall not be withdrawn at the expiration of the notice, the same shall cease to bear interest (or, the same shall thereafter bear interest only at the rate of per cent, per annum). '6. [Capitai, owing from active partner.] The several sums secured by the promissory notes aforesaid of the party of the first part, or so much thereof as shall for the time being remain unpaid, shall be considered a debt due from the party of the first part to the partnership, and until payment shall be charged upon the share and interest of the party of the first part in the partnership, and the party of the second part shall hold the said notes and the proceeds thereof in trust for the partnership accordingly. 7. [Banking, checks, etc.] The bank of the partnership shall be the Bank or such other bank as the partners shall from time to time agree upon. All moneys, bills, notes, checks, and other negotiable instruments, except moneys re- quired for current expense, shall as received be deposited in the bank to the credit of the partnership account. All checks on such account shall be drawn in the firm name and by the party of the first part only (except that the party of the sec- ond part may draw checks in the firm name for such sums as he may from time to time be entitled to draw out on account of his share of the net profits of the partnership). Ch. 26) PARTNERSHIP 1033 8. [Insurance.] The said factory and all the other prop- erty of the partnership shall be kept insured against fire to the: full value thereof in the name of the partnership in such com- panies as the partners may approve, and all moneys received in the event of loss or damage of any property so insured shall be applied in making good such loss or damage. 9. [Expenses.] The cost of such insurance, taxes, the ex- pense of keeping the said factory, machinery, fixtures, and fit- tings in good repair, and of all alterations, unprovements, or additions thereof or thereto (which may be agreed upon by the partners), and all other expenses in respect to the same, and ,the salary payable to the party of the first part as hereinafter provided, and the salaries and wages of all clerks, servants, workmen, and other persons employed in the said business, and all other expenses, losses, or damages incurred in relation thereto, and the interest, if any, on capital payable to either partner, shall be paid out of the profits or capital of the part- nership, and, in case of deficiency, by the partners in equal shares. 10. [Drawings by partners.] The party of the first part, in addition to his annual salary hereinafter provided for, may draw out of the said business for his own use the sum of dollars monthly on account of his share of current profits ; and the party of the second part may draw out in like manner on account of his share of current profits in each year by equal monthly installments a sum equal to per cent. on his said contribution of dollars to the capital. If on the taking of any annual account, as hereinafter provided, the aggregate amount so drawn out by either during the period covered by the account shall be found to exceed the share of profits for that period, he shall forthwith refund such excess to the partnership. 1034 FORM BOOK (Ch. 26 11. [Division Of 'profits.] The net profits of the partner- ship shall belong tO the partners in equal shares. If upon tak- ing the account for any year during the first — years of the partnership the share of profits of the party of the second part shall exceed a sum equal to per cent, on his share of dollars contributed to the capital, such excess shall be left in the partnership on the terms mentioned in clause 5 hereof, except that the same shall not be drawn out until the expiration of the first years of the partnership, if it shall so long continue. Save as aforesaid, the profits of each partner shall be carried to his credit immediately after the tak- ing and signing of the annual account whereby the same shall _ be ascertained and may be drawn out at his pleasure, subject, however, as regards the share of the party of the first part, to the aforesaid charge on his share in the partnership as pro- vided in clause 6 hereof. 12. [Active partner to have sole management — Sal- ary.] The party of the first part shall have the sole and ex- clusive management of the partnership business, and shall de- vote his whole time and attention thereto, and carry on and manage the same for the common benefit of the partners to the utmost of his skill and ability, with the assistance of such •clerks, servants, workmen, and other employes as he shall •deem necessary, and shall not during the continuance of the partnership be concerned or engage directly or indirectly in any manufacture, trade, or business other than the business of the partnership. In consideration of such services the party of the first part shall be allowed an annual salary of dollars, payable by equal monthly installments on the last day of each month. 13. [Dormant partner not To interfere, etc.] It shall not be necessary or lawful for the party of the second part to take any part or in any way interfere in the conduct or Ch. 26) PARTNERSHIP 1035 management of the said business, and he shall not during the continuance of the partnership be concerned or engage di- rectly or indirectly, except under these presents, in the busi- ness of the manufacture of ■ — , or, except as hereby au- thorized, use the firm name of the partnership or sign his name as a partner therein unless with the consent of the party of the first part ; but he shall at all times have access to and the right to visit and inspect the said factory and business and all the stock in trade and other property of the partnership. 14. [DuTiijs OF PARTNERS TO EACH OTHER.] Each partner shall be just to the other in all dealings and transactions re- lating to or affecting the partnership business, and whenever reasonably required shall render to the other a true account thereof and inform him of all accounts, writings, and other things which have come to his hands or knowledge, and nei- ther shall without the consent of the other employ any of the money, goods, or effects of the partnership or pledge its credit except in the ordinary course of business and upon the ac- count and for the benefit of the partnership : Provided, that nothing in this clause shall be deemed to confer on the party of the second part any power or authority on behalf of the partnership which by any other clause hereof he is precluded from having or exercising. 15. [Acts not to be done.] Neither partner shall without the previous consent in writing of the other partner enter intcn any bond, or become bail, indorser, surety, or security with or for any person, or do or knowingly cause or suffer to be done any thing whereby the partnership property or any part there- of may be seized, attached, or taken in execution, or assign, mortgage, or incumber his share of the partnership, or com- promise or compound or, except upon full payment, release or discharge any debt due to the partnership. 1036 FORM BOOK (Ch. 26 16. [Payments by partners of private debts.] Each partner shall, etc. {following Form No. 3, cl. 17, p. 1024, with nec- essary changes), 17. [Accounts.] The party of the first part shall keep or cause to be kept under his supervision proper books of ac- count of and of all his transactions on behalf of the partner- ship, and once in each month shall furnish to the party of the second part a summary in writing of the operations of the partnership from the commencement thereof or from the foot of the last previous summary, as the case may be, so as to show as nearly as may be the result of such operations and the position of the partnership business. Such books of ac- count, and all securities, instruments, vouchers, letters, and other documents relating to the partnership shall be kept in the counting house at the said factory, and each partner shall at all times have access to and the right to inspect and copy the same. 18. [Annuae account and valuation.] As soon as prac- ticable, etc. (following Form No. 3, cl. 19, p. 1024, with neces- sary changes). 19. [Winding up.] Within '■ months after the deter- mination of the partnership by lapse of time or otherwise a final account and valuation of the assets, credits, debts, and liabilities of the partnership shall be taken, made, and signed by the partners or their respective representatives in like man- ner as hereinbefore provided with respect to the annual ac- count and valuation, and thereupon, subject as hereinafter pro- vided, the partners or their respective representatives shall make due provision for paying and discharging such debts and liabilities ; and, subject thereto and to the payment of any sum which may be due to either partner or his representatives for capital contributed in excess of the other partner, or for interest on capital or undrawn profits or otherwise, the assets Ch. 26) PARTNERSHIP 1037 of the partnership shall be divided between the partners or their respective representatives in equal shares, and they shall respectively execute, do, and concur in all necessary or proper instruments, acts, and things for getting in the outstanding debts and assets of the partnership, and for vesting in the par- ties entitled thereto the sole right in their respective shares in such assets, credits, and effects, and for mutual release or in- demnity, and for notifying the determination of the partner- ship to the customers or parties having had dealings with the partnership. 20. [Option to purchase other partner's share on de- termination.] If the partnership shall be determined by the expiration of the said term, and either partner shall desire to continue, but the other partner shall be unwilling to continue, the said business, or if the partnership shall be determined by the death of either partner during the said term, the continu- ing or surviving partner shall have the option, to be notified in writing to the outgoing partner or to the representative of the deceased partner within months from such determina- tion, of purchasing the share of the outgoing or deceased part- ner in the partnership business, assets, credits, and effects, at a price equal to the value of such share, as ascertained by the final account and valuation hereinbefore provided for, together with a sum equal to one-half of the value of the good will ascertained as provided in clause 22 hereof. Such purchase money, with interest thereon at the rate of per cent. per annum from the date of such determination, shall be paid to the outgoing partner or to the representatives of the de- ceased partner within months from that date, and all necessary and proper instruments shall be executed for vesting in the continuing or surviving partner the said share of the outgoing or deceased partner and for indemnifying the out- going partner or the representatives and estate of the deceased 1038 FORM BOOK (Ch.26 partner from the debts and liabilities and obligations of the partnership. 21. [Continuance of business on death o:e dormant PARTNER.] If the party of the second part shall die during the said term, leaving the party of the first part him surviving, and the party of the first part shall be unwilling to exercise the option of purchase giv€n him by the preceding clause here- of, then and in that case, if upon the taking of the final account and valuation hereinbefore provided for it shall appear that the said business is ^olvent, the share of the deceased partner in the capital and property of the partnership shall be retained in the said business, and the party of the first part shall con- tinue to carry on the said business for the remainder of the said term on behalf of himself and the representatives of the party of the second part, as nearly as may be according to the terms and provisions of these presents, and the said represen- tatives shall succeed to his share in the said business and the property, profits, and good will thereof, but as dormant part- ners only, and subject as nearly as may be to the terms and pi^ovisions of these presents applicable to the party of the sec- ond part: Provided, that if in any year the share of profits coming to such representatives shall be less than per cent, on the capital of the party of the second part retained in the business, such representatives shall be entitled to deter- mine the partnership on giving to the party of the first part not less than months' notice in writing of their inten- tion so to do; and on the expiration of such notice the part- nership shall determine accordingly, and thereupon the affairs of the partnership shall be wound up in the manner provided in clause 19 hereof as if the party of the second part had died at the date of the expiration of such notice, but with the like option to the party of the first part of purchasing the share of Ch. 26) PAETNERSHIP 1039 the party of the second part as is provided in the preceding clause hereof. 22. [Valuation of good \vii,l.J L'pon the determination of the partnership and a division of the assets thereof under clause 19 hereof the good will of the said business shall not be regarded or valued as a partnership asset, but each partner or his representatives shall be at liberty to commence or carry on a similar business in his or their own or any other name or names not being identical- with the name of the firm. Upon the purchase of the share of an outgoing or deceased party under any of the provisions hereof the value of the good will shall be deemed to be times the average annual net profits of the partnership for the then last preceding years or from the commencement of the partnership, which- ever shall be the shorter period. 23. [Arbitration.] All disputes and questions, etc. (fol- lowing Form No. 3, cl. 28, zvith necessary changes). In witness, etc. 5. Partnership Between Lawyers , , and hereby form a partnership as attorneys and counselors at law under the name of , to continue for yeai-s "from this date ; but either party may retire on one month's notice in writing. shall receive one-half, one-third, and one-sixth of all the business receipts, including counsel fees from all sources, after deducting expenses. Each party shall devote all his working time to the business of the partnership. All receipts shall be deposited in a bank to be selected by the firm, in the name of the firm, and, after current expenses are paid, shall be divided whenever there is a sum on hand exceeding dollars. 1040 FORM BOOK (Ch. 26 All checks shall be drawn by . Neither member of the firm shall become indorser or se- curity in any manner for any other person without the consent of all the other members of the firm. (Signatures.) Dated , 19—. 6. Same — Longer Form This agreement made the day of between -, party of the first part, , party of the second part, and , party of the third part: Witnesseth that the said parties hereby mutually covenant and agree as follows: 1. [Agreement eor partnership.] The said parties will carry on in partnership at , under the style of , the business of attorneys and counselors at law, in continua- tion of the like business heretofore carried on by the parties of the first and of the second part under the style of . 2. [Term.] The partnership shall continue for the terra of years from the date hereof, unless previously termi- nated as hereinafter provided. 3. [Place oE business.] The partnership business shall be carried on at the offices in in which the said former business of the parties of the first and of the second part has heretofore been carried on or at such other offices as the part- ners may -from time to time agree upon. 4. [Expenses.] All rents, insurance, salaries, wages, and other expenses incidental to the partnership business, and all losses or damages incurred therein, and the interest on any capital payable to any partner, shall be paid out of the profits or capital of the partnership, and, in case of deficiency, by the partners in proportion to their respective shares in the net profits. Ch. 26) PARTNERSHIP 1041 5. [Office furniture, books, etc.] All the furniture, fittings, and law or other books in and about the premises and used by the said parties of the first and of the second part in connection with their former business shall continue to be- long to them respectively according to their present ownership therein, but during the continuance of the partnership the firm shall have the use thereof free of expense except for insurance and repairs. All other furniture, fittings, and books hereafter required shall be paid for out of the partnership moneys, and shall belong to the partnership in the shares in which the partners may be entitled respectively to share in the net profits. 6. [Capital.] The capital requisite for carrying on the partnership shall be contributed from time to time by the part- ners in the shares for which they are for the time being en- titled to the net profits of the business, and such capital shall bear interest at the rate of per cent, per annum. 7. [Banking.] See Form No. 3, cl. 8, p. 1022. 8. [Books of account, etc.] Proper books of account and diaries shall be kept by the partners at the said offices. Each partner shall punctually make full and proper entries of all business transacted by him on account of the partnership. 9. [Attention to business.] Each partner shall devote his whole time and attention to the partnership business, and no one of the partners shall without the written consent of the others engage in any other business or hold any office or appointment : Provided, that the parties of the first and of the second part shall be at liberty to hold at his own ex- pense and for his own benefit any office in the Com- pany. 10. [Business prohibited.] No one of the partners shall conduct any business for any person, firm, or corporation after having been required in writing by the others not to do so. TiFP.PORMS— 66 1042 FORM BOOK (Ch. 26 11. [Business for partners, etc.] If the firm or any partner shall act or transact any legal business for a partner, or the wife or child of a partner, or his or their trustees, no charge shall be made therefor except for disbursements or costs recovered against other parties therein. 12. [Acts not to be done.] No partner shall (following Form No. 2, cl. 12, p. 1017, so far as may be deemed best). 13. [Partners to pay private debts.] Each partner shell- (following Form No. 3, cl. 17, p. 1024). 14. [Annual account.] On the day of in each year a general account and balance sheet shall be taken and made in the manner and on the principle so far as appHca- ble adopted by the said former firm of , and so that actual receipts and payments alone shall be taken into account. 15. [Shares in profits and drawings.] The net profits appearing on each such yearly account shall be divided as follows: The party of the first part shall be entitled to one- half thereof, the party of the second part to one-third there- of, and the party of the third part to <)ne-sixth thereof ; and such profits, less any sum which any partner with the con- sent of the others may have previously drawn on account thereof, may be drawn by the partners respectively entitled thereto as and when there shall be money at the bank availa- ble for that purpose over and above the moneys needed for the current purposes of the partnership business. If in tak- ing any such account any partner shall be found to have drawn out more than his share of the profits as ascertained thereby, he shall forthwith repay the excess to the partnership. 16. [Share of junior partner guaranteed.] If in any such yearly account the share of profits to which the party of the third part shall be entitled shall not amount to dollars for the year comprised in such account, then the dif^ f erence between that share and dollars shall be paid Ch. 26) PARTNERSHIP 1043 to the party of the third part by the other partners in the proportion in which they as between themselves shall be enti- tled to the net profits. V7. [Winding up.] Upon the determination of the part- nership for any cause, subject to the provisions of the follow- ing clause, a full account shall be taken and settled of all the moneys, debts, and effects belonging to or due the firm and of all debts and liabilities of the firm, and thereupon the part- ners and the representatives of any deceased partner shall make provision for the payment and satisfaction of their re- spective proportions of the said debts and liabilities due from the firm, and the balance of the capital, assets, and effects of the partnership and the profits thereof shall be got in, sold, and realized, and the net proceeds or balance thereof after paying debts and liabilities and what may be due the respective partners or their representatives for interest on capital or un- drawn profits shall be divided between the partners and their representatives in proportion to the share and interest of the partners therein respectively: Provided, that all office papers belonging to the partnership shall be distributed among the surviving partners as nearly as may be in such manner that the papers relating to the business of any client shall go to such of the partners respectively as the client may designate. 18. [Option to purchase deceased partner's share.] If the partnership shall be determined by the death of any partner during the said term, the surviving partners shall have the option, to be notified in writing to the representatives of the deceased partner within days from such death, of purchasing the share of the deceased partner in the partner- ship assets, credits, and effects at a price which shall be as nearly as may be the value of such share as it would be ascer- tained if the partnership were wound up in the manner pro- vided in the preceding clause. In case the surviving partners 1044 FORM BOOK (Ch. 26 and the representatives of the deceased partner cannot agree upon such value, the same shall be determined by arbitrators in the manner provided in the following clause. Such pur- chase money, with interest at the rate of per cent, per annum from the date of the award, shall be paid to the repre- sentatives of the deceased partner within days after that date, and all necessary and proper instruments shall be executed for vesting in the surviving partners the said share of the deceased partner in the assets, credits, and effects of the partnership and for indemnifying the representatives of the deceased partner from the debts, liabilities, and obligations of the partnership. 19. [Arbitration.] If any dispute, etc. {following Form No. 3, cl. 28, p. 1029). In witness, etc. 7. Articles on Introduction of a New Partner This indenture made the day of between and , hereinafter called the old partners, of the one part, and , hereinafter called the new partner, of the other part: [Recital off existing partnership.] Whereas, the old partners are now and have been carrying on the business of in partnership, pursuant to articles of partnership made between them and dated the day of ; and [Recital oe accounting to date.] Whereas, an account of all the capital, assets, and liabilities of the former partner- ship has been taken, and the profits shown by such account have been divided between the old partners as of the date hereof ; and [Recital oe agreement to Take in new partner.] Whereas, the said parties of the first part have agreed to take the said party of the second part into partnership with them Ch. 26) PAETNERSHIP 1045 in the said business in the manner and upon the terms here- inafter expressed; and [Recitai, of contribution to bb made by nuw partner.] Whereas, it was upon the treaty for the admission of the new partner agreed that the new partner should bring into the business of the new partnership the sum of dollars in cash, being of the estimated and agreed value of the entire property, assets, and effects of the said former partner- ship, and in pursuance of the said agreement the new partner has deposited with the bankers of and to the credit of the new partnership the said sum of dollars, the receipt whereof the old partners hereby acknowledge. Now, this indenture witnesseth that the said parties hereto hereby mutually covenant and agree as follows : 1. [Formation of partnership.] The old partners and the new partner will in the manner and upon the terms here- inafter expressed become and remain partners in the said busi- ness for the term of years from the day of 2. [Continuance of former articles.] The existing ar- ticles of partnership between the old partners shall, notwith- standing these presents, have full force and effect and regu- late the relations of the partnership hereby formed, in all re- spects as if the said articles had contemplated an equal part- nership between three partners, except so far as the same shall be necessarily modified or affected by these presents. 3. [Capital.] The capital of the new partnership shall con- sist of the said property, assets, and effects of the former part- nership and of the said sum of dollars brought into the business by the new partner as aforesaid. 4. [Shares of partners.] The net profits of the busmess shall be divided between the partners, new and old, equally, that is to say, each shall be entitled to onerthird thereof, and 1046 FORM BOOK (Ch. 2P they shall in like proportion bear all losses, including loss of capital; and their respective shares and interests in all and singular the property, assets, and effects of the partnership shall be in like proportion. In witness, etc. 8. Articles of Partnership in Relation to a Single Adventure (Syndicate Agreement) This agreement made the day of between the several persons whose names are hereunto subscribed wit- nesseth that it is hereby mutually agreed between them as fol- lows : 1. [Constitution oj? syndicate.] The parties hereto shall constitute a syndicate under the style or firm name of the Syndicate. 2. [Object.] The object of the syndicate is to negotiate for and purchase the property known as the Electric Rail- way {or whatever other purpose the syndicate is formed for), and to resell the same at such price or prices and in such man- ner as the parties shall determine. 3. [Appointment and duties of manager.] The under- signed shall be the manager of the syndicate, and shall in his own name and ostensibly as principal, but in reality as agent for and with the sanction of the syndicate, negotiate and enter into all contracts for the purchase or sale of the said , and he shall be entitled to be fully indemnified against all liabilities under such contracts out of the capital of the syn- dicate, or, if that be insufficient, by the parties hereto in the proportions in which they are respectively interested in such capital, and for that purpose he himself shall, as a member of the syndicate, bear his due proportion of such indemnity. 4. [Meetings and notices.] The said may call meetings of the syndicate whenever he thinks it desirable, and Ch. 26) PARTNERSHIP 1047 he shall call such meetings before entering into any such con- tract as aforesaid, or, if required in writing so to do, by members. Such meeting shall be called by mailing a notice in that behalf in a prepaid letter addressed to each mem- ber of the syndicate at the address given below: Provided, that the notice, in the case of a meeting called to sanction any such contract as aforesaid, shall state the nature of the busi- ness to be transacted. Except in urgent cases, such notices shall be mailed in time to give each member at least hours' notice of the meeting on the assumption that the notice will be delivered in the ordinary course of mail. 5. [Capitai. — Shares in profits.] Each member of the syndicate shall forthwith pay into the Bank, at , to the credit of the Syndicate, the sum set opposite to his signature by way of contribution to the capital of the syn- dicate, and each member shall share in the profits, if any, and contribute to the losses, if any, whether such losses exceed the said capital or not, in the proportion of his contribution to the said capital. The said capital shall be applied for the purposes of the syndicate, and all checks shall be signed by the said (manager) and . 6. [Voting.] Each member shall have one vote for each sum of dollars subscribed by him to the capital. All questions relating to the business of the syndicate shall be de- cided by the majority of' the votes of those present and voting at a meeting duly called, and such decision shall be binding on all members whether present at such meeting or not. 7. ,[Removai<,and appointment of managers.] The mem- bers of the syndicate may by a majority of the votes of those present and voting at any meeting displace the said (or any other manager) as manager. In that case, at the same or a subsequent meeting, or in case of the death or resigna- tion of any manager at a meeting convened for that purpose, 1048 FORM BOOK (Ch. 26 the members may in like manner appoint some other member or an outsider to be manager: Provided, that notice of every such removal or appointment shall be given in the notice con- vening the meeting. Every new manager shall have powers and duties similar to those of the original manager. 8. [Expenses and commission of manager.] In addition to his share of profits, if any, the manager for the time being shall at the dissolution of the syndicate be entitled to all his reasonable expenses ; and also to a commission of per cent, on all the net profits actually made by the syndicate. And if there shall be a succession of managers, such commission shall be divided between them in such proportions as the syn- dicate shall determine, having regard to the value of their serv- ices respectively, and for this purpose the decision of a major- ity of the members voting on the question shall be conclusive. 9. [Dissolution.] The syndicate shall be dissolved when the said shall have been purchased and resold, or if the said shall not have been purchased within cal- endar months of the date of these presents. 10. [Ultimate division oe capital and profits.] On such dissolution after payment of all expenses and commis- sions, if any, the residue of the capital and any profit shall be divided between the members in the proportions aforesaid. In witness whereof the undersigned have hereto subscribed their signatures the day and year first above written. {Signatures of sub- (Addresses of sub- (Amount of capital scribers.) scribers.) subscribed by each subscriber.) Ch. 26) PARTNERSHIP 1049 9. Agreement to Continue Partnership — By Indorsement on Articles Whereas, the partnership evidenced by the within articles •of agreement has this day expired by the limitations contained herein {or, will expire on the day of next), it is hereby agreed that the same shall be continued on the same terms, and subject to all the provisions and conditions therein contained, for the further term of years from this date {or, from the day of next.) In witness, etc. 10. Indenture Extending Term of Partnership with Modifi- cations of Original Articles Indenture made the day of between , party of the first part, , party of the second part, and , party of the third part : [Recital of originai, articles.] Whereas, by an inden- ture of partnership dated the day of the parties hereto agreed to enter into partnership in the business of for the term of years from the day of , which term will expire on the day of next. Now, this indenture witnesseth that the said parties hereby mutually covenant and agree as follows : 1. [To EXTEND TERM.] The parties hereto will be and con- tinue partners in the said business for the further term of — years from the said day of next upon the terms and conditions, so far as applicable, of the above-re- cited indenture of partnership in all respects as if the term lim- ited by the said indenture for the duration of the partnership had been the full term of years, instead of the shorter 1050 FORM BOOK (Ch. 26 term of years thereby limited, but subject nevertheless to the moditications of such terms and conditions which are hereinafter contained. • {Insert modifications as may be agreed.) In witness, etc. 11. Dissolution of Partnership — By Indorsement on Articles The partnership heretofore subsisting between us, the un- dersigned , -^ , and , under and pursuant to the within articles of partnership, is hereby ' dissolved, except so far as may be necessary to continue the same for the liqui- dation and settlement of the business thereof. The said {or, each of the undersigned) is authorized to sign in liquidation. In witness, etc. 12. Deed of Dissolution of Partnership; One Partner Re- tiring and Assigning His Share to the Continu- ing Partners This indenture made the day of between , hereinafter called the retiring partner, of the one part, and and , hereinafter called the continuing part- ners, of the other part: [Recitai, of partnership and dissolution agreement.] Whereas, under an indenture of partnership dated the day of , the parties hereto have in partnership carried on the business of under the firm and style of — , and it has been agreed that the said partnership shall be de- termined, and that the retiring partner should receive the amount due to him for his share in the said business and the capital, stock, effects, and good will thereof, and should with- Ch. 26) PARTNERSHIP 1051 draw from the said business leaving the same to be carried on by the continuing partners for their own benefit or otherwise as they might think proper ; and • [Recitai, of agreement as to vaeue op retiring part- ner's SHARE.] Whereas, vakiations and estimates of the prop- erty, assets, credits, and effects of .the said business and the good will thereof have been made, and the same, after deduct- ing the outstanding debts and liabilities of the said partner- ship, have been agreed to be taken as between the parties here- to as of the value of dollars, of which the (one-third) share of the retiring partner has been fixed and agreed at the sum of dollars. Now, this indenture witnesseth as follows : 1. [Dissolution.] In pursuance of the said agreement and in consideration of the premises, the parties hereto dissolve as and from the day of the partnership hereto- fore subsisting between them in the business aforesaid. And notice of such dissolution and of the intended continuance of the said business by the continuing partners shall be forthwith advertised and notified to the customers of the said partner- ship by a circular, the form of which has already been signed by the parties hereto. 2. [Mutual releases.] The retiring partner hereby re- leases the continuing partners and each of them, and the con- tinuing partners hereby respectively release the retiring part- ner, from all actions, accounts, claims, and demands in rela- tion to the said partnership hereby dissolved, and from all clauses, covenants, agreements, matters, or things in the said recited indenture of partnership contained. 3. [Assignment of share op retiring partner.] In con- sideration of the sum of dollars to him paid by the continuing partners, the receipt whereof is hereby acknowl- edged, and of the covenants and agreements on the part of the 1052 FORM BOOK (Ch. 2& continuing partners herein contained, the retiring partner here- by assigns and releases unto the continuing partners all that the (one-third) part or share and all other, if any, his respec- tive share and interest of and in the said business of the said partnership hereby dissolved, and the property, assets, credits,, effects, and good will thereof. To hold the same unto the con- tinuing partners absolutely. [Power 0? attorney.] The retiring partner hereby irrev- ocably appoints the continuing partners and each of them his true and lawful attorney in his name, solely or jointly with the continuing partners or otherwise, but at their sole risk and cost, to ask, demand, sue for, recover, receipt for, and dis- charge all and singular the debts, estates, and effects of or due or owing or belonging to the said partnership hereby dissolved or any part thereof, with full power to settle all accounts, mat- ters, and things whatsoever relating to the said business with every and all person or persons whomsoever, and to compound for or release all or any of the debts or claims belonging there- to and to submit the same to arbitration, and otherwise to act in the premises in all things for the purposes aforesaid as they shall think proper, with full power of substitution, and gener- ally to use and take every method or expedient whatsoever for recovering the said partnership estate, debts, and effects in as full a manner as they, the retiring partner and the continuing partners, might or could jointly have done if the said part- nership were still subsisting. [Covenants oe continuing partners.] The continuing partners jointly and severally covenant with the retiring part- ner that they or one of them will duly pay and satisfy all debts, and liabilities of the said partnership hereby dissolved, except only such debts, if any, as may have been contracted by the retiring partner and have not been entered in the partnership accounts; and, further, that they will at all times effectually Ch. 26) PARTNERSHIP 1053 indemnify and keep indemnified the retiring partner, his heirs, executors, and administrators, from the said debts and liabil- ities, and from all actions, proceedings, costs, claims, and de- mands in respect thereof. [Covenant of retiring partner.] The retiring partner •hereby covenants with the continuing partners that he will not for the period of years from the date hereof, either alone or in partnership with any other person or persons, or as agent for or on behalf of any other person or persons or corporation or otherwise, carry on or engage in or be concerned directly or indirectly in the business of at . In witness, etc. 13. Notice of Dissolution Notice is hereby given that the partnership heretofore sub- sisting between (us, the undersigned) , '■ , and , heretofore carrying on business as at under the style or firm of , has been dissolved (by mu- tual consent; or, pursuant to the terms of the articles; or, by reason of the death of the said ) as and from the day of {or, from the date hereof) (so far as concerns the said , who retires from the said firm). All debts due to and owing by the said late firm will be received and paid respectively by (who will continue to carry on the said business in partnership under the style or firm of )• Dated the day of . {Signatures by parties giving notice, including the represen- tatives of any who have died!) 1054 FORM BOOK (Ch. 26 14. Notice of Retirement To (name of partner or partners other than retiring partner) : Under -the terms of our articles of partnership, dated the day of , I hereby give you notice that it is my intention to retire from the partnership forthwith {or, as and from and immediately after the ■ ■ day of next, being the end of the current year of the partnership; or, on the day of next). Dated the day of . {Signature) 15. Limited Partnership, Where a Person is Admitted by Two General Partners as Special Partner '■ Indenture made the day of between and , of , hereinafter called the general partners, of the one part, and , of , hereinafter called the special partner, of the other part : [Recitai, of original articles.] Whereas, the general partners have heretofore carried on the business of in partnership under the firm name of , under articles of partnership dated the day of ; [RECITai, of agreement.] And whereas, it has been agreed by the parties hereto that the special partner shall be admitted into partnership with the general partners upon the payment of the sum of dollars, and that the rights of the gen- eral partners, on the one hand, and of the limited partner, on the other hand, shall be regulated by the provisions hereinafter contained, and that the rights of the general partners as be- tween themselves shall be regulated by the said partnership articles as modified by the provisions hereinafter contained; 1 The particular statute should be consulted with refwenee to the propriety or validity of the teiins of a limited partnership, aute, p. 1011. Ch. 26) PARTNERSHIP 1055 [Recital op payment.] And whereas, the said sum of dollars has been paid in actual cash by the special part- ner to the credit of the firm of in the bank, the receipt whereof is hereby acknowledged. • Now, this indenture witnesseth that the parties hereto here- by mutually agree to become partners in the said business of for the period and upon the terms hereinafter ex- pressed, that is to say: 1. [Duration of partnership.] The partnership shall commence on the day of {fixing a date which ■mil allow time for compliance with the statutory requirements for the formation' of a limited partnership), and shall terminate on the day of , unless previously determined as hereinafter provided. 2. [Partners general and special.] Each of them the said and shall be a general partner, and the said shall be a special partner. 3. [Share op special partner.] The share of the special partner in the capital of the partnership shall be dol- lars. 4. [Firm name.] The firm name under which the business of the partnership shall be conducted shall be . 5. [Nature op business.] The general nature of the busi- ness to be transacted by the partnership shall be . 6. [To comply with requirements por formation op LIMITED PARTNERSHIP.] The parties hereto shall forthwith execute a certificate and an affidavit and cause such certificate to be recorded and published, and proof of such publication to be filed, and do all other things requisite for the formation of such partnership and constituting it a limited partnership, all in conformity with the provisions of chapter of the (General) Statutes of the state of {or otherwise provid- ing for compliance with the statutory requirements). 1056 FOEM BOOK (Ch. 26 7. [Pi,ACB 01? BUSINESS.] The business shall be carried on at 8. [Sign.] The parties hereto shall cause forthwith to be placed conspicuously on the outside of the front of the build- ing in which the partnership shall have its place of business a sign containing the full names of the partners and describing them respectively as general and special partners. 9. [Restriction oif speciaIv partner's power.] The spe- cial partner shall not take part in the management of the busi- ness or transact any business for the partnership, and shall have no power to sign for or to bind the firm. 10. [Special partner not to withdraw capital.] The special partner shall not during the continuance of the part- nership be entitled to draw out or receive back any part of his share of the capital. 11. [Capital op general partners.] The present capital of the general partners is hereby declared to be dollars, of which the share of the said is dollars, and the share of the said is dollars. 12. [Profits and loss oe capital.] The special partner shall be entitled to a ratable share in the net profits of the busi- ness in the proportion which the sum contributed by him as aforesaid bears to the total amount of the capital of the part- nership, and shall bear a like ratable proportion of any losses. The loss attributable to the shares of the capital of the gen- eral partners shall, if not recouped by them, be deducted from the amount of their capital appearing in the books of account of the partnership. The loss attributable to the share of a spe- cial partner shall, unless forthwith recouped by him in actual cash, be borne by reducing the amount of capital contributed by him. Upon any such reduction of capital the parties hereto shall forthwith cause all such steps to be taken as shall be re- quired by law for the renewal or continuance of the partner- Ch. 26) PARTNERSHIP 1057 ship as a limited partnership for the residue of the term there- of as hereinbefore limited. 13. [Drawings.] The .special partner shall not be entitled to make any drawing on account of his share of profits ; but the general partners may draw as follows, namely, the said dollars a month, and the said dollars a month. If the aggregate amount of the drawings of a general partner in any one year shall upon the taking of the annual account exceed the amount of his share of the net profits, he shall forthwith repay the excess to the partnership. 14. [Accounts.] {See in Form No. 3, cl. 18, p. 1024.) 15. [Annual account and valuation.] (See in Form No. 3, cl. 19, p. 1024.) 16. [Determination by notice.] In case at any time (aft- er the expiration of the first year of the partnership) the gen- eral partners shall desire to determine the partnership, they may do so by first giving notice in writing to that effect to the special partner, and upon the expiration of months from the giving of the notice and upon thereafter causing a notice of dissolution of the partnership to be recorded and pub- lished in conformity with the statute in that case provided (or otherwise providing for the giving of any statutory notice of dissolution) the partnership shall determine accordingly. 17. [Death of special partner.] If the special partner shall die during the continuance of the partnership, the same shall continue as a limited partnership, and the business shall be carried on by the surviving general partners until the ex- piration of the period for its continuance as hereinbefore lim- ited. 18. [Winding up.] Upon the determination of the part- nership by expiration of the period limited for its continuance or by notice as hereinbefore provided, a full and general ac- count shall be talten, and the affairs of the partnership shall TiFF.FORMS — 67 1058 FORM BOOK (Ch. 26 be wound up and the assets realized by the general partners. Any profits or losses since the preceding annual account shall be divided between or borne by the partners in the proportion of their shares in the capital of the partnership, and subject thereto the net proceeds of realization shall be divided between the partners in the proportion of their respective shares in the capital of the partnership : (Provided, always, that it shall be lawful for the general partners, in lieu of taking an account and winding up the affairs of the partnership, to purchase the share of the special partner on giving notice in writing to him of their desire to do so days before the determination of the partnership. If this option is exercised, the general partners shall pay to the special partner within days after the determination of the partnership the nominal amount of his share of capital as stated in the above-mentioned cer- tificate, together with his share of the profits up to the date of the determination of the partnership as ascertained by such general account as aforesaid.) 19. [Notices, how given.] {Pollowing Form No. 3, cl. 27, p. 1029.) 20. [Decisions o^ questions by general partners.] Any difference arising between the general partners, on the one hand, and the special partner, on the other hand, other than a question as to the respective shares of the partners in the capital of the business or the division of the profits or the rights of the special partner in winding up the partnership, shall be decided by the general partners. In witness, etc. Ch. 26) PARTNERSHIP 1059 16. Limited Partnership Between One General and Two Special Partners ^ This indenture made the day of between , of , hereinafter called the general partner, of the one part, and and , of , hereinafter called the limited partners, of the other part: Witnesseth that the parties hereto hereby mutually covenant and agree to become partners in the business of for the period and upon the terms following, to wit : 1. [Duration of partnership.] The partnership shall commence on the day of , and shall continue un- til the day of , or until the general partners shall die before that date or the partnership shall be deter- mined as hereinafter provided. 2. [Partners general and special.] The said shall be a general partner, and each of them, the said and , shall be special partners. 3. [Firm name.] (As in preceding form, clause 4.) 4. [Nature oE business.] (As in preceding form, clause 5.) 5. [To comply with requirements for formation of limited partnership.] (As in preceding form, clause 6.) 6. [Place of business.] The business shall be carried on at . 7. [Sign.] (As in preceding form, clause 8.) 8. [Restriction of special partners' power.] (As in preceding form, clause 9.) 9. [Capital.] The capital of the partnership shall be in the sum of dollars, to which the general partner shall contribute the sum of dollars, and each of the special partners shall contribute in actual cash the sum of dol- lars. Each partner shall before the said day of 2 See preceding footnote. 1060 POEM BOOK (Ch. 26 pay into the Bank to the credit of the partnership his aforesaid share of the capital. 10. [Death oj? spEciai, partner.] On the death of a spe- cial partner his rights shall devolve on his personal representa- tives, and the partnership shall continue as a limited partner- ship as theretofore until the expiration of the period, for its continuance as hereinbefore limited. 11. [SpEciai, partner not To withdisaw capitai,.] (As in preceding form, clause 10.) 12. [Proejts and loss oE capital.] (As in preceding form, clause 12, with necessary changes) 13. [Drawing.] {As in preceding form, clause 13, with necessary changes) 14. [Accounts.] {See in preceding form, clause 14.) 15. [Annual account and valuation.] {See in preceding form, clause 15.) 16. [Determination on incapacity oe general part- ner.] If at any time during the continuance of this partner- ship the general partner shall be for a period of (two) months incapacitated by bodily or mental infirmity from fully and ef- fectually attending to the said business or performing his duties in respect thereof, it shall be lawful for the special partners by notice in writing given to the general partner, at or after the ex- piration of such (two) months, and during the continuance of such incapacity, to determine this partnership, and upon their causing due notice of dissolution of the partnership to be re- corded and published in conformity with the statute in that behalf {or otherwise providing for any statutory notice of dis- solution) this partnership shall determine accordingly. 17. [Determination by special partners on insuefi- CIENcy oE profits.] If at any time during the continuance of this partnership the limited partners' share of the profits of the business shall not amount to per cent, on their Ch. 26) PARTNERSHIP 1061 shares of the capital, they may at any time within days from the signing of the annual general account by notice in writing to the general partner determine this partnership, and upon their causing due notice of dissolution of the partnership to be recorded and published (following preceding clause). (In that event the limited partners shall forthwith pay to the gen- eral partner the sum of dollars by way of compensa- tion in full for his rights hereunder, and the good will and assets of the business shall thereupon become the property of the special partners.) 18. [General partner to devote himsele to the busi- ness.] During the continuance of this partnership the general partner shall diligently and faithfully employ himself in and about and devote his whole time (except during the period of weeks in every year) to the said business, and carry on and conduct the same for the greatest advantage of the partnership, and render to the limited partners a just and faithful account of all his dealings and transactions in rela- tion to the business whenever by them reasonably required; and he shall not either alone or with any other person or cor- poration engage in or be interested directly or indirectly in any trade or business other than the business of this partner- ship. 19. [Winding up.] Upon the expiration of the term of partnership or upon the death or bankruptcy of the general partner or the determination of the partnership under clause 16 or clause 17 hereof, a full and general account shall be taken, and the affairs of the partnership shall be wound up, and the assets realized. Any profits or losses made since the last preceding annual account, or, if such event shall occur during the first year of the partnership, since the day of , shall be divided between and borne by the partners in the proportion of their shares in the capital of the partner- 1062 FORM BOOK (Ch. 26 ship, and subject thereto the net proceeds of realization shall be applied first in payment to the special partners of the amount of the capital contributed by them respectively, and in case of deficiency ratably in proportion to the said amounts, and the balance shall belong to the general partner or his es- tate. 20. [Notices, how given.] {See in preceding form, clause 19.) 21. [Arbitration.] {See m Form No. 3, cl. 28, p. 1029.) In witness, etc. Ch.27) PAKTT WALLS 1063 CHAPTER XXVII PARTY WALLS A "party wall" is a wall which rests longitudinally on the line between and partly on the lands of adjoining owners, who respectively have the right to use the wall for the support of contiguous structures. A wall may become a party wall by grant, as where one owns two buildings separated by a parti- tion wall and conveys one of the buildings, together with a longitudinal section, usually one-half of the width, of the wall ; or where the owner of a building conveys such a longitudinal section of an outer wall to an adjoining owner, together with the right to use the part retained as well as the part con- veyed for the support of a building to be erected by the grantee. Unless the rights of the parties are expressly defined by the grant, they must be determined by the rules of law applicable in the particular jurisdiction in such cases. In some states there are statutes, and in many cities there are ordinances, con- cerning party walls. Most frequently walls become party walls by agreements between adjoining landowners, which provide for the erection of a building by one of them, with an outer wall to be placed on the dividing line and partly on the land of each, and for the subsequent user of the wall by the other landowner for the support of such building as he may erect, upon payment by him of one-half of the cost or value of such part of the wall as he may use, and otherwise defining the rights of the parties. Such agreements usually provide that the covenants shall run with the land and bind and inure to the benefit of the respective heirs and assigns of the parties. It is generally held that the benefits, as well as the burdens, of the covenants run with the land to which they relate, although there is some conflict as to whether the benefit and the right of enforcement of the covenant to pay the stipulated part of the cost or value of the wall upon user thereof remains with the covenantee as a mere personal covenant, or whether it passes with a conveyance of the land to a grantee. If the land of either party is subject to a mortgage, the mortgagee should join in the agreement. The husband or wife of a party should join, if he or she would be required to join in a conveyance of the party's land. Party wall agreements 1064 FORM BOOK (Ch. 27 should be recorded, and they should therefore be executed and acknowledged by the parties with the .formalities prescribed for conveyances. Page 1. Agreement as to party wall to be built by either party 1064 2. Agreement as to party wall to be built by one party 1066 3. Agreement settling differences as to a wall and making It a party wall 1070 4. Grant of rigbt to use wall of adjoining building so long as it stands 1071 5. Conveyance of a share in a wall so as to make it a party wall 1072 1. Agreement as to Party Wall to be Built by Either Party Agreement made this day of between , of , party of the first part, and , of , party of the second part: [ReciTaIv of ownership op adjoining parcels.] Where- as, the party of the first part is the owner in fee simple free from incumbrances of a certain parcel of land described as (description), and the party of the second part is the owner in fee simple free from incumbrances of a certain other parcel of land adjoining the above-described premises and described as (description) ; and [Recital, of desire for party wall.] Whereas, the par- ties desire to provide for a party wall to be built upon the boundary line between the above-described parcels of land. Now, it is hereby agreed as follows : 1. [Party first building to erect party wall.] The party who shall first erect a building on his land above de- scribed shall build such building so that one of the walls there- of shall be on said boundary line, but so that not more than inches of the width of such wall, with a proportionate part of the footings and foundations, shall be upon the said land of the other party. Such wall may be of such length as the party building the same may see fit, but shall not be less than inches in width, and shall be built of brick in a Ch. 27) PAKTY WALLS 1065 good, substantial, and workmanlike manner, and in conformity with the laws and ordinances thereto applicable; and such wall, when built, shall be and remain a party wall. 2. [Use and payment by other party.] The party build- ing such wall shall pay for the same in the first instance ; but whenever the other party shall use the same or any portion thereof as a party wall he shall pay to the then owner of the land on which such building was so first erected one-half of the value of the portion of such wall so used at the current price of the time when such user shall begin. In case the par- ties cannot agree upon the amount so payable, it shall be de- termined by two referees, one to be selected by each party, and if they cannot agree they shall select a third person as- umpire, and the award of the two referees, or of the umpire^ as the case may be, shall be final and binding. 3. [Extension oe wall by either party.] Either party may at any time extend such wall to such greater length or height as he shall see fit and as may lawfully be done, subject to the same conditions and rights as to construction, use, and payment as hereinbefore provided. 4. [Repairs.] If it shall become necessary at any time after such wall shall have been used by both parties to repair or rebuild the same or any part thereof, the cost thereof shall be borne by both parties in proportion to their use thereof; mp. St. 1913, § 0446). Ch. 28) PATENTS AND INVENTIONS 1089 5. [To MANUFACTURE undBr PATENT ONi,Y.] The party of the second part shall not manufacture or cause to be manu- factured any except under the said letters patent and in accordance with the specifications thereof, subject neverthe- less to the provisions of clause 8 hereof. 6. [Patentee to give information.] (As in Form No. 10, cl. 5, p. 1091.) 7. [Not to dispute patent.] (As in Form No. 10, cl. 6, p. 1091.) 8. [Future improvements.] (As in Form No. 10, cl. 7, p. 1091.) 9. [No LICENSE AT LESS ROYALTY TO OTHERS.] The party of the first part shall not grant any license to manufacture or sell under the said letters patent within the said states of or any of them at a less royalty or license fee than payable hereunder by the party of the second part without making a corresponding reduction in the royalty or license fee payable by the party of the second part. 10. [Infringements.] (As in Form No. 10, cl. 8, p. 1091.) il. [Ceasing of royalties if patent invalid.1 (As in Form No. 10, cl. 10, p. 1092.) 12. [Determination for nonpayment of royalties, etc.] (As in Form No. 10, cl. 12, p. 1092, zvith necessary changes.) 13. [Determination without prejudice.] (As in Form No. 10, cl. 13, p. 1093.) 14. [IvIcense nonexclusive and nonassignable.] The license hereby granted is nonexclusive, and is personal to the party of the second part, and he shall not assign or mortgage the same or grant sublicenses thereunder without the previous written consent of the party of the first part. In witness, etc. TiFP.FoEMs — 69 1090 FOEM BOOK (Ch. 28 10. License — Exclusive — With Royalties This agreement (begin as in Form No. 8, p. 1086). 1. [License.] In consideration of the (sum of dol- lars paid by the party of the second part to the party of the first part, the receipt whereof is hereby acknowledged, and of the) royalties and the covenants and agreements by the party of the second part hereinafter reserved and contained, the party of the first part hereby grants unto the party of the sec- ond part and his {permitted) assigns the sole and exclusive right, privilege, and license within the states of to man- ufacture containing the said patented improvement, and within the said states {or, within the United States) to sell the machines so manufactured to the end of the term for which the said letters patent were granted. 2. [Royalties.] The party of the second part shall pay to the party of the first part on the day of and the day of in each year a royalty of dol- lars for every ( of ) manufactured by or on behalf of the party of the second part hereunder (which shall have been sold) during the six months preceding the month in which such royalties shall be so payable, the first of such payments to be made on the day of next. 3. [Accounts.] The party of the second part shall keep full and particular accounts of all matters connected with tlie manufacture (and sale) of hereunder, and will on the same day on which each such royalty shall be payable as afore- said deliver to the party of the first part a statement of ac- count of all manufactured and sold respectively by or on behalf of the party of the second part during the period of six months for which the said royalties shall be then payable. The party of the second part shall permit the party of the first Ch. 28) ' PATENTS AND INVENTIONS 1091 part or his agent at all reasonable times to inspect and take copies or extracts from any books of account and documents relating to the manufacture or sale of hereunder and to take an account of all the said for the time being in stock or in hand. 4. [Articles to be marked.] The party of the second part shall cause to be affixed on some conspicuous part of every • manufactured by or for him hereunder a (brass plate or label) containing the words and figures "Patented 19 — ,"' and the party of the second part shall not sell or offer to sell any without such plate or label being affixed. 5. [Patentee to give information, etc.] The party of the first part shall, whenever required by the party of the sec- ond part, give to the party of the second part all such infor- mation and assistance in his power as will enable the said ■ — to be manufactured and sold to the best advantage. 6. [Not to dispute patent.] The party of the second part shall not at any tim.e dispute or take any objection to the valid- ity of the said letters patent. 7. [Future improvements.] The party of the first part shall forthwith communicate to the party of the second part any improvement (or^ further invention) he may discover or acquire in connection with , and shall disclose to the party of the second part the manner of making and using the same, and the party of the second part shall be at liberty to manufacture and sell containing any such improvement or further invention within the limits aforesaid during the sub- sistence of this license free of all further royalties, charges, or payments whatsoever. 8. [Ineringments.] In the event of the said letters patent being infringed (within any of the said states or any of them) the party of the first part shall forthwith after notice thereof commence and prosecute at his own cost all legal proceedings 1092 FOEM BOOK (Ch. 28 necessary to protect the said letters patent and prevent such infringement, and if he shall fail to do so the party of the second part may by notice in writing terminate this license. 9. [License excLUSivB.] The party of the first part dur- ing the continuance of this license shall not (without the con- sent in writing of the party of the second part) manufacture or sell any under the said letters patent (or otherwise), or under any improvement or further invention hereinbefore referred to within the states aforesaid, and shall not (without the like consent) grant any license to manufacture {or, sell) any '- — under the said letters patent or under any such improvement or further invention to any other person or cor- poration within the limits aforesaid. 10. [Ceasing of royalties if patbnt invalid.] If the said letters patent shall in any action for infringement or oth- erwise be declared by any court of competent jurisdiction to be invalid on any ground whatsoever, all royalties payable hereunder shall forthwith cease to be payable ; but if the de- cision of such court shall be reversed on appeal, the said royal- ties shall forthwith again become payable, together with all royalties which would have been payable but for the adverse decision. 11. [Determination if minimum not manufactured.] If the party of the second part in any one year, commencing the day of , shall not manufacture (and sell) at least (patented articles) under this license, then the party of the first part may by notice in writing terminate this license. 12. [Determination for nonpayment of royalties, etc.] If any royalties payable hereunder shall be unpaid for days after the same become payable, or if the party of the sec- ond part shall commit or suffer a breach of any of the cove- nants hereinbefore contained and on his part to be performed Ch. 28) PATENTS AND INVENTIONS 1093 or observed, and shall not remedy such breach within days after notice given to him by the party of the first part re- quiring such remedy, or if (after the year ) the royalties payable hereunder for any half year shall not amount to the sum of dollars, or if the party of the second part shall become bankrupt or commit an act of bankruptcy or compounrl or make any arrangement with his creditors, the party of the first part may by written notice terminate this license, and. thereupon the same and all rights of the party of the second part hereunder shall forthwith cease. 13. [Determination without prejudice.] The determi- nation of this license in any manner ' hereby authorized shall be without prejudice to the remedy of the party of the first part to sue for and recover any royalties then due and to the rem- edy of either party in respect to any previous breach of any of the covenants or agreements herein contained. 14. r Sublicenses.] The party of the second part shall be at liberty to grant sublicenses hereunder to manufacture and sell the said within the states aforesaid ; but every such sublicense shall contain a provision substantially containing the terms of clause 4 hereof, and shall provide that such sub- license shall cease and determine in the event of this license being determined for any cayse : (Provided, further, that noth- ing herein contained shall authorize tlje party of the second part to assign or mortgage this license without the written con- sent of the party of the first part.) 15. [Representatives op parties inceuded.] Unless the context otherwise requires the term 'the party of the first part" whenever used shall apply to and include his personal representatives and assigns, and the term "the party of the second part" shall apply to and include his personal represen- tatives and (permitted) assigns. In witness, etc. 1094 FOllM BOOK (Cll. 28 11. License — Exclusive — To Sell Patented Article Manu- factured by Licensor This agreement made this day of (parties as in Form No. 8, p. 1086) : [REciTai, op paTBnt.] Whereas, letters patent of the Unit- ed States, numbered and bearing date the day of , in the year , for an improvement in were granted to the party of the first part {or recite otherwise his title to the patent') ; [Recital op manufacture, etc.] And whereas, the party of the first part is engaged in the business of manufacturmg containing the said patented improvement, and the par- ty of the second part is desirous of selHng the same. Now, therefore, the parties have agreed as follows : 1. [License.] The party of the first part hereby grants unto the party of the second part full and exclusive license and authority to sell, subject to the conditions hereinafter named, within the states of , and in no other state or place, to the end of the term for which the said letters patent were granted, containing the said patented improve- ment. 2. . [Goods to be supplied.] Within days after the receipt of any order for the said from the party of the second part, the party of the first part shall supply him, or any otlier person whom he may designate in such order and whose residence and address shall be within any of the said states, with such number (or, quantity) of the said as such order may require. 3. [Delivery.] All to be supplied by the party of the first part hereunder shall be manufactured from [speci- \flcaiion of materials and manufacture), and shall be delivered Ch. 28) PATENTS AND INVENTIONS 1095 in good and merchantable condition at to such carrier as the party of the second part may designate, and in defauh of such designation to such carrier as the party of the first part may see fit, consigned to the party of the second part or to such other person as the order may designate at the address therein mentioned. The cost of carriage shall be borne and paid by the party of the second part. 4. [Payment.] The party of the second part shall pay to the party of the first part within days after such de- livery of the as aforesaid the sum of dollars for every ( of) so delivered. 5. [Minimum and maximum price.] The party of the sec- ond part shall not sell or suffer to be sold any of the said hereunder at a price less than or more than 6. [lyicENSE EXCLUSIVE.] The party of the first part shall not during the continuance of this license sell or grant any other license or authority to sell containing the said improvement within the said states or any of them. 7. [Determination ie minimum not ordered.] If in any one year after the year orders for at least of the said shall not be given to the party of the first part by the party of the second part, then the party of the first part may by notice in writing terminate this license. {For other clauses which may he inserted see Form No. 10, els. 6, 8, 12, .p.. 1091.) In witness, etc. 12. License to Use Machine Supplied by Licensor {Begin as in Form No. 8, p. 1092, with necessary variations.) 1. [Delivery.] The party of the first part shall within days from the date hereof deliver to the party of the 1096 FORM BOOK (Ch. 28 second part and affix and install on his premises at one of the machines the subject of the said letters patent. 2. [License to use.] The party of the second part shall be at liberty and he is hereby authorized to use the said ma- chine for the purpose of during the continuance of this license. 3. [Repairs.] 'i'he party of the second part shall take all reasonable precautions to keep the said machine in good re- pair and working order, and shall give notice to the party of the first part whenever any part thereof becomes worn out or needs repair, and shall not repair or replace any part thereof if the party of the first part is willing within days after receipt of such notice to make the necessary replacements and repairs, and upon the same being made the party of the sec- ond part will pay the reasonable costs thereof. 4. [Royalties.] In consideration of the premises the party of the second part shall pay to the party of the first part as royalties for the use of the said machine on the day of and the day of in each year during the continuance of this license the sum of dollars, the first payment to be made on the day of next. 5. [Machine property oE licensor.] The said machine shall remain the property of the party of the first part, and on the termination of this license the machine shall be deliv- ered up to him at the expense of the party of the second part in the same condition as that in which it shall have been de- livered reasonable wear and tear excepted. 6. [Determination eor nonpayment, etc.] If the party of the second part shall fail to pay any royalties payable here- under or shall fail to observe and perform any covenant or condition on his part herein contained, and any such default shall continue for days, the party of the first part may Ch. 28) PATENTS AND INVENTIONS 1097 terminate this license by giving written notice to the party of the second part. 7. [Determination by licensee.] The party of the sec- ond part may terminate this license at any time after the day of by giving to the party of the first part six months' written notice to that effect. In witness, etc. 13. Assignment of a License ' This indenture made the day of between , of , party of the first part, and , of , party of the second part : [Recitai, of license, etc.] Whereas, by a written license dated the day of , and made between . — , of the one part, and the party of the first part hereto, of the other part, the said granted unto the said party of the first part and his assigns a (or, an exclusive) license to manu- facture and sell under and in accordance with the speci- fications of letters patent of the United States No. , for improvements in , granted to the said on the day of , for the term of years computed from the day of {or, to the end of the term for which the said letters patent were granted) ; and whereas, the party of the -second part is desirous of acquiring the entire in- terest in the said license. Now, this indenture witnesseth as follows : 1. [Assignment.] In consideration of the sum of — dollars paid by the party of the second part to the party of the first part, the receipt whereof is hereby acknowledged, the party of the first part doth hereby sell, assign, and transfer 8 A license is personal to the licensee, and not assignable unless an intention to make it so is eixpressed. 1098 FORM BOOK (Ch. 28 unto the party of the second part all the said license and the full and exclusive benefit thereof ; the same to be held and en- joyed by the party of the second part, his legal representatives, and assigns, subject to the covenants, agreements, and condi- tions therein contained and on the licenseee's part to be ob- served and performed. 2. [Covenants of assignor.] ihe party ot the first part hereby covenants with the party of the second part that the said license is valid and subsisting, and that all royalties re- served thereunder up to the day of have been paid, and all the covenants, agreements, and conditions therein contained and on the licensee's part to be observed and per- formed have been duly observed and performed up to and in- cluding the date hereof. 3. [CovgNANTs oi? ASSiGNBE.] The party of the second part covenants with the party of the first part that he will henceforth pay the royalties reserved by, and will observe and perform all the covenants, agreements, and conditions on the licensee's part contained in, the said license, and that he will indemnify the party of the first part from and against all ac- tions, proceedings, claims, and demands in respect to the said royalties, covenants, agreements, and conditions respectively. In witness, etc. 14. Agreement for Sale of Patent and of Future Improve- ments An agreement made this day of between , of , party of the first part, and . of , party of the second part : [ReciTai, of patent.] Whereas, the party of the first part did obtain letters patent of the United States for an improve- ment in , which letters patent are numbered and bear date the day of , in the year ; and Ch. 28) PATENTS AND INVENTIONS 1099 whereas, the party of the first part is now the sole owner of the said patent and of all rights under the same. Now, it is hereby agreed as follows : 1. [Agreement for sale.] The party of the first part shall sell and the party of the second part shall purchase for the sum of dollars, whereof the sum of dollars has been paid by the party of the second parfto the party of the first part by way of deposit, the whole right, title, and -.nterest in and to the said improvement and the letters patent therefor aforesaid and all rights, benefits, and advantages appertaining thereto (and to any improvement in or relating to the said in- vention now or hereafter made or discovered by the party of the first part). 2. [Determination ie patent invalid.] The party of the second part shall be at liberty to obtain an opinion from (or some other counsel whom he may select) as to whether the said invention is proper subject-matter for letters patent, or is fi'om any cause invalid or liable to be declared void, and if such opinion is adverse to the validity of the said letters patent the party of the second part may by notice in writing given to the party of the first part before the day of determine this agreement, whereupon it shall be null and void; but in that case the party of the first part shall be entitled to retain the said sum paid by way of deposit. 3. [Completion of purchase.] The purchase shall be completed at the office of on the day of , when the party of the second part shall pay to the party of the first part the balance of the purchase price, being the sum of dollars, and the party of the first part shall execute all instruments necessary to vest absolutely in the party of the second part the said invention and letters patent. 4. [Improvements upon invention.] (If the said party of the first part shall at any time hereafter make or discover any 1100 FORM BOOK (Ch. 28 improvement upon the said invention (or, any further inven- tion relating to ),° he shall thereupon forthwith disclose to the party of the second part full details as to the nature of and mode of carrying out the same, and the said improvement (or, further invention) shall be the sole and absolute property of the party of the second part, and the party of the first part shall, if required, sign any and all applications and at the cost of the party of the second part do and execute all acts, things, and instruments necessary for obtaining letters patent therefor and for vesting the said letters patent when obtained in the party of the second part as absolute owner.) 5. [FoRBiGN PATENTS.] (This agreement shall extend to and include any foreign patents or protection in respect to any invention or improvement subject thereto.) In witness, etc. 15. Agreement for Sale of Patent to Corporation to be Formed An agreement made the day of between , of , hereinafter called the vendor, of the one part, and , of , as trustees for and on behalf of the company hereinafter mentioned, of the other part: [Recital oE patent.] Whereas, the vendor did obtain let- ters patent of the United States for an improvement in , which letters patent are numbered and bear date the day of ; [ReciTai,s as to corporation.] And whereas, a corpora- tion, hereinafter referred to as the company, is about to be in- corporated under the laws of the state of , under the name of the Company, with a capital of dollars divided into shares of dollars each, the primary 8 Whether an agreement to assign all future inventions relating to an art is valid is doubtful. Ch. 28) PATENTS AND INVENTIONS 1101 object of which company is to be the acquisition of the said invention and letters patent. Now, it is hereby agreed as follows: 1. [Sale.] The vendor shall sell and the company shall purchase the said invention and letters patent and all rights, benefits, and advantages appertaining thereto and to any im- provement in or relating to the said invention now or here- after made or discovered by the vendor. 2. [Consideration.] The consideration for the said sale shall be the sum of dollars, which shall be satisfied as to dollars by payment in cash and as to the residue by the issue to the vendor or his nominees of shares in the capital stock of the said company of dollars, each cred- ited as fully paid. 3. [Completion of sale.] The purchase shall be com- pleted on incorporation of the company, and not later than the day of , when the said sum of dollars cash shall be paid and certificates for the said shares shall be delivered to the vendor or his appointees, and upon such pay- ment and delivery the vendor shall at the expense of the com- pany execute and do all instruments and things necessary to vest the said invention and letters patent in the company. 4. [Future improvements.] Any and all improvements of the said invention at any time hereafter made or discovered by the vendor shall forthwith be disclosed to the company, and the vendor shall at its expense give to the company or to any person whom it may appoint full information and particulars as to the nature and the mode of performing the same, and will, if and when required by the company, execute and do all documents, instruments, and things necessary to enable the company to obtain in its own name letters patent to the said improvements. 1102 FORM BOOK (Ch. 28 5. [Rescission ii? capitai. not paid in.] Unless before the day of the company shall have been duly incor- porated', and at least dollars of the capital shall have been subscribed for and paid in in cash, either of the parties hereto may by notice in writing to the other rescind this agree- ment. 6. [DiscHAKGi; OF TRUSTEE.] Upon adoption of this agree- ment by the company the said trustee shall be discharged from all liability hereunder. 7. [Rescission ie agreement not adopted.] If this agree- ment shall not be adopted by the company before the day of , either of the parties hereto may by notice in writing rescind the same. In witness, etc. 16. Agreement Between Joint Inventors Defining Their Rights in Patent to be Applied for An agreement made this day of between , party of the first part, and , party of the second part: [ Regit ae oe invention, etc.] Whereas, the parties hereto have jointly invented a certain improvement in , for which they are about to make application for letters patent, and desire to define their rights and interests in the said inven- tion and in any letters patent which they may obtain for the same. Now, it is hereby agreed as follows : 1. [Appeication and joint ownership.] The parties hereto shall forthwith apply through Messrs. , patent solicitors, for and endeavor to obtain in their joint names let- ters patent of the United States for the said invention, and any letters patent obtained therefor shall be held by them in equal shares as tenants in common. Ch. 28) PATENTS AND INVENTIONS 1103 2. [Costs and profits to be shared.] All fees, charges, and expenses connected with obtaining, maintaining, and pro- tecting the said letters patent shall be borne and paid by the parties hereto in equal shares ; and all profits or royalties de- rived by the parties under the said letters patent shall be di- vided equally between them. 3. [Restriction on sale, etc.] Neither of the parties hereto shall sell, assign, or mortgage his share or interest in the said letters patent or grant any license thereunder without the previous consent in writing of the other. 4. [Future improvements.] If either of the parties here- to at any time shall make or acquire any improvement or pat- ent for any improvement upon the said invention {or, shall make or discover or acquire any further invention or patent for any further invention relating to ), he shall forth- with disclose the same to the other, and if the other party shall so request, but not otherwise, shall execute and do all applica- tions, documents, instruments, and things necessary for obtain- ing letters patent for and for assigning the same, as the case may require, to the end that the same shall be vested in the parties hereto in equal undivided shares or interests, and the same shall be held by the parties hereto upon the same terms and conditions as the letters patent to be applied for under clause 1 hereof ; and all fees, charges, and expenses that shall have been or may be incurred therein, including the purchase price of any such improvement, invention, or patent acquired by either as aforesaid shall be borne and paid for by the par- ties hereto equally. In witness, etc. 1104 FORM BOOK (Ch. 28 17. Agreement to Supply Funds for Developing and Ob- taining a Patent for an Invention in Considera- tion of a Joint Grant An agreement made the day of between , party of the first part, and , party of the second part: [ReciTAi, OF INVENTION, ETC.] Whereas, the party of the first part claims to have invented a new and useful improve- ment in , and desires to develop and obtain letters patent for the said invention, and the party of the second part has agreed to provide the funds necessary therefor upon the terms and conditions following. Now, it is hereby agreed as follows: 1. [First payment.] The party of the second part shall upon the execution of these presents pay to the party of the first part the sum of dollars, which sum, or so much thereof as may be necessary for the purpose, shall be applied by the party of the first part in testing, developing, and per- fecting said invention. 2. [Application for patent.] As soon as the said inven- tion shall be sufficiently developed and perfected, the party of the first part shall apply through Messrs. , patent solic- itors, for and do all things necessary to obtain letters patent for the said invention for the United States in the joint names of the parties hereto as hereinafter provided. 3. [Assignment of hai,f interest.] As soon as the party of the first part shall have made application for letters patent, he shall execute to the party of the second part an assignment of the undivided one-half part of the full and exclusive right to the said invention, and he shall execute and do all instru- ments, documents, and things necessary to the issue of the said Ch. 28) PATENTS AND INVENTIONS 1105 letters patent jointly to the parties hereto, that is to say, an undivided one-half part to each of them. 4. [Identification of invention.] For the purpose of identifying the invention, the subject of this agreement, with the invention for which letters patent are intended to be ap- plied for, as aforesaid, a description (or, sketch) of the inven- tion in its present stage of development is hereto annexed. 5. [Cost of obtaining patent.] All fees, costs, expenses, and charges connected with applying for and obtaining the said letters patent, including those incurred in connection with any amendments of the specifications and in any interference proceedings, shall be borne and paid for by the party of the second part {or, by the parties hereto in equal shares). 6. [Further payment.] Within days after the is- sue of the said letters patent as aforesaid the party of the sec- ond part shall pay to the party of the first part such sum as shall, together with so much of the said sum of dollars paid to the party of the first part as aforesaid as shall not have been actually applied to him in testing, developing, and per- fecting the said invention, amount to the sum of dol- lars. 7. [Determination of agreement.] If a grant of the said letters patent shall be finally refused, or if within ■ — days from their issue Messrs. , whose decision in the matter shall be conclusive, shall express an opinion adverse to the va- lidity of the said letters patent, then the party of the second part may by notice in writing addressed to the party of the first part at determine this agreement, whereupon all liabilities of the party of the second part shall cease, but the party of the first part shall be under no obligation to repay any sums theretofore paid to him hereunder by the party of the second part, and the said invention shall be and remain the sole property of the party of the first part, and the party TIFF.FOEMS — 70 1106 FORM BOOK (Ch. 28 of the second part shall upon the request and at the cost of the party of the first part forthwith reassign to him the share or interest of the party of the second part in the said invention and letters patent. 8. [Right to improvements.] {See Porm No. 16, cl. 4, P- 1103.) In witness, etc. 18. Agreement Between Inventor and Expert Mechanic for Perfecting Invention and Obtaining Right to Im- provements Made by Him An agreement made the day of between , party of the first part, and , party of the second part: [Recital oE invention, and agreed assistance.] Where- as, the party of the first part has invented a certain new and useful improvement in , a description (or, sketch) of which in its present stage of development is hereto attached, but is unable for want of mechanical skill to carry the same into practical effect ; and whereas, the party of the second part has agreed to assist him in the practical development of the said invention. Now, it is hereby agreed as follows : 1. [Mechanic to pereect invention.] The party of the second part shall use his best endeavors to develop and per- fect the said invention and to carry it into practical effect and to make a satisfactory working model of the same. 2. [Payments — Materials and tools.] The party of the first part shall pay to the party of the second part for each day while he shall be employed in the aforesaid work at the rate of dollars per working day of hours, and upon a satisfactory working model being made by the party of the second part shall pay to him the further sum of Ch. 28) PATENTS AND INVENTIONS 1107 dollars. The party of the first part shall also supply the party of the second part with all materials, appliances, and tools nec- essary for the aforesaid work, other than tools which are now in the workshop of the party of the second part. 3. [Improvements.] In consideration of the sum of — dollars now paid by the party of the first part to the party of the second part, the receipt whereof is hereby acknowledged, all discoveries or improvements in connection with the said invention and all further inventions relating to made or which shall at any time hereafter be made by the party of the second part shall be forthwith disclosed by him to the party of the first part, and shall belong to, and be the absolute prop- erty of, the party of the first part. 4. [Not to disclose invention.] The party of the second part shall not disclose the said invention or any discovery, im- provement, or further invention in connection therewith or relating to made or which shall be made by him to any person other than the party of the first part, nor shall he per- mit any other person to have access to or to inspect any docu- ments, drawings, or models relating to the same or any of the same. 5. [Patents.] The party of the second part, whenever re- quired so to do by the party of the first part, at the expense of the party of the first part, shall execute and do all applica- tions, documents, instruments, and things, jointly with the par- ty of the first part or otherwise, as counsel may advise, nec- essary for obtaining letters patent for the said invention or any such improvement, discovery, or further invention as afore- said and for vesting the said letters patent when obtained and all right, title, and interest in and to the same in the party of the first part solely and absolutely. In witness, etc. 1108 POEM BOOK (Ch. 28 19. ]\Jortgage of a Patent This indenture made this day of between , of , party of the first part, and , of , party of the second part: |Ri;ciTAi, OF PATENT, ETC.] Whereas, the party of the first part did obtain letters patent of the United States for an im- provement in , which letters patent are numbered , and bear date the day of (or otherwise set out title of mortgagor) ; and whereas, the party of the sec- ond part has agreed to advance to the party of the first part the sum of dollars to be secured in manner hereinafter appearing. Now, this indenture witnesseth as follows: 1. [Assignments.] In consideration of the sum of dollars to him in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, the party of the first part doth hereby sell, assign, and transfer unto' the party of the second part the whole right, title, and interest in and to the said improvement in and in and to the letters patent therefor aforesaid, and the full and exclusive benefit of the same and of all improvements thereon; the same to be held and enjoyed by the party of the second part for his own use and behoof, and for the use and behoof of his personal repre- sentatives and assigns, to the full end of the term for which the said letters patent are or may be granted, as fully and en- tirely as the same would be held and enjoyed by the party of the first part had these presents not been executed. 2. [Covenants of validity and title.] And the party of the first part covenants with the party of the second part that the said letters patent are valid and subsisting ; that the party of the first part is now the sole owner of the said patent and Ch. 28) PATENTS AND INTENTIONS 1109 all rights under the same ; that he has good right to assign the same ; and that the same are free from all incumbrances : 3. [Proviso :por payment, etc.] Provided, nevertheless, that if the party of the first part shall pay to the party of the second part the sum of dollars according to the terms of a certain promissory note bearing even date herewith, exe- cuted by the party of the first part to the order of the party of the second part for the said sum of dollars, and payable (state terms), and shall also pay to him all such further sums of money as may become due under the terms of this indenture as hereinafter provided, then this deed and assign- ment shall be void, and the party of the second part at any time thereafter at the request and cost of the party of the first part shall reassign the mortgaged property and premises to the party of the first part or as he shall direct. 4. [Covenants oe mortgagor.] And the party of the first part further covenants with the party of the second part as follows : (1) [To PAY DEBT.] That the party of the first part will pay the said sum of money and interest thereon at the times and in the manner above specified, together with all costs and expenses of collection, and will pay as part of the debt hereby secured in case of any sale of the mortgaged premises, as here- inafter provided, all costs and expenses thereof including rea- sonable attorney's fees. (2) [To PREVENT INFRINGEMENTS.] That the party of the first part will during the continuance of this security use his utmost endeavors to detect any infringement of the said letters patent, and will forthwith inform the party of the second part of any infringement known to him, and will, if required by the party of the second part, commence and prosecute, or will per- mit the party of the second part, if he shall so elect, to com- mence and prosecute, at the cost of the party of the first part, 1110 FOEM BOOK (Ch.28 all actions or proceedings necessary to prevent such infringe- ment and to protect the said letters patent ; and all costs, ex- penses, and reasonable counsel and attorney's fees paid or in- curred by the party of the second part for such purposes, with interest thereon from the time of such payment at the rate of per cent, per annum, shall immediately be due and pay- able by the party of the first part, and shall be deemed part of the debt secured hereby. (3) [To GIVE BENEFIT oE IMPROVEMENTS.] That if the par- ty of the first part during the continuance of this security shall discover or make, or become entitled to the benefit of any let- ters patent of the United States for, any improvement upon the invention the subject of the said letters patent, he will forthwith give to the party of the second part notice in writ- ing of the same, and the same shall be comprised in and sub- ject to this security, and the party of the first part shall assign the same to the party of the second part. 5. [Usee oe patent and eicenses before default.] Until the party of the second part shall be entitled to exercise the power of sale hereinafter contained the party of the first part shall be entitled to make, use, and vend the said invention; but he shall not without the previous consent in writing of the party of the second part sell or assign his interest therein or grant any license under the said letters patent. 6. [Election to declare due on default.] If default shall be made in the payment of the said principal sum or of any installment of interest thereon or in the performance or observance of any of the covenants of the party of the first part herein contained (and such default shall continue for days), then and in either or any such case the party of the second part may elect without notice that the principal sum hereby secured, with the interest accrued thereon, shall be im- mediately due and payable, and may enforce payment thereof Ch. 28) PATENTS AND INVENTIONS 1111 and of all sums expended under the terms of this indenture by foreclosure or as hereinafter provided or otherwise. 7. [Licenses after deeauet.] If any such default as spec- ified in the preceding paragraph shall be made, it shall be law- ful for the party of the second part, from time to time there- after, upon days' notice in writing served upon the party of the first part or mailed to him at {post office address), to grant, upon such terms and conditions as the party of the second part shall see fit, licenses to third parties to make, use, and vend the said invention, or to exercise either or any of such rights, at a royalty or other periodical payment; and it shall be lawful for the party of the second part to receive and retain the moneys arising therefrom and to apply the same in reduction or payment of the sums then payable under the terms of this indenture, paying the overplus, if any, to the party of the first part, subject nevertheless to the provisions of the following paragraph. 8. [Power oe sale.] If any such default as specified in paragraph 6 hereof shall be made, it shall be lawful for the party of the second part, and he is hereby authorized and fully empowered, at any time thereafter, either before or after the grant of any license or licenses under the preceding paragraph, upon ^ days' notice in writing served upon the party of the first part or mailed to him at {post office address), to sell the said mortgaged property and premises, including the said licenses and the benefits to accrue thereunder, if any have been granted, at public or private sale, at which the party of the second part may become the purchaser, and to assign and transfer the said mortgaged property and premises and licenses to the purchaser absolutely, and for that purpose to execute all such deeds and other instruments a:s may be necessary or proper, and out of the moneys arising from such sale to retain the principal sum hereby secured, with all interest then accrued 1112 FORM BOOK (Ch. 28 thereon and all other sums which may be then due under the terms of this indenture, paying the overplus, if any, to the party of the first part. And the party of the first part cove- nants with the party of the second part that upon any such sale as aforesaid he will execute and do all such further as- signments, instruments, and things as may be necessary or proper for vesting in the purchaser absolutely the said prop- erty, premises, and licenses the subject of this mortgage. 9. [Representatives and assigns included.] The terms "the party of the first part" and "the party of the second part" shall, unless the context otherwise requires, be deemed to in- clude their respective personal representatives and assigns. In witness, etc. 20. Assignment of Secret Process or Right to Compound and Sell a Proprietary Medicine, Purchase Money to be Paid by Installments ^^ Indenture made this day of between , of , hereinafter called the vendor, of the one part, and , of , hereinafter called the purchaser, of the other part : [ReciTae oE secret.] Whereas, the vendor is in posses- sion of a secret process for the manufacture of a certain (ar- ticle) known as {or, is the proprietor of a certain med- icine known as , for the compounding of which the ven- dor is in the possession of a secret formula). Now, this indenture witnesseth as follows: 1. [SaeE.] In consideration of the sum of dollars to be paid to the vendor by the purchaser as hereinafter men- tioned, the vendor hereby sells and assigns unto the pur- chaser the said secret process (or, all the vendor's right and 10 See prellmlnflry note, ante, p. 1078. Ch. 28) PATENTS AND INVENTIONS 1113 interest in the said medicine) and the exclusive and absolute benefit thereof, to the intent that the purchaser so far as the vendor is able to secure the same shall be the sole person en- titled to manufacture or sell the said (article) (or, to compound and sell the said medicine), or to use the name of in connection therewith. 2. [Vendor to impart sBcrUT.] The vendor shall upon the execution of these presents forthwith impart the said se- cret process to the purchaser and give to the purchaser such instructions and information with regard to the same as may be necessary for the purpose of using the same to the best ad- vantage (or, forthwith communicate to the purchaser a full and accurate recipe and formula in writing for compoundmg the said medicine). 3. [Payments.] The purchaser shall pay to the vendor the said sum of dollars by equal semiannual installments of dollars each, the first of such installments to be paid on the day of next, and a like installment every subsequent day of and day of , until all the said installments shall have been paid. 4. [Vendor not to disclose — Liquidated damages and determination.] The vendor shall not at any time hereafter disclose the said secret to any person other than the purchaser. If the vendor shall so disclose the said secret, he shall pay to the purchaser the sum of dollars as liquidated damages, and the purchaser shall at his option be at liberty at any time within days after the said disclosure shall come to his knowledge to determine this -agreement, save so far as clause 9 hereof shall apply. If the purchaser shall so determine this agreement, the vendor shall in addition to the said sum of dollars repay to the purchaser (one-half) of the amount of the said installments of the purchase money theretofore paid to vendor. 1114 FORM BOOK (Ch. 28 5. [Purchaser not to disclose secret untii, payment.] Until the whole of the said purchase money shall have been paid to the vendor the purchaser shall not in any way or man- ner make known, divulge, or communicate the said secret to any person, except as hereinafter provided, and shall not do or omit or suffer to be done or omitted any act or thing in re- lation to the premises whereby the said secret may become known to any unauthorized person. 6. [DiscivOSURE TO EMPLOYES UPON BOND.] The pur- chaser shall be at liberty at any time to disclose the said secret to any of his employes, to whom it shall, in his opinion, be ab- solutely necessary to disclose the same for the purpose of using the said secret to advantage : Provided, that before dis- closing the said secret to any such employe the purchaser shall require such employe to enter into a bond with the purchaser in the sum of dollars not to disclose the said secret, or any part thereof, which bond shall be approved by the vendor before any such disclosure to any such employe shall be made. 7. [Purchaser to eneorce bonds.] If any such employe shall disclose the said secret or any part thereof before the whole of the said purchase money shall be paid, the purchaser will at his own cost enforce the said bond and will pay to the vendor all sums of money recovered thereunder before the payment of the last installment of the said purchase money; but any sums so paid shall be credited as or towards payment of the last installment or of the last two or more installments, as the case may be. 8. [Vendor's remedies for purchaser's default.] If any installment of the said purchase money or any part tliere- of shall not be paid within days after the same shall become due, or if the purchaser shall commit any breach of the agreements and stipulations on his part herein contained, then the whole balance of the said purchase money then unpaid Ch. 28) PATENTS AND INVENTIONS 1115 shall forthwith become payable; or, in lieu thereof, the ven- dor at his election may declare this agreement at an end save in so far as clause 9 hereof shall apply, and in that case all installments of the said purchase money theretofore paid shall be forfeited to and belong absolutely to the vendor. 9. [Purchaser not to disclose upon determination — Damages.] If this agreement shall be determined under the provisions of clause 5 or clause 8 hereof, the purchaser shall not at any time thereafter in any way or manner make known, disclose, or communicate the said secret to any person, and in the event of it being disclosed by any employe to whom it has been communicated as aforesaid, the purchaser shall at the request and cost and for the benefit of the vendor enforce the bond entered into by such employe in manner aforesaid. And if the purchaser shall make any such unauthorized disclosure, or shall neglect or refuse to enforce any such bond as afore- said, he shall pay to the vendor the sum of dollars as liquidated damages for each such disclosure or default. 10. [Representatives included.] In this agreement, where the context so admits, the terms "vendor" and "pur- chaser" shall include the personal representatives and assigns of the vendor and purchaser respectively. In witness whereof the parties heretO' have hereunto set their hands and seals the day and year first above written. 21. Same — In Consideration of Cash Payment and Royal- ties During Given Period Indenture made this day of (parties as in preceding form) : [Recital oe secret.] (As in preceding form!) Now, this indenture witnesseth as follows: 1. [Sale.] In consideration of the sum of dollars paid to the vendor by the purchaser, the receipt whereof is hereby acknowledged, and of the royalties to be paid to the 1116 FORM BOOK (Ch. 28 vendor by the purchaser as hereinafter provided, the vendor hereby sells and assigns (continuing as in clause 1 of preced- ing form). 2. [Vendor to impart secret.] {As in clause 2 of pre- ceding form) 3. [Vendor not To disclose — Liquidated damages.] The vendor shall not at any time hereafter disclose the said secret to any person other than the purchaser ; if he shall do so, he shall pay to the purchaser the sum of dollars as liquidated damages. 4. [Purchaser to pay royalties.] On the day of — — — next and on the corresponding day of each and during a period of years from the date hereof the pur- chaser shall pay to the vendor the royalty or sum of dollars for every (amount, number, or quantity) of the said manufactured (or, compounded) and sold by the pur- chaser during the preceding six calendar months next preced- ing the first day of the month in which such royalty shall be payable. 5. . [Accounts.] So long as the said royalties shall be pay- able the purchaser shall keep at his usual place of business all proper books of account, and shall make accurate and reg- ular entries therein of all particulars relating to the manufac- ture (or, compounding) and sale of the said , which may be necessary or material to show the amount payable by the purchaser for royalties as aforesaid, and on the same day when each royalty shall be payable shall furnish to the vendor full and accurate accounts for the period of six months for which the same shall be then payable showing the amount of the royalties payable to the vendor as aforesaid. 6. [Liquidated damages on default oe royalty.] If the purchaser shall fail for the space of — days after which the said accounts are to be rendered and the said royal- ties are to be paid as aforesaid to render such accounts and Ch. 28) PATENTS AND INVENTIONS 1117 to pay all moneys then due by way of royalties, the purchaser will pay to the vendor in lieu of the said royalties, which shall thereupon cease to be payable, the sum of dollars for each such period of six months of the said term of ■ — years for which any such royalties shall not have been paid, whether due or not, and such sums shall be immediately re- coverable by the vendor as liquidated damages. 7. [To PRODUCE BOOKS FOR INSPECTION.] At all reason- able times when so requested by the vendor the purchaser shall produce the said books and all documents relating to the prem- ises for the inspection of the vendor or his agents, and permit him or them to make extracts or copies therefrom. 8. [Purchaser not to disclose secret until payment.] So long as any royalties remain payable hereunder, the pur- chaser shall not in any way or manner make known (conclud- ing as in clause 5 of preceding form). 9. [Disclosure to employe upon bond.] (As in clause 6 of preceding form.) 10. [Liquidated damages Eor breach.] In case the pur- chaser shall disclose the said secret to any person in violation of the foregoing provisions or in case the said secret shall become known to the public through any act or default of the purchaser, he shall pay to the vendor the sum of dol- lars as liquidated damages for every such breach, act or de- fault. 11. [To Enforce bonds.] The purchaser shall at his own cost enforce the bond so entered into by any employe as afore- said in the event that any such employe shall disclose the said secret or any part thereof, so long as any royalties remain pay- able hereunder, and shall pay (one-half of) all moneys recov- ered under any such bond to the vendor. 12. [Representatives included.] (As in clause 10 of preceding form.) In witness, etc. 1118 FORM BOOK (Ch. 29 CHAPTER XXIX PLEDGES AND COLLATERAIv SECURITIES A "pledge" is a bailment of personal property as security for the payment of a debt or the performance of some other engagement, accompanied by a power of sale in case of default. It carries with it a right of redemption before sale. A pledge is a common-law security, and requires no writing to evidence it, although a writing is desirable. The term "collateral se- curity" is often used to designate a pledge of incorporeal per- sonalty, but the term is also applied to other transactions, such as chattel mortgages, which are distinct, a chattel mortgage passing the ownership in the thing to the creditor, although the debtor retains possession of it, while a pledge depends entirely upon the delivery of the thing to the creditor, and the pledgee has only a special property therein. Page 1. Receipt for money advanced on pledge of chattel 1118 2. Acknowledgment by pledgee of delivery of pledged chattel . . 1119 3. Receipt for repayment by pledgee of loan 1119 4. Agreement on pledge of chattels 1119 5. Agreement on pledge of goods with bill of lading or ware- house receipt 1121 6. Agreement on transfer of note as collateral security for transferror's note 1122 7. Assignment of chose in action as collateral security for in- debtedness 1123 8. Collateral note pledging stock or bonds lV2i 9. Same— Short form 1124 10. Collateral note pledging securities for payment thereof and of other liabilities 1125 11. Same — Another form 1126 12. Same — Another form .■ 1127 13. Collateral note of corporation pledging stock 112S 14. Collateral note to bank 1129 1. Receipt for Money Advanced on Pledge of Chattel Received this day from the sum of dollars by way of loan, bearing interest at per cent, per annum, and payable on' or before the day of , as security Ch. 29) PLEDGES AND COLLATERAL SECURITIES 1119 for which I have deposited with him by way of pledge a dia- mond necklace. (Date.) {Signature) 2. Acknowledgment by Pledgee of Delivery of Pledged Chattel I, the undersigned , hereby acknowledge that I have this day received from a diamond necklace containing fifty stones by way of pledge for securing the repayment on or before the day of of the sum of dol- lars, and interest at per cent, per annum from this date. And I hereby undertake to return the same on payment of the said loan and interest, damage by fire or other inevitable acci- dent excepted. {Date) {Signature.) 3. Receipt for Repayment by Pledgee of Loan Received this day from the sum of dollars, being in full discharge of the principal sum of dollars, and interest, due me and secured by pledge of a diamond neck- lace now redelivered by me to him. {Date.) {Signature.) 4. Agreement on Pledge of Chattels Memorandum of a|;reement made the day of between , hereinafter called the borrower, of the one part, and , hereinafter called the lender, of the other part: Whereby it is hereby agreed as follows : 1. [Loan and PLiiDCE.] The lender has lent the sum of dollars to the borrower, the receipt whereof is hereby 1120 FORM BOOK (Ch.29 acknowledged, and the borrower has delivered to the lender the chattels belonging to the borrower specified in the sched- ule hereto by way of pledge for securing the payment on or before the day of of: (1) The said loan of dollars; (2) interest thereon from the date hereof at the rate of per cent, per annum; (3) the expenses which may be incurred by the lender in insuring the said chat- tels against loss or damage by fire; (4) the expense of ware- housing the said chattels (or, the sum of dollars per week for storing the said chattels on the lender's premises or elsewhere) ; (S) all expenses which may be incurred by the lender in keeping or putting the said chattels or any of them in repair ; (6) all expenses which may be incurred by the lend- er in selling the said chattels or any of them; (7) all other costs, charges and expenses, if any, which the lender may be entitled by law to add to his security. 2. [Promise 01* pi-Bdgor to repay.] In consideration of the said loan the borrower hereby personally promises to repay the said loan and interest and the other several items specified in the preceding paragraph. 3. [Power oe saee.] In case of the nonpayment of the said loan or of the interest thereon within the time aforesaid, the lender may, on days' notice to the borrower, served upon him or mailed to him at (post office address), sell the said chattels or so much thereof as may be sufficient to pay the said loan, and interest, and the several items hereinbefore specified, at public or private sale, and may sell the same in one lot or separately or in such lots as the lender may deem best, with the right on the part of the lender to become the pur- chaser at such sale or sales, returning the overplus, if any, to the borrower. 4. [Peedgee not eiabeE For involuntary losses.] The lender shall not be liable to the borrower for any involuntary Ch. 29) PLEDGES AND COLLATERAL SECURITIES 1121 losses which may occur during his custody of the said chattels or by reason of the sale thereof. (Signatures of both parties.) 5. Agreement on Pledge of Goods with Bill of Lading or Warehouse Receipt Memorandum of agreement made the day of (parties as in preceding form) : Whereby it is agreed as follows: 1. [Loan and plbdge.] The lender has lent the sum of dollars to the borrower, who has promised to pay the same, as evidenced by his promissory note of even date here- with for that sum, payable to the order of the lender in days from date, with interest at the rate of per cent. per annum; and the borrower has indorsed and delivered to the lender two bills of lading for a cargo of sugar now at sea in the ship , being parts of a set of three bills, the third of which is in the custody of the master of the said ship (or, the warehouse receipt for bushels of wheat now stored in the warehouse of the Company at ) by way of pledge for securing the payment of the said note and inter- est, and the expenses which may be incurred by the lender in insuring the said sugar (or, wheat) against loss or damage by fire, all sums now due and henceforth to become due to the shippers (or, warehousemen) for freight (or, warehouse charg- es) and other services and charges in relation to the said sugar (or, wheat), all expenses which may be incurred by the lender TiFF.FOKMS — 71 1122 FOEM BOOK (Ch.29 in selling or attempting to sell the same, and all costs, charges, and expenses, if any, which the lender may be entitled by law to add to his security. 2. [Promise oi? pledgor to repay.] (Substantially as in preceding form) 3. [Power of sai^e.] In the event of the nonpayment of the said note at maturity the holder thereof may sell the said sugar {or, wheat) or any part thereof, either at public or pri- vate sale, or otherwise, at the option of such holder, with the right on the part of the holder to become the purchaser, and out of the proceeds of such sale may retain the principal and interest due upon the said note and the other several items payable by the lender as hereinbefore specified, paying the residue, if any, to the lender. 4. [Pledgee not liable eor losses.] {As in preceding form.) {Signatures of both parties) 6. Agreement on Transfer of Note as Collateral Security for Transferror's Note Memorandum of an agreement made this day of • between A. B., and C. D. : Whereas, the said C. D. has lent the sum of dollars to the said A. B., who has promised to pay the same, as evi- denced by his promissory note for that amount of even date herewith, payable to the order of the said C. D. on the day of ; and whereas, the said A. B. has indorsed and delivered to the said C. D., as collateral security for the pay- ment of the said note, a certain other promissory note, dated the day of , and made by E. F., whereby he promised to pay to the order of the said A. B. the sum of dollars on the day of . Now, it is hereby agreed that, in the event of the nonpay- ment of the said note of the said A. B. at maturity, the holder Ch.29) PLEDGES AND COLLATERAL SECURITIES 1123 thereof may sell the said note of the said E. F. or may collect and compel payment thereof, and out of the proceeds of such sale or collection may retain the principal and any interest due upon the said note of the said A. B., together with all costs and expenses, including reasonable attorney's fees, which the said C. D. may incur in making such collection, paying the residue, if any, to the said A. B. (Signatures of both parties.) 7. Assignment of Chose in Action as Collateral Security for Indebtedness [Rbcital of indebtedness.] Know all men by these pres- ents that whereas, I, , am indebted to in the sum of dollars for money by him to me lent due and pay- able on the day of , with interest thereon at the rate of six per cent, per annum from the day of . [Assignment.] Now, therefore, in consideration of the premises, and to secure the payment thereof, I do hereby sell, assign, transfer, and set over to the said all my right, title, and interest in and to a certain bond (or, policy of insur- ance, describing the subject-matter assigned), with full power, in my name or otherwise, to collect and enforce payment thereof. [Condition for payment.] This assignment is made upon the express condition that if I shall pay or cause to be paid to the said , his executors, administrators, or assigns, the above-recited indebtedness as the same shall become due, then this assignment shall be void and of no effect. [Application of proceeds.] In case the said , his executors, administrators, or assigns, shall collect the moneys due on the said bond (or, policy, etc.) hereby assigned, he or they shall, after retaining the full amount of the above-recited 1124 FORM BOOK (Ch.29 indebtedness, and the reasonable costs and expenses of collec- tion, pay over the surplus, if any, to me, or my executors, ad- ministrators, or assigns. In witness, etc. 8. Collateral Note Pledging Stock or Bonds $- . , 19—. after date, for value received, I promise to pay to , or order, dollars, and interest at the rate of per centum per annum for such further time as said principal sum or any part shall remain unpaid, I having de- posited virith this obligation as collateral security shares of the capital stock of the Company, Certificate No. {or, $5,000 Railwray Company first mortgage four per cent, bonds, Nos. ), with authority to sell the same without notice, either at public or private sale, or other- wise, at the option of the holder or holders hereof, on the non- performance of this promise, he or they giving me credit for any balance of the net proceeds of such sale remaining, after paying all sums due from me to the said holder or holders, or to his or their order. And it is further agreed that the holder or holders hereof may purchase at said sale. {Signature) 9. Same — Short Form $ . , 19-. I promise to pay to , or order, dollars, for value received, with interest at the rate of per cent. per annum, having deposited with as collateral security, with authority to sell the same at public or private sale, on the nonperformance of this promise, and without notice, shares of the capital stock of the Company {or other- wise describing security). {Signature.) Ch. 29) PLEDGES AND COLLATEKAL SECUEITIE8 1125 10. Collateral Note Pledging Securities for Payment There- of and of Other Liabilities ^ . , 19—. Three months after date, for value received, I promise to pay to , or order, dollars, and interest at the rate of per centum per annum, having deposited with this obligation as general collateral security for the payment of this and any other liability, direct or indirect, joint or sev- eral, of the undersigned, already existing or which may here- after arise, in favor of said holder or holders, the following property, viz. : (description), with power, on the nonpayment of this or any other such liability, to sell and transfer said proper- ty or any property added to or substituted for the same or any part thereof, at brokers' board or at public auction or private sale, without notice, and the said holder or holders hereof may become purchasers at any such sale, if at public auction or at brokers' board, and any property substituted for the above, or added thereto, shall be equally covered by this agreement. Should the market value of the security hereby or hereafter pledged depreciate, in the judgment of the holder or holders of this note, I hereby agree to deposit a further amount of se- curity on demand, so that the market value shall always be at least per cent, more than the amount of this note; and upon failure to comply with any such demand, this obligation shall become due and payable forthwith, and the whole or any part or parts of said securities or substitutes therefor and addi- tions thereto may be sold as herein provided at the option of the said holder or holders. After deducting costs and expenses of collection and sale, the residue of the proceeds of any sale or sales may be applied to the payment of any then existing liability of the undersigned to said holder or holders, whether then payable or not, re- turning the overplus to the undersigned; and in case of de- 1126 FOEM BOOK (Ch. 29 ficiency I agree to pay to the said holder or holders the amount thereof forthwith after such sale, with legal interest. (Signature.) 11. Same — Another Form $ . No. . 19- Sixty days after date I promise to pay to the order of dollars, for value received, negotiable and payable without defalcation or discount, at the Bank, with in- terest from maturity at the rate of per cent, per annum, having deposited or pledged with collateral security for the payment of this note shares of the capital stock of the Company. In the event of the nonpayment of this note at maturity, the holders hereof are hereby invested with full authority to use, transfer, hypothecate, or sell the said property, or any part thereof, or to cause the same to be done, at public or private sale, with or without notice or demand of any sort, at such place and on such terms as the said holders hereof may deem best, and the holders of this note are authorized to purchase said collaterals when sold for their own protection; and the proceeds of such sale, transfer, or hypothecation shall be ap- plied to the payment of this note, together with all protests, damages, interest, costs, and charges due upon the note, or incurred by reason of its nonpayment when due, or in the ex- ecution of this power, and also, a commission of per cent, on the gross amount of said collaterals sold. The surplus, if any, after payment of this note, together with all charges above stated, shall be paid to the maker of this note, or, at the election of the holders hereof, be paid on any other obligation of the maker hereof, whether as principal debtor or otherwise, held by the holders hereof, and if the proceeds of the above sale shall not be sufficient to pay this note, the Ch. 29) PLEDGES AND COLLATERAL SECURITIES 1127 maker hereof agrees to make good any deficit. And it is un- derstood and agreed that, should there be any depreciation in the value of said security prior to the maturity of this note, such an amount of additional security shall be furnished as will be satisfactory to said , and should such additional security not be furnished within twenty-four hours after de- mand so to do, then and in that event said may pro- ceed at once to sell, as above specified, the security herein named. (Signature.) Due . Address: . 12. Same — Another Form , 19-. Four months after date I promise to pay to the order of — ^ dollars, for value received, without defalcation. Along with the foregoing obligation I have delivered (describe security) as collateral security for the prompt payment, at ma- turity, of this and of any other liability or liabilities of the un- dersigned, due or to become due, or of any that may be hereaft- er contracted with the holder of this note, which collaterals, ei- ther the whole or any part thereof, I hereby authorize and em- power the holder of this note, provided the same or any other liability of the undersigned, as before described, be not paid at maturity, to sell at public or private sale at any time or times thereafter, without further reference or notice to me, and with the right on the part of the holder of this obligation to become the purchaser, at such sale or sales, of the whole or any part of said collaterals, freed and discharged of any equity - of redemption, and to transfer, assign, and deliver up the same, and after deducting all legal and other costs, attorney fees, and expenses for collection, sale, and delivery, to apply the residue of the proceeds of such sale or sales so made, to 1128 FOEM BOOK (Ch. 29 pay any, either, or all of said liabilities, as said holder shall deem proper, returning the overplus, if any, to me ; and should any deficiency occur, I further promise and agree to pay the same to the holder hereof, on demand. Payable at . (Signature.) 13. Collateral Note of Corporation Pledging Stock $10,000. , 19—. Six months after date the A. B. Company promises to pay 1:0 the order of C. D., at the Bank of , the sum of ten thousand dollars, with interest from date until paid at the rate of six per cent, per annum. And the said A. B. Company has herewith deposited with the said C. D. as collateral security for the due payment of this promissory note shares of its stock, represented by certificates for shares respectively, numbered respectively , standing in the name of E. F., treasurer of the A. B. Company, and by him indorsed in blank. If this note, or any interest thereon, shall not be paid when due, the said A. B. Company hereby constitutes and appoints the said C. D. its attorney irrevocable, with full power of sub- stitution, at any time thereafter, at public or private sale, without notice, to sell the whole or any part of the said stock, the proceeds thereof to be applied to the payment of the prin- cipal and interest of this note, and any commissions or other expenses of such sale, and the overplus if any, either of the proceeds or of the said stock, to be returned to said A. B. Company. In testimony whereof the said A. B. Company has caused its corporate name to be signed by its president and treasurer, duly authorized in this behalf by a resolution of the board of directors of the said company, adopted at a regular meeting Ch. 29) PLEDGES AND COLLATEKAL SECURITIES 1129 of the said board held the day of , a duly cer- tified copy whereof is hereto attached. The A. B. Company, By , President. , Treasurer. 14. Collateral Note to Bank 19—. Sixty days after date, for value received, I promise to pay to the order of the First National Bank of dol- lars, with interest at the rate of per cent, per annum from date until paid, the interest to maturity at that rate hav- ing been paid in advance. Payable at the First National Bank, As collateral security for the payment of said sum, and every other debt and liability owing to said bank, or the legal holder hereof, and whether now or hereafter contracted, I have deposited with said bank the following described prop- erty, valued at $ , to wit (describe security). Should the market value of any security pledged under this agreement, in the judgment of the holder hereof, decHne in value, I hereby agree to deposit on demand additional col- lateral, so that the market value thereof shall always be at least per cent, more than the amount of this note, and upon failure to deposit such additional security this note, as well as all other indebtedness from me to the holder hereof, shall immediately become due and payable, and said securities shall be subject to sale, as herein provided. Upon default in the payment of this note, or any of said indebtedness, I do hereby authorize the holder hereof immediately to sell the property deposited hereunder, or any part thereof, at private sale, without notice, or at public sale upon ten days' notice to 1130 FORM BOOK (Ch. 9 the undersigned, and from the gross proceeds of said sale to pay the necessary costs and expenses thereof, including a rea- sonable attorney's fee, and to account to the undersigned for the balance, first applying to the payment of this note, and all other indebtedness owing as aforesaid to the holder hereof, the amount necessary to satisfy the same. Any balance now or at any time hereafter on deposit with said the First National Bank of to the credit of my account, and all notes, drafts, bills receivable, and moneys held by the said the First National Bank of in my name, or for my account, or hereafter remitted by or in transit to the said the First Na- tional Bank of for such account, are hereby made and declared as additional collateral security to this note when held by said the First National Bank of . Any notice or de- mand required under this agreement may be given by mail addressed to the undersigned as my address is given below, and at any sale of any of said property said bank or the legal holder hereof may become the purchaser. Address: . (Signature.) Ch. 30) POWERS OF ATTORNEY 1131 . CHAPTER XXX POWERS OF ATTORNEY In General A "power of attorney'' is an instrument whereby one person authorizes another, as his agent or attorney, to do some act on his behalf. At common law no particular form, or even writ- ing, is ordinarily required ; but authority to execute a deed or sealed instrument must be conferred by deed. Written author- ity is sometimes required by statute in certain cases. Provi- sion is made by statute in most states for the recording of pow- ers of attorney which confer authority to convey land, and it is usually provided that to entitle such a power to record it must be executed and acknowledged in the same manner as a conveyance. Forms for certificates of acknowledgment by attorneys in fact are provided in many states. Ante, p. i. Capacity to Appoint Capacity to appoint an agent is generally co-extensive with the capacity of the principal to contract, but the appointment of an agent by an infant is void. Within the limits of the powers conferred by its charter a corporation can appoint an agent. Where, as is almost universal, the common-law disabilities of married women have been removed, they may generally act and contract by agents. Special provisions in regard to powers of attorney for the conveyance of real estate by married wo- men exist in many states, but they have often been construed with extreme strictness, and the law of the particular state must always be carefully examined. Revocation The authority of an agent may, in general, be revoked by a principal, although he has declared it to be irrevocable; and the authority is revoked by the death of the principal, as well as upon the happening of certain other events, by operation of law. Where a power of attorney is given as security, it is irrevocable by the act of the principal ; and if it is coupled with an interest, that is, if the authority be to one in whom is also vested such an estate or interest in the subject-matter of the 1132 FORM BOOK (Ch. 30 agency that he can exercise the authority in his own name, the authority is not terminated by the principal's death. In ordi- nary cases a revocation by act of the principal takes effect, as to the agent, when the revocation is communicated to the agent, and, as to third persons who may deal with the agent in reli- ance upon his authority, when they receive notice of the revoca- tion. Where a statute provides for the record of powers of attorney to convey land, and also provides for the record of instruments of revocation, third persons who are without no- tice of an unrecorded revocation may rely upon the presump- tion of the continuance of authority. Substitution An agent has no power to delegate his authority to a sub- agent, or to appoint a deputy or substitute, to do any act on behalf of his principal, unless authority to do so has been ex- pressly or impHedly conferred. For this reason it is necessary to include in a power of attorney an express authority to ap- point a substitute if it is desired to confer this power. Construction A power of attorney is strictly construed, and should there^ fore mention in express terms any power which it is desired to confer. The grant of authority is controlled by the recitals. Thus a recital that the constituent is going abroad has been construed as limiting the authority to the principal's sojourn abroad. Where authority to do particular acts is followed by general words, they are construed as enlarging the authority so far as necessary to accomplish the particular acts. Thus un- der a power to demand and receive all moneys due and "to transact all business," the latter words are confined to business necessary to the recovery of the moneys. Page 1. Power of attorney — Sbort form 1133 2. Same — With substitution and ratification 1133 3. Power to collect debts 1134 4. Power to collect rents, etc 1134 5. Power to mortgage land 1134 6. Power to satisfy niortgFige 1135 7. Power to make partition of and recover an estate 1135 8. Power to manage affairs 1136 9. Power to deal with negotiable instruments 1136 10. Power to draw checks 1136 11. Power to accept bills of exchange 1137 Ch. SO) POWERS OP ATTORNEY 1133 Page 12. Power to deposit In bank and draw checks 1137 13. Power of attorney to act in all affairs for principal going abroad — Full form 1137 14. Power of attorney to manage investments for principal going abroad 1143 15. Power of attorney to sell lands in another state 1145 15a. Same — By coriX)ration. 1145 16. Power of attorney to recover debts in another state or abroad 1146 17. Power of attorney to receive share of an intestate's estate 1147 18. Power of attorney from seller to stop goods in transit. . . 1148 19. Apiwuitment of substitute under power of attorney 1150 20. Same — ^Another form 1150 21. Grant of further power by indorsement on original power of attorney 1152 22. Reivocation of power of attorney 1152 23. Confirmation of attorney's act 1153 24. Commencement of power of attorney where there are sev- eral appointors and several attorneys 1153 For proxies, see Stock and Stockholders, post, p. 1257. 1. Power of Attorney — Short Form Know all men by these presents that I, , of , do hereby appoint , of , my attorney, for me and in my name to (set forth acts authorized),^ and generally to do and perform all things necessary in or about the premises as fully and effectually in all respects as I could do if personally present. In witness whereof I have hereunto set my hand and seal the day of , 2. Same — With Substitution and Ratification Know all men by these presents that I, , of , hereby make, constitute, and appoint , of , my true and lawful attorney for me and in my name to (set forth acts authorised), giving my said attorney full power and au- 1 For various acts see the forms and precedents which follow. 1134 FOEM BOOK (Ch. 30 thority to do everything whatsoever necessary to be done in the premises as fully as I could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute or sub- stitutes shall lawfully do or cause to be done by virtue hereof. In witness, etc. 3. Power to Collect Debts For me and in my name to ask, demand, sue for, collect, receive, and give acquittance for all sums of money, debts and demands whatsoever which are or shall be due, owing, or be- longing to me, or detained from me by any person or persons whatsoever. 4. Power to Collect Rents, Etc. For me and in my name to demand, sue for, and receive all rents and arrears of rents now due or which at any time here- after shall become due to me from the tenants or occupants or any of them of the whole or any part of that certain building and premises described as (description), and on payment there- of to give receipts and discharges for the same, and on non- payment of the same to institute and prosecute all actions and proceedings for the recovery of such rents and arrears, and for the ejectment of tenants and occupants who may be in de- fault, and for the recovery of possession of the demised prem- ises. 5. Power to Mortgage Land For me and in my name to borrow upon the security of my farm in described as (description) such sum not ex- ceeding $ , at such rate of interest and upon such terms as he shall deem best, and to execute a bond or bonds (or, a promissory note or notes) for the payment thereof, and as col- Ch. 30) POWERS OF ATTOENBT 1135 lateral security therefor to execute, acknowledge, and deliver a mortgage or mortgages upon the above-described premises, with the usual power of sale and interest and insurance clauses and other usual provisions and covenants. 6. Powder to Satisfy Mortgage For me and in my name to receive the principal and interest due me by virtue of a certain promissory note for the sum of $ , with interest as therein expressed, secured by a mort- gage dated the day of , ex«cuted by to me, and recorded in the office of the register of deeds in and for the county of , and state of , in book of mortgages on pages , and on receipt thereof to exe- cute and acknowledge a good and sufficient release, discharge, or satisfaction of the said mortgage, or otherwise to release, satisfy, and discharge the same of record. 7. Power to Make Partition of and Recover an Estate For me and in my name to make partition and division with the other heirs (and next of kin) of my late father, deceased, of his real estate {or, of his ■estate both real and personal), and to accept and receive my share of his personal estate, and, upon any partition or division, to enter upon and take possession of any lands, tenements, or hereditaments which may be set off to me as my share of the real estate aforesaid, and to enter into any covenant or agreement respecting my share (and the shares of the other heirs) of his estate (real or personal), which my said attorney shall think reasonable and for my interest, and in my name and for my use, to demand, sue for, and take possession of all and singular the said lands, tenements, and hereditaments, sums of money, goods, and chattels withheld from me to which I am entitled, and which I may lawfully claim 1136 FORM BOOK (Ch. 30 from the heirs, executors, or administrators of my said father, or any other person or persons whatsoever. 8. Power to Manage Affairs For me and in my name to take charge of and manage my business as manufacturer of ; to purchase and sell, either for cash or on credit, all such articks and property as he may deem useful and proper as connected with said business ; to draw, accept, make, and indorse bills of exchange, checks, and promissory notes ; to state accounts ; to sue and prosecute, collect, compromise, or settle all claims or demands due or to become due, now existing, or hereafter to arise in my favor, and to adjust, settle, and pay all claims and demands which now exist against me or may hereafter arise, either as connected with the foregoing business or otherwise ; to take the general management and control of my affairs, property, and business, and therein to buy, sell, pledge, or mortgage, and to execute and enter into bonds, contracts, mortgages, and deeds connect- ed therewith; and in general do all acts and things which he may consider useful or necessary connected with my business, property, and interests. 9. Power to Deal with Negotiable Instruments For all or any of the purposes aforesaid for me and in my name to draw, accept, make, indorse, discount, or otherwise deal with bills of exchange, checks, promissory notes, or other securities for the payment of money. 10. To Draw Checks For me and in my name to draw checks against my account in the Bank. Ch. 30) POWERS OF ATTORNEY 1137 11. To Accept Bills of Exchange To accept all bills of "exchange which may be drawn upon me in the usual course of my said business. 12. Power to Deposit in Bank and Draw Checks For me and in my name and for my account to deposit in the Bank all moneys which shall come to his hands as such attorney and all bills of exchange, drafts, checks, promis- sory notes, and other securities for money payable or belong- ing to me, and for that purpose to sign my name and indorse the same for deposit or collection, and from time to time to withdraw any and all moneys deposited with the said bank, and for that purpose to draw checks in my name. 13. Power of Attorney to Act in All Affairs for Principal Going Abroad — Full Form Know all men by these presents that I, , of , being about to depart from the United States and to reside for a time abroad, hereby appoint , of , my true and lawful attorney to act in, manage, and conduct all my af- fairs, and for that purpose in my name and on my behalf to do and execute all or any of the following acts, deeds and things, that is to say: 1. [To RECEIVE DEBTS, ETC.] To ask, demand, sue for, re- cover, and receive all sums of money, debts, dues, goods, wares, merchandise, chattels, effects, and things of whatsoever nature or description which now are or hereafter shall be or become due, owing, payable, or belonging to me in or by any right, title, ways, or means howsoever, and upon receipt thereof or of any part thereof to make, sign, execute, and deliver such TiFF.FOKMS — 72 1138 FORM BOOK (Ch. 30 receipts, releases, or other discharges for the same respectively as he shall think fit or be advised. 2. [To SETTLE ACCOUNTS.] Tosettle any account or reckon- ing whatsoever wherein I now am or at any time hereafter shall be in any wise interested or concerned with any person whomsoever, and to pay or receive the balance thereof as the case may require. 3. [To SATISFY MORTGAGES.] To receive every sum of money which now is or hereafter shall be due or belonging to me upon the security or by virtue of any mortgage and on receipt of the full amount secured thereby to execute a good and sufficient release or other discharge of such mortgage by deed or otherwise. 4. [To COMPOUND, SUBMIT TO ARBITRATION, BTC] To compound with or make allowances to any person for or in respect to any debt or demand whatsoever which now is or shall at any time hereafter become due and payable to me, and to take and receive any composition or dividend thereof or thereupon, and to give releases or other discharges for the whole of such debts or demands, or to settle, compromise, or submit to arbitration every such debt or demand and every other right, matter, and thing due to or concerning me as my attorney shall think best, and for that purpose to enter into and execute and deliver such bonds of arbitration or other m- struments as my attorney may deem advisable in the premises. 5. [To PROSECUTE AND DEFEND.] To Commence, prosecute, discontinue, or defend all actions or other legal proceedings touching my estate or any part thereof, or touching any mat- ter in which I or my estate may be in any wise f oncerned. 6. [To MANAGE REAL ESTATE.] To enter into and upon all and singular my real estate, and to let, manage, and improve the same or any part thereof, and to repair or otherwise im- prove or alter, and to insure any buildings thereon. Ch. 30) POWERS OF ATTORNEY 1139 7. [To GRANT LEASES, RECEIVE rEnTs, ETC.] To Contract with any person for leasing for sucli periods, at such rents and subject to such conditions as my attorney shall see fit, all or any of my said real estate, and any such person to let into possession thereof, and to execute all such leases and contracts as shall be necessary or proper in that behalf, and to give no- tice to quit to any tenant or occupier thereof, and to receive and recover from all tenants and occupiers thereof or of any part thereof all rents, arrears of rent, and sums of money which now are or shall hereafter become due and payable in respect thereof, and also on nonpayment thereof or of any part thereof to take all necessary or proper means and pro- ceedings for determining the tenancy or occupation of such tenants or occupiers, and for ejecting the tenants or occupiers and recovering the possession thereof. 8. [To SELL OR EXCHANGE REAL OR PERSONAL ESTATE.] To sell, either at public or private sale, or exchange any part or parts of my real estate or personal property for such con- sideration and upon such terms as my attorney shall think fit, and to execute and deliver good and sufficient deeds or other instruments for the conveyance or transfer of the same, with such covenants of warranty or otherwise as my attorney shall see fit, and to give good and effectual receipts for all or any part of the purchase price or other consideration. 9. [To DEPOSIT MONEYS, WITHDRAW, INVEST, ETC.] To de- posit any moneys which may come to his hands as such attor- ney with any bank or banker (or other person) (either) in my [or, his own) name, and any of such money or any other mon- ey to which I am entitled which now is or shall be so deposited to withdraw, and either employ as he shall think fit in the payment of any debts, or interest, payable by me, or taxes, as- sessments, insurance, and expenses due and payable or to be- come due and payable on account of my real and personal 1140 FORM BOOK (Ch. 30 estate, or in or about any of the purposes herein mentioned, or otherwise for my use and benefit, or to invest in my (or, his own) name in any stocks, shares, bonds, securities or other property, real or personal, as he may think proper (or in speci- fied investments), and to receive and give receipts for any income or dividend arising from such investments, and all and any such investments or other investments to vary or dispose of for my use and benefit as he may think fit. 10. [To BORROW MONEY, MORTGAGE, ETC.] To borrow any sum or sums of money on such terms and with such security, whether real or personal property, as my attorney may think fit, and for that purpose to execute all promissory notes, bonds, mortgages, and other instruments which may be necessary or proper. 11. [To CARRY ON OR WIND UP BUSINESS.] To Carry on or to wind up my business of at , and in con- nection therewith to use the premises in which the same is or shall be carried on, with the same powers of dealing with stock, capital, and effects, and of entering into business en- gagements, of increasing or diminishing capital, and generally of transacting the affairs of the said business as I myself have or should have. 12. [To ENGAGE AND DISMISS AGENTS, ETC.] To engage, employ, and dismiss any agents, clerks, servants, or other per- sons in and about the performance of these presents as my attorney shall think fit. 13. [To VOTE AT stockhoedErs' meetings, etc.] To vote at the meetings of stockholders or other meetings of any cor- poration or company, or otherwise to act as my attorney or proxy in respect of any stocks, shares, or other instruments now or hereafter held by me therein, and for tliat purpose to execute any proxies or other instruments. Ch. 30) POWERS OP ATTORNEY 1141 14. [To exBrcisE fiduciary powers so far as may be DELEGATED.] To exercise any powers and any duties vested in me, whether solely or jointly, with any other or others as executor, administrator, or trustee or in any other fiduciary capacity, so far as such power or dutv is capable of being val- idly delegated. 15. [To EXECUTE DEEDS, biles, notes, etc.] For all or any of the purposes of these presents to enter into and sign, seal, execute, acknowledge, and deliver any contracts, deeds, or other instruments whatsoever, and to draw, accept, make, indorse, discount, or otherwise deal with any bills of exchange, checks, promissory notes, or other commercial or mercantile instruments. 16. [To PAY household expenses AND CHARITABLE SUB- SCRIPTIONS.] To pay every month the sum of $ to to meet my ordinary household expenses, and also in the discretion of my attorney to pay such charitable subscrip- tions as I have been in the habit of paying (and to make such other payments by way of charity as in the circumstances he shall think that I would make if I were present). 17. [To DO ALL OTHER THINGS, ETC.] In general to do all other acts, deeds, matters, and things whatsoever in or about my estate, property, and affairs, or to concur with persons jointly interested with myself therein in doing all acts, deeds, matters, and things herein, either particularly or generally de- scribed, as fully and effectually to all intents and purposes as I could do in my own proper person if personally present. 18. [To APPOINT SUBSTITUTES.] To substitute and appoint in his place and stead (on such terms and at such salary or compensation as he shall think fit) one or more attorney or attorneys to exercise for me as my attorney or attorneys any or all of the powers and authorities hereby conferred, and to revoke any such appointment from time to time, and to sub- 1142 FORM BOOK (Ch. 30 stitute or appoint any other or others in the place of such at- torney or attorneys as he, the said , shall from time to time think fit. 19. [Appointing second attorney on the death, dis- ABii,iTY, OR REFUSAL OE THE FIRST.] And whereas, I, the said , am desirous of providing for the event of the said dying, or becoming incapable of acting, or refusing to act, or becoming bankrupt during my absence, and have re- quested , of — ■ , to act for me in my absence in any of the events aforesaid, and he has consented so to do. Now, therefore, I hereby appoint the said my tiue and lawful attorney from and immediately after the happen- ing of either or any of the said events during my absence to act in and manage all my affairs in the same manner in all respects as the said could have done; and I accord- ingly grant to and vest in the said as and from the date of such event all and every the same powers and author- ities in or concerning the premises in all things as are herein- before granted to or vested in the said and as if the name of the said had throughout these presents been inserted instead of the name of the said . 20. [Ratification and declaration in favor of per- sons WITHOUT NOTICE OF REVOCATION.] And I, the said , hereby ratify and confirm and promise at all times to ratify and confirm all and whatsoever my attorney, whether the said or the said , or any attorney by either hereunder substituted, shall lawfully do or cause to be done in and about the premises by virtue of these presents, including anything which shall be done between the revocation of these presents by my death or in any other manner and notice of such revocation reaching my attorney; and I hereby declare that as against me and all persons claiming under me every- thing which my attorney shall do or cause to be done in par- Ch. 30) POWERS OP ATTOKNET 1143 suance hereof after such revocation as aforesaid shall be valid and effectual in favor of any person claiming the benefit there- of who before the doing thereof shall not have had notice of such revocation. In witness, etc. 14. Power of Attorney to Manage Investments for Principal Going Abroad Know all men by these presents that I,. , of , being about to go abroad, hereby appoint , of , my attorney for me- and in my name to do and execute all or any of the following acts, deeds and things, namely : 1. [To COLI.ECT AND RBCEivB.] To demand, sue for, col- lect, receive, and give discharges for all moneys, debts, inter- est, dividends, securities, shares of stock, and other personal property which now belongs or shall hereafter belong to me. 2. [To PROsecuTB AND DEFEND ACTIONS.] To Commence, prosecute, and defend all actions and other proceedings touch- ing my estate or any part thereof, or touching anything in which I or my estate may be in any way concerned. 3. [To COMPROMISE AND SUBMIT TO ARBITRATION.] To settle, compromise, or submit to arbitration all claims, de- mands, accounts, disputes, and differences between me and any other person. 4. [To SELL SECURITIES.] To sell all or any bonds, shares of stock, or other securities belonging to me, and to execute all deeds and other instruments necessary or proper for trans- ferring the same to the purchaser or purchasers thereof, and to give good receipts and discharges for all purchase moneys payable in respect thereof. 5. [To INVEST.] To invest the proceeds of any sale or sales aforesaid and any other of my moneys in such bonds, shares of stock, and other securities as my attorney in his absolute 1144 FORM BOOK (Ch. 30 discretion shall think fit, and from time to time to vary the said investments or any of them, and in the meantime and pending any such investment as aforesaid to deposit the said moneys in any bank or banks to which my attorney shall think fit to entrust them. 6. [To PAY EXPANSES.] Out of the moneys coming into his hands to pay any expenses in respect to any part of my estate as my attorney shall think fit. 7. [To voT]} AT stockholders' meetings, etc.] To vote at all meetings of stockholders of any company or corporation, and otherwise to act as my attorney or proxy in respect of my shares of stock or other securities or investments which now or hereafter shall belong to me. 8. [To PEREORM CONTRACTS.] To perform and carry out all contracts entered into by me with any other person. 9. [To EXECUTE INSTRUMENTS.] For the purposes afore- said or any of them to indorse all checks or other instruments payable to me, and to sign in my name and execute on my behalf all deeds, assignments, transfers, proxies, and instru- ments whatsoever. 10. [To APPOINT SUBSTITUTES.] To appoint and remove at pleasure any substitute for or agent under him in respect of all or any of the matters aforesaid upon such terms as my attorney shall think fit. 11. [GeneRAE AUTHORITY.] Generally to act in relation to the premises as fully and effectually in all respects as I myself could do if personally present. [Ratification.] And I hereby undertake to ratify every thing which my attorney or any substitute or substitutes or agent or agents appointed by him hereunder shall lawfully do or cause to be done in the premises. In witness, etc. Ch. 30) POWERS OF ATTORNEY 1145 IS. Power of Attorney to Sell Lands in Another State ^ Know all men by these presents that I, , of , hereby appoint , of , my true and lawful attor- ney for me and in my name to sell and convey all the lands and real estate situate in the state of which I now own {or, shall at any time hereafter own) or in or to which I am {or, shall be) in any way interested or entitled or any part or parts thereof, for such price or prices {or other consideration or considerations) and on such terms as my said attorney shall think best (including the power to take a purchase-money mortgage for part of the purchase money), and to execute, acknowledge, and deliver good and sufficient deeds and convey- ances for the same either with or without covenants and war- ranty, and generally to act in the premises as effectually as I could do if personally present, hereby ratifying and confirming all that my said attorney shall lawfully do by virtue hereof. In witness, etc. 15a. Same — By Corporation Know all men by these presents that the A. B. Company, a corporation organized and existing under the laws of the state of , and having its principal place of business at , doth hereby constitute and appoint , of , its true and lawful attorney for it and in its name and stead to sell and convey, for such price or prices and on such terms, in- cluding the taking of a purchase-money mortgage or mort- gages, as he shall deem best, the whole or any part of that certain tract or parcel of land owned by the said A. B. Com- pany situate in the county of , and state of , and described as follows, to wit {description), and also any and all 2 The formalities of execution and acknowledgment should follow the law of the state where the land is situated. 1146 FORM BOOK (Ch. 30 other land in the said state of now owned by it, and for the said A. B. Company and in its name and stead to exe- cute, acknowledge, and deliver good and sufficient deeds for the whole or any part of the said lands, either with or without covenants and warranty, granting unto its said attorney full power and authority to do and perform every act and thing requisite and necessary or proper to be done in the premises, the said company hereby ratifying and confirming all that the said attorney shall lawfully do or cause to be done by virtue hereof. In witness whereof the said A. B. Company has hereunto caused its corporate name to be signed by its president and its corporate seal to be affixed and attested by its secretary, all being done in the city of , and state of , on this day of . The A. B. Company, {Corporate seal.) By , President Attest Seal: -, Secretary. 16. Power of Attorney to Recover Debts in Another State or Abroad ^ Know all men by these presents, that I, , of , hereby appoint , of , my true and lawful attorney for the following purposes : 1. [To COLLECT AND RELEASE, ETC.] To demand and receive all debts, sums of money, goods, chattels, and effects due and owing me from , of {or, from any and all per- sons, firms, and corporations in the state or kingdom of ), and upon receipt thereof or of any part thereof for me and in my name to give and execute good and sufficient re- leases and discharges for the same. 3 If for use abroad, all formnlitles of execution should be complied with, and the instrument should be authenticated In accordance with the law of the foreign country. Ch. 30) POWERS OF ATTORNEY 1147 2. [To PROSECUTE ACTIONS, ETC.] Upon nonpayment there- of or of any part thereof, or upon refusal to release and give up any such goods, chattels, and effects, to commence and prosecute in (his or) my name any actions or proceedings in any court of justice or to resort to any other proceedings al- lowed by the law of the state (or, kingdom) of , whether by (constraint of person or) attachment of money, goods, or otherwise for recovering and obtaining payment, possession, and satisfaction of the same (and to make such petitions to the public officials of said as may be necessary or desirable herein). 3. [To COMPOUND OR SUBMIT TO ARBITRATION.] To Com- pound or submit to arbitration any matter or thing relating thereto. 4. [To DO ALL NECESSARY ACTS.] And generally to do and execute all such other matters, acts, and things as may be necessary or proper for the purposes aforesaid as fully and effectually as I could do if personally present. In witness, etc. 17. Power of Attorney to Receive Share of an Intestate's Estate Know all men by these presents that: [Recital.] Whereas, my father, , late of , in the county of , and state of , died on or about the day of , intestate, and letters of administra- tion of his estate have been granted to by the probate court of the said county and state. [Appointment.] Now, these presents witness that I, • , of , hereby appoint , of -, my true and lawful attorney for me and in my name to do and execute all the following acts and things, that is to say: 1148 FORM BOOK (Ch. 30 1. [To receive; property.] To demand, sue for, recover, and receive from the said or other the administrator or administrators or representatives of my said father, or from any other person or persons to whom it may belong to pay and deliver the same, or who may withhold possession of the same, all my distributive or other share or shares of my said father's estate, real or personal, to which I am or may be by law enti- tled, and for such, when received, to give good and effectual receipts or discharges. 2. [To TAKE EEGAi, PROCEEDINGS, ETC.] To commence and prosecute all actions and proceedings and to use all other ex- pedients for the payment and recovery of my share in the said estate, real and personal, and the enforcement of my rights therein, as fully and effectually as I myself could do if per- sonally present. 3. [To SETTLE ACCOUNTS AND COMPROMISE.] To Settle all accounts relating to the said estate, and to compromise any dis- putes concerning the same. 4. [To APPOINT SUBSTITUTES.] From time to time to ap- point any attorney or attorneys under him for any of the pur- poses aforesaid. [RaTiEication.J Hereby ratifying and confirming whatso- ever my said attorney or his said attorney or attorneys shall lawfully do or cause to be done in the premises by virtue of these presents. In witness, etc. 18. Power of Attorney from Seller to Stop Goods in Transit To all to whom these presents shall come, greeting : [Recitals.] Whereas, I , of , on or about the day of , at , consigned the goods si>ec- ified in the schedule hereto annexed to be carried by the steam- ship , of the Steamship Company, to. Messrs. & Co., of , at ; and whereas, in the Ch. 30) POWERS OF ATTORNEY 1149 events which have happened I am entitled to stop the said goods in transit and am desirous to do so. [Appointment — To recover goods.] Now, know ye that I hereby appoint , of , my attorney for me and in my name to ask, demand, sue for, recover, and take posses- sion of, from any person who shall have possession or custody of the same, such of the said goods and also any, other goods consigned by me to the said , whether they be specified in the said schedule or not, as have not at the time of such demand or taking possession come into the possession of the said {consignees). [To GIVE NOTICE OF INTENTION TO STOP.] And also for me and in my name to give notice to any person so having -the possession or custody of such goods of my intention to stop them in transit so as to prevent their coming into the posses- sion of the said (consignees) and any such person to pro- hibit from doing any act whereby such goods shall come into the possession of the said (consignees). [To TAKE LEGAL PROCEEDINGS.] And On nondelivery upon such demand as aforesaid to bring and prosecute any action or other lawful proceeding for compelling the delivery thereof. [To SELL.] And to sell any of such goods as may lawfully be sold, accounting to me for the proceeds of such sale, and to give all proper notices relating to any such sale. [Ratification.] And I hereby ratify and confirm all that the said >— shall do or cause to be done in the execution of these presents. In witness, etc. Schedule 1150 FOEM BOOK (Ch. 30 19. Appointment of Substitute under Power of Attorney Know all men by these presents that I, , of , in the exercise of a power vested in me by , of , by a certain power {or, letter) of attorney dated the day of (and recorded in the registry of deeds for the county of , and state of , in book , at page ), and of all other powers me hereunto enabling {or, by virtue of the power and authority to be given in and by the power of attorney of , of , which is hereunto annexed), do hereby substitute and appoint , of , to perform all and singular the acts and things which I as at- torney of the said am in the said power of attorney au- thorized to perform; I, the said attorney, hereby giving and granting unto the said my whole derived power and authority in the premises in as full and effectual a manner to all intents and purposes as I received the same from the said by the said power of attorney, and generally to do and perform all such acts and things as the said shall deem necessary or expedient to be done for the purposes aforesaid. And, I, the said , as well for myself as for the said , hereby agree to ratify and confirm whatsoever the said shall lawfully do or cause to be done in or about the premises by virtue of these presents. In witness, etc. 20. Same — Another Form To all to whom these presents shall come, greeting: [Recital op power.] Whereas, , of , by a power of attorney under his hand and seal dated the day of , appointed me , of , his attorney for him and in his name to demand and receive all debts, sums of money, goods, chattels, and effects due and owing him from Ch. 30) POWERS Off ATTOENET 1151 any person or persons whomsoever, and upon receipt thereof or of any part thereof for him and in his name to give and exe- cute good and sufficient releases and discharges for the same, and upon nonpayment thereof or of any part thereof or upon refusal to release and give up any such goods, chattels, and effects to commence and prosecute in his name any actions or proceedings in any court of justice, or to resort to any other procedure allowed by law for recovering and obtaining pay- ment, possession, and satisfaction of the same, and to do and perform other acts and things in said power of attorney set forth, including the power to appoint and at my discretion re- move any substitute under me as attorney in respect to all or any of the matters and things therein set forth upon such terms as I should think fit. [Appointment of substituted attorney.] Now, know ye that by virtue of such power and of all other powers me hereunto enabling I hereby appoint , of , to be the attorney of the said , for him and in his name (or, in my name) to do and perform all or any of the acts and things that I was authorized to do by the said power of attor- ney in the same manner and as effectually as the said {princi- pal) or as I might now do them or any of them or as he the said {substitute) could have done them or any of them if he had in my stead received authority thereto in the said power of attorney. [Ratification.] And I hereby ratify and confirm all that the said shall do or cause to be done by virtue hereof. In witness, etc. 1152 FORM BOOK (Ch. 30 21. Grant of Further Power by Indorsement on Original Power of Attorney Know all men by these presents that I, the within-named , desiring to confer specifically the following power upon , my attorney appointed by the within-written in- strument, hereby authorize my said attorney for me and in my name to {set out additional power) in all respects as if the authority hereby conferred were specifically conferred by the said instrument. And I declare that I hereby in no way diminish or curtail any of the powers conferred by the said instrument, but that these presents are for all purposes to be read into and with the said instrument so as to enlarge the powers thereby conferred. In witness, etc. 22. Revocation of a Power of Attorney Know all men by these presents that: [Recital op power.] Whereas, by power of attorney un- der my hand and seal dated the day of (and recorded, etc), I, , of ^, appointed , of , my attorney for me and in my name to do certain acts and things connected with the sale and conveyance of my lands and premises therein described. Now, therefore, I hereby revoke the said power of attor- ney and every power and authority therein contained: Pro- vided, that nothing herein contained shall affect the validity of any act or thing done by the said by virtue of the powers conferred upon him by the said power of attorney before he shall receive notice of the revocation thereof. In witness, etc. Ch. 30) POWERS OF ATTORNEY 1153 23. Confirmation of Attorney's Act Know all men by these presents that whereas, , of -, did as my attorney for me and in my name execute a certain deed, dated the day of , and conveying unto that certain tract of land described as (descrip- tion), which deed has been recorded in the registry of deeds for , in book , at page . Now, these presents witness that I, , of , hav- ing examined the said deed, do declare that the said did execute the same as my lawful attorney, and I do hereby ratify and confirm the same in all respects. In witness, etc. 24. Commencement of Power of Attorney Where There Are Several Appointors and Several Attorneys Know all men by these presents that we, , , and , of , do and each of us does hereby appoint , , and ; of (and any one or more of them) * our attorneys (and attorney) for us, the said , , and , and any one or more of us, and in the names or name of us or any one or more of us to, etc. 4 All the coattorneys must act under a power of attorney unless it provides otherwise. TiFr.FoEMs — 73 1154 FORM BOOK (Ch. 31 CHAPTER XXXI RECEIPTS AND ACKNOWLEDGMENTS A "receipt" is a written acknowledgment of payment of mon- ey or delivery of chattels. It is, in effect, a mere admission, and while as such it is prima facie evidence of the payment or delivery, it is generally open to explanation. A receipt in full of all demands given for a smaller sum than the debt, where there is no consideration for the promise to forego the residue, is not ordinarily a good discharge, and in such case a release under seal should be given. Post, p. 1160. A debt barred by the statute of limitations may be revived by a new promise to pay it, and a new promise may be implied from a mere acknowledgment of the debt, which must be in writing and signed. In most jurisdictions a debt so barred may also be revived by a payment on account made in such man- ner as to amount to an acknowledgment of it. Pago 1. General receipt for money 1155 2. Receipt In full 1155 3. Eeceipt for money by an agent 1155 4. Eeceipt in full by an agent 1155 5. Eeceipt for money paid by a third person 1155 6. Eeceipt in full by an agent to an agent 1155 7. Eeceipt for money on account 1156 8. Eeceipt for balance of account 1156 9. Eeceipt by indorsement on contract 1156 10. Eeceipt on account of price of article to be delivered 1156 11. Eeceipt for salary 1156 12. Eeceipt for rent 1156 13. Eeceipt for interest under a mortgage 1157 14. Receipt for interest by indorsement on note 1157 15. Eeceipt by lawyer to client on account 1157 16. Eeceipt by legatee 1157 17. Eeceipt for price of horse with warranty 1157 18. Eeceipt for price of watch with warranty 1158 19. Eeceipt for chattels 1158 20. Receipt for documents 1158 21. Receipt for money as a loan 1158 22. Acknowledgment of a debt barred by limitation 1159 23. Acknowledgment of title of land 1159 24. Acknowledgment of the correctness of an account stated. . 1159 Warehouse receipts, post p. 1287. Ch. 31) EECEIPTS AND ACKNOWLEDGMENTS 1155 1. General Receipt for Money Received from C. D. the sum of dollars. {Date.) A. B. 2. Receipt in Full Received this day from C. D. the sum of dollars in full discharge of all claims which I have against him to date {or, in full of all demands against him). {Date) A. .B. 3. Receipt for Money by an Agent Received of C. D. dollars. {Date.) A. B., by E. F., Agent 4. Receipt in Full by an Agent Received this day from C. D. the sum of dollars in full discharge of all claims which E. F. has against him up to date. {Date) A. B., Agent for E. F. 5. Receipt for Money Paid by a Third Person Received from C. D. by the hand of E. F. the sum of dollars. {Date) A. B. 6. Receipt in Full by an Agent to an Agent Received this day from G. H., agent for C. D., the sum of dollars in full discharge of all claims which E. F. has against him up to date. {Date) A. B., Agent for E. F. 1156 FORM BOOK (Ch. 31 7. Receipt for Money on Account Received this day from C. D. the sum of dollars on account of what he owes me. (Date.) ^ A. B, 8. Receipt for Balance of Account Received this day from C. D. the sum of dollars, be- ing the balance of account due from him to me at this date. (Date.) A. B. 9. Receipt by Indorsement on Contract Received from C. D. the sum of dollars, being (a part of) the amount due upon the within-written contract. (Date.) A. B. 10. Receipt on Account of Price of Article to be Delivered Received this day from C. D. the sum of dollars on account of the price of a to be built by me as per memorandum dated the day of , and to be de- livered to him on or before the day of . (Date.) A. B. 11. Receipt for Salary Received this day from the sum of dollars in payment of one month's salary as clerk due May 1, 19 — . (Date.) A. B. 12. Receipt for Rent Received this day from C. D. the sum of dollars, be- ing one month's rent due this day for premises No. street. (Date.) A. B. Ch. 31) EECEIPTS AND ACKNOWLEDGMENTS 1157 13. Receipt for Interest Under a Mortgage Received this day from C. D. dollars, being six months' interest due to me on the day of last upon the principal sum of dollars secured by mort- gage dated {etc^. {Date.) A. B. 14. Receipt for Interest by Indorsement on Note Received $ , being interest on within note to January 1, 19-. {Date) A. B. 15. Receipt by Lawyer to Client on Account Received this day from C. D. dollars on account of costs and services to be incurred and rendered in the action of C. D. V. E. F. {Date) A. B, 16. Receipt by Legatee Received this day from C. D., executor of the late E. E., deceased, the sum of dollars, being the legacy of that amount bequeathed to me by the said E. F. {Date) A. B. 17. Receipt for Price of Horse with Warranty Received this day from C. D. dollars, the price of a bay horse Jack, warranted by me sound, free from vice, and fit for driving in single harness, {Date) A. B. 1158 POEM BOOK (Ch. 31 18. Receipt for Price of Watch with Warranty Received from C. D. — dollars, the price of a gold watch warranted by me to keep correct time within minutes per week for one year from this date. {Date) A. B. 19. Receipt for Chattels Received from C. D. in good order and condition the fol- lowing articles of household furniture {description) heretofore stored for me by the said C. D. {Date.) A. B. 20. Receipt for Documents I hereby acknowledge that I have received from C. D. the several documents and papers which are enumerated and de- scribed in the schedule annexed. {Date) A. B. ScHEDUIvE 21. Receipt for Money as a Loan I hereby acknowledge that I have this day received from C. D. the sum of dollars, which I promise to repay to him on demand {or, on the day of ). {Date.) A. B. Ch. 31) BECEIPTS AND ACKNOWLEDGMENTS 1159 22. Acknowledgment of a Debt Barred by Limitation I, the undersigned , of , hereby acknowledge that the sum of dollars (being part of the sum of dollars) lent to me by {or, due from me to) , of , is still owing and unpaid. (Date.) (Signature of debtor.) 23. Acknowledgment of Title of Land I, , of , hereby acknowledge that the land de- scribed as (description), whereof I am now in possession (or, whereof I am now in receipt of the rents and profits) right- fully belongs to , of , and that I am in posses- sion thereof (or, in receipt of the rents and profits thereof) by his permission. (Date.) (Signature.) 24. Acknowledgment of the Correctness of an Account Stated We, the above-named and , having carefully examined and compared the within and foregoing account with the several vouchers, hereby approve and allow the same, and admit that the balance of $ is a just and correct balance. Witness our hands this day of . (Signatures.) il60 FORM BOOK (Ch.32 CHAPTER XXXII RELEASES Releases are of two kinds: (1) The discharge or renuncia- tion of a right of action or claim; and (2) the conveyance of an interest or estate in property to one who has already a vested interest therein. Only releases of the first kind are here included. The discharge of a right of action may be effected by an accord and satisfaction ; but where there is no consideration for the renunciation or waiver of a right of action, as when a creditor on receipt of part payment of a debt releases the res- idue, the release must ordinarily be under seal, and such is always the safer course. In a release under seal it is not neces- sary to state any consideration. In some states, however, the use of seals has been abolished by statute, and the effect of this upon releases not based on consideration must be deter- mined by the law of the particular state. It is an old rule of construction that general words of a release are restricted and controlled in their operation by the recitals, and conse- quently, if there be recitals, they should show precisely and comprehensively the circumstances on which the release is based. At common law a release of one joint debtor or partner discharges the other joint debtors or partners. This is changed by statute in some states. In some jurisdictions, but not in all, if the instrument reserves the right to pursue the others jointly liable, they are not released. Page 1. General release 1161 2. Another form 1161 3. General mutual releases by two pereons — Short form 1162 4. Release to principal by agent who has received payment in satisfaction of disputed balance 1162 5. Release of lost bond lldS 6. Release of guardian by ward on attaining majority 1164 7. Release to trustees under will upon distribution of the ti-ust estate 1165 For release of mortgage, see Chattel Mortgages, p. 321; Mortgages (Real Estate), p. 834. Ch. 32) BELEASES 1161: 1. General Release Know all men by these presents that I, , of do hereby remise, release, and forever discharge , of , his heirs, executors, and administrators, of and from all and all manner of actions, causes of action, suits, proceed- ings, debts, dues, contracts, judgments, damages, claims, and demands whatsoever in law or equity, which against the said. I ever had, now have, or which my heirs, executors, or. administrators hereafter can, shall, or may have for or: by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the date of these presents. In witness whereof I have hereunto set my hand and seal the day of . 2. Same — Another Form Know all men by these presents that I, , of , for and in consideration of the sum of dollars to me paid by , of , the receipt whereof is hereby acknowl- edged, have remised, released, and forever discharged, and I do hereby, for myself, my heirs, executors, and administra- tors, remise, release, and forever discharge, the said , his heirs, executors, and administrators, of and from all debts,, claims, demands, actions, causes of action, suits, dues, sum' and sums of money, accounts, reckonings, bonds, specialties, covenants, contracts, controversies, agreements, promises, do- ings, omissions, variances, trespasses, damages, judgments, ex- tents, executions, and liabilities whatsoever, both in law and equity, or which may result from the existing state of things, which against the said I ever had (as in preceding' form). 1162 FORM BOOK (Ch. 32 3. General Mutual Releases by Two Persons — Short Form This indenture made this day of between , of , of the one part, and , of , of the other part, witnesseth that each of them the said and the said hereby releases the other of them from all sums of money, accounts, actions, suits, proceedings, claims, and demands whatsoever which either of them at any time had or has up to the date of these presents against the other for or by reason of or in respect of any act, cause, matter, or thing. In witness whereof the said parties have hereunto set their hands and seals the day and year first above written. 4. Release to Principal by Agent Who Has Received Pay- ment in Satisfaction of Disputed Balance 1 Indenture made the day of between , of , party of the first part, and , of , party o/ the second part: [Recital of agency contract.] Whereas, a contract in writing dated the day of was made and entered into between the said parties hereto, whereby the party of the second part appointed the party of the first part his agent for the sale of automobiles, and agreed to pay to the party of the first part commissions upon sales effected by the party of the first part as therein provided ; [Recital of disputed balance.] And whereas, the party of the first part has made claim that there is due him from the party of the second part as and for such commissions a large sum of money, and the amount of the balance due from the party of the second part to the party of the first part is in dis- pute between them; Ch. 32) RELEASES 1163 [Recital of agrEBment.] And whereas, it has been agreed between the parties hereto that the party of the second part should pay to the party of the first part the sum of $ in full satisfaction and discharge of all claims and demands what- soever, and that the party of the first part should execute the release hereinafter contained. [Release.] Now, this indenture witnesseth that, in pursu- ance of the said agreement and in consideration of the sum of $ paid by the party of the second part to the party of the first part, the receipt whereof is hereby acknowledged, the party of the first part hereby releases and forever discharges the party of the second part, his heirs, executors, and adminis- trators, from all sums of money, commissions, accounts, ac- tions, proceedings, claims, and demands which the party of the first part had or has up to the date of these presents against the party of the second part for or by reason or in respect of any act, cause, matter, or thing. In witness, etc. 5. Release of Lost Bond Know all men by these presents that : [Recital of bond, discharge, and loss.] Whereas, , as principal, and and , as sureties, by their bond or obligation dated the day of , bound themselves to me, the undersigned, for payment to me of the sum of $ ; and whereas, the sum of $ mentioned in the said bond, with all interest for the same due thereon, has been paid to me in full discharge of the said bond; and whereas, the said bond or obligation has been lost or mislaid, and cannot be delivered up to the said obligors. [Release.] Now, therefore, I, , for the considera- tion aforesaid, hereby release and discharge the said , , and , and each of them, and their respective 1104 FORM BOOK (Ch. 32 heirs, executors, and administrators, from the obligation of the said bond and from all such sums of money as are therein men- tioned to be due and payable unto me, the said , my ex- ecutors, administrators, or assigns, and also from ^all actions, proceedings, claims, and demands whatsoever for or on ac- count of or in respect of the said bond or obligation or the moneys therein mentioned or any part thereof. In witness, etc. 6. Release of Guardian by Ward on Attaining Majority Indenture made the day of between , of , party of the first part, and , of , party of the second part: [Recitals of guardianship and accounting.] Whereas, by order of the probate court of the county of , and state of , duly made and entered the day of , the party of the second part was appointed guardian of the property and estate of the party of the first part, during his minority; and whereas, the party of the second part has duly accounted as such guardian with the party of the first part, and has paid over and transferred to him all the prop- erty and estate remaining in the hands of the party of the sec- ond part as such guardian. [Release.] Now, this indenture witnesseth that the party of the first part hereby releases and forever discharges the party of the second part from all actions, proceedings, claims, demands, or accounts whatsoever for or on account of the property and estate of the party of the first part or the guard- ianship thereof, or the sale, disposition, investment, and appli- cation thereof, or for or on account of the rents, profits, or in- come thereof, or for or on account of any act or thing at any time done or omitted or neglected by the party of the second part in relation to the premises. In witness, etc. Ch. 32) EELBASE8 1165 7. Release to Trustees under Will upon Distribution of the Trust Estate Indenture made the day of between , , and , of , parties of the first part, and and , of , parties of the second part : [Recital of trust.] Whereas, by his last will, dated the day of , which was duly proved and admitted to probate in and by the probate court of the county of , and state of , , the father of the parties of the first part, devised and bequeathed certain property therein de- scribed unto the parties of the second part in trust to pay the income thereof to , the wife of the said testator, during her life, and from and after her death in trust for the children of the said testator who should be living at his death, in equal shares, and for the issue of any deceased child of the said tes- tator who should leave issue living at the death of the said tes- tator ; [Recitai, op releasor's interest.] And whereas, the said testator left him surviving the parties of the first part, who were his only surviving children, and left him surviving no issue of any deceased child, and the said , the wife of the said testator has died; [Recital oe distribution.] And whereas, the parties of the first part have requested the parties of the second part to distribute the trust estate and premises in specie, and the par- ties of the second part have paid and transferred to the parties of the first part respectively the several stocks, securities, moneys, and other property constituting the trust estate in equal shares, as they hereby acknowledge; [Recital oe approval oe trustees' accounts.] And whereas, the parties of the second part h^ve submitted to the parties of the first part accounts of the said trust estate and 1166 FORM BOOK (Ch.32 premises showing all their dealings therewith from the com- mencement of the trust to the present time, which accounts have been examined by the parties of the first part and signed by them as approved. Now, this indenture witnesseth as follows: 1. [RELiiASE.] In consideration of the several payments and transfers so made as aforesaid and of the premises, the parties of the first part do, and each of them doth, hereby re- lease and discharge the parties of the second part and each of them, and their and each of their heirs, executors, and ad- ministrators, from all actions, suits, claims, accounts, and de- mands for or in respect of all the stocks, securities, moneys, and other property which now are or at any time were sub- ject to said trusts created by the said will, or the income there- of, or any part thereof, or for or on account of any matter or thing made, done, permitted, omitted, or neglected by the par- ties of the second part or either of them in or about the execu- tion of the said trusts, or for or on account of any other thing in any wise relating to the premises. 2. [Covenants against incumbrances.] Each of the par- ties of the first part, as to his or her own acts only, hereby covenants with the parties of the second part and their respec- tive executors and administrators that the parties of the first part respectively have not executed or done or knowingly suf- fered or been party or privy to any deed or thing whereby their respective shares and interests in the said trust estate and premises are or may be in any manner incumbered or affected, or whereby they are respectively disentitled to share in the distribution of the said trust estate and premises in manner hereinbefore appearing. In witness, etc. (Signatures and seals of parties of first part.) Ch. 33) SALE AND PURCHASE OF LAND 1167 CHAPTER XXXIII SALE AND PURCHASE OF LAND— AGREEMENTS FOR {For Conveyances, see Chapter XIV.) By the statute of frauds no action can be brought upon a contract or sale of lands or any interest therein unless the agreement or some note or memorandum thereof be in writing and signed by the party to be charged or some person by him authorized. The statute has been enacted, with some varia- tions of form or of substance, in the different states. In some a contract consisting of mutual promises must be signed by both parties, and in some an agent to sign must be authorized in writing. A written agreement for sale, like a memorandum, must, therefore, show who are the parties to the contract, the subject-matter,' the intention to sell and purchase, the price or the means of ascertaining it, and all other terms of the con- tract. In order that the contract may be mutually binding, it must be signed by or on behalf of both parties. No other formality is required; but if it be desired to have the agree- ment recorded, it must be executed and acknowledged with all the formalities prescribed for conveyances. It is usual to provide for a deposit in part payment and as a guaranty for the fulfillment of the contract by the purchaser. The residue of the purcha-se money is usually payable upon delivery of the deed ; but it may be secured in whole or in part by a mortgage of the same premises back to the vendor, or may be payable on whatever other terms are agreed. If the land is already subject to a mortgage, the conveyance may be made subject to the mortgage, the purchaser assuming payment of the mortgage or not, as may be agreed. The time of comple- tion of the contract by delivery of the deed and payment of the purchase price should ordinarily be fixed far enough ahead to allow time for an examination of the title. The practice as to the delivery of an abstract of title differs in different states, but where it is customary to deliver an abstract it should be provided for. Other matters which it may be desirable to pro- vide for are the nature of the title and the incumbrances, if any, to which it shall be subject, the character of the deed, and the apportionment of rents, taxes, and' insurance. Sometimes 1168 FORM BOOK (Ch. 33 the contract provides that the purchaser is to be let into posses- sion upon payment of a part of the purchase money, and that the delivery of the deed is to be postponed until payment of the residue. How far and under what circumstances growing crops and produce are an interest in land is not here considered; in drawing a contract of sale it is safe to assume that they are such. Page 1. Agreement for sale and purchase of land 1168 2. Same — ^Another form 1160 3. Same — With provisions for examination of title 1170 4. Same — ^Another form 1173 5. Same — With provision for purchase-money mortgage 1174 6. Same — Another form 1176 7. Same — ^With provision for assumption of mortgage 1178 8. Same — Price to be determined by valuation 1179 9. Same — With provision for registration of title 1179 10. Same — With delivery of possession 1181 11. Same — With delivery of possession and payment by month- ly installments 1182 12. Agreement for exchange of land 11S4 13. Same — Another form 1185 14. Option to purchase land 1185 15. Same — Another form 1186 16. For sale of standing timber 1188 17. For sale of growing crop of grass 1189 18. For sale of growing crop of fruit 1190 1. Agreement for Sale and Purchase of Land Agreement made this day of between - party of the first part, and , party of the second part, as follows : 1. [Agee;bmBNT to sell.] The said party of the first part, in consideration of the sum of $ , to be paid as here- inafter provided, hereby agrees to sell unto the said party of the second, part all that certain tract of land (description). 2. [AgeBEmbnt to PURCHASE.] The said party of the sec- ond part hereby agrees to purchase said premises at the said consideration of $ , and to pay the same as follows (set out terms of payment). Ch. 33) SALE AND PURCHASE OF LAND 1169 3. [Deed of conveyance.] The said party of the first part, on receiving such payments at the times and in the man- ner above mentioned, shall execute and deliver, or cause to be executed and delivered, to the said party of the second part, or to his assigns, a duly acknowledged (warranty) deed (in the usual form), conveying to him or them the fee simple of the said premises free from all incumbrance. 4. [Damages on dEEault.] It is hereby agreed that, if either party hereto shall fail or refuse to perform this agree- ment on his part, and the other party shall then be ready to perform this agreement on his part, then the party so failing shall pay to the other party the sum of $ , which sum is hereby agreed upon as liquidated damages to be paid by the party so failing. 5. [On whom binding.] It is understood that this agree- ment shall apply to and bind the heirs, executors, administra- tors, and assigns of the respective parties. In witness whereof the said parties have hereunto (and to another instrument of like tenor and effect) set their hands and seals the day and year first above written. 2. Same — Another Form This agreement made the day of between , of , of the first part, and , of , of the second part, witnesseth : 1. [Undertaking oe vendor.] That the said party of the first part, for and in consideration of the sum of $ , to be paid as hereinafter provided, has agreed to sell to the said party of the second part all that {description). And the said party of the first part agrees to execute and deliver to the said party of the second part a warranty deed for the said land : Provided, and upon condition, nevertheless, that the said party of the second part, his heirs or assigns, pay to the said Tiff. Fohms — 74 1170 FORM BOOK (Ch. 33 party of the first part, his heirs or assigns,' for the sa;id land the sum of $ , payable as follows : The sum of $ to be deposited in the hands of on signing this agree- ment and to be paid over to the said party of the first part on the delivery of the deed, which is to be at the office of , at , between the hours of and on the day of (and the sum of $ to be secured by a purchase-money mortgage by the said party of the second part, payable (iiuert terms), together with the personal bond of the said party of the second part for the said sum of $ ■ — . in the penalty of $ ). [Undertaking of purchaser.] And the said party of the second part, for himself, his heirs, executors, and administra- tors, doth covenant and agree with the said- party of the first part, his heirs and assigns, that the said party of the second part will pay the said several sums as they become severally due, with the interest thereon, without deduction of any taxes or assessments whatever. [Forfeiture on purchaser's deeauet.] And it is fur- ther agreed between the parties hereto that, if default be made in fulfilling this agreement or any part thereof on the part of the said party of the second part, then and in such case the said party of the first part, his heirs and assigns, shall be at liberty to consider this conti'act as forfeited and annulled, and to dispose of the said land to any other person in the same manner as if this contract had never been made. In witness, etc. 3. Same — With Provisions for Examination of Title Agreement made the day of between of , hereinafter called the vendor, of the one part, and , of , hereinafter called the purchaser, of the other part: Ch. 33) SALE AND PURCHASE OF LAND 1171 Whereby it is agreed as follows: 1. [AgreBment eor SALE AND PURCHASE.] The vendor will sell and the purchaser will purchase the following de- scribed premises, with the buildings thereon (description). 2. [Price and deposit.] The price shall be $ , of which the sum of $ by way of deposit is now paid, the receipt whereof the vendor acknowledges, and the balance shall be paid on the date fixed for completion of the purchase. 3. [Delivery oe abstract, commencement oe title, and OBJECTIONS.] The vendor shall within days from the date hereof deliver to the purchaser an abstract of the title (which shall commence with a deed dated, etc., and recorded, etc.), and any objections to the abstract or the title or other- wise arising out of this contract shall be delivered in writing to the vendor within days from the delivery of the abstract, and every objection not so delivered shall be deemed to be waived, and subject to objections so delivered the title shall be considered accepted, time being of the essence of the contract. 4. [Vendor's power to rescind.] Should any objection be insisted on which the vendor shall be unable or unwilling to satisfy or comply with, he may, notwithstanding any at- tempt to remove or satisfy the same or any negotiation or litigation in respect thereof, by notice in writing to the pur- chaser rescind the contract upon repaying the deposit, with- out interest, costs, or compensation, to the purchaser, who shall accept the same in full satisfaction of all claims under the contract or otherwise, and the purchaser shall thereupon re- turn to the vendor the abstract and all papers in his possession in connection with this sale. If the purchaser within days after receiving notice to rescind withdraws the objec- tion, the notice to rescind shall be withdrawn also. 1172 FORM BOOK (Ch. 33 5. [CoMPivBTiON O]? PURCHASE.] The completion of the purchase and the payment of the balance of the purchase mon- ey shall take place on the day of at the office of , the vendor's solicitor. If for any cause whatever (other than noncompletion caused by the willful default of the vendor) the balance of the purchase money shall not be paid on that day, the purchaser shall pay to the vendor inter- est thereon at the rate of per cent, per annum comput- ed from that day until payment. 6. [Deed oE conveyance.] On payment of the balance of the purchase money hereinbefore provided the vendor will ex- ecute and deliver a proper (warranty) deed conveying to the purchaser the fee simple of the said premises free from all incumbrances. 7. [Possession and apportionment oe rents, etc.] Up- on completion of the purchase the purchaser shall be entitled to possession and receipt of the rents and profits of the prop- erty as and from the day fixed for completion (and shall be liable for all taxes as and from such date), such rents and prof- its (and taxes) to be apportioned. 8. [Forfeiture oe deposit and resale on purchaser's DEFAULT.] Should the purchaser fail to observe or comply with any of the foregoing stipulations on his part, his deposit shall be forfeited to the vendor, who may rescind the sale and resell the property either by public or private sale, and any deficiency in price which may result on and all expenses attending a resale shall be made good by the purchaser, and shall be recoverable by the vendor as liquidated damages (the purchaser receiving credit for the deposit). Any increase of price on a resale shall belong to the vendor. In witness, etc. Ch. 33) SALE AND PURCHASE OF LAND 1173 4. Same — Another Form 1. [Agreement to seli,.] I, A. B., seller, have sold and agree to convey to C. D., purchaser, upon the terms herein- after set forth, the following described real estate (descrip- tion). 2. [Agreement to purchase and terms.] I, the said C. D., have purchased said real estate and agree to pay theretor the total purchase price of ■ • dollars, of which $ earnest money has been paid at the date hereof, and the fur- ther sum of $ is to be paid by the purchaser to the seller as follows {terms of payment). Deferred payments to be secured by note and purchase-money mortgage upon said real estate, and to bear interest at the rate of per cent. per annum, payable semiannually, until paid. 3. [Abstract oe title and time eor pereormance.] The seller shall within (five) days from the date hereof deliver to the purchaser a properly certified abstract of title to said real estate, and the purchaser shall be allowed (ten) days after de- livery of said abstract within which to perform this contract: (Provided, that if the purchaser shall find the title to said real estate or to any part thereof to be unmarketable, he shall with- in said (ten) days give to the seller written notice of the de- fects which render the title unmarketable, and the seller shall be allowed (sixty) days thereafter within which to cure such defects, and in such case the purchaser shall be allowed (ten) days after he shall have been notified in writing by the seller that such defects have been cured within which to perform this contract on his part.) 4. [Ie title unmarketable.] If such title shall be unmar- ketable in the seller, then said earnest money shall be refund- ed, and all the other obligations of the parties hereunder shall cease. 1174 FORM BOOK (Ch. 33 5. [DELIVERY OF DEED.] upon the performance of this contract by the purchaser, the seller shall deliver to the pur- chaser a duly acknowledged (warranty) deed, in which the wife of the seller shall join, conveying a good and marketaole title to the premises, in fee simple, free and clear of all incum- brances. All papers shall bear even date herewith, and all tenders and deliveries shall be made at the office of , in . 6. [Taxes, insurance, and rents.] Liability as between the parties hereto to pay taxes and assessments on said prop- erty shall be determined as of the date hereof. Fire insurance and rents are to be adjusted as follows {state terms). 7. [In case oe faieure to perform.] Time is of the es- sence hereof, and if the purchaser shall fail to perform this contract within the time herein limited, the seller shall be dis- charged from all obligations hereunder and may retain said earnest money as a part of his just compensation for such fail- ure, and may proceed for damages or specific performance against the purchaser. Dated at 19 — . {Signatures and seals.) 5. Same — With Provision for Purchase-Money Mortgage Agreement made this day of between , of the first part, and , of the second part : 1. [Agreement to sei,e and purchase.] The party of the first part agrees to sell, and the party of the second part agrees to purchase, the following described premises {description). 2. [Deed and terms of payment.] Said premises are to be conveyed by the party of the first part, on or before the day of , by a good and sufficient warranty deed convey- ing a good and marketable title to the premises, free from all incumbrances, and for such deed and conveyance the party of the second part is to pay the sum of $ , of which the Ch. 33) SALE AND PURCHASE OF LAND 1175 sum of $ has been paid at the date hereof, the sum of $ is to be paid upon the deUvery of such deed, and the remainder is to be paid by the promissory note of the party of the second part dated the day of , payable on the day of , with interest at the rate of per cent, per annum, and secured by a purchase-money mort- gage on the said premises. 3. [Delivery oe possession.] Possession of the said prem- ises is to be delivered to the party of the second part upon the delivery of such deed. 4. [Insurance eor mortgagee.] The buildings now or hereafter erected on said premises shall thereafter and until the full payment of the sums so to be secured be kept insured against fire (and windstorms) in at least the sum of $ , in companies satisfactory to the party of the first part, with loss, if any, payable to the party of the first part as his interest may appear, and the poHcy or policies of insurance shall be de- posited with the party of the first part. 5. [Rents and taxes.] Rents shall be apportioned as of the date of the delivery of such deed, and the taxes assessed for the year shall be paid by the party of the first {or, second) part, and all taxes thereafter assessed shall be paid by the party of the second part, who shall while any part of the sums so to be secured remains unpaid promptly exhibit the tax receipts to the party of the first part. 6. [Delivery OF papers.] All tenders and deliveries of pa- pers hereunder-shall be made at the office pf , in . 7. [In case oe failure to perform.] If the party of the first part shall be unable to give title or to convey said prem- ises as above provided, any payments made hereunder shall be refunded, and all other obligations of the parties hereunder shall terminate ; but the acceptance of a deed by the party of the second part shall be deemed conclusive evidence of a full 1176 FORM BOOK (Ch. 33 performance on the part of the party of the first part. If the party of the second part shall upon due tender of such deed fail to perform this agreement on his part, the party of the first part may retain said sum of $ which has been paid and which is hereby agreed upon as liquidated damages for such failure to perform. 8. [Joinder of vendor's wi]?e.] (In consideration of the above, , wife of the party of the first part, hereby agrees to join in the deed to be executed as above provided, and there- in to release to the party of the second part all right of dower and of homestead in the said premises.) ' In witness, etc. 6. Same — Another Form Agreement made the day of {parties as in Form No. 3, p. 1170): Whereby it is agreed as follows : 1. [Agreement for sale and purchase.] {As in Form No. 3, p. 1170.) 2. [Price and terms oe payment.] The price shall be $ , of which the sum of $ by way of deposit is now paid to and the receipt thereof hereby acknowledged by the vendor, and the further sum of $ shall be paid upon the delivery of the deed hereinafter mentioned, and the bal- ance, being the sum of .$ , shall be secured by a mort- gage of the property in the manner hereinafter mentioned. 3,4. [Deuvery oe abstract and objections; vendor's power to rescind.] {See Form No. 3, els. 3, 4, p. 1171.) 5. [Completion oe purchase.] The completion of the purchase, the payment of the said sum of $ , part of the balance of the purchase money, and the delivery of the deed and mortgage and note hereinafter mentioned shall take place on the day of at the office of , at . Ch. 33) SALE AND PURCHASE OF LAND 1177 If for any cause other than noncompletion by the willful de- fault of the vendor the said sum of $ shall not be paid on that day, the purchaser shall pay to the vendor interest on the whole unpaid purchase money at the rate of per cent, per annum from that day until actual completion. 6. [Delivery of deed.] Upon the completion of the pur- chase and payment of the said sum of $ , with interest thereon, if any, and the delivery of the mortgage and note hereinafter mentioned, the vendor shall concurrently there- with deliver a proper (warranty) deed conveying to the purchas- er the fee simple of the said premises free from all incum- brances. 7. [Mortgage to secure balance.] Upon the delivery of the said deed the purchaser shall concurrently therewith de- liver to the vendor a mortgage of the said premises securing the payment to the vendor of the balance of the purchase money, being the sum of $ , which shall be payable years from the date of the completion of the purchase, with interest thereon at the rate of l)er cent, per an- num, payable semiannually, and computed from the last-men- tioned date, together with the purchaser's promissory note to the order of the vendor for the said principal sum and inter- est payable as aforesaid. Such mortgage shall contain a power of sale in the usual form, shall provide that the purchaser shall pay all taxes and assessments which shall be assessed against the said premises, and shall at- his own expense keep the same insured against fire, in companies satisfactory to and with loss if any payable to the mortgagee as his interest may appear, in at least the sum of $ , and that the policies and premium receipts thereof be deposited with the mortgagee, and shall contain such other provisions as the vendor may reason- ably require. In case of disagreement as to the form or con- tents of the mortgage, the same shall be settled by the vendor's 1178 FORM BOOK (Ch. 33 counsel, whose approval shall be accepted by and be binding upon the parties. 8. [FORFElTUEi; OF DEPOSIT AND RESALE ON PURCHASER'S DE- FAULT.] {See Form No. 3, cl. 8, p. 1172.) In witness, etc, 7. Same — With Provision for Assumption of Mortgage (Begin as in Form No. 5, p. 1174.) 1. [Agreement to seee and purchase.] The party of the first part agrees to sell, and the party of the second part agrees to purchase, all that certain tract of land (description). 2. [Deed and terms of payment.] Said premises are to be conveyed by the party of the first part to the party of the second part, on or before the day of , by a good and sufficient (warranty) deed conveying a good and clear title to the same in fee simple, free from all incumbrances, except a certain mortgage made by the party of the first part to , dated the day of , and recorded on the day of , in the registry of deeds, in book , at page , and securing the sum of $ , with interest thereon at the rate of per cent, per annum, which mortgage the party of the second part is to assume and agree to pay as part of the purchase price for such convey- ance ; and for such deed and conveyance the party of the sec- ond part is to pay the sum of $ , of which the sum of $ has been paid "at the date hereof, and the sum of $ is to be paid upon the delivery of such deed, and the remainder is to be paid by the assumption and payment of said mortgage as hereinbefore provided, it being understood that a clause whereby the party of the second part shall assume and agree to pay said mortgage shall be contained in such deed. (Insert paragraphs 3, 5, 6, 7, and 8 of Form No. 5, if de- sired.) In witness, etc. Ch. 33) SALE AND PURCHASE OF LAND 1179 8. Same — Price to be Determined by Valuation Agreement made the day of {parties as in Form No. 3, p. 1170): Whereby it is agreed as follows: 1. [Agreement for sale and purchase.] (See Form No. 3, cl. 1. p. 1171.) 2. [Price TO BE FIXED BY valuation.] The price to be paid for the purchase of the premises shall be determined by , as the valuer acting for both parties (or, by , appointed by the vendor, and , appointed by the pur- chaser, or, in the event of their disagreement, by an umpire to be nominated by them before entering upon the valuation). Such valuation shall be made within days from the date hereof ; and otherwise, unless the parties extend the time, the authority of the valuer(s and umpire) shall determine, and this agreement shall become null and void. 3. [Separate valuations.] In making such valuation the valuer(s or umpire) shall value separately the land and build- ing and the fixtures and machinery in the said building (add other items of valuation). 4. [Delivery of abstract, etc.] The vendor shall within days after the determination of the price as hereinbe- fore provided deliver to the purchaser an abstract (as in Form No. 3, cl. 3, p. 1171, adding other appropriate clauses). In witness, etc. y. Same — With Provision for Registration of Title Agreement made this day of (parties as in Form No. 2, p. 1169), 1. [Agreement for sale and purchase.] The party of the first part agrees to sell and the party of the second part 1180 FORM BOOK (Ch. 33 agrees to purchase the following described parcel of land (de- scription). 2. [Price and deposit.] The price shall be $ , of which the sum of $ by way of deposit has been paid, the receipt whereof is hereby acknowledged, and the balance shall be paid upon the due registration of the title to the said land and the delivery of a deed as hereinafter provided. 3. [REGiSTRiVTioN AND DEED.] The party of the first part shall first cause the title to the said land to be registered ac- cording to the statute in such case made and provided, and upon such registration being duly made and within months from the date hereof shall execute and deliver to the party of the second part a good and sufficient (warranty) deed conveying to the party of the second part the fee simple of the said premises free from all incumbrances (excepting only such incumbrances and rights as are excepted in all certificates of title pursuant to a decree of registration). 4. [Disposition oe deposit on default by either.] If the party of the first part shall fail to cause the said title to be registered and to tender a deed to the party of the second part in the manner and within the time hereinbefore provided, time being of the essence of this agreement, the said deposit shall be refunded to the party of the secopd part; but if the party of the second part shall fail or refuse to perform this agree- ment on his part, and the party of the first part shall be ready and willing to perform on his part, the party of the first part shall be entitled to retain the said deposit as liquidated dam- ages therefor. In witness, etc. Ch. 33) SALE AND PURCHASE OP LAND 1181 10. Same — With Delivery of Possession (Begin, as in Form No. 2, p. 1169.) 1. [Undertaking of vendor.] That the said party of the first part, in consideration of the covenants and agreements of the said party of the second part hereinafter contained, hereby sells and agrees to convey unto the said party of the second part, or his assigns, by deed of warranty upon the prompt and full performance of the said party of the second part of his part of this agreement, the following described premises (description). 2. [Undertaking oe purchaser.] And the said party of the second part, in consideration of the premises, hereby agrees to pay to the said party of the first part, as and for the pur- chase price of the said premises, the sum of dollars, in manner and at the times following, to wit (terms of pay- ment), and to pay all taxes or assessments that may hereafter be levied or assessed upon the said premises. 3. [Surrender oe possession on purchaser's default.] But should default be made in the payment of said several sums of money or any or either of them or any part thereof, or in the payment of said interest, taxes, or assessments or any part thereof, or in any of the covenants herein to be by the said party of the second part kept or performed, then the said party of the first part shall at his election be discharged from all further obligation hereunder, time being of the es- sence of this agreement ; and in case of any such default, the said party of the second part hereby agrees, upon demand of the said party of the first part, quietly and peaceably to sur- render to the said party of the first part the possession of the said premises and every part thereof, it being understood that until such default the said party of the second part is to have possession of the said premises. In witness, etc. 1182 FORM BOOK (Ch. 33 11. Same — With Delivery of Possession and Payment by Monthly Installments This agreement made the day of between , of , hereinafter called the vendor, of the one part, and , of , hereinafter called the purchaser, of the other part, witnesseth as follows: 1. [Sale and agreement to convey.] The vendor, in consideration of the covenants hereinafter contained on the part of the purchaser, hereby sells and agrees to convey unto the purchaser by warranty deed in the usual form, upon the prompt and full performance by the purchaser of the terms of this agreement, a good and clear title, free from all incum- brances, to the following described premises (description). 2. [Purchaser's covenants.] The purchaser, in consid- eration of the premises, covenants with the vendor as follows : (1) [To pay price in installments.] To pay to the ven- dor as and for the purchase price of the said premises the sum of $ , of which the sum of $ has been paid, the receipt whereof the vendor acknowledges, and the remainder in monthly installments of not less than $ each on the first day of each month, until the whole of the said principal sum shall have been paid, the first of such payments to be made on the day of , with interest on all de- ferred payments, computed upon the baljince remaining due from time to time from the date hereof until paid at the rate of per cent, per annum, payable on the first day of each month. (2) [To pay taxes, etc.] To pay all taxes and assessments that may be levied, assessed, or become due upon the said premises at least days before any penalty would accrue thereon if unpaid, and to exhibit the receipt therefor to the vendor. Ch. 33) SALE AND PURCHASE OF LAND 1183 (3) [To INSURE.] To insure and keep insured in at least the sum of $ against loss or damage by fire during the life of this agreement the buildings now or hereafter erected upon the said premises in companies satisfactory to the ven- dor, with loss, if any, payable to the vendor as his interest may appear, and to deposit the policy or policies with the vendor : 3. [Termination and re-entry on default.] Provided, however, and this agreement is upon the express condition that, if default shall be made in the payment of the said sev- eral sums or any of them, or any part thereof, or in the per- formance or observance of any of the covenants herein con- tained on the part of the purchaser, then the whole of the said principal sum, with accrued interest thereon, shall at the election of the vendor become immediately due and payable, and the vendor shall have the right to terminate this agree- ment by giving to the purchaser days' written notice of such termination, time being of the essence of this agree- ment ; and in thie event of such termination all payments made by the purchaser hereunder shall be retained by the vendor as liquidated damages for the breach of this agreement by the purchaser, and the vendor shall have the right to re-enter and take possession of the said premises with all the buildings and improvements then thereon, it being agreed that until such de- fault the purchaser shall have possession of the said premises. 4. [On whom binding.] All the covenants and agree- ments herein contained shall inure to the benefit of and bind the respective heirs, personal representatives, and assigns of the parties hereto. In witness, etc. 1184 FORM BOOK (Ch. 33 12. Agreement for Exchange of Land (Begin as in Form No. 2, p. 1169.) 1. [Agrebmbnt of FIRST PARTY.] The party of the first part, in consideration of the agreement of the party of the second part hereinafter contained, hereby agrees, upon convey- ance and payment by the party of the second part as herein- after provided, to convey to the party of the second part the following described premises (description). 2. [Ageeembnt of second party.] The party of the sec- ond part, in consideration of the agreement of the party of the first part hereinbefore contained, hereby agrees, upon con- veyance by the party of the, first part as hereinbefore provided, to pay to the party of the first part the sum of dol- lars, in cash, and to convey to the party of the first part, the following described premises (description). 3. [Deeds.] The premises in each case are to be conveyed by a good and sufficient (warranty) deed of the one party to the other or to his assigns, conveying a good and marketable title to the same, free from incumbrances. This agreement shall be performed by the parties concurrently on the day of , at o'clock — . m. at the office of , in -. 4. [Rents and taxes.] Rents and the taxes assessed for the year shall be apportioned as of the day of the deliv- ery of the deeds. 5. [Failure oe title.] If either party shall be unable to give good title or to convey as above provided, this agreement shall be discharged. In witness, etc. Ch. 33) SALE AND PURCHASE OF LAND 1185 13. Same — Another Form (Begin as in Form No. 2, p. 1169.) 1. [Agreement to sell and convey.] That the said par- ty of the first part, in consideration of the covenants and agree- ments on the part of the said party of the second part here- inafter mentioned, does hereby agree to sell and convey by (^warranty) deed, free from any incumbrance, unto the said party of the second part, his heirs or assigns, all the follow- ing described real estate {description}. In consideration of which the said party of the second part agrees to sell and convey by (warranty) deed, free from any incumbrance, unto the said party of the first part, his heirs or assigns, the follow- ing described real estate {description). 2. [Performance oe contract.] It is agreed that an ab- stract of title, brought down to date, to each of the above properties, shall be furnished by the respective parties hereto within days from date hereof, and, should there be any defects in the title of either, such defects shall be made good and the title perfected by the party whose title is de- fective, within days from date hereof at his own cost and expense; otherwise this contract to be null and void at the option of the other party. The respective deeds shall be delivered on or before the day of , 19 — , at the office of , in . Time shall be deemed to be of the essence of this contract. In witness, etc. 14. Option to Purchase Land Know all men by these presents that I, , of , in consideration of $ paid by , of , the re- ceipt whereof is hereby acknowledged, hereby, for myself, my heirs, executors, and administrators, agree to sell and convey TiFP.FoEMs — 75 1186 FORM BOOK (Ch. 33 to said or his assigns for the consideration hereinafter mentioned the following described property {description). The consideration to be paid by the said or his as- signs shall be the sum of $ . This option may be ac- cepted by the said or his assigns within days from the date hereof by written notice to that effect. Convey- ance shall be made within days after such acceptance by a (warranty) deed conveying a clear title free from all in- cumbrances: Provided, that the said or his assigns shall give to days' written notice of the time when such deed shall be delivered. All notices, tenders, and deliveries hereunder shall be served and made at the office of It is agreed that if the said or his assigns shall fail to accept this option within the time above mentioned, or shall after such acceptance fail to pay the said sum of $ , the consideration above mentioned, at the time and place and in accordance with the terms and conditions hereinbefore men- tioned, the said or his assigns shall forfeit the said sum of $ paid to me as hereinbefore acknowledged. In witness whereof I have hereunto set my hand and seal this day of . 15. Same — Another Form (Begin as in Form No. 2, p. 1169.) 1. [Grant of option.] The said party of the first part, in consideration of the sum of $ by the said party of the second part paid to the said party of the first part, the receipt whereof is hereby acknowledged, hereby grants to the said party of the second part the exclusive right, at his option, for and during the period of days from the date hereof, to purchase that parcel of land (description) for the price of Ch. 33) SALE AND PURCHASE OF LAND 1187 $ , which shall be paid upon the delivery of a deed as hereinafter provided. 2. [Option, how exercised — Examination oe title.] In case the said party of the second part shall elect to purchase the said property, he shall signify such election by written no- tice thereof, served upon the said party of the first part within the time above limited; and thereafter the said party of the first part shall deliver to the said party of the second part an abstract of title to the said property, within days from the service of such notice, and the said party of the second part shall have days after the delivery of such abstract in which to examine the title and to complete such purchase. 3. [Conveyance.] If the said party of the second part shall complete such purchase, the said party of the first part shall give a good and marketable title in fee simple to the said property, free and clear of all taxes and incumbrances, and shall convey the same by (warranty) deed (in which the wife of the said party of the first part shall join). 4. [Place oe pereormance.] All notices, tenders, and de- liveries hereunder shall be served and made at the office of in 5. If the said party of the second part shall not elect to pur- chase the said property, or shall fail to complete the said pur- chase within the time and in the manner hereinbefore pro- vided, his option hereunder shall terminate without further action, time being of the essence of this agreement, and he shall forfeit the said sum of $ paid to the said party of the first part. In witness, etc. 1188 FORM BOOK (Ch. 33 16. For Sale of Standing Timber {Begin as in Form No. 3, p. 1170.) 1. [Agreement to seli, and purchase.] The vendor will sell and the purchaser will buy all the timber and trees grow- ing on that tract of land (description). 2. [Price and payment.] The purchase price shall be $ , of which $ has been paid, and the balance shall be paid on the day of . 3. [Cutting and removing.] The purchaser shall cut the said timber and trees and remove the same, with all the tops, boughs, and bark thereof, not later than the day of (except the cordwood, which may remain till the • day of following). Everything remaining after the time(s) mentioned shall belong to the vendor. 4. [License to enter.] For the purpose of cutting down and removing the said timber the purchaser shall have full li- cense and liberty to enter upon the said land and upon the usual roads of ingress and of egress over the other lands of the vendor, with servants, workmen, horses, wagons, and oth- er necessary implements, until the said timber, with the tops, boughs, and bark thereof, has been removed, but the purchas- er shall not enter later than the day of . 5. [No UNNECESSARY DAMAGE.] The purchaser shall fell the trees close to the ground, and shall cut and remove the same in a proper, customary, and workmanlike manner, doing as little damage as possible to the property of the vendor, and shall make compensation for any such damage. In witness, etc. Ch. 33) SALE AND PURCHASE OP LAND 1189 17. For Sale of Growing Crop of Grass (Begin as in Form No. 3, p. 1170.) 1. [Agreement to sell and buy.] The vendor will sell and the purchaser will buy all that standing crop of mowing grass now growing on the meadow south of the road on the vendor's farm situate at . The meadow is be- lieved, and shall be conclusively assumed, to contain ■ — ■ acres. 2. [Price and payment.] The purchase price shall be $ per acre, of which $ has been paid, and the balance shall be paid as soon as any part of the grass shall be mown. 3. [Date of removal.] The grass shall be mown and made into hay and removed from the said meadow not later than the day of . 4. [License to enter.] For the purpose of mowing, mak- ing, and removing the said hay, but for no other purpose, the purchaser shall have full liberty and authority to enter upon the said meadow with servants, workmen, horses, machines, wagons, and other necessary implements until the said crop shall be removed, but he shall not enter later than the day of . 5. [No unnecessary damage.] The grass shall be mown and got in in a proper and husbandlike manner, and the pur- chaser shall not permit any damage to be done to the hedges, fences, or gates, and shall make compensation for any such damage. 6. [FoREEiTURE and resale.] If the purchaser shall neg- lect to pay the said balance of the purchase money at the time herein provided or to mow or remove the grass before the • day of , the vendor shall be at liberty to forfeit the sum now paid and to resell the said crop either before or 1190 FORM BOOK (Ch.33 after being made. And if the amount realized on such resale shall be less than the said balance and of the expenses incurred by the vendor in converting the said grass into hay, the defi- ciency, after giving credit for the amount now paid, shall be made good by the purchaser as liquidated damages, but any excess realized on such sale shall belong to the vendor. In witness, etc. 18. For Sale of Growing Crop of Fruit (Begin as in Form No. 3, p. 1170.) 1. [AgkeemEnt to selIv and buy.] The vendor will sell and the purchaser will buy all that crop of (apples) now grow- ing on the trees in the orchard of the vendor situate at . 2. [Price and paymiint.] The purchase price shall be per bushel, of which the sum of $ ■ shall be paid before the purchaser begins to gather the fruit. After he has gathered such a quantity at the rate aforesaid as will be paid for by the said sum of $ , the purchaser shall not be at liberty without the consent of the vendor to remove any other fruit until the purchase price thereof shall be paid. 3. [Time of gathering and license.] The fruit shall be gathered in due course and when sufficiently mature, and for the purpose of gathering and getting the same the purchaser shall have full liberty to enter upon the orchard and trees with workmen, ladders, and other necessary implements. 4. [No unnecessary DAMAGE.] The fruit shall be gathered in a proper, careful,, and customary manner, the purchaser do- ing as little damage as possible to the trees and other things growing in the said orchard. In witness, etc. Ch. 34) SALE OF GOODS 1191 CHAPTER XXXIV SALE OF GOODS A "sale of goods" is an agreement whereby the seller trans- fers the ownership of goods to the buyer for a price in money, which the buyer pays or agrees to pay. A contract to sell goods is a contract whereby the seller agrees so to transfer the ownership of goods to the buyer. Goods include substan- tially all corporeal movable property except money. By the statute of frauds, in the form in which it is generally enacted, no sale or contract to sell goods for a price in excess of a pre- scribed sum is enforceable, unless the buyer shall: (1) Accept part of the goods, .and actually receive the same; or (2) give something in earnest to bind the bargain, or in part payment ; or (3) unless some note or memorandum in writing of the bar- gain be signed by the party to be charged or his agent in that behalf. No other formalities are required, and consequently a sale or a contract to sell may be made without writing of any sort, if either of the other formalities of the statute is satis- fied. And while it is desirable that the terms of the agree- ment or contract should be in writing in all cases where the sale is not executed forthwith by the delivery of the goods and the payment of the price, the terms are usually stated in a brief note or memorandum or in separate papers, such as let- ters, and formal contracts are comparatively rare. A bill of sale, or formal instrument of transfer, is useful mainly as furnishing evidence of title. It should be borne in mind that delivery of possession is necessary to protect the buyer against the seller's creditors and in some jurisdictions against pur- chasers. The transfer of ownership is effected by the mutual assent of the parties; and in accordance with the agreement it will take eifect, provided the goods are ascertained, either im- mediately, or not until delivery, or payment, or the happening of some other condition. Thus, in so-called "conditional sales," by the terms of the contract, the possession of the goods is to be delivered to the buyer, but the ownership is to remain in the seller until payment of the price. Under a conditional sale, notwithstanding delivery, the ownership does nSt pass to the buyer until payment, and where the question is unaffected 1192 FORM BOOK (Ch. 34 by statute, it is held generally, although not universally, that he cannot pass title to others, either to his attaching creditors or bona fide purchasers. In many states there are statutes regulating conditional sales and providing that the contract shall be void as to creditors of the buyer and subsequent pur- chasers from him in good faith, unless filed or recorded like chattel mortgages; while in some states conditional sales are held to be within the provisions of a statute requiring chattel mortgages to be filed or recorded. See Chattel Mortgages, ante, p. 324. Instruments in the form of leases providing that the lessee shall become the owner of the thing leased upon payment of stipulated installments of rent, usually equivalent to the value of the thing, which the lessee agrees to pay, and reserving to the lessor the right to resume possession upon de- fault in payment, are very generally, although not always, held to be conditional sales. Such a contract is to be distinguished from a lease or contract for hire with a rtere option to buy. See Hire of Goods, ante, p. 695. Page 1. Contract to sell goods 1192 2. Same — By separate papers 1193 3. Contract to manufacture and sell articles by Installments. . 1193 4. Contract to sell goods at a valuation 1195 5. Agreement for exclusive state agency for sale of goods.. . 1196 6. Conditional sale note. 1199 7. Contract for conditional sale in the form of a lease 1200 8. Agreement for hire and conditional sale of furniture 1202 9.^ Bill of sale— Short form '. 1203 10. Same — Another form, with warranty of title 1203 11. Same — Another form of warranty 1204 12. Bill of sale of horse with warranty 120i 13. Bill of sale of goods described in schedule 1204 14. Bill of sale of furniture, eta, in dwelling house, seller re- taining possession until completion of purchase of house 1204 15. Bill of sale — Maryland (statutory) 1205 BiUs of sale of vessels, pp. 1226, 1227. 1. Contract to Sell Goods Agreement made the day of between and : The said agrees to sell and the said • agrees to buy tons of at $ per ton, which are to be Ch. 34) SALE OF GOODS 1193 delivered forthwith by the said to the said at on or before the day of . (Signatures.) 2. Same — By Separate Papers 19—. To (buyer): We have this day sold to you tons of (speci- fication of the goods) at $ per ton. The said goods to be delivered at , as and when re- quired, between the day of and the day of , in quantities of not less than (or, not more than) tons, days' notice in writing of each delivery to. be given to the seller. Payment in cash for the amount of each delivery to be made on the day from the date thereof, less per cent, discount. (Signature of seller.) To (seller) : We hereby confirm your contract dated the day of for (subject-matter of contract). (Signature of buyer.) 3. Contract to Manufacture and Sell Articles by Install- ments Agreement made the day of between , of , hereinafter called the manufacturer, and , of , hereinafter called the buyer : 1. [Agreement for manufacture and sale.] The manu- facturer agrees to make and sell to the buyer and the buyer agrees to buy from the manufacturer (number) frames for chairs per month for the term of one year from the date here- of, the said frames to be made in conformity with the specifi- 1194 FORM BOOK (Ch. 34 cations hereto attached and to be of the best materials and workmanship throughout. 2. [Deuveey and acceptance.] On or before the day in each month the manufacturer shall deliver the install- ment of frames deliverable in that month at the buyer's ware- house at . The buyer shall have the right within days from the date of each delivery to reject such of the frames as are not in conformity with the said specifications or are otherwise defective in workmanship or materials ; and after the expiration of such days the buyer shall be deemed to have accepted all the said frames except such, if any, as shall have been rejected. The manufacturer shall re- place such of the frames as may be so rejected with others made in conformity with the said specifications within days from the date of rejection. 3. [Payment.] The buyer shall pay for each monthly in- stallment of the said frames in cash on the day of each month (or, by his promissory note payable, in days from that date). 4. [Failure as to installment not ground for repudi- ation.] ^ The failure of the manufacturer to deliver or of the buyer to pay for one or more of the said installments of the said frames at the times hereinbefore provided for pa}'ment or delivery respectively shall not entitle the manufacturer or the buyer respectively to treat the contract as repudiated, but the 1 If it be desired to make sueli failure a ground for repudiation, tlie following may be substituted: "The respective times hereinbefore stipulated for the delivery of and payment for the said frames shall be deemed to be of the es- sence of the contract, and the failure of the manufactui-er to deliver or of the buyer to pay for any one or more of the said installments in accordance with the said stipulations shall entitle the manu- facturer or buyer, as the case may he, to treat such failure as a repudiation of this contract by the other party and himself to re- pudiate further performance thereof and to recover damages for the breach of contract." Ch. 34) SALE OF GOODS 1195 party in default shall be liable to compensate the other for any loss or damage consequent upon such failure. In witness, etc. 4. Contract to Sell Goods at a Valuation An agreement made the day of between , of , hereinafter called the seller, and , of , hereinafter called the buyer: 1. [Agreement to sell.] The seller agrees to sell and the buyer agrees to buy all the household goods and furniture (specified in the schedule hereto annexed and) now being in the dwelling house of the seller at at a price to be ascer- tained by a valuation, as hereinafter provided. 2. [Valuation, how made.] The aforesaid valuation shall be made on or before the day of by and , and, if they cannot agree, they shall appoint some third person as an additional appraiser, and a valuation agreed to by a majority of them shall be binding upon the parties hereto. 3. [Date oE payment.] The buyer shall within days from the receipt of notice of such valuation pay such amount to the seller. 4. [Risk of loss.] From the date of the receipt of such notice the said goods and furniture shall be at the risk of the buyer ; and up to that date the risk shall be with the seller. 5. [Delivery.] On payment to the seller of the amount of such valuation, the buyer shall be at liberty to remove the said goods and furniture from the said dwelling house (and the seller will thereupon make and deliver to the buyer a bill of sale of the said goods and furniture). 6. [Repudiation by seller.] Failure of the buyer to pay the amount of the said valuation within the time hereinbefore mentioned, time being of the essence of the contract, shall en- 1196 FORM BOOK (Ch. 34 title the seller to treat the contract as repudiated by the buyer and to claim compensation from him for the breach thereof. '7. [Costs op vaiy ratifies and confirms the acts of the said as his at- torney or attorneys for said purpose. [Insurance.] And it is hereby further agreed and under- stood that insurance shall be made in some ofifice in on the said schooner or vessel for the security of the said as mortgagee to an amount not less than the sum loan- ed as aforesaid ; and the said is hereby authorized to procure such insurance at the expense of the said if not seasonably obtained by him, the said . Signed, sealed, and delivered in the presence of: (Ac- -knowledgment.) 1230 FOEM BOOK (Ch. 3C 4. Same — Another Form To all to whom these presents shall come, greeting': [Assignment.] Know ye that we, and , of the of , in the state of , each owner of one-half of the schooner or vessel called the , of the burden of tons, or thereabouts, of the first part, being justly indebted to , of , in the state of , of the second part, in the sum of dollars, for money this day lent to us by the said party of the second part, for the purpose of securing the payment of the said debt and the interest thereon, do hereby grant, bargain, sell, assign, and mortgage unto the said party of the second part, his executors, administrators, and assigns, all of said schooner or vessel, to- gether with all the masts, bowsprit, boats, anchors, cables, chains, rigging, tackle, apparel, furniture, and all other neces- saries thereunto appertaining and belonging. The certificate of the last registry (or, if an enrolled vessel, enrollment) of the said schooner or vessel is in the words and figures following, to wit (insert copy). To have and to hold the said schooner or vessel and all the other before-mentioned appurtenances unto him, the said , and to his executors, administrators, and assigns, to the sole and only proper use, benefit, and behoof of him, the said , and to his executors, administrators, and assigns, forever : [Proviso for payment.] Provided, always, and the condi- tion of these presents is such, that if the said parties of the first part, their executors or administrators, shall pay or cause to be paid to the said party of the second part, his executors, administrators, or assigns, the debt aforesaid, with the interest thereon, at the time or times and in the manner following, to wit (state terms), then these presents shall be void and of no effect; otherwise to remain in full force. Ch. 36) SHIPS AND VESSELS 1231 [Covenants of mortgagor.] And the said parties of the first part, for themselves, their heirs, executors, and adminis- trators, do covenant with the said party of the second part, his executors, administrators, and assigns, as follows: To pay the aforesaid debt, with the interest thereon, at the times hereinbefore mentioned; not to sell or attempt to sell the said vessel or appurtenances or any part thereof; not to suffer the same to be levied upon or taken by virtue of any attachment or execution; (not to remove or attempt to re- move the same beyond the limits of the United States) ; not to suffer the said vessel to be run in debt to an amount ex- ceeding in the aggregate the sum of dollars; not to make or suffer any waste, damage, or destruction thereof, or any act whereby the insurance hereinafter mentioned would be liable to be vitiated or forfeited ; to keep the said vessel insured against loss or damage by fire, and against all marine risks and disasters, in a company or companies approved by the said party of the second part, for an amount equal at least to the amount which shall from time to time remain un- paid upon the said indebtedness, and to assign or deliver promptly to the said party of the second part as collateral se- curity for the payment thereof all policies of insurance thereon and all renewal certificates thereof, having first obtained the consent of the company or companies to any such assignments ; that in the event of any failure to effect and pay for such in- surance the said party of the second part, his executors, admin- istrators, or assigns, may effect and pay for the same, and the sum or sums so paid shall be deemed a part of the principal debt hereby secured, and shall bear interest at the same rate, and the same shall be immediately due and payable and col- lectible with and in the same manner as the said principal debt. [Power. OF sale.] But if default shall be made in the pay- ment of the said debt or sums of money, or the interest there- 1232 FORM BOOK (Ch. 36 on, or any part thereof, or in the prompt and faithful observ- ance or performance of any of the covenants on the part of the said parties of the first part herein contained, or if the said par- ty of the second part shall at any time deem himself in danger of losing the said debt or any part thereof by delaying the collec- tion thereof until the expiration of the time above limited for the payment thereof, then and in either or any such event the said party of the second part, his executors, administrators, or assigns, are hereby authorized to take possession of the said vessel and appurtenances, wherever found, at any time, ei- ther before or after the expiration of the time aforesaid, and to sell and convey the same, or so much as may be necessary to satisfy the said debt, interest, and reasonable expenses, after giving days' notice of such sale by publication in some newspaper published in , and to execute and deliver a suiificient bill of sale in order to transfer the same to the purchaser or purchasers, retaining the amount of the said debt, interest, and expenses, and returning the surplus, if any, to the said parties of the first part, their executors or administrators; it being hereby agreed that at any such sale the said party of the second part, his executors, administra- tors, or assigns, may become the purchaser or purchasers : [Possession of mortgagor.] Provided, always, that it shall be lawful for the said parties of the first part, their ex- ecutors and administrators, to retain possession of the said vessel and at their own expense to use and enjoy the same until the said indebtedness shall become due, unless the said party of the second part, or his executors, administrators, or assigns, shall declare this mortgage forfeited for nonperform- ance of any of the covenants herein contained or by virtue of any authority hereby conferred. In testimony, etc. {Acknowledgment) Ch. 36) SHIPS AND VESSELS 1233 5. Bottomry Bond Know all men by these presents that I, , master of the ship , of the port of , tor myself am held and firmly bound unto , herein called the lender, in the penal sum of dollars, for the payment of which well and truly to be made unto the said lender, his heirs, ex- ecutors, administrators, and assigns, I hereby bind myself, my heirs, executors, and administrators firmly by these presents. [Pledge.] And for further security of the said lender I, the said , do by these presents pledge the said ship and her freight, together with her tackle and apparel (and also the cargo now on board the said ship) ; and it is hereby declared that the said ship and her freight (and cargo) are thus pledged for the security of the money advanced to me, and shall be pledged or mortgaged to no other person until payment of this bond is first made, with the interest that may become due thereon. In witness whereof I have hereunto set my hand and seal this day of . [RSciTai< of loan.] Whereas, the above-named ship, hav- ing been compelled to put into the port of for repairs and necessaries, and the owners of the said ship and her freight and the shippers and consignees of the cargo on board of her having refused to provide the money wherewith to pay for the said repairs and necessaries, the above-named ■ hath been compelled to borrow at bottomry, and hath received of the lender the sum of dollars, which sum is to run at bottomry on the hull and freight of the said ship from the port of on a voyage to the port of (having per- mission to touch, stay at, and proceed to all ports and places within the limits of the voyage) at the rate of per cent, for the voyage. TiFF.POEMS — 78 1234 FORM BOOK (Ch. 36 [Condition.] Now, the condition of this obligation is such that, if the above-bound , his heirs, executors, or ad- ministrators, shall pay unto the lender, or his heirs, executors, administrators, or assigns, the sum of dollars, being the principal of this bond, together with the interest which shall become due thereon within days after the safe arrival of the ship at her place of discharge in the fKjrt of , or if the said ship is lost on the said voyage, then this obligation and pledge shall be void and of no effect ; otherwise to remain in full force and effect. Three bonds of the same tenor and date have been signed, the one of which being ac- complished, the others to be void and of no'effect. Signed, sealed, and delivered in the presence of . {Signature and seal of master.) 6. Agreement Between Co-owners of Ship for Management by One This agreement made this day of between , of , hereinafter called the part owner, of the one part, and , of , hereinafter called the man- ager, of the other part: [Recital of co-ownership, etc.] Whereas, the part own- er is the owner of shares of the sailing ship called the , of the port of , and the manager is the owner of the remaining shares of the said ship, and the parties hereto have agreed that the manager shall be the manager thereof, and desire to specify the terms of his management. Now, it is hereby mutually agreed between the said parties as follows : 1. [Powers oe manager.] The manager shall have the sole management of the said ship in all matters relating to her employment, and in particular shall have the following pow- ers : To make or cancel any arrangement for the engagement Ch. 36) SHIPS AND VESSELS 1235 of freight for the said ship, whether by charter party or otherwise, and for the carriage of passengers ; to engage from time to time such persons as he may tliink fit as master, officers, and crew of the ship, and to dismiss any or all of them; to insure the ship, her appurtenances, freight, and earnings, against the usual risks; to employ any ship or insurance brokers on the usual terms; to make, adjust, apportion, or settle at his discretion any salvage, damage, average, or other claims in favor of or against the ship, or to refer the same to arbitration ; to obtain possession of the ship and her cer- tificate of registry (or, enrollment) from the master when he is dismissed, or from any other person withholding the same ; to receive payment and obtain delivery of all moneys and se- curities receivable on account of the ship; and to prosecute and defend such proceedings as may be necessary in respect to the ship. 2. [Accounts.] The manager as soon as reasonably prac- ticable after the termination of every voyage shall render to the part owner and other owners who may become such the usual accounts for such voyage, with checks for amounts thereby shown to be due to him or them, and on request shall produce all vouchers, books, and other documents relating thereto. If any loss is shown by such accounts, such owner or owners shall forthwith pay to the manager his or their proportion thereof. He shall credit the ship's account with interest at the rate of per cent, per annum on all mon- eys belonging to the ship in his hands. 3. [Other duties.] The manager shall pay all sums pay- able on account of the ship, and shall perform all other duties usually performed by managers of ships. 4. [REMUNElEtATiON.] The manager shall be entitled by way of remuneration to charge a commission of per 1236 FORM BOOK (Ch, 36 cent, on the gross disbursements, and also a commission of per cent, on the gross earnings arising from freight, salvage, or otherwise. (He shall be entitled to act as ship and insurance broker on behalf of the ship and to receive and retain the usual commissions therefor in addition to the com- missions above mentioned.) He shall be entitled to charge a commission of per cent, on any sale of the ship during his management. And he shall be entitled to charge interest at the rate of per cent, per annum on all advances made by him from his own funds on account of the ship. 5. [Determination OF MANAGEMENT.] The manager shall be entitled to remain such so long as he shall carry on the management to the satisfaction of the owner or owners for the time being of more than shares therein. The owner or owners of shares or upwards may determine his management by serving on him or leaving at his last- knowrl place of business in a notice in writing to that effect, but so only as to take effect after termination of a voy- age or before the arrangements for a new voyage are com- pleted. Immediately upon the serving or leaving of such no- tice as aforesaid, and the execution of a proper release and indemnity to him against all liabilities properly contracted by the manager on behalf of the ship or her owners, he shall cease to be manager. 6. [Purchase oe manager's shares on determination.] If the management of the manager is determined in the man- ner aforesaid, and if he disapproves of the new management, the other owner or owners shall purchase the shares of the manager at a fair price. If there be disagreement as to such price, then the entirety of the ship shall be publicly advertised for sale, notice of the time and place thereof being given to each of the owners of shares in the ship, and she shall be sold by public auction subject to such conditions as are usual Ch. 36) SHIPS AND VESSELS 1237 in the sale of ships. Any of the owners shall be at liberty to bid for and purchase the ship. All the owners on receiving their shares of the purchase money shall execute all necessary bills of sale of their respective shares in the ship to the pur- chaser or purchasers and deliver up possession of the ship accordingly. The cost of such sale shall be borne by all the owners according to their respective shares in the ship. 7. [Arbitration clause.] {As may be agreed.) In witness, etc. (Signatures of both parties.) 7. Agreement to Employ Master This agreement made this day of between , of , owner of the ship — , of the port of , hereinafter called the owner, of the one part, and , of , hereinafter called the master, of the other part, witnesseth as follows: 1. [Employment, remuneration, etc.] The owner shall employ the master and the master shall serve the owner as master of the said ship at the wages of dollars per month during the said employment, commencing on the day of —, next; and during the continuance thereof the master will obey all the orders and directions given to him by the owner or his duly authorized agents in that behalf. 2. [Termination oe agreement.] This agreement may be terminated by the master giving to the owner (three) or more calendar months' notice in writing to that effect expiring when the ship shall be at the said port of , or by the loss or constructive total loss of the ship, or by the receipt by the master of notice in writing from the owner, either by letter or telegram, terminating this agreement, which notice need not assign any reason for such termination. On receipt of such notice from the owner the master shall forthwith deliver the ship and her papers and all documents relating to the ship or 1238 FORM BOOK (Ch. 36 to the owner's business to the person named in such notice, and shall comply with all other instructions therein contained. 3. [Master's compensation on termination.] In the event that this agreement shall be terminated by the loss or constructive total loss of the ship, or by the owner while the ship is not at the said port of , the owner shall, except when the agreement is terminated because of the misconduct of the master, either provide the master with a passage or transportation to the said port of and pay his wages until his arrival there or remit to him the sum of dol- lars in lieu thereof at his option, and the master shall not be entitled to any compensation for loss of employment. In witness, etc. 8. Charter Party for a Voyage It is this day mutually agreed between , of , owner of the good steamship or vessel called the , of , of the burden of tons, or thereabouts, regis- tered measurement, whereof is master, now at , of the one part, and , of , charterer, of the other part, as follows : 1. [Ship, cargo, voyage, and ereight.] That the said steamship, being tight, staunch, and. strong, and in every way fitted for the voyage, shall at once sail and proceed to alongside such wharf on arrival as directed by , and there take on board as tendered a full and complete cargo of of say tons, not exceeding what she can rea- sonably stow and carry over and above 'ner tackle, apparel, provisions, and furniture, and, being so loaded, shall with all practicable dispatch proceed to and deliver the same to the charterer or assigns alongside any wharf as ordered where she can safely deliver, on being paid freight as follows : At the rate of dollars per ton of 2,240 pounds Ch. 36) SHIPS AND VESSELS 1239 delivered, being in full of all port charges and pilotages. Cash at the port of loading not exceeding dollars to be ad- vanced if required on signing bills of lading. 2. [Bills op lading.] The master shall before the ship proceeds to sea call at the office of the charterer's agents in , and there sign, as presented, the bills of lading for the cargo (to be prepared on the form hereto attached), (and in de- fault thereof there shall be payable to the charterer the sum of dollars). 3. [Loading and discharging.] The cargo to be loaded and discharged with customary steamship dispatch as fast as the steamer can receive and deliver during the ordinary work- ing hours of the respective ports, Sundays and holidays, un- less used, in both loading and discharging excepted, and any time lost through riots, strikes, lockouts, or by reason of acci- dents to machinery, obstruction in the railway and the docks, or by reason of floods, frosts, storms, or any cause beyond the control of owner or charterer, not to be computed as part of the loading and discharging time. Should the steamer be de- tained beyond the time stipulated as above for loading or dis- charging, demurrage shall be paid at dollars per day and pro rata for any part thereof. Cargo to be brought to and taken from alongside the steamer at the charterer's risk and expense. 4. [Excepted perils.] The owner shall not be liable for loss or damage occasioned by causes beyond his control, by the perils of the sea or other waters, by fire from any cause, or wheresoever occurring, by barratry of the master or crew, by enemies, pirates, or robbers, by arrest and restraint of princes, rulers, or people, by explosion, bursting of boilers, breakage of shafts, or any latent defect in hull, machinery, or appurte- nances, by collisions, stranding, or other accidents of naviga- tion of whatsoever kind, even when occasioned by the negli- 1240 FORM BOOK (Ch. 36 gence, default, or error of judgment in the pilot, master mari- ners, or other servants of the shipowner, not resulting, how- ever, in any case, from want of due diligence by the owners of the ship, or any of them, or by the ship's husband or manager. 5. [Lien.] The master or owner shall have a Hen on the cargo for freight, dead freight, and demurrage (the charterer's liability ceasing when the cargo is shipped). 6. [Penalty.] Penalty for nonperformance of this agree- ment shall be the proved damages, not exceeding the estimated amount of freight. (Signatures.) 9. Time— Charter Party It is this day mutually agreed between , of , owners of the good iron screw steamship called the , of tons gross register, having engines of horse power, and of the cargo capacity of tons, or there- abouts, now lying at , and Messrs. , of , charterers, as follows: 1. [Hire Foe term.] The owners will let and the charter- ers will hire the said steamship for the term of from the day of , she being then placed at the disposal of the charterers at , to be employed in carrying lawful merchandise (except, etc.) between such ports (within the fol- lowing limits, viz., ) as the charterers shall direct, sub- ject to the following conditions: (1) [Condition of ship.] That at the date of the com- mencement of the hire the said steamship shall be tight, staunch, strong, and in every way fitted for the service, and shall be manned with a full complement of officers, seamen, engineers, and firemen for a vessel of her tonnage, and ready to receive cargo. (2) [Wages, insurance, and maintenance.] That the owners will provide and pay the wages of the master, officers, Ch. 36) SHIPS AND VESSELS 1243 engineers, firemen, and crew, will pay for the insurance of the ship and for all engine room stores, and will maintain the ship in a thoroughly efficient state in hull and machinery for and during the service. (3) [Whole ship at charterers' disposal.] That the whole reach of the ship's holds and usual places for loading and accommodation of the ship, not being more than she can reasonably stow and carry, shall be at the charterers' disposal, reserving only proper and sufficient space for ship's officers, crew, tackle, apparel, furniture, provisions, stores, and fuel. (4) [Duties op master.] That the master shall be under the orders and direction of the charterers as regards employ- ment, agency, or other arrangements ; shall prosecute the voy- ages with the utmost dispatch, and shall fender all customary assistance with the ship's crew and boats; and shall keep a full and correct log of the. voyage or voyages, which shall be open to the charterers or their agents. (5) [Complaints as to officers, etc.] That if the char- terers shall have reason to be dissatisfied with the conduct of the master, officers, or engineers, the owners shall, on receiv- ing particulars of the complaint, investigate the same, and, if necessary, make a change in the appointment. (6) [Loss oE TIME.] That in the event of any loss of time from deficiency of men or stores, breakdown of machinery, or damage preventing the working of the ship when in port, for more than twenty-four working hours, the hire shall cease un- til she be again in an efficient state to resume her service. (7) [Rate oe payment.] That the charterers will pay for the use and hire of the ship at the rate of dollars per gross register ton per calendar month, commencing on and from the day of her delivery as aforesaid, and at the same rate for any part of a month until her delivery to the owners, un- less lost. Should the ship be lost, the charterers shall pay for 1242 FORM BOOK (Ch. 36 the hire only up to and including date of the loss ; and if she be lost without being heard from, the hire shall cease to be due (fifteen) days after the date on which she left her last port. (8) [Payments in advance.] That the charterers will pay the hire of the ship monthly in advance at , and if de- fault be made in any monthly payment, the owners shall have the right to withdraw the ship from the service of the charter- ers without prejudice to any other remedy the owners may have against the charterers hereunder. (9) [lyiEN OE CHARTERERS, ETC.] That the charterers shall have a lien on the ship for all moneys paid in advance and not earned, and, if the ship be lost, hire paid in advance and not earned shall be refunded to the charterers. (10) [Coal.] That the charterers shall provide and pay for coal, and will accept all coal in the ship's bunkers and pay therefor at the current market price at when she is de- livered to them, and that the owners will pay for all coal left in the bunkers at the current market price at the port where she is delivered up. (11) [Other charges.] That the charterers shall pay all port charges, pilotages, agencies, commissions, and all other charges whatsoever, except as before stated. (12) [Safe ports.] That the cargo shall always be loaded or discharged in a safe port and where the ship can always safely lie afloat. (13) [Sailing directions.] That the charterers will fur- nish the master from time to time with all requisite instruc- tions, sailing directions, and charts. (14) [Indemnity for bills oe lading.] That the charter- ers will indemnify the owners from all consequences or liabil- ities that may arise from the master signing bills of lading or in complying with the same. Ch. 36) SHIPS AND VESSELS 1243 (15) [Salvage, etc.] All derelicts, salvages, and towages shall be for the owners' and charterers' equal benefit, and all delays occasioned by attempting or rendering salvage or tow- age services or in repairing damages occasioned thereby shall be borne by the charterers. (16) [Redelivery oE ship.] That the charterers will de- liver up the ship to the owners at . (17) [Owners' lien.] That the owners shall have a lien upon all cargoes and subf reights for all moneys due under this charter. 2. [Option to continue charter.] The charterers shall have the option of continuing this charter for a further period of on giving notice to the owners weeks before the expiration of the said term. 3. [Penalty.] The penalty for the nonperformance of this charter shall be dollars. 4. [Arbitration.] Should any dispute arise between the owners and the charterers, the matters in dispute shall be re- ferred to three persons at , one to be appointed by each of the parties hereto, and the third by the two so chosen, and their decision, or that of any two of them, shall be final. 5. [Excepted perils.] The parties hereto mutually exempt tach other from all liability arising from the act of God, the public enemy, restraint of princes, rulers and people, perils of the sea, fire, barratry of the master or crew, pirates, collisions, stranding, and other accidents of navigation or to boilers and machinery, even when occasioned by the negligence, default, or €rror in judgment of the pilot, master mariners, or other serv- ants of the owners, but not resulting from any want of due diligence by the owners or by the ship's husband or manager. (Signatures.) 1244 FOEM BOOK (Ch. 36 10. Bill of Lading * Shipped in good order and condition, by , in and up- on tlie good vessel called the , whereof is mas- ter, now lying in the port of , and bound for , being marked and numbered as per margin, and to be delivered in like good order and condition at the port of , the act of God, perils of the S'ca {insert any other ex- ceptions) always excepted, unto , or assigns, he or they paying freight on the said goods on delivery at the rate of and charges as per margin and average, if any. In witness whereof the master or agent of the said vessel hath affirmed to three bills of lading, all of this tenor and date, one of which bills being accomplished, the others to stand void. Dated in this day of . {Signature of master or agent.) 11. Assignment of Freight of a Specified Voyage Know all men by these presents that I, , of , owner of the steamship ■ — ■ , of the port of , in con- sideration of the sum of dollars to me paid by , of , do hereby assign, transfer, and set over unto the said , his executors, administrators, and assigns, all and singular the freight, hire, passage money, and earnings of the said steamship in and for a voyage from and commencing at the port of about the day of next to the port of , and all moneys to be recovered and re- ceived by me for or on account of the said voyage, and also 1 This short form conforms to the customary requirements. Bills of lading usually contain numerous clauses exempting the shipowner on various contingencies. Ch. 36) SHIPS AND VESSELS 1245 the several bills of lading of the goods, wares, and merchan- dise shipped or to be shipped on board of the said steamship for or on account of which the said freight, hire, and earn- ings are or shall be payable, and all benefit and advantage thereof, and all my right and title, by way of lien or other- wise, in, to, or out of the said goods, wares, and merchandise, and all powers and authorities in respect thereto, and all my right, title, interest, claim, and demand whatsoever at law or in equity in, to, or out of tbe said freight, hire, passage money, earnings, moneys, and premises hereby assigned. And I hereby constitute and appoint the said -, his executors, administrators, and assigns, my true and lawful attorney or attorneys irrevocable, with full powers of substi- tution and revocation, for me and in my name, or otherwise, but for his and their sole use and benefit and at his and their own cost, to ask, demand, sue for, collect, receive, compound, and give acquittances for the said freight, hire, passage money, earnings, moneys, and premises. In witness, etc. 12. Assignment of Marine Insurance Policy by In- dorsement For value received I do hereby assign unto , his exec- utors, administrators, and assigns, the within policy of insur- ance on the ship, freight, and the goods therein carried {or on the ship, or freight, or goods, as the case may he). Dated . {Signature of insured) 1246 FORM BOOK (Ch. 36 13. Notice to Underwiters of Abandonment of Ship or Cargo To the Insurance Company: I hereby give you notice that I abandon to you all my inter- est in the cargo on the steamship in so far as that inter- est is covered by your policy No. , dated the day of . The circumstances giving rise to this notice of abandonment are as follows (state the facts). Please acknowledge the receipt of this notice and inform me as soon as possible whether you decide to accept this aban- donment. (Signature.) Owner of the Cargo on the Steamship . 14. Shipping Articles " (Articles of Agreement Between Master and Seamen in the Merchant Service of the United States.) United States op America (Date and place of first signature of agreement, including name of shipping office.) It is agreed between the master and seamen or mariners of the , of which is at present master, or whoever shall go for master, now bound from the port of , ■ , to , (here the voyage is to be described, and the places named at which the vessel is to touch, or, if that cannot be done, the general nature and probable length of the voyage is to be stated). 2 See preliminary note, ante, p. 1225. Ch. 36) SHIPS AND VESSELS 1247 Scale of Peovisions to be Allowed and Served otji to the Cbew During the Voyage. ■a i ■a CP3 3 H 1 >> E 3 cd 3 in Water quarts.. 4 i 4 4 4 4 4 Biscuit pound.. % % % V4 ^ >^ % Beef, salt . .. .pounds. . m 1% ly* Pork, salt 1 1 1 1% 1 Flour 1 1^ 1V2 1% % Canned meat pound.. pounds.. Fresh bread 1% 1V4 1% Fish, dry, preserved. or fresh 1 Potatoes or yams pound.. 1 1 1 1 1 1 1 Canned tomatoes pound. . pint . % Vz Peas % Vi pint.. pint.. ounce.. % Rice V4 Coffee (green berry).. % % % % ■ % % Tea ounce.. % ^A % % Vs. H y> Sugar ....ounces.. 3 3 3 3 3 3 3 Molasses pint.. V^ M ^ Dried fruit Pickles ounces.. pint.. 3 3 y* % % Vinegar pint % % 4 4 4 1 1 4 1 1 1 1 4 1 1 1 1 1 1 1 Butter 1 Mustard, pepper, and oient for seasoning. salt suffl- 1248 POEM BOOK (Ch. 36 Substitutes One pound of flour daily may be substituted for the daily ration of biscuit or fresh bread; two ounces of desiccated vegetables for one pound of potatoes or yams; six ounces of hominy, oatmeal, or cracked wheat, or two ounces of tapioca, for six ounces of rice; six ounces of canned vegetables for one-half pound of canned tomatoes ; one-eighth of an ounce of tea for three-fourths of an ounce of coffee ; three-fourths of an ounce of coffee for one-eighth of an ounce of tea; six ounces of canned fruit for three ounces of dried fruit; one- half ounce of lime juice for the daily ration of vinegar; four ounces of oatmeal or cracked wheat for one-half pint of corn meal; two ounces of pickled onions for four ounces of fresh onions. When the vessel is in port and it is possible to obtain the same, one and one-half pounds of fresh meat shall be substi- tuted for the daily rations of salt and canned meat; one-half pound of green cabbage for one ration of canned tomatoes; one-half pound of fresh fruit for one ration of dried fruit. Fresh fruit and vegetables shall be served while in port if obtainable. The seamen shall have the option of accepting the fare the master may provide, but the right at any time to de- mand the foregoing scale of provisions. (The foregoing scale of provisions shall he inserted in ev- ery article of agreement, and shall not he reduced by any con- tract, except as above, and a copy of the same shall he posted in a conspicuous place in the galley and in the forecastle of each vessel.) And the said crew agree to conduct themselves in an orderly, faithful, honest and sober manner, and to be at all times dili- gent in their respective duties, and to be obedient to the lawful Ch. 36) SHIPS AND VESSELS 1249 commands of the said master, or of any person who shall lawfully succeed him, and of their superior officers in every- thing relating to the vessel, and the stores and cargo thereof, whether on board, in boats, or on shore ; and in consideration of which service, to be duly performed, the said master hereby agrees to pay the said crew, as wages, the sums against their names respectively expressed, and to supply them with provi- sions according to the annexed scale. And it is hereby agreed that any embezzlement, or willful or negligent destruction of any part of the vessel's cargo or stores, shall be made good to the owner out of the wages of the person guilty of the same ; and if any person enters himself as qualified for a duty which he proves himself incompetent to perform, his wages shall be reduced in proportion to his incompetency. And it is also agreed that if any member of the crew considers himself to be aggrieved by any breach of the agreement or otherwise, he shall represent the same to the master or officer in charge of the vessel, in a quiet and orderly manner, who shall thereupon take such steps as the case may require. And it is also agreed that {here any other stipulations may he inserted to which the parties agree, and which are not contrary to law). In witness whereof the said parties have subscribed their names hereto (on the other side or sides hereof) on the days against their respective signatures mentioned. Signed by , master, on the day of , 19—. TtFF.FoEMS — 79 1250 FOEM BOOK (Ch. 36 signature of crew 1 Birthplace Age Feet f Inches Complexion ■ o Hair Wages per month Wages per run Advance wages Amount of monthly allotment Months If sa Days Hospital money Whole wages Wages due Place and time of entry Time at which he is to be on board In what capacity Shipping-commissioner's signature or initials Allotment payable to Conduct quallfl cations Note.— In the place for signatures and descriptions of men engaged after the first departure of the ship, the entries are to be made as above, except that the signatures of the consul or vice consul, ofttcer of customs, or witness before whom the man is engaged is to be substituted for that of the shipping master. Ch. 36) SHIPS AND VESSELS 1251 Account op Apprentices on Board » Christian and surname of apprentice in full Date of regis- try of inden- ture Port at whioli i n d e n ture was regis- tered Date of regis- ter of as- signment Port at which a s s i gnment was regis- tered State of ■ County of On this, day of personally appeared before me, a shipping commissioner in and for the said county, A. B., C. D., and E. F., severally known to me to be the same per- sons who executed the foregoing instrument, who each for himself acknowledged to me that he had read or had heard read the same ; that he was by me made acquainted with the conditions thereof, and understood the same; and that, while sober and not in a state of intoxication, he signed it freely and voluntarily, for the uses and purposes therein mentioned. IS. Notation of Marine Protest United States oe America Be it known that on the day of the date hereof, before me, • , a notary public in and for the state of , duly commissioned and sworn, residing in the of , personally appeared , the master of the ship called of the port of of the burden of and declared that he sailed in his capacity aforesaid, in and with the said vessel, from the port of , on or about the 3 See Rev. St. § 4510 (U. S. Comp. St. 1913, § 8299). 1252 FORM BOOK (Ch. 36 day of , with a cargo of , bound for the port of , and arrived here the day of ; that during the voyage {state briefly the facts concerning the in- jury, damage, or loss sustained by the vessel or her cargo). And the appearer, apprehending damage and loss, notes this protest accordingly, the day of . {Signature of master) {Sigiuiture and seal pf notary) 16. Marine Protest The United States oe America, ' State oe '■ — , City of , County of ss. To all People to whom these presents shall come or may con- cern I, , a notary public in and for the state of , county of — ^ , duly commissioned and sworn, dwelling in the city of , &end greeting: Know ye that on the day of , in the year , before me appeared , master of the ship or vessel called the , belonging to the port of , of the burden of tons, or thereabouts, and noted in due form of law with me his protest, for the uses and purposes hereafter mentioned, and now on this day, to wit, the day of the date hereof, before me, at the city of , aforesaid, again comes the said , and requires me to extend his protest, and together with the said also come and , seamen be- longing to the aforesaid vessel, all of whom, being by me duly sworn, voluntarily, freely, and solemnly do declare and depose as follows, that is to say: That they sailed in their several capacities aforesaid on the day of from the port of in and with the said vessel, having on board a cargo of , and bound for the port of ; that the said ves- Ch. 36) SHIPS AND VESSELS 1253 sel was then stout, staunch and strong, had her cargo well and sufficiently stowed and secured, was well masted, manned, tackled, victualed, appareled, and appointed, and was in every respect fit for sea and the voyage she was about to undertake ; that in the prosecution of said voyage nothing material occur- red until the day of (state in detail the facts concerning the injury, damaae, or loss sustained by the vessel or her cargo). And the said further says that, as all the injury, dam- age, and loss«s which already have, or may hereafter appear to have, happened or accrued to the said vessel or her said cargo, have been occasioned solely by the circumstances herein- before stated, and cannot nor ought not to be attributed to any insufficiency of the said vessel or default of him, this deponent, his officers or crew, he now requires me, the said notary, to make his protest and this public act thereof, that the same may serve and be of full force and value, as of right shall apper- tain. And thereupon the said doth protest, and I, the said notary, at his special instance and request, do by these pres- ents publicly and solemnly protest, against winds, weather, and seas, and against all and every accident, matter, and thing had and met with as aforesaid, whereby, or by means whereof, the said vessel or her cargo already has, or hereafter shall appear to have, suffered or sustained damage or injury, for all losses, costs, charges, expenses, damages, and injury which the said captain, the owner or owners of the said vessel, or the own- ers, freighters, or shippers of her said cargo, or any other person or persons interested or concerned in either, already have or may hereafter pay, sustain, incur, or be put unto, by or on account of the premises, or for which the insurer or in- surers of the said vessel or her cargo is or are respectively lia- ble to pay or make contribution or average according to cus- 1254 FOEM BOOK (Ch. 36 torn, or their respective contracts or obligations, and that no part of such losses and expenses already incurred, or hereafter to be incurred, do fall on him, the said , his officers and crew. Thus done and protested in the city of , this day of in the year . In testimony whereof, as well the said appearers, as I, the notary, have subscribed these presents, and I have also caused my seal of office to be hereunto affixed, the day and year last above written. {Signatures of appearers.) {Signature and seal of notary.) State op ss. County of I, , a notary public in and for said state duly commis- sioned and sworn, dwelling in the city of , do hereby certify the foregoing to be a true and exact copy of an orig- inal prot«st on record in my office. In testimony whereof I have hereunto set my hand and no- tarial seal this day of , A. D. . {Signature and 9eal of notary.) 17. Same — Another Form United States oe America, | CoMMONWEAIvTH OE . J By this public instrument of protest be it known and made manifest to all whom it doth or may concern: That on this day of , in the year , before me, , a notary public duly commissioned and sworn, and doing busi- ness in , personally came and appeared , master of the , belonging to the port of , of the burden Ch. 36) SHIPS AND VESSELS 1255 of tons, or thereabouts ; and with him also came , , and , of and belonging to the said vessel, who, being severally sworn, did declare and depose that, the said vessel being laden with a cargo of , they, the said ap- pearers, made sail and departed in and with the said vessel from the port of , bound to , on the day of , in the year . That in the prosecution of said voyage nothing material oc- curred until (set forth the facts in detail). That on the day of the said first-named de- ponent, having arrived at , did, within twenty- four hours thereafter, note for protest, before to be extended, if occasion should require. And the said appearers did further severally declare that the said vessel at the time of her departure from as afore- said was tight, staunch, and strong; had her hatches well and sufficiently caulked and covered; was well and sufficiently manned, provided, and furnished with all things needful and necessary for said voyage; and that during the said voyage the said appearers and the residue of the crew used their ut- most endeavors to preserve the said vessel and her cargo from damage. And therefore the said did declare to protest, and by these presents he doth solemnly protest, against all and every person or persons whomsoever it doth or may concern, and doth declare that all damages, losses, and detriments that have happened to the said vessel, and her cargo are, and of right ought to be, bom-e by the merchants and freighters interested, or their respective underwriters, or whomsoever else it doth or may concern, by way of average or otherwise, the same having occurred as before set forth, and not by or through the insufficiency of the vessel, the neglect of him the 1256 FORM BOOK (Ch. 36 said appearer, or either of the mariners belonging to said ves- sel. In witness whereof the said appearers have hereunto sub- scribed their names in presence of me, the said notary. (Signatures.) All which matters and things were declared, alleged, and af- firmed before me, the said notary, and the foregoing instru- ment is a true copy of the original protest in my office. In testimony whereof I have hereunto set my hand and af- fixed my official seal. Commonwealth op City of. ^^^- (Signature) Notary Public. Ch. 37) STOCK AND STOCKHOLDERS 1257 CHAPTER XXXVII STOCK AND STOCKHOI,DERS Scope of Chapter The forms given include subscription agreements, certificates of stock and assignments thereof, proxies, and some other kindred forms. Subscription Agreements A preHrainary a|;reement by a number of persons to take stock in a corporation to be formed, if not a step authorized by statute in the process of forming a corporation, is in the nature of a mere continuing offer to the corporation by each subscriber, which, if not sooner revoked, becomes a binding contract upon the formation of the corporation and its ac- ceptance of the subscription. Such an agreement, if made as a step authorized by statute in forming the corporation, may be binding by virtue of the statute from the time of signing. An agreement to pay money to a trustee, who is to pay it to a corporation to be formed and to return to the subscribers stock therein, is a contract between the subscribers and the trustee. A subscription to the stock of an existing corporation is a contract between the subscriber and the corporation when ac- cepted. No statutory forms are here included. Certificates of Stock A certificate of stock is a written acknowledgment by the corporation of the interest of the holder in its property and franchises, certifying that the person named is the owner of so many shares of the capital stock of the corporation, and usually stating that the stock is transferable only on the books of the company by owner in person or by attorney on surrender of the certificate properly indorsed. Stock is principally dis- tinguished as common or preferred. Common stock is the ordinary stock of a corporation without special privileges or restrictions. Preferred stock is stock which is entitled to a preference, usually in dividends, which may be cumulative or 1258 FOKM BOOK (Ch. 37 noncumulative, and it may or may not have a preference in the distribution of the assets on dissolution.< It is often made re- deemable at a fixed price after a certain number of years. Pre- ferred stock takes many forms, and its privileges and restric- _ tions should appear upon the face of the certificate. Transfer of Stock Usually the certificate contains on its back a form of assign- ment with power of attorney authorizing its transfer on the books. Ordinarily an assignment is made in blank, in which case the certificate may pass from hand to hand and be sold to successive holders. The transferee who wishes to become a stockholder of record writes in his own name in the assign- ment as assignee, and his own name or that of some other person, usually the secretary of the corporation, as attorney to execute the transfer on the books ; and ufKjn the execution of the transfer on the books and the surrender of the certificate, a new certificate is issued to the transferee. If the owner as- signs only a portion of the number of shares represented by the certificate, he may fill out the assignment accordingly and present or send the certificate and assignment to the secretary and instruct him to issue two new certificates, one for the num- ber of shares assigned to the new owner, and the other for the remaining shares to himself ; but it is often better in such a case for the owner to take out both certificates to himself, and to assign the certificate representing the desired number of shares to the new owner. Proxies and Voting As a rule, the holder of the legal title on the books of the corporation is entitled to vote. Preferred stock, unless re- stricted, has the same right to vote as common stock. The right to vote by proxy, that is, by another under power of at- torney, is generally given by statute, or by the charter or by- laws. In some states by statute the period within which a proxy is valid is limited, and the matter is sometimes regulated by by-laws. Formalities regarding proxies prescribed by stat- ute, charter, or by-laws should be observed. How far it is lawful for stockholders to tie up their stock by surrender of the voting power, so that control may be se- cured for the support of a continuous policy of management. Ch. 37) STOCK AND STOCKHOLDERS 1259 as by an agreement by which the stock is transferred to trus- tees with power to vote, is a question on which there is some conflict, and on this point the decisions of the particular juris- diction should be consulted. Page 1. Subscription agreement before incorporation 1259 2. Same — Another form 1260 3. Same — First payment to trustee 1260 4. Subscription — Individual 1261 5. Subscription after incorporation 1261 6. Trustee's receipt for subscription 1262 7. Treasurer's certificate for subscriptions 1262 8. Assignment of subscription to corporate stock 1262 9. Stock certificate 1263 10. Preferred stock certificate (noncumulatlve) 1263 11. Preferred stock certificate (cumulative) * 1264 12. Same — ^Another form 1265 13. Assig'nment In blank of corporate stock certificate by in- dorsement 1267 14. Assignment of a portion of stock represented by certificate by indorsement 1267 15. Bond of indemnity for lost certificate of stock 1267 16. Proxy— Unlimited — Sliort form 1268 17. Same — Annual meeting 1269 18. Revocation of proxy 1269 19. Agreement creating voting trust 1270 1. Subscription Agreement Before Incorporation We, the undersigned, do hereby severally subscribe at par for and agree to take the number of shares set opposite our respective names of the capital stock of a corporation to be organized under the laws of the state of under the name of the Manufacturing Company, for the pur- pose of , with an authorized capital stock of $100,000, divided into shares of the par value of $100 each, and agree to pay for the said shares in cash on demand of the treasurer as soon as such corporation is organized. ' Dated . Names Addresses Shares Amount 1260 FORM BOOK (Ch. 37 2. Same — Another Form The Manufacturing Company to be incorporated under the laws of the state of for the manufacture of Capital stock $100,000 Shares $100 each. We, the undersigned, hereby severally subscribe for and agree to take at their par value the number of shares of the capital stocic of the Manufacturing Company set oppo- site our respective names, and to pay for the same in cash on demand of the treasurer ot said company as soon as said company is organized {or, at such times and in such amounts as may be prescribed by the board of directors of said com- pany). Dated . Names Addresses Shares Amounts 3. Same — First Payment to Trustee {Heading as in preceding form) We, the undersigned, hereby severally subscribe for and agree to take at their par value the number of shares of the Manufacturing Company set opposite our respective names, and promise and agree to pay therefor as follows: per cent, of subscription on demand of A. B., as trus- tee for the said company, such payment, or so much thereof as may be necessary, to be used for the preliminary and in- corporating expenses of the said company; — '■ per cent. of subscription to the treasurer of the said company days after its incorporation; and the balance of subscription Ch. 37) STOCK AND STOCKHOLDERS 1261 at such times and in such installments as may be prescribed by the board of directors of said company. Dated . Names Addresses Shares Amount 4. Subscription — Individual {Heading as in. Form No. 2, p. 1260.) I hereby subscribe for shares of the capital stock of the -;; Manufacturing Company at the par value thereof, and agree to pay per cent, of such subscription on de- mand of the treasurer as soon as said company is incorporated, and to pay the remainder at such times and in such amounts, not exceeding per cent, of such subscription in any one month, as may be required by the board of directors of said company. Unless per cent, of the capital stock of said company is reliably subscribed on or before the — day of , and the company incorporated within days thereafter, this subscription shall be null and of no effect. Dated . (Signature.) 5. Subscription after Incorporation (Heading as in Form No. 2, p. 1260, omitting the words "to be" before "incorporated.") I hereby subscribe for shares of the capital stock of the Company at the par value thereof, and agree to pay therefor in installments in such proportions and at such times as may be called for by the board of directors, provided that not more than per cent, shall be payable within one year from the day of . Dated , (Signature) 1262 FORM BOOK (Ch. 37 6. Trustee's Receipt for Subscription This is to certify that has paid to the undersigned, as trustee for the Manufacturing Company, the sum of dollars on account of his subscription for shares of the capital stock of said corporation at their par value of $100 per share, said amount being per cent, of the total amount of his said subscription. This receipt, upon in- corporation of said company, will be received and accredited by the treasurer thereof as a pS.yment upon said subscription. Dated . , Trustee. 7. Treasurer's Certificate for Subscriptions The Manufacturing Company. This is to certify that , a subscriber for shares of the capital stock of the Manufacturing Company, has paid into the treasury of the company the sum of dollars, in full payment therefor (or, has paid into the treasury of the company on account of his said subscription dollars per share in cash, and dollars per share by trus- tee's receipt). Upon surrender hereof (or, upon payment of the remaining installments of said subscription, and surrender hereof, with proper vouchers showing such payments) cer- tificates for said shares of stock will be issued to the order of the said (as soon as the same are ready for delivery). Dated . , Treasurer. 8. Assignment of Subscription to Corporate Stock For value received I hereby sell, assign, and transfer to my subscription to shares of the capital stock of the Company, together with the payments made Ch. 37) STOCK AND STOCKHOLDERS 126i thereon, as evidenced by the within installment certificate, anc I hereby authorize and instruct the proper officers of said com pany, upon fulfillment of the conditions of my said subscrip tion, to issue said stock to the order of the said . Dated . (Signature.) In presence of 9. Stock Certificate No. . shares Incorporated under the Laws of the State of . Smith Manufacturing Company. Capital Stock, $100,000. Shares, $100 Full-paid and Nonassessable.^ This is to certify that is the owner of shares of the capital stock of the Smith Manufacturing Company transferrable only on the books of the company by the said owner thereof in person or by duly authorized attorney, upor surrender of this certificate properly indorsed. Witness the seal of the company and the signature of its duly authorized officers this day of . , Treasurer. , President. (Corporate seal.) 10. Preferred Stock Certificate (Noncumulative) No. . shares. Incorporated under the Laws of the State of . Smith Manufacturing Company. Capital Stock, $100,000. Shares, $100. Common Stock, $55,000. Preferred Stock, $45,000. This is to certify that ■ is the owner of fully paid and nonassessable shares of the preferred stock of the 1 Unless the stock represented by the certificate has been paid in full, these words shall be omitted. 1264 , POEM BOOK (Ch. 37 Smith Manufacturing Company, transferable only in person or by attorney on the books of the company upon surrender of this certificate properly indorsed. The preferred stock is entitled to a preference of seven per cent, noncumulative, in dividends declared in any fiscal year before any dividends are paid upon the common stock of this company.^ The preferred stock is subject to redemption at the option of the company at any' time after years from the day of , upon payment of one hundred and five dollars per share and accumulated dividends. The preferred stock is not entitled to vote at stockholders' meetings of the company, nor to participate in profits beyond its fixed, preferential annual dividend of seven per cent. In witness whereof the company has caused this certificate to be signed by its president and secretary and countersigned by its treasurer, and sealed with its corporate seal this day of ■ . {Corporate seal) ■ , President. , Treasurer. , Secretary. 11. Preferred Stock Certificate (Cumulative) (Following preceding form, substituting for the second par- agraph the following, and inserting in the last paragraph "cu- mulative" after "preferential" :) The preferred stock is entitled to an annual dividend of seven per cent., payable out of the net profits before any div- idend is declared upon the common stock of -this company. 2 The conditions may be enibodied by reference to the charter, the by-laws, or a i-esolution under which the stoclj is issued ; or the particular provisions may be printed on the back of the certificate, the certificate stating on its face that the preferred stock is subject to the conditions printed on the back thereof. Ch. 37) STOCK AND STOCKHOLDERS 1265 Should the net profits in any year be insufficient to pay such preferred dividend, either in whole or in part, any unpaid portion thereof shall become a charge against the net profits of the company, and shall be paid in full out of such net profits before any dividends are paid upon the common stock. 12. Same— Another Form * Seven Per Cent. Cumulative Preferred Stock. Certificate Certificate for for Less than 100 Number, Shares, Less than 100 Shares. 50 Shares. Incorporated under the Laws of the State of New Jersey. United States Steei, Corporation. This is to certify that is the owner of (50) fully paid and nonassessable shares of the par value of one hun- dred dollars each in the preferred capital stock of United States Steel Corporation, transferrable only in person or by attorney, upon the books of said corporation, upon surrender of this certificate. The holders of the preferred stock shall be entitled to re- ceive, when and as declared, from the surplus or net profits of the corporation, yearly dividends at the rate of seven per pent, per annum, and no more, payable quarterly on dates to be fixed by the by-laws. The dividends on the preferred stock shall be cumulative, and shall be payable before any dividend on the common stock shall be paid or set apart, so that, if in any year dividends amounting to seven per cent, shall not have been paid thereon, the deficiency shall be pay- able before any dividends shall be paid upon or set apart for the common stock. Whenever all cumulative dividends on the 8 This is the form of United States Steel Corporation. TiFF.FOEMS — SO 12G6 FORM BOOK (Ch. 37 preferred stock for all previous years shall have been de- clared and shall have become payable, and the accrued quarter- ly installments for the current year shall have been declared, and the company shall have paid such cumulative dividends for previous years and such accrued quarterly installments, or shall have set aside from its surplus or net profits a sum suffi- cient for the payment thereof, the board of directors may de- clare dividends on the common stock, payable then or there- after, out of any remaining surplus or net profits. In the event of any liquidation or dissolution or winding up (whether voluntary or involuntary) of the corporation, the holders of this preferred stock shall be entitled to be paid in full both the par amount of their shares and the unpaid div- idends accrued thereon before any amount shall be paid to the holders of the common stock; and after the payment to the holders of the preferred stock of its par value, and the unpaid accrued dividends thereon, the remaining assets and funds shall be divided and paid to the holders of the common stock according to their respective shares. The preferred and common stock may be increased as pro- vided in the certificate of incorporation. This certificate is not valid without the signatures of the transfer agent and registrar of transfers. Witness the signatures of the president, or of a vice pres- ident, and of the treasurer, or of an assistant treasurer, of said corporation. , Asst. Treasurer. , Vice President. On the left-hand margin of above form: "Registered December , 19 — . The New York Trust Company, Registrar, by , Asst. Secretary." On the right-hand margin of above form : "Countersigned December , 19 — . , Transfer Agent ' Ch. 37) STOCK AND STOCKHOLDERS 1267 13. Assignment in Blank of Corporate Stock Certificate by Indorsement For value received I hereby sell, assign, and transfer to shares of the capital stock represented by the within certificate, and do irrevocably constitute and appoint my attorney to transfer the said stock on the books of the within-named company, with full power of substitution in the premises. (Signature.) Dated . In presence of 14. Assignment of a Portion of Stock Represented by Cer- tificate by Indorsement * For value received I hereby sell, assign, and transfer to C. D. fifty shares of the capital stock represented by the within certificate, and do irrevocably constitute and appoint E. F. my attorney to transfer the said stock on the books of the within- named company with full power of substitution in the prem- ises. (Signature.) Dated . In presence of . 15. Bond of Indemnity for Lost Certificate of Stock ' Know all men by these presents that we, , of as principal, and , of , as surety, are held and firmly bound unto the company, a corporation organ- ized under the laws of the state of , in the sum of dollars, to be paid to the said Company, its * See preliminary note, ante, p. 1258. 6 For another form of indemnity la such case, see Indemnities, ante, p. 720. 1268 FORM BOOK (Ch. 37 successors and assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors, and admin- istrators, firmly by these presents. Sealed with our seals this day of . The condition of this obligation in such that: Whereas, the said {principal) is the owner of record of twenty shares of the capital stock of the said company, of the par value of $100 each, and has made application to the said company for the issue of a new certificate for the said twenty shares of stock, alleging that the original certificate issued to him for said shares, numbered and dated the day of , is lost {or, destroyed) ; and where- as, the said company has this day issued to the said a new certificate for the said twenty shares of stock: Now, if the said obligors shall at all times defend, save harmless, and indemnify the said Company, its succes- sors and assigns, from and against all claims, demands, and actions arising from or on account of the said original cer- tificate, and against all damages, costs, and expenses by rea- son thereof, and shall deliver or cause to be delivered up to the said company for cancellation the said original certificate if the same shall be found, then this obligation shall be void; otherwise to remain in full force. {Signatures and seals.) 16. Proxy — Unlimited — Short Form Know all men by these presents that I hereby appoint my proxy for me and in my name to vote at any and all stockholders' meetings of the Company. Witness my hand and seal this day of . Witness : Ch. 37) STOCK AND STOCKHOLDERS 1269 17. Same — Annual Meeting Know all men by thes'C presents that I, the undersigned stockholder of record of the Railway Company, here- by make, constitute, and appoint , , , and , all of , or such of them as shall be present at the meeting hereinafter mentioned, the lawful attorneys and proxies of the undersigned, for and on behalf of the under- signed to attend the annual meeting of the stockholders of the said company, to be held at , in , at o'clock — . m. on the day of , and all adjournments of the said annual meeting, and at the said meeting and at every adjournment thereof, for and in behalf and in the name of the undersigned, to cast all votes which the undersigned, if pres- ent in person, might cast, on account or by authority of any and all shares of the capital stock of the said company held or owned by the undersigned, hereby ratifying and confirming all that the said attorneys and proxies may do by virtue here- of, and hereby revoking all prior powers of attorney or prox- ies, if any, in relation to the premises'. Witness, etc. 18. Revocation of Proxy ICnow all men by these presents that I, the undersigned, ' , do hereby revoke and annul a certain proxy given by me to authorizing him {or, any and all proxies hereto- fore given by me to any person or persons authorizing him or them) to represent me or to vote or act for me at any meet- ing or meetings of the stockholders of the Company. Witness, etc. 1270 FORM BOOK (Ch. 3T 19. Agreement Creating Voting Trust ' An agreement made this day of between the several stockholders of the company, a corporation or- ganized and existing under the laws of the state of , whose names are hereunto subscribed and all other stockhold- ers of the said company who shall join in and become parties to this agreement as hereinafter provided, all of which stock- holders are hereinafter called the subscribers, parties of the first part, and , , and , of , who and the other person or persons for the time being trustees here- under are hereinafter called the trustees, parties of the second part: [Rrcital op shares.] Whereas, the subscribers are re- spectively owners of shares of the capital stock of the said company in the amounts set opposite their respective signa- tures hereto : [RecitaIv of purpose of trust.] And whereas, with a view to the safe and competent management of the said com- pany in the interests of all the stockholders thereof, the sub- scribers are desirous of creating a trust in the manner follow- ing. Now, it is hereby agreed and declared as follows : 1. [Transfer to trustees.] The subscribers shall forth- with indorse in blank and assign and deliver to the trustees the certificate of the shares of stock owned by them respect- ively, and shall do all things necessary for the transfer of their respective shares to the trustees on the books of the said com- pany. 2. [Other stocki-ioldERS may join.] Every stockholder in the said company may become a party to this agreement by See preliminary note, ante, p. 1258. Ch. 37) STOCK AND STOCKHOLDERS 1271 executing the same and assigning and delivering the certificate or certificates of his shares of stock to the trustees in the man- ner provided in the preceding paragraph. 3. [Trustees to hold subject to agreement.] The trustees shall hold the said shares of stock so transferred to them for the common benefit of the subscribers, under the terms and conditions hereinafter set forth. 4. [New certificates to trustees.] The trustees shall surrender to the proper officers of the said company for can- cellation all certificates of stock which shall be assigned and delivered to them as hereinbefore provided, and in their stead shall procure n^ew certificates to be issued to them as trustees under this agreement. 5. [Trustees' certificates.] The trustees shall issue to each of the subscribers a trust certificate for the number of shares represented by the certificates of stock by him transfer- red to the trustees. Each such trust certificate shall state that it is issued under this agreement, and shall set forth the na- ture and proportional amount of the beneficial interest there- under of the person to whom it is issued, and shall be assign- able, subject to the provisions of article 9 hereof, after the manner of certificates of stock on books to be kept by the trus- tees. The trustees shall keep a list of the shares of stock transferred to them, and shall also keep a record of all trust certificates issued or transferred on their books, which record shall contain the names and addresses of the trust certificate holders and the number of shares represented by each such certificate. Such list and record shall be open at all reasona- ble times to the inspection of the trust certificate holders. Up- on the transfer upon the books of the trustees of any trust certificate the transferee shall succeed, subject to the provisions of article 9 hereof, to all the rights hereunder of the trans- ferror. 1272 FORM BOOK (Ch. 37 6. [Trustebs to votb stock.] It shall be the duty of the trustees, and they, or a majority of them, shall have full power and authority, and they are hereby fully empowered and au- thorized, to represent the holders of such trust certificates and the stock transferred to the trustees as aforesaid, and to vote upon the said stock, as in the judgment of the trustees or of a majority of them may be for the best interest of the said com- pany, at all meetings of the stockholders of the said company, in the election of directors and upon any and all matters and questions which may be brought before such meetings, as fully as any stockholder might do if personally present. 7. [Dividends.] The trustees shall collect and receive all dividends that may accrue upon the shares of stock subject to this trust, and, subject to deduction as provided in the follow- ing paragraph, shall divide the same among the trust certifi- cate holders in proportion to the number of shares respectively represented by their trust certificates. 8. [Trustees' indemnity.] The trustees shall be entitled to be fully indemnified out of the dividends coming to their hands against all costs, charges, expenses, and other liabilities properly incurred by them in the exercise of any power con- ferred upon them by these presents ; and the subscribers, and each of them, hereby covenant with the trustees that in the event of the moneys and securities in their hands being insuffi- cient for that purpose the subscribers and each of them will in proportion to the amounts of their respective shares and inter- ests save harmless and keep indemnified the trustees of and from all loss or damage which they may sustain or be put to by reason of anything they may lawfully do in the execution of this trust. 9. [Sale oe trust certificates — Trustees' option.] In the event that the holder of any trust certificate shall desire to Ch. 37) STOCK AND STOCKHOLDERS 1273 sell or pledge his beneficial interest in the shares of stock rep- resented thereby, he shall first give to the trustees notice in writing of such desire, and the trustees shall have the right at their option at any time within days after the receipt of such notice to purchase the same at the book value of the stock represented by such trust certificate at the time of such pur- chase. If the trustees shall exercise such option to purchase, they shall hold the beneficial interest thereof for the benefit of all the remaining trust certificate holders, including, the trus- tees, who shall, upon days' notice given by the trustees before exercising such option, contribute their respective pro- portionate part of the purchase money to be paid therefor by the trustees. In the event that the trustees shall not exercise such option to purchase as aforesaid, and only in that event, the holder of such trust certificate shall have the right to sell the same to such person and for such price as he shall see fit. 10. [New trustees.] In the event of any trustee dymg or resigning or refusing or becoming unable to act, the surviv- ing or other trustees or trustee shall appoint a trustee or trus- tees to fill the vacancy or vacancies, and any person so ap- pointed shall thereupon be vested with all the duties, powers, and authority of a trustee hereunder as if originally named herein. [Continuance and termination oe trust.] The trust hereby created shall continue years from the date here- of, and shall then terminate : Provided, that the beneficial owners of (two-thirds) in amount of the shares of stock subject of this trust may at any time terminate this trust by resolu- tion adopted at a meeting of the trust certificate holders called by any one of them for that purpose by days' notice in writing mailed to the trust certificate holders at their respective addresses as the same shall appear in the records of the trus- 1274 , FORM BOOK (Ch. 3T tees. Upon the termination of the trust the trustees shall, upon the surrender of the trust certificates by the respective holders thereof, assign and transfer to them the number of shares of stock thereby represented. In witness whereof the said parties of the first part have hereunto set their hands and seals, and set opposite their re- spective signatures the number of shares held by them respec- tively, and the parties of the second part, in token of their ac- ceptance«of the trust hereby created, have hereunto set their hands and seals. Ch. 38) TRUSTS 1275 CHAPTER XXXVIII TRUSTS A "trust" is an obligation under which a person in whom the legal title to property is vested is bound in equity to deal with the beneficial interest therein in a particular manner in favor of others or partly in favor of others conjointly with himself. Trusts are divided into: (1) Express trusts, which may be ei- ther private trusts or public or charitable trusts ; and (2) im- plied trusts, that is, trusts created by operation of law, which include resulting trusts and constructive trusts. Only express private trusts are here considered. An express trust in real property must by the statute of frauds be either created by will, or evidenced by some writ- ing signed by the declarant of the trust. An express trust in personal property can be created inter vivos by word of mouth, but, if not intended to take effect until after the death of the creator, must be created by will. No particular or technical words are required to create a trust; it is enough if an inten- tion to create a trust, and the property, the beneficiaries, and the manner in which the trust is to be performed are clearly indicated. If a trust is' perfectly created, a valuable consid- eration is not necessary to render it enforceable. If, however, it is not completed, as where there is only a voluntary covenant to convey property, it will not be enforced. A trust may be created by the transfer of property to a third person to hold it as trustee for the purposes of the trust declared, or by a declaration of trust on the part of the creator, who retains the title to the trust property, and who declares himself a trustee for the purposes of the trust. In some states the law relating to trusts has been modified by statute. Many forms relating to the creation of express trusts are given in other chapters where they appropriately belong. See Assignments for Benefit of Creditors, p. 176, Marriage Set- tlements, p. 703, and Wills, p. 1292. A few forms which do not fall under more particular heads are given below. 1276 FOEM BOOK (Ch. 38 Page 1. Declaration of trust of land of person in whose name it was purchased 1276 2. Declaration of trust of land of person who has purchased on behalf of himself and others 1277 3. Declaration of trust of land for equitable owner 1278 4. Declaration of trust of shares of stock by person in whose name they were purchased 1279 5. Another form 1279 6. Declaration of trust by trustee who has taken a mortgage in his own name 1281 7. Voluntary settlement of real and personal property by single woman, reserving power to revoke and vary 1282 8. Voluntary settlement of personal property upon trust con- tingently and at trustees' discretion for a son 1284 1. Declaration of Trust of Land of Person in Whose Name It Was Purchased To all to whom these presents shall come I, , of ■ , send greeting : [Rbcital op conveyance; to trustee.] Whereas, by a deed dated the day of and recorded in the office of the register of deeds in and for the county of , and state of , in book , at page , con- veyed to me a certain parcel of land (description) in considera- tion of the sum of $ paid by me to the said ; [ReciTai, op provision op purchase money.] And vi^hereas, the said sum of $ was provided by of , and the said land was conveyed to me as trustee for the said , as I do hereby acknowledge, [DecIvARATion op trust.] , Now, these presents witness that I hereby declare that I do stand seised of the said land and premises above described in trust for the said , his heirs and assigns, and hereby agree to convey the same at the request and cost of the said to such person or persons and at such time or times as the said shall direct or appoint. In witness whereof I have hereunto set my hand and seal this day of . Ch. 38) TiiusTS 1277 2. Declaration of Trust of Land of Person Who Has Pur- chased on Behalf of Himself and Others Indenture made the day of between A. B., hereinafter called the trustee, of the first part, C. D., of the second part, and E. F., of the third part: [ReciTAi, Of CONVEYANCE TO TKusTEE.] Whercas, by a deed dated, etc., and recorded, etc., G. H. conveyed to the trus- tee a certain parcel of land {description) in consideratioii of the sum of $ paid by the trustee to the said G. H. ; [Recital oe provision oe purchase money.] And whereas, the said land was, in fact, purchased as aforesaid by the trustee in behalf of himself and the said C. D. and E. F., and the said sum of $ was provided by the parties here- to in the following shares and proportions, namely, one-half thereof by the trustee out of his own moneys, and one-fourth thereof by the said C. D., and one-fourth thereof by the said E.F. Now, this indenture witnesseth as follows : 1. [Declaration oe trust.] In consideration of the premises the trustee hereby declares that as and from the date of the said deed he has held and now holds the said land as to one undivided fourth part thereof upon trust for the said C. D., and as to one other undivided fourth part thereof upon trust for the said E. F., and as to the remaining two undivided fourth parts thereof for his own absolute use and benefit. 2. [Covenants to pay proportion oe expenses.] Each of the parties hereto hereby covenants with the others and other of them to pay or contribute his due proportion of all expenses already incurred and which may be hereafter incur- red by the trustee in relation to the premises and of all taxes which may be payable in respect to the said land. 1278 FOEM BOOK (Ch. 38 3. [PowBR TO TRUSTEE.] The said C. D. and E. F. hereby respectively declare that the trustee shall have power to sell or mortgage the said land or any part thereof at such time or times and for such price or prices and upon such terms as the trustee shall think fit and to execute and do such instruments and acts as he shall think proper. In witness, etc. (Signatures and seals of ail parties^ 3. Declaration of Trust of Land for Equitable Owner To all to whom these presents shall come, greeting : [ReciTai, of ownership.] Whereas, I, , of , am the present legal owner in fee of certain real estate herein- after particularly described ; and whereas, the equitable owner of the said real estate is now , of , and for the purpose of declaring such equitable ownership this present writing is executed. [Declaration oe trust.] Now, therefore, know ye that I, the said , as well in consideration of the sum of one dollar unto me in hand paid by the said , the receipt whereof is hereby acknowledged, as of other good causes and considerations me hereunto moving, do by these presents make known, admit, and declare that I now stand seised of the fol- lowing real estate, to wit {description), to and for the only proper use and behoof of the said , his heirs and as- signs, [Covenant to convey.] And, further, I do for myself, my heirs, executors, and administrators, hereby covenant and agree with the said , his heirs and assigns, that I shall and will at the request of the said , his heirs or assigns, execute and deliver a good deed or deeds unto such person or persons, corporation or corporations, as the said may Ch. 38) TRUSTS ■ ^ 1279 direct, granting and conveying unto such person or persons, corporation or corporations, the above-described real estate, either in whole or in parts, in fee simple. In witness, etc. 4. Declaration of Trust of Shares of Stock — By Person in Whose Name They Were Purchased I, , hereby acknowledge and declare that the shares of the preferred stock of the Company now standing in my name in the books of the said company, and being represented by a certain certificate therefor issued by the said company to me, dated the -^ day of , and num- bered , were purchased by me out of moneys belonging to and , and are now held by me upon trust for the said and as tenants in common in equal shares {or as the case may be). Witness my hand this day of ■ — . (Signature.) 5. Same — Another Form This indenture is made the day of between , hereinafter called the trustee, of the one part, and , hereinafter called the beneficiary, of the other part : [Recitals op transfbr to trusteb and agreement.] Whereas, the beneficiary has lately transferred or caused to be transferred into the name of the trustee the shares of stock specified in the first and second schedules hereto; and where- as, the shares specified in the second schedule are not fully paid ; and whereas, all such transfers were made to the trus- tee as a nominee of the beneficiary, and it was agreed prior to the date of such transfers that the trustee should execute such declaration of trust as is hereinafter contained. 1280 ^ FORM BOOK (Ch. 38 Now, these presents witness as follows : 1. [Declaration of trust.] The trustee hereby declares that he holds the shares of stock specified in the schedules hereto and all dividends and interest accrued or to accrue there- on upon trust for the beneficiary, his executors, administrators, and assigns, and agrees to transfer, pay, and deal with the said shares, dividends, and interest in such manner as he or they shall from time to time direct. 2. [Stockholders' meetings.] The trustee will (at the request of the beneficiary, his executors, administrators, or assigns) attend all meetings of stockholders or otherwise which he shall be entitled to attend by virtue of being the holder of the said shares, and will vote at such meetings in such manner as the beneficiary, his executors, administrators, or assigns, shall have previously directed in writing, and in default of such direction as the trustee shall deem best ; and, further, will, if so required by the beneficiary, his executors, administrators, or assigns, execute all proxies or other documents necessary or proper to enable him or them to vote at any such meeting in place of the trustee. 3. [Trustee's indemnity.] The beneficiary will at all times keep indemnified the trustee, his executors or adminis- trators, against all liabilities which he or they may incur by reason of such shares having been so transferred into the name of the trustee, and will punctually pay all calls and other de- mands which the trustee may be or become liable to pay in respect of any of such shares and all costs and expenses in- curred by the trustee in the execution of tlie trusts of these presents. 4. [Trustee's remuneration.] During the continuance of the trust hereby declared the beneficiary will pay to the trustee the sum of $ per annum {or, $ for each Ch. 38) TRUSTS 1281 meeting which he shall attend as aforesaid) as remuneration for his services as such trustee. In witness, etc. (Seals and signatures of both parties.) 6. Declaration of Trust by Trustee Who Has Taken Mort- gage in His Own Name To all to whom these presents shall come I, , of , send greeting: [RecitaIv of trust and taking of mortgage.] Whereas, — — — , late of , deceased, by his last will gave and be queathed a certain portion of his estate to me in trust to hold, manage, and invest the same, and to use and enjoy the income thereof during my life, and that upon my death the capital of the said trust fund should belong to and be divided equally among my children; and whereas, the said departed this life on the day of , and his said will was duly admitted to probate on the day of in the probate court of ; and whereas, of the moneys thereby bequeathed to me as aforesaid and belonging to the said trust estate the sum of dollars was by me and in my name invested in a certain promissory note for that sum, dated the day of , and made by to my order and secured by a mortgage of even date therewith executed by the said to me and recorded (etc.). [Declaration of Trust.] Now, these presents witness that I hereby declare that I hold the said note and mortgage and all moneys to accrue thereon as trustee under the said will for the uses and purposes therein declared. Witness my hand this day of . TiFr.FoEMs — 81 1282 FORM BOOK (Ch. 38 7. Voluntary Settlement of Real and Personal Property by Single Woman, Reserving Power to Revoke and Vary Know all men by these presents that I, , single woman, in consideration of one dollar to me paid by and , the receipt whereof is hereby acknowledged, do hereby grant, remise, release, and forever quitclaim, assign, transfer, and set over unto the said and , and their heirs and assigns, a certain parcel of land (description). Also all the following described personal property, namely (description). [Habendum in Trust.] To have and to hold the same to the said and , and their successors and assigns, but in trust nevertheless to and for the following uses, intents, and purposes : 1. [To MANAGE AND INVEST.] To hold and manage the said property, with power from time to time at their discretion to sell and convert the same or any part thereof into money, and to invest the proceeds thereof in such investments as they may deem best, and to vary and transpose any such investments for others as they may deem best, all which property, proceeds, and investments are hereinafter called the trust fund. 2. [Income to setti^or eor life.] To pay to me during my life the net income of the trust fund. 3. [To another eor liee.] From and after my decease to pay the net income of the trust fund to my sister dur- ing her life. 4. [Ultimate disposition.] Upon the termination of the aforesaid trusts to pay over and transfer the trust fund to College absolutely. 5. [New trustees.] The number of my trustees shall be kept up to two, and whenever any vacancy shall occur, then I Ch. 38) TRUSTS 1283 direct that the surviving or acting trustee for the time being, with my written consent, during my lifetime, shall by an in- strument appoint a suitable person to be cotrustee with him in the place of the trustee dying, resigning, or ceasing for any cause to act, and in default of such nomination and appoint- ment the vacancy shall be filled in the manner provided by law. 6. [Power to retain investments.] I authorize and em- power the trustees at any time acting hereunder to retain any securities hereinbefore assigned to them, and neither they nor their successors in trust shall be liable for their depreciation or loss, although they are not proper trust investments. 7. [Power to seli,, mortgage, and IvEase.] I hereby au- thorize and empower the trustees at any time acting hereunder to sell, mortgage, or lease any portion or the whole of the estate, real or personal, which they may hold under the trusts hereby created, and to execute good and sufficient deeds and other instruments to convey and transfer the same. And in all such cases the purchasers shall not be bound to see to the application of the purchase money or proceeds. 8. [Trustees' indemnity.] Each trustee shall be liable for his own receipts, payments, and willful defaults, and for nothing else, nor shall one be liable for the other. 9. [Reservation oe power to revoke.] I hereby reserve to myself power by a written instrument or instruments from time to time to revoke the trusts hereby created or any part thereof and to revest the said property in myself as if this deed had not been executed, but such revocation shall not affect any lawful act which shall have been done hereunder before notice of such revocation shall have been filed in the registry of deeds for the county of , in said state. 10. [Power to vary.] And I further reserve to myself power by a written instrument or instruments from time to 1284 FORM BOOK (Ch. 38 time to vary or modify the terms of the trusts hereby or here- after creat'cd, but such variations or modifications shall not affect any lawful act which shall have been done before notice of such variations or modifications shall have been filed in the said registry of deeds. 11. [AccBpTance by Trustees,] And we, the said and , join herein in token of our acceptance of the trust hereby conferred upon us. In witness, etc. 8. Voluntary Settlement of Personal Property upon Trust Contingently and at Trustees' Discretion for a Son This indenture is made the day of be- tween , hereinafter called the settlor, of the one part, and and , hereinafter called the trustees, of the other part : [ReciTAiv o? TransfBr To trustees.] Whereas, the set- tlor is entitled for his own benefit to the personal property spec- ified in the schedule hereto annexed, and is desirous of irrev- ocably settling the same for the benefit of his son, hereinafter called the son, and has transferred the same to the trustees who have consented to act as trustees of these presents. Now, this indenture witnesseth as follows: 1. [DecI/ARATIon op trust.] The settlor hereby declares that the trustees shall, and the trustees hereby declare that they will, henceforth be entitled to the said personal property and to the money and investments into which in the exercise of the powers hereinafter contained the same may be converted (all of which personal property, money, and investments are here- inafter called the trust fund, that term being intended to mean from time to time the constituents for the time being of that fund), and the income therefrom upon the trusts and with and Ch. 38) TRUSTS 1285 subject to the provisions hereinafter expressed concerning the same. 2. [Income; ifoR son during his ufE.] The trustees shall from time to time receive so much of the income from the trust fund as shall accrue during the life of the son, and if and while he shall in their opinion conduct himself with pro- priety shall according to their judgment from time to time either pay the whole or any parts or part of the said income then received to the son, or apply th'C whole or any part or parts thereof for the board, lodging, or maintenance or in any manner which the trustees shall think to be for his benefit. And they may so pay some part and so apply other parts of the said income, and shall not be bound to dispose of the whole of the said income by either or both of such means. 3. [Unapplied income.] The trustees shall hold all such income as shall accrue in the lifetime of the son and as shall not be so paid or applied as aforesaid upon the trusts follow- ing: (1) [Accumulations upon like Trusts.] The trustees shall invest the same from time to time, and shall hold such investments and resulting income during the lifetime of the son upon trust if and while the son shall in their opinion con- duct himself with propriety, and so often as they shall think fit to do so to raise and pay to or apply for the board, lodging, maintenance, or benefit of the son so much money as they think fit to pay or apply in the same manner as they may in that year pay or apply the income of the trust fund accruing in that year. (2) [Subject to eorEGOing in trust for settlor.] Sub- ject to the trusts aforesaid the trustees shall hold the trust fund and all the income therefrom and the accumulations thereof in trust for the settlor. 1286 FORM BOOK (Ch. 38 4. [Authority of trustees to determine.] The settlor hereby declares that the trustees shall have absolute authority in the exercise of their discretion to determine from time to time the question whether the contingency upon which the set- tlor intends the right of the son to the benefit of this settle- ment to depend shall or shall not have occurred, and their de- termination of that question on one or more occasions shall not affect their liberty to determine it at any subsequent time or times according to their judgment at such time or times. And the trustees may at any time or times apply income for the ben- efit of the son by making any payment or payments to any per- son or persons other than the son which in the judgment of the trustees will operate for the benefit of the son : 5. [Power oe revocation.] Provided, always, that the settlor may at any time with the consent of the trustees (which consent they shall give or withhold according to their judgment of what is fair and reasonable) by deed, to which the trustees, if they think fit, shall become executing parties for the pur- pose of expressing their consent, revoke the trusts hereby de- clared, and declare any other trusts by the trust fund. [Trustees' power oe sale and investment with con- sent OE SETTLOR DURING HIS LiEE.] (Form 1, cl. 2, p. 705, supra, with necessary changes.) [Trustees' indemnity.] {Form 1, cl. 9, p. 707.) [Appointment oe new trustees with consent oe set- tlor during life.] (Form 1, cl. 10, p. 707, with necessary changes.) [Meaning oe "trustees."] (Form 2, cl. 9, p. 711.) In witness, etc. Ch. 39) WAREHOUSE RECEIPTS 1287 CHAPTER XXXIX WAREHOUSE RECEIPTS Warehouse receipts, the obligations and rights of warehouse- men thereon, and the negotiation and transfer of such re- ceipts are generally regulated by statute. Recently many states have enacted the Uniform Warehouse Receipts Act. This act provides that warehouse receipts need not be in any particular form, but that every such receipt must embody within its writ- ten or printed terms : (1) The location of the warehouse where the goods are stored ; (2) the date of issue of the receipt ; (3) its consecutive number ; (4) a statement whether the goods re- ceived will be delivered to the bearer, to a specified person, or to a specified person or his order; (5) the rate of storage charges; (6) a description of the goods or of the packages containing them ; (7) the signature of the warehouseman which may be made by his authorized agent ; (8) if the receipt is issued for goods of which the warehouseman is owner, either jointly or in common with others, the fact of such ownership; and (9) in the case of a negotiable receipt, a statement of the amount of advances made and of liabilities incurred from which the warehouseman claims a lien, or, if the precise amount of such advances or liabilities is at the time of the issue of the receipt unknown to the warehouseman, a statement of the fact that advances have been made or liabilities incurred and the purpose thereof. The act further provides that the ware- houseman may insert other terms and conditions, provided they shall not be contrary to the provisions of the act, or in any wise impair his obligation to exercise that degree of care in safe keeping of the goods intrusted to him which a reason- ably careful man would exercise in regard to similar goods of his own. A receipt in which it is stated that the goods re- ceived will be delivered to the depositor, or to any other speci- fied person, is a nonnegotiable receipt, and it shall have plain- ly placed upon its face "Nonnegotiable" or "Not negotiable" ; and a receipt in which it is stated that the goods will be de- livered to the bearer, or to the order of any person named, is a negotiable receipt, and no provision shall be inserted in it that it is nonnegotiable, and, if more than one is issued, "Dupli- 1288 FORM BOOK (Ch. 39 cate" shall be plainly placed upon the face of every such receipt except the first. Page 1. Warehouse receipt (common form) 1288 2. Nonnegotiable warehouse receipt (uniform act) 1288 3. Negotiable warehouse receipt (uniform ac-t) 1289 4. Terminal warehouse receipt for grain (Minnesota) 1290 , 1. Warehouse Receipt (Common Form) A. B. Storage & Warehousb Co. . 19— Received from the merchandise described below, to be held by on monthly storage from the day of (subject to conditions as per back hereof) and to be de- livered on the order of only on return of this receipt and payment of the charges. Marks, Etc. Description oe Merchandise Charges : Storage per Month. {Signed) A. B. Storage & Warehouse Co. Per . ([Conditions indorsed.] They frequently set out the stat- utory provisions concerning the obligations of warehousemen^ 2. Nonnegotiable Warehouse Receipt (Uniform Act) A. B. Warehouse Company Warehouse Receipt No. . 19—. The A. B. Warehouse Company has received from in its warehouse (locatipn) the following goods (description of Ch. 39) WAREHOUSE KECEIPTS 1289 the goods or of the packages containing them) for storage at the rate of , deliverable to the said or upon his written order on return of this receipt and the payment of all lawful charges. A. B. Warehouse Company, Per . Across the face of the above warehouse receipt should ap- pear the following: "Nonnegotiable." 3. Negotiable Warehouse Receipt (Uniform Act) A. B. Ei/BVATOR Company. Warehouse Receipt No. . , 19-. The A. B. Elevator Company has received in store in its ele- vator known as and situated at from for storage at the rate of — bushels of wheat of the grade known as . Said wheat or an equal amount of wheat of the same kind and grade is deliverable to the bearer hereof (or, to or his order) upon the return of this re- ceipt (if to order, add, "Properly indorsed"), and the payment of all lawful charges. {Add statement of the amount of ad- vances made and of liabilities incurred, if any, for which the warehouseman claims a lien, or, if such amounts he unknown to the warehouseman, a statement of the fact that advances have been made or liabilities incurred and the purpose thereof.) A. B. Elevator Company, Per . 1290 FOEM BOOK (Ch. 39 4. Terminal Warehouse Receipt for Grain (Minnesota) ^ Stub Recced • Elevator Co. Warehouse Receipt No. -, Minn., 19—. The Elevator Company has received in store in its elevator known as , situated at , Minne- sota, for storage from , owner, bushels of , which has been duly inspected by a duly authorized inspector of grain appointed by the state railroad and ware- house commission of Minnesota, and has been graded by said inspector as No. , and is that grade. Said grain, or an equal amount of grain of the same kind and grade is deliver- able upon the return of this receipt properly indorsed by the owner above named and the payment of all lawful charges ; in case of grain stored separately in a special bin, at the request of the owner or consignee, the identity of such grain will be preserved while in store, and said grain will be delivered as such separate lot or parcel, in accordance with law, upon sur- render of the receipt. Loss by fire, heating, or the elements is at owner's risk. The Elevator Company conducts said elevator as a public terminal warehouse and receives and stores therein grain of others for hire. bushels. grade. By . Countersigned by , Secretary. 1 Gen. St. 1913, § 4437. Tlie receipts sliall be consecutively num- bered and delivered to tlie owner immediately upon receipt of each lot or parcel of grain, giviBg tli© true and correct grade and vreiglit thereof. The manner of receipt of such grain shall be stated in the receipt, with the number and distinctive marks of each car, and the name of each barge or other vessel. Ch.39) WAREHOUSE RECEIPTS 1291 B. £> ^ lo- 1 121 Received in store from— Bush. lbs. grad o td o ts p d p c: GO 0! 12! o 1 O 1292 FOKM BOOK (Ch. 40 CHAPTER XL WII.LS In General The law differs in the different states to a greater or less extent in respect to the formalities which must be observed in the execution of wills. For example, in some states the statute requires two witnesses, and in others three. In some states the statute provides that the instrument must be signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed at his request, in his presence, and in the presence of each other by the wit- nesses. In some states the statute provides that the will must be subscribed by the testator at the end thereof in the presence of each of the attesting witnesses, or acknowledged to have been so made to each of such witnesses, and declared by him at the time of subscribing or acknowledging to be his last will and testament, and that the witnesses must sign their names at the end of the will at the request of the testator. In other states the statutes prescribe the formalities of execution in words which depart in form or in substance from the forego- ing. Provision is usually made also for nuncupative wills, that is, wills by word of mouth. In many states nuncupative wills are confined to soldiers in actual service and mariners at sea, who are permitted thus to dispose of their personal estate; while in other states nuncupative wills may be made by other persons during their last sickness under prescribed conditions. There are also differences in the laws of the different states with respect to the competency oi testators as to age, and coverture, the competency of witnesses and the effect of a devise or legacy to a witness, the rights of afterborn children of the testator or of his children unprovided for by the will, the substitution of the children or other issue of devisees and legatees who are children or relatives of the testator and who die before him, the effect of the testator's subsequent marriage, with or without the birth of children, or of the testator's di- vorce, in revoking provisions of the will, and other matters. Again, in many states the common law relating to the crea- tion and validity of trusts and powers and the rule against perpetuities has been changed, and trusts and powers are reg- Ch. 40) WILLS 1293 ulated by statute. Provisions of wills declaring trusts must be carefully scrutinized in the light of the rule against per- petuities and of any statutory rule as to alienability and re- moteness. On all these and other points affecting the execution of wills and the validity and effect of testamentary dispositions, the draftman must examine the law of the particular jurisdiction. A codicil, which is an addition to a will, must be executed with tlie same formalities. A codicil revokes the will only so far as it is inconsistent with it. Wills are to-day frequently typewritten, and it is usual to admit such wills to probate, but the question of their validity does not appear to have been passed upon by the courts. A synopsis of the laws of the different states, so far as they provide for the competency of testators and the formalities of execution of written wills, follows : ALABAMA Every person of sound mind, if 21 years old, may devise all his interest in lands, and if over 18 years may bequeath all his personal property, to any person or corporation capable of holding real estate. Code 1907, §§ 6152, 6153, 6157. A will (except nuncupative) must be in writing, signed by the testator, or some person in his presence and by his direction, and attest- ed by at least two witnesses, who must subscribe their names thereto in the presence of the testator. Ibid. & 6172. ALASKA Every person of 21 years and of sound mind may by will dispose of his property, saving dower and curtesy. Civ. Code 1900, § 137. A will must be in writing, signed by the testator, or by some other person under his direction, in his presence, and attested by two or more competent witnesses, subscribing their names in the presence of the testator. Ibid. § 138. Any person not an inhabitant of, but owning property in, the district may devise or bequeath it by will executed according to the laws in force in the district, state, or territory in which the will is executed. Ibid. § 150. 1294 FORM BOOK (Ch. 40 ARIZONA Every person aged 21 years or who may be or may have been lawfully married and of sound mind can make a will. Civ. Code 1913, par. 1204.. A will, except where otherwise provided by law, must be in writing and signed by the testator or by some other person by his direction and in his presence, and, if not wholly written by himself, must be attested by two or more credible witnesses above the age of 14 subscrib- ing their names in the presence of the testator. Ibid. par. 1206. Where the will is wholly written by the testator, the attesta- tion of the subscribing witnesses may be dispensed with. Ibid, par. 1207. ARKANSAS Every person 21 years of age and of sound mind may by will devise all his estate, real and personal. Kirby's Dig. 1904, § 8010. Every person over the age of 18 and of sound mind may by will dispose of goods and chattels. Ibid. § 8011. Every will of real or personal property, or both, must be executed and attested in the following manner: (1) It must be sub- scribed by the testator at the end of the will, or by some per- son for him, at his request; (2) such subscription must be made by the testator in the presence o'f each of the attesting witnesses, or be acknowledged by him to have been so made to each of the attesting witnesses; (3) the testator, at the time of making such subscription, or at the time of acknowledg- ing the same, must declare the instrument so subscribed to be his will and testament; (4) there must be at least two attest- ing witnesses, each of whom shall sign his name as a wit- ness, at the end of the will, at the request of the testator ; (5) where the entire body of the will and the signature thereto are written in the proper handwriting of the testator or tes- tatrix, such will may be established by the unimpeachable evi- dence of at least three disinterested witnesses to the hand- writing and signature of each testator or testatrix, notwith- standing there be no attesting witnesses to such will; but no will without such subscribing witnesses shall be pleaded in bar of a will subscribed in due form, as prescribed in this act. Ibid. § 8012. Every person who signs the testator's name to a will by his direction must write his own name as a witness, and state that he signed the testator's name at his request. Ch. 40) WILLS 1295 Ibid. § 8013. Citizens of any of the United States or terri- tories thereof owning real or personal property in this state may devise and bequeath the same by will executed and proved according to the laws of this state, or any state or territory in which the will may be made. Ibid. § 8049. CALIFORNIA Every person over 18 years and of sound mind may by will dispose of all his estate, real and personal. Civ. Code 1909, § 1270. A married woman may dispose of all her separate estate by will without consent of her husband. Ibid. § 1273. Every will, other than nuncupative, must be in writing ; and every will, other than olographic (holographic) and nuncupa- tive, must be executed and attested as follows : (1) It must be subscribed at the end by the testator himself, or some person in his presence and by his direction must subscribe his name ; (2) the subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority; (3) the testator must, at the time of subscribing or acknowledging, declare to the attesting witnesses that the instrument is his will; and (4) there must be two attesting witnesses, each of whom must sign the same as a witness, at the end of the will, at the testator's request and in his presence. Ibid. § 1276. An (h)olographic will is one that is entirely written, dated, and signed by the hand of the testator himself, is subject to no other form, may be made in or out of this state, and need not be witnessed. Ibid. § 1277. A witness to a written will must write, with his name, his place of residence, and a person who subscribes the testator's name, by his direction, must write his own name as a witness to the will ; but a violation of this section does not affect the vaHdity of the will. Ibid. § 1278. No will made out of the state is valid unless executed ac- cording to the provisions of this chapter, except that a will made in a state or country in which the testator is domiciled at the time of his death, and yalid under the laws of such state or country, is valid in this state so far as relates to personal property, subject, however, to the provisions of section 1313. Ibid. § 1285. No estate shall be bequeathed or devised to any charitable or benevolent society or corporation or to any person or per- sons in trust for charitable uses, except by will executed at 1296 FORM BOOK (Ch. 4.0 least 30 days before the decease of the testator. If so made, such devises or legacies are valid : Provided, that no such devises or bequests shall collectively exceed one-third of the estate of the testator, leaving legal heirs, and in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggregate thereof to one-third of such estate. Ibid. § 1313 COLORADO Every person of sound mind and memory, aged 21 years, if male, or 18, if female, may dispose of all his property by will, and all persons of 17 may dispose of their personal estate by will; but no married man or woman may devise or bequeath away, one from the other, more than one-half of his or her property without the consent in writing of such other, executed after death of the testator, and it is optional with such wife or husband, after the death of the other, to accept the condi- tion of any such will or one-half of the whole estate. Rev. St. 1908, § 7070. A will must be reduced to writing and sign- ed by the testator, or by some one in his presence and by his direction, and attested in the presence of the testator, by two or more credible witnesses. Ibid. § 7071. Where a will of real estate in this state has been admitted to probate in a state or territory of the United States, or a country beyond the limits of the United States, the record of the court, accompanied with a certificate of the proper officers that the will was proved agreeably to the laws and usages of such state, territory, or country, shall entitle such will to probate and record without further proof of execution. Ibid. § 7094. CONNECTICUT All persons of the age of 18 years and of sound mind may dispose of their estate by will. Gen. St. 1902, § 292. No will or codicil is valid unless in writing, subscribed by the testator, and attested by three witnesses, each of tliem subscribing in his presence, and all wills executed according to the laws of the state or country where they are executed may be admitted to probate in this state, and are effectual to pass any estate of the testator situated in this state. Ibid. § 293. Ch. 40) WILLS 1297 DELAWARE Any person of the age of 21 (including married women) of sound and disposing mind and memory may make a will as well of real as of personal estate. Rev. Code 1852, as amend, to 1893, c. 84, § 2 ; 14 Laws Del. c. 550. A will must be in writing and signed by the testator, or by some person subscrib- ing the testator's name in his presence and by his express di- rection, and attested and subscribed in his presence by two or more credible witnesses. Rev. Code 1852, as amend, to 1893, c. 84, § 3. DISTRICT OF COLUMBIA No will is good and effectual unless the person making it be, if male, of the age of 21 years, and, if female, of 18 years, and be at the time of executing or acknowledging it of sound and disposing mind and capable of executing a valid deed or contract. Code of Laws 1901, § 1625, as amend. 1911. A will must be in writing and signed by the testator, or by some other person in his presence and by his express directions, and at- tested and subscribed in the presence of the testator by at least two credible witnesses. Ibid. § 1626, as amend. 1911. No devise or bequest to or for any minister, public teacher, or preacher of the gospel, or any religious sect, order, or denomi- nation, is valid unless made at least one calendar month before the death of the testator. Ibid. § 1635, as amend. 1911. FLORIDA Every person of the age of 21 years and of sound mind can by will in writing dispose of his lands and personal property. Gen. St. 1906, § 2269. A married woman may dispose of her property by will as if not married, though a mirior. Ibid. § 2270. A will disposing of real estate must be signed by the testator, or by some other person in his presence and by his ex- pressed directions, and be attested and subscribed in the pres- ence of the testator by two or more witnesses. Ibid. § 2272. A will of personal property must be in writing, and signed by the testator or some other person in his presence, and by his express direction. Ibid. § 2274. TiFr.FoEMs— 82 1298 FORM BOOK (Ch. 40 GEORGIA Every person can make a will, unless under disability aris- ing from a want of capacity or of perfect liberty of action. Civ. Code 1910, § 3838. Infants under 14 years are considered wanting in that discretion necessary to make a will. Ibid. § 3839. All wills (except nuncupative) must be in writing signed by the party making the same, or by some other person in his presence and by his express direction, and attested and sub- scribed in the presence of the testator by three or more compe- tent witnesses. Ibid. § 3846. A witness may attest by his mark, provided he can swear to the same ; but one witness can- not subscribe the name of another, even in his presence and by his direction. Ibid. § 3847. No person leaving a wife or child or descendants of child shall by will devise more than one-third of his estate to any charitable, religious, educational, or civil institution to the exclusion of such wife or child; and in all cases the will containing such devise shall be exe- cuted at least 90 days before the death of the testator, or such devise shall be void. Ibid. § 3851. HAWAII Every person of the age of 18 years (including married wo- men) and of sound mind may dispose of his estate, real and per- sonal, by will. Rev. Laws 1905, §§ 2521, 2522. The will must be in writing and signed by the testator, or by some person in his presence and by his express direction, and attested by two or more competent witnesses subscribing their names to the will in his presence. Ibid. § 2523. IDAHO Every person over the age of 18 years and of sound mind may dispose of his estate, real and personal, by will. Rev. Codes, § 5725. A married woman may dispose of her separate estate without the consent of her husband. Ibid. § 5726. Every will, other than nuncupative, must be in writing, and every will, other than olographic and nuncupative, must be exe- cuted and attested as follows: (1) It must be subscribed at the end by the testator, or some person in his presence and by Ch. 40) WILLS 1299 his direction must subscribe liis name; (2) the subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority; (3) tlie testator must at the time of subscribing or acknowledging declare to the attesting wit- nesses that the instrument is his will ; and (4) there must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator's request, and in his presence. Ibid. § 5727. An olographic will is one that is entirely written, dated, and signed by the hand of the testator himself, is subject to no other form, may be made in or out of the state, and need not be witnessed. Ibid. § 5728. A wit- ness to a written will must write, with his name, his place of residence, and a person who subscribes the testator's name by his direction must write his own name as a witness to the will ; but a violation of this section does not affect the validity of the will. Ibid. § 5729. No estate shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, except by will executed at least 30 days before the decease of the testa- tor. If so made, such devises or legacies are valid : Provided, that no such devises or bequests shall collectively exceed one- third of the estate of the testator leaving lineal descendants, and in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggregate thereof to one-third of such estate. Ibid. § 5750. ILLINOIS Every male of the age of 21 years and every female of 18, being of sound mind, may make a will. Kurd's Rev. St. 1913, c. 148, § 1. A will must be reduced to writing, and signed by the testator or some person in his presence and by his direction and attested in his presence by two or more credible witnesses. Ibid. § 2. Wills or authenticated copies proved according to the laws of any of the United States or the territories thereof, or of any country out of the United States, concerning es- tates within the state, accompanied with a certificate of the proper officer that the will or copy was duly executed and proved agreeably to the laws and usages of the state or country in which the same was executed, may be recorded. Ibid. § 9. 1300 FORM BOOK (Ch.40 INDIANA Married women, as well as all other persons, except those under 21 years of age or of unsound mind, may by will dis- pose of their estate, real and personal, in favor of any person or corporation capable of holding the same. Burns' Ann. St. 1908, §§ 3112, 3113. A will (except nuncupative) must be in writing, signed by the testator, or by some one in his presence with his consent, and attested and subscribed in his presence by two or more competent witnesses. Ibid. § 3132. A written will proved or allowed in any other of the United States or in any foreign country according to its laws may be received and recorded in this state, with the same effect as if originally admitted to probate and recorded in this state. Ibid. §§ 3149- 3151. No will executed in this state and proved or allowed in any other state or country shall be admitted to probate with- in this state, unless executed according to the laws of this state. Ibid. § 3152. IOWA Any person of full age and sound mind may dispose by will of all his property, subject to the rights of homestead and ex- emption created by law, and the distributive share in his estate given by law to the surviving spouse, except sufficient to pay his debts and expenses of administration; but where the sur- vivor is named ,as a devisee therein, it shall be presumed, unless the intention is. clear and explicit to the contrary, that such devise is in lieu of such distributive share, homestead, and ex- emptions. No devise or bequest, however, to a corporation organized under the chapter relating to corporations not for pecuniary profit, or to a foreign corporation of a similar char- acter, shall be valid in excess of one-fourth of the testator's estate after payment ci debts, if a spouse, child, or parent sur- vive the testator. Code 1897, § 3270. All wills (except nun- cupative) must be in writing, signed by the testator, or by some person in his presence and by his express direction writing his name thereto, and witnessed by two competent persons; but if a codicil is duly executed to a will defectively executed and clearly identified in such codicil, the will and codicil shall be considered one instrument and the execution of both suffi- cient. Ibid. § 3274. A will executed without tlie state in tlie Ch. 40) WILLS 1301 mode prescribed by the law of the place where executed or of the testator's domicile, if in writing and subscribed by the testator, is valid. Ibid. § 3309. KANSAS Any person of full age and sound mind and memory may make a will of real or personal property. Gen. St. 1909, § 9776. A will must be in writing, signed at the end by the testator, or by some other person in his presence and by his express direc- tion; and attested and subscribed in the presence of the testator by two or more competent witnesses who saw the testator sub- scribe or heard him acknowledge it. Ibid. § 9777. A will exe- cuted, proved, and allowed in another state according to its laws may be admitted to record in this state, by producing an authenticated copy, and has then the same validity as if made in this state. Ibid. § 9800. A testator may not bequeath away from wife or husband more than one-half of his or her prop- erty ; but either may consent in writing, executed in the pres- ence of two witnesses, that the other may so do. Ibid. § 9811. A married person having no children may devise one-half of his or her property to others than husband or wife. Ibid. § 9812. KENTUCKY Every person of sound mind, not being under 21 years, may dispose of his estate by will. St. 1909, § 4825. A married woman, if of sound mind and 21 years of age, may dispose of her estate by will. Ibid. § 2147. No will shall be valid unless in writing, with the name of the testator subscribed thereto by himself, or by some other person in his presence and by his direction ; and, moreover, if not wholly written by the testator, the subscription shall be made or the will acknowl- edged by him in the presence of at least two credible witnesses, who shall subscribe the will with their names in the presence of the testator. Ibid. § 4828. The will of a person domiciled out of this state at the time of his death is valid as to his personal property in this state if executed according to the law of the place where he was domiciled. Ibid. § 4831. 1302 FOHM BOOK (Ch. 40 LOUISIANA All persons over 16 years of age and of sound mind, subject to certain limitations, can dispose of their property by will. Testaments are: (1) Nuncupative or open; (2) mystic or sealed; and (3) olographic. Nuncupative and mystic testa- ments are subject to many formalities which need not be enu- merated. An olographic testament must be entirely written, dated, and signed by the hand of the testator, and is subject to no other form, and may be made in or out of the state. See Rev. Civ. Code 1898, arts. 1574-1604. The peculiarity of the law is such that the drawing of a will in accordance with its requirements should not be attempted by a lawyer of another state. A will executed without the state in the mode prescribed by the law of the place where executed or of the testator's dom- icile, if in writing and subscribed by the testator, has the same force and effect as if executed in the mode prescribed by the laws of the state. Acts 1912, No. 176. MAINE A person of sound mind and of the age of 21 years may dispose of his real and personal estate by will, in writing, sign- ed by him, or by some person for him at his request and in his presence, and subscribed in his presence by three credible at- testing witnesses not beneficially interested under said will. Rev. St. 1903, c. 76, § 1. MARYLAND No will is valid unless the person making it be of sound and disposing mind and capable of executing a valid deed or con- tract. No will of real estate is effectual unless the person making it, if a male, be of the age of 21 years, and, if a female, of the age of 18. Ann. Code Pub. Civ. Laws 1910, art. 93, § 322. All devises and bequests of lands or tenements, or interest therein, and all bequests of goods, chattels, or personal prop- erty, shall be in writing and signed by the party so devising or bequeathing the same, or by some other person for him, in his presence and by his express direction, and shall be attest- ed and subscribed in the presence of the said devisor by two Ch. 40) WILLS 1303 or more credible witnesses, or else they shall be utterly void and of none effect. Ibid. § 323. Every will or other testa- mentary instrument made out of the state is valid in Maryland, if made according to the law of the place where it was made, or of the place where the testator was domiciled, or of this state ; and if the testator was originally domiciled in Maryland, although at the time of making the will or at the time of his death he may be domiciled elsewhere, the will shall be admitted to probate in this state, and shall then be governed by and con- strued according to the law of Maryland, without regard to the lex doinicilii, unless the testator shall expressly declare a con- trary intention in the will. Ibid. § 334. Bequests and devises to any minister, public teacher, or preacher, or to any religious sect, order, or denomination, must receive the assent of the Legislature. Const. Declaration of Rights, art. 38. MASSACHUSETTS Every person of 'full age and sound mind may by will in writing, signed by him or by a person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses, dispose of his property, real and personal. A married woman, in the same manner and with the same effect, may make a will. Rev. Laws 1902, c. 135, § L A will which is made out of the commonwealth and is valid according to the laws of the state or country in which it was made may be proved and allowed in this commonwealth, with the same effect as if executed according to its laws. Ibid. §5. MICHIGAN Every person of full age and sound mind may dispose of his property by will. Comp. Laws 1897, §§ 9262, 9265. A will made within this state, except nuncupative, must be in writ- ing, signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses. Ibid. § 9266. A will duly proved and allowed in any other of the United States, or in any foreign country, according to its laws, may be admitted to probate in this state. Ibid. § 9282. 1304 FORM BOOK (Ch. 40 MINNESOTA Every person (including married women) of full age and sound mind may dispose of real or personal estate by will, signed by him, or by some person in his presence and by his express direction, and attested and subscribed in his presence by two or more competent witnesses. Gen. St. 1913, § 7250. A will valid according to the laws of the state or country where made, or of the testator's domicile, if in writing and signed by the testator, has the same effect as if executed according to the laws of the state. Ibid. § 7253. MISSISSIPPI Every person aged 21 years, male or female, married or unmarried, being of sound and disposing mind, can make a will. The will must be signed by the testator, or by some other person in his or her presence, and by his express direction; and, moreover, if not wholly written and subscribed by him- self, must be attested by two or more credible witnesses in the presence of the testator. Code 1906, § 5078. A devise or bequest of lands or of .money to be raised, by the sale of lands in favor of or in trust for any religious or ecclesiastical cor- poration or society, or any religious denomination or associa- tion, or for charitable uses or purposes, is void. Ibid. § 5090. A bequest of money or personal property in favor of any re- ligious or ecclesiatical corporation, or any religious or ecclesias- tical society, or to any , religious denomination or association, either for its own use or benefit or for charitable uses, is void. Ibid. § 5091. MISSOURI A will may be made by a male person of sound mind as to real estate if he be 21 years of age, and as to personal estate if he be over 18 years, saving the widow her dower. Rev. St. 1909, § 535. A married or unmarried woman of 18 years may devise her land or bequeath her personal property by will, subject to the husband's curtesy. Ibid. § 536. A will must be in writing, signed by the testator, or by some person by his direction in his presence, and attested by two or more compe- tent witnesses subscribing their names to the will in his pres- Ch. 40) WILLS 1305 ence. Ibid. § 537, A person owning real or personal estate in this state may devise or bequeath it by will, executed and proved, if real estate, according to the laws of this state, or, if personal estate, according to the laws of this state or of the country, state, or territory in which the will is made. Ibid. § 567. MONTANA Every person over the age of 18 years of sound mind may by will, dispose of all of his estate, real and personal. Rev. Codes 1907, § 4723. Every will, other than nuncupative, must be in writing; and every will, other than olographic and nuncupative, must be executed and attested as follows: (1) It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name there- to; (2) the subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority; (3) the testator must at the time of subscribing or acknowledging de- clare to the attesting witnesses that the instrument is his will ; and (4) there must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator's request, and in his presence. Ibid. § 4726. An olographic will is one entirely written, dated, and signed by the hand of the testator himself, is subject to no other form, may be made in or out of this state, and need not be witnessed. Ibid. § 4727. A witness to a written will must write, with his name, his place of residence, and a person who subscribes the testator's name, by his direction, must write his own name as a witness to the will ; but a violation of this section does not affect the validity of the will. Ibid. § 4728. A will of real or personal property, or both, made out of this state by a person not having his domicile in this state, is valid when executed according to the law of the place in which it was made, or in which the testator was at the time domiciled. Ibid. § 4734. A testamentary disposition may be made to any person ca- pable of taking the property, except that corporations, other than those for scientific, literary, or solely educational purposes cannot take unless expressly authorized by statute. Ibid. § 4725. 1306 FORM BOOK (Ch. 40 NEBRASKA Every person of full age and sound mind, may dispose of his property, real or personal, by will. A married woman may dispose of her property by will in the same mat;iner as other persons. Cobbey's Ann. St. 1911, §§ 4988, 4991. A will made within this state must be in writing, signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses. Ibid. § 4992. A will duly proved and allowed in any of the United States, or in any foreign country or state, according to its laws, may be allowed, filed, and recorded in this state. Ibid. § 5009. NEVADA Every person over 18 years and of sound mind may dispose of his or her property by will. Rev. Laws 1912, § 6202. A married woman may dispose of her separate estate absolutely, without the consent of her husband, by will attested, witnessed, and proved as other wills. Ibid. § 6203. A will must be in writing, signed by the testator, and sealed with his seal, or by some person in his presence and by his express direction, and attested by at least two competent witnesses, subscribing their names to the will in the presence of the testator. Ibid. § 6204. A will duly proved and allowed in another state or a foreign country may be admitted to probate, if executed in conformity with the laws of the place where made. Property may be dis- posed of under olographic wills. Ibid. § 6223. An olographic will is one entirely written by the hand of the testator, is sub- ject to no other form, may be made in or out of this state, and need not be witnessed. Ibid. § 6224. It may be proved in the same mjmner as other private writings. Ibid. § 6225. NEW HAMPSHIRE Every person, including married women, of the age of 21 years and of sane mind, may devise and dispose of his prop- erty by will. Pub. St. 1901, c. 186, § 1. A will must be in writing, signed by the testator or by some person in his pres- ence and by his express direction, and attested and subscribed Ch. 40) WILLS 1307 in his presence by three or more credible witnesses. A. seal is not required. Ibid. § 2. A will made out of this state and valid according to the laws of the state or country where exe- cuted may be proved and allowed in this state, and is then as eiifective as if executed according to the laws of this state. Ibid. § 5. NEW JERSEY Wills made by any person within the age of 21 years, or any idiot, lunatic, or person of nonsane mind and memory, shall not be held or taken to be good or effectual in law. Comp. St. 1910, p. 5862, § 3, p. 5871, § 28. A will must be in writing, and shall be signed by the testator, which signature shall be made by the testator, or the making thereof acknowl- edged by him, and such writing declared to be his last will, in presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator. Ibid. p. 5867, § 24. If it appears from the rec- ord of a foreign will that it was executed according to the laws of this state, and an exemplified copy with the letters be filed in the office of the surrogate, the will and letters have the same effect as if issued in this state. P. L,. 1912, p. 320. A copy of a foreign will may be recorded to make title to lands in this state, on recording an exemplified copy of the record of the will with the certificate of probate and letters. P. h. 1913, p. 355; P. L. 1914, c. 241. NEW MEXICO Any person of the age of 21 years and in sound mind may dispose by will of all his property, except what is sufficient to pay his debts and what is given by law as privileged proper- ty to his wife or family. Comp. Laws 1897, § 1947. Any person capable of making a will would do better by making it in writing than verbally, but a verbal will may be valid on condition that in either case they give it all the validity pos- sible, as well as the freeness of the will, the proof of sound- ness of mind, and entire judgment. Ibid. § 1948. The will shall have all the validity required in the previous section; when made in writing it shall be signed by the testator, who, if unable or not knowing how to sign, shall request some re- liable person to sign for him, and shall be attested by two or 1308 FORM BOOK (Ch. 40 more able and qualified witnesses. Ibid. § 1949. A verbal will shall be attested by the same number of witnesses required for the written ones, and, besides, two witnesses, there being no more, possessing the same qualifications as required for the written will, to testify that the testator, male or female, was in possession of a sound mirld and entire judgment. Ibid. § 1950. The witnesses to a written will must be present, see the testator sign the will, or some one sign it for him at his request as and for his last will and testament, and must sign as wit- nesses at his request in his presence and in the presence of each other. Ibid. § 1952. Where a will has been probated accord- ing to the laws of any other state, or of any foreign country, a copy of such will and the record of probate, duly attested, etc., may be filed and recorded in the probate court of this state, and shall have the same force as the original will, if pro- bated in such court; but the validity of such will may be con- tested as in the case of original wills probated in such court. Ibid. § 2017. NEW YORK All persons, except idiots, persons of unsound mind, and in- fants, may devise their real estate by will. Consol. Laws, c. 13, § 101. Such a devise may be made to every person capable by law of holding real estate ; but no devise to a corporation is valid unless it be expressly authorized by its charter, or by statute, to take by devise, ibid. § 12. Males of 18 years and females of 16 may bequeath personal estate. Ibid. § 15. A will must be executed and attested in the following manner: (1) It must be subscribed by the testator at the end of the will; (2) such subscription must be made by the testator in the presence of each of the attesting witnesses, or acknowl- edged by him to have been so made to each of the attesting witnesses; (3) the testator at the time of making such sub- scription or of acknowledging the same must declare the in- strument so subscribed to 'be his last will and testament; (4) there must be at least two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the request of the testator. Ibid. § 21. The witnesses must write opposite to their names their respective places of resi- dence; and every person who signs the testator's name to a will by his direction must write his own name as a witness to the will. Such omission does not affect the validity of any Ch. 40) WILLS 1309 will, but subjects the witness to a penalty of $50. Ibid. § 22. A will of real or personal property executed as prescribed by the laws of the state, or of personal property executed without the state and within the United States, the Dominion of Cana- da, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the state or country where executed, or a will of personal property executed by a person not a resident of the state, according to the laws of the testator's residence, may be admitted to probate in this state. Ibid. § 23. NORTH CAROLINA No person can make a will until he has attained the age of 21 years. Rev. 1908, § 3111. A married woman owning real or personal property may dispose of the same by will. Ibid. § 3112. No will is good or sufficient unless written in the tes- tator's lifetime, and signed by him, or by some other person in his presence and by his direction, and subscribed in his presence by two disinterested witnesses at least, or unless the will be found among the valuable papers and effects of the de- ceased, or shall have been lodged in the hands of some person for safekeeping, and be in the handwriting of the deceased, .with his name subscribed or inserted in some part of the will, and if the handwriting be proved by three credible wit- nesses who verily believe such will and every part thereof is in the handwriting of the person whose will it appears to be. Ibid. § 3113. When a will made by a citizen or subject of an- other state or country is there duly proved and allowed accord- ing to its laws, an authenticated copy may be allowed, filed, and recorded ; but a will disposing of real estate in this state must be executed according to the law of this state. Ibid. § 3133. NORTH DAKOTA Every person over 18 years and of sound mind may by will dispose of all his estate, real and personal. Comp. Laws 1913, § 5640. A married woman may dispose of all her sep- arate estate by will without consent of her husband as if single. Her will must be executed and proved as other wills. Ibid. § 5641. An olographic will is one entirely written, dated and signed by the hand of the testator himself, is subject to no other form, may be made in or out of this state, and need not 1310 FOEM BOOK (Ch. 40 be witnessed. Ibid. § 5648. Every will, other than nuncupa- tive, must be in writing ; and every v/ill, other than olographic and nuncupative, must be executed and attested as follows: (1) It must be subscribed at the end by the testator himself, or some person in his presence and by his direction must subscribe his name thereto; (2) the subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority ; (3) the testator must at the time of subscribing or acknowledg- ing the same declare to the attesting witnesses that the instru- ment is his will ; and (4) there must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will at the testator's request and in his presence. Ibid. § 5649. A witness must write with his name his place of resi- dence ; and a person who subscribes a testator's name by his direction must write his own name as a witness to the will. But a violation of this section does not affect the validity of the will. Ibid. § 5651. A will made out of this state by a person not having his domicile in this state is as valid when executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, as if made in this state and according to the provisions of this chapter. Ibid. § 5653, OHIO A person of full age and of sound mind and memory, and not under restraint, may dispose of his property by will. Gen. Code 1910, § 10503. A will must be in writing, but may be handwritten or typewritten. It must be signed at the end by the party making it, or by some other person in his presence and by his express direction, and attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge it. Ibid. § 10505. A will executed, proved, and allowed in another state, or a foreign country, according to its laws, may be al- lowed and admitted to record in this state, and then has the same validity as a will made in this state according to its laws. Ibid. §§ 10535, 10537. Gifts to a benevolent, religious, educational, or charitable purpose, or to a municipal or other corporation or association, or to a person in trust for such purposes, corporations, or associations, whether such trust ap- pears on the face of the instrument or not, are invalid, un- Ch. 40) WILL8 1311 less the will be executed at least one year prior to the death of the testator. Ibid. § 10504. OKLAHOMA Every person over 18 years and of sound mind may make a will. Rev. Laws 1910, § 8338. A married woman may dis- pose of her separate estate without the consent of her hus- band, by will executed and proved as other wills. Ibid. § 8339. Neither spouse may bequeath more than two-thirds of his or her property away from the other. Ibid. § 8341. An olographic will is one entirely written, dated, and signed by the hand of the testator himself, is subject to no other form, may be made in or out of this state, and need not be witnessed. Ibid. § 8347. Ever)' will, other than nuncupative, must be in writing; and every will, other than olographic and nuncupative, must be executed and attested as follows: (1) It must be subscribed at the end by the testator himself, or some person in his presence and by his direction must sub- scribe his name thereto ; (2) the subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his au- thority ; (3) the testator must at the time of subscribing or ac- knowledging the same declare to the attesting witnesses that the instrument is his will ; and (4) there must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will at the testator's request and in his presence. Ibid. § 8348. A witness to a will must write, with his name, his place of residence, and a person who subscribes the testator's name, by his direction, must write his own name as a witness to the will ; but a violation of this section does not affect the vahdity of the will. Ibid. § 8349. A will made out of this state by a person not having his domicile therein is as valid when executed according to the law of the place in which it was made, or in which the testator was at the time domiciled, as if made in this state -and according to the provisions of this article. Ibid. § 8351. OREGON Every person of 21 years and sound mind may by will devise all his estate, real and personal, saving to the widow her dower. Lord's Ore. Laws 1910, § 7316. Every person over 18 years and of sound mind may by will dispose of his goods and chat- 1312 FOEM BOOK (Ch.40 tels. Ibid. § 7317. A married woman may by will dispose of any real estate held in her own right, subject to any rights which her husband may have as tenant by the curtesy. Ibid. § 7318. Every will shall be in writing, signed by the testator, or by some other person under his direction, in his presence, and shall be attested by two or more competent witnesses, sub- scribing their names to the will, in the presence of the testator. Ibid. § 7319. Every person who shall sign the testator's name to a will by his direction shall subscribe his own name as a witness to such will, and state that he subscribed the testator's name at his request. Ibid. § 7320. Any person not an in- habitant of, but owning property, real or personal, in, this state may devise or bequeath it by will executed (if real estate be devised) according to the laws of this state, or (if personal property be bequeathed) according to the laws of this state or of the country, state, or territory in which the will may be executed. Ibid. § 7332. PENNSYLVANIA Every person of sound mind and of the age of 21 years may make a will. Purd. Pa. Dig. (13th Ed.) p. 5109, § 1, p. 5119, §§ 2, 3, p. 5120, § 4. A will must be in writing, and, unless the person making the same be prevented by the extremity of his last sickness, must be signed by him at the end thereof or by some person in his presence, and by his express direction, and in all cases must be proved by the oaths or affirmations of two or more competent witnesses. Ibid. p. 5120, § 6. No es- tate may be bequeathed or devised to any body politic, or to any person in trust, for religious or charitable uses, except by will attested by two credible, and at the time disinterested, wit- nesses, at least one calendar month before the decease of the testator; a disinterested witness being one not interested in such religious or charitable use, this act not being intended to apply to a witness interested in some other devise, or bequest. Purd. Pa. Dig. Supp. 1912, p. 697, § 1. RHODE ISLAND A person of 18 years may dispose of personal estate, and a person of 21 years may dispose of real estate by will. Gen. Laws 1909, c. 254, § 5. A will must be in writing and signed by the testator, or by some other person for him in his presence Ch. 40) WILLS 1313 and by his express direction ; and such signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who attest and subscribe the will in the presence of the testator. Ibid. § 13. A will of real or personal property, or both, executed without the state and within the United States in the mode prescribed by the laws of the place where executed or in which the testator was then domiciled, and a will of personal property, executed in any other country according to its laws is legally executed. Ibid. §36. SOUTH CAROLINA Any person having right or title to lands (persons of unsound mind and infants excepted) may dispose thereof by will, ex- cept as hereinafter provided ; but all wills of lands by any per- son within the age of 21 years, idiot, or by any person de non sane memory, shall not be taken to be good and effectual in law. Code of Laws 1912, § 3563. All wills of real and personal property must be in writing, signed by the party so devising the same, or by some other person in his presence and by his express directions, and attested and subscribed in the presence of the said devisor, and of each other, by three or more credible witnesses. Ibid. § 3564. If a will be regularly proved in any foreign court, an exemplification of such will may be admitted to probate in this state, and shall also be evidence of the devise of lands in this state : Provided, that if the will be not proved in solemn form, the parties interested against the will shall not be concluded by such probate, but may examine witnesses as to the sanity of the testator, or as to any fraud or imposition prac- ticed upon him in obtaining the will ; and the other side may, apply for an order to perpetuate testimony in support of the will. Ibid. § 3583. SOUTH DAKOTA Every person over the age of 18 years and of sound mind may dispose of his estate, real and personal, by will. Civ. Code 1913, § 998. A married woman may, without the consent of her husband, dispose of her separate estate by will, executed and proved as other wills. Ibid. § 999. An olographic will is one entirely written, dated, and signed by the hand of the testator himself, is subject to no other form, may be made in or out of this state, and need not be witnessed. Every will, TiFF.FOKMS 83 1314 FORM BOOK (Ch. 40 other than nuncupative, must be in writing, and every will, other than olographic and a nuncupative, must be executed and attested as follows : (1) It must be subscribed at the end there- of by the testator himself, or some person, in his presence and by his direction, must subscribe his name thereto; (2) the subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority ; (3) the testator must at the time of subscribing or acknowledging the same declare to the attesting witnesses that the instrument is his will; and (4) there must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will, at the testa- tor's request, and in his presence. Ibid. § 1006. A will of real or personal property, or both, made out of this state by a per- son not having his domicile in this state, is as valid, when exe- cuted according to the law of the place in which the same was made or in which the testator was at the time domiciled, as if it were made in this state and according to the provisions of this chapter. Ibid. § 1010. TENNESSEE No will shall be good or sufficient to convey or give an estate in lands unless written in the testator's lifetime, and signed by him, or by some other person in his presence and by his di- rection, and subscribed in his presence by two witnesses at least, neither of whom is interested in the devise of said lands. Code 1896, § 3895. But a paper writing appearing to be the will of a deceased person, written by him, having his name subscribed to it or inserted in some part of it, and found after his death among his valuable papers, or lodged in the hands of another for safekeeping, shall be good and sufficient to give and convey lands, if the handwriting is generally known by his acquaintances, and it is proved by at least three credible wit- nesses that they verily believe the writing and every part of it to be in his hand. Ibid. § 3896. A married woman may dis- pose of any estate in the execution of a special power to that effect by will in writing, subscribed by herself, or by some other person in her presence and by her direction ; and the subscrip- tion shall be made or the will acknowledged by her in the pres- ence of at least two witnesses subscribing the will with their names in the presence of the testatrix. Ibid. § 3901. Wills Ch. 40) WILLS 1315 executed in other states, or in any of the territories, or in the District of Columbia, shall be proved according to the laws of this state, and certified in the manner prescribed by the act of congress. Ibid. § 3914. TEXAS Every person aged 21 years and of sound mind may make a will. Rev. St. 1911, art. 7855. A will must be in writing and signed by the testator or by some other person by his direction and in his presence, and must, if not wholly written by himself, be attested by two or more credible witnesses above the age of 14 years, subscribing their names thereto in the presence of the testator. Ibid. art. 7857. Where the will is wholly written by the testator, the attestation of the subscribing witnesses may be dispensed with. Ibid. art. 7858. When a will disposing of land in this state has been duly probated according to the laws of any of the United States or territories, a copy thereof and its probate, attested and certified in the manner prescribed, may be filed and recorded in the register of deeds in any coun- ty in which said real estate is situated, in the same manner as deeds and conveyances are required to be recorded, arid with- out further proof or authentication : 'Provided, that, at any time within four years from the date of such record, the validity of such will may be contested in a proceeding instituted for that purpose, as the original might have been. Such will and probate, delivered to the clerk of the proper court to be re- corded, shall take effect and be valid and effectual as a deed of conveyance of said property; and the record thereof has the same force and effect as the record of deeds or other convey- ances to land from the time when such instrument was deliv- ered to such clerk to be recorded, and from that time only. Ibid. arts. 7875-7878. UTAH Every person over the age of 18 years and of sound mind may by will dispose of all his estate, real and personal : Pro- vided, that a man may not devise away from his wife more than two-thirds in value of his real property without her con- sent in writing. Comp. Laws 1907, § 2731. A married woman may, without the consent of her husband, dispose of her separate estate by will, executed and proved as other wills. Ibid. 8 2733. 1316 FOEM BOOK (Ch. 40 Every will, other than nuncupative, must be in writing, and every will, other than olographic or nuncupative, must be exe- cuted and attested as follows: (1) It must be subscribed at the end thereof by the testator himself; (2) the subscription must be made in the presence of the attesting witnesses ; (3) the testator must at the time of subscribing the same declare to the attesting witnesses that the instrument is his will; and (4) there must be two attesting witnesses, each of whom must sign ' his name as a witness at the end of the will, at the testator's re- quest, in his presence, and in the presence of the other. Ibid. § 2735. An olographic will is one entirely written, dated, and signed by the hand of the testator himself, is subject to no other form, may be made in or out of this state, and need not be wit- nessed. Such wills may be proved in the same manner as other private writings. Ibid. § 2736. A witness to a written will must write, with his name, his place of residence ; but a viola- tion of this section does not affect the validity of the will. Ibid. § 2737. A will of real or personal property, or both, made out of this state by a person not having his domicile in this state, is as valid when executed according to the law of tlie place in • which it was made, or in which the testator was at the time domiciled, as if made in this state and according to the provi- sions of this chapter. Ibid. § 2744. A testamentary disposition may be made to any person ca- pable by law of taking the property disposed of ; but corpora- tions other than those formed for scientific, literary, religious, charitable, benevolent, or solely educational purposes cannot take under a will, unless expressly authorized by statute. Ibid. § 2734. VERMONT Every person (including married women) of age and sound mind may dispose of his estate, real and personal, by will. Pub. St. 1906, § 2731. A will must be in writing and signed by the testator, or by the testator's name written by some other person in his presence and by his express direction, and attest- ed and subscribed by three or more credible witnesses, in the presence of the testator and of each other. Ibid. § 2734. A will made out of the state which might be proved and allowed by the laws of the state or country in which it was made may be proved, allowed, and recorded in this state, and then has the same effect as if executed according to the laws of this state. Ibid. § 2750. Wills proved and allowed in any other Ch. 40) WILLS 1817 of the United States, or in a foreign state or country, according to its laws, may be allowed, filed and recorded in the probate court of a district in which the testator has real or personal estate on which such will may operate. Ibid. § 2751. VIRGINIA Every one not of unsound mind or under 21 years may make a will, and a minor of 18 may make a will of personalty. Code 1904, § 2513. The will must be in writing and signed by the testator or some one in his presence and by his direc- tion in such manner as to make it manifest that it was in- tended as a signature, and unless wholly written by the tes- tator, the signature must be made or the will acknowledged by him in the presence of at least two competent witnesses present at the same time, who subscribe the will in the pres- ence of the testator; but no form of attestation is neces- sary. Ibid. § 2514. The will of a person domiciled out of the state at his death is valid as to personal property therein if executed according to the laws of the state or country in which he was so domiciled. Ibid. § 2516, WASHINGTON Every male over 21 years, and every female over 18, of sound mind, may by will devise his or her real or personal estate. Rem. & Bal. Codes 1910, § 1319. The will must be in writing signed by the testator or by some person under his direction, and be attested by two or more competent witnesses, subscribing their names in the presence of the testator. Ibid. § 1320. A will executed out of the state is valid, if executed in the mode prescribed by the law of the place of execution or of the testator's domicile. Laws 1911, p. 9. WEST VIRGINIA No person of unsound mind or under the age of 21 years may make a will, except that minors of 18 may by will dispose of personal estate. Code 1913, § 3867. A will must be in writ- ing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and, un- 1318 FORM BOOK (Ch. 40 less it be wholly written by the testator, the signature must be made or the will acknowledged by him in the presence of at least two competent witnesses present at the same time, who must subscribe the will in the presence of the testator and of each other. Ibid. § 3868. WISCONSIN Persons of full age and married women of 18 may make wills. St. 1911, § 2277. The will must be in writing and signed by the testator or by some person in his presence and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses in the presence of each other. Ibid. § 2282. When a will devising real estate has been duly proved and allowed in a proper court in any of the states or territories, a copy of such will and pro- bate duly authenticated may be recorded in the office of the proper register of deeds, and is then effectual to pass the title to the real estate. Ibid. § 2295. WYOMING Any person of full age and sound mind may dispose by will of his property. Comp. St. 1910, § 5394. A married woman may make a will as though she were sole. Ibid. § 3911. A will must be in writing or typewritten, witnessed by two competent witnesses, and signed by the testator or by some person in his presence and by his express direction. Ibid. § 5397. An olographic will may be proved in the same manner that other private writings are proved. Ibid. § 5419. Wills duly proved and allowed in any other of the United States or in any foreign country or state may be allowed and recorded in the district court of any county in which the testator left any es- tate. Ibid. §§ 5420, 5422. I Wills Pago 1. Will giving entire estate to wife and appointing her execu- trix and guardian 1322 2. Will giving dwelling house and contents to wife, legacies to wife and children, and residue to wife and children. . . 1323 3. Will giving legacies and devise of dwelling house, and resi- due in trust with income to wife and remainder to chil- dren, etc 1323 Ch. 40) WILLS 1319 Page 4. Will giving property in trust for wife for life and there- after subject to her appointment to children and issue of deceased children — Power of trustees to retain invest- ments 1328 5. Will giving entire estate to wife, and if she does not survive testator to children and issue of deceased children — Mi- nors' shares in trust 1330 6. Will giving business to son and residue to wife if surviv- ing ; otherwise to son and issue 1331 7. Will giving legacies, dwelling house, and annuity to wife, and residue to individuals 1332 8. Will with various specific and pecuniary legacies, devise of dwelling house to wife for life and remainder to daughter, and residue in trust for wife and children, with power in trustees to carry on testator's business 1336 9. Will of widower, making bequests to son and married daughter, releasing mortgage debt, giving residue in trust, to permit two daughters to occupy house and enjoy income during spinsterhood, with discretion to apply income for married daughters, and remainder to testa- tor's children and issue 1341 10. Will of married woman exercising power of appointment contained in her father's will in favor of her husband for life, and, if she has no children or issue, in favor of her husband absolutely, and, subject thereto, in favor of her children and issue absolutely, and in default of issue in favor of next of kin 1345 II CoDiciLa 11. Codicil substituting trustee and executor, revoking legacy and devise, and giving devised premises in trust 1347 12. Codicil revoking settlement of property in favor of sister, and giving the same to a niece on the same trusts by reference 1348 13. Second codicil, increasing legacy to wife, giving lapsed legacy to children and grandchildren of original legatee, and revoking another legacy 1348 III Miscellaneous Clauses f (I) Preliminary Clauses 14. Commencement of will 1349 15. Commencement of concurrent will 1349 16. Direction as to burial 1350 1320 FORM BOOK (Ch. 40 (II) Appointment of Executors, Trustees, and Guardians Page 17. Appointment of executors 1350 18. Exemption from bond 1350 19. Appointment of trustees with provision for substitution in case of vacancy 1350 20. Appointment of executors and trustees 1351 21. Appointment of guardian 1351 (III) Specific Bequests 22. Bequest of furniture and effects in house 1351 23. Bequest of household and personal effects to daughters. . . 1352 24. Bequest of household and personal effects to daughters con- tingently on their attaining twenty-one years or marrying 1352 25. Bequest to daughter of effects in her rooms 1352 26. Bequest of household and personal effects to wife 1352 27. Bequest to wife of such personal and household effects as she may select and residue to daughters 1353 28. Bequest of household and personal effects to wife for life or vndowhood, and thereafter to children 1353 29. Bequest of farming stock 1354 30. Bequest of ready money 1354 31. Bequest of library 1354 32. Bequest of letters and papers 1354 33. Bequest of sporting implements 1354 34. Bequest of debt 1355 35. Release of debts 1355 (IV) Specific Devises 36. Devise of all real estate 1355 37. Devise of described real estate 1355 38. Devise to joint tenants or tenants in common 1355 39. Devise to hospital 1356 40. Devise with provisions against lapse 1356 41. Same — Another form 1350 42. Devise to person with gift over on death without issue. . . . 1356 43. Devise to testator's children and issue of deceased children 1356 44. Devise to testator's sons with successive gifts over if they predecease him 1357 45. Devise to testator's children and grandchildren attaining twenty-one years per stirpes 1357 46. Devise subject to payment of debts, legacies, etc 1358 47. Devise subject to mortgage 1358 48. Devise in exercise of special power of appointment 1358 Ch. 40) WILLS 1321 (Y) General Legacies Page 49. Legacy with provision against lapse 1359 50. Legacy to daughters of friend and the children of deceased daughters 1359 51. Legacy contingent on attaining twenty-one years or mar- rying 1359 52. Legacy to children and an illegitimate child 1360 53. Gift to charitable institutions of one year's subscription . . . 1360 54. Legacies to executors 1361 55. Declaration as to time of payment and priority of legacies, and payment free from inheritance tax 1361 (VI) Gifts of Residue 56. Devise and bequest of residue to individual 1361 57. Bequest of residuary personal estate 1362 58. Devise of residuary real estate 1362 (VII) Gifts in Trust 59. Trust of Income for vnfe during widowhood subject to obli- gation to maintain children 1362 60. Trust of income to daughters with power of disposition to survivor 1362 61. Trust of personalty for sons at twenty-one and daughters at that age or previous marriage 1363 62. Trust of personalty for children and issue of deceased chil- dren of testator, living at his death, at twenty-one 1363 63. Trust of personalty for children and grandchildren in un- equal shares 1363 64. Trust of personalty for wife and children equally 1364 65. Trust of personalty for brothers and sisters and children of deceased brothers and sisters 1364 66. Trust of personalty for two as tenants in common on attain- ing twenty-one, with gift over on death of either to the other 1364 67. Declaration against lapse of share of residue 1365 68. Trust for imbecile son 1365 69. Gift of annuity to trustee in trust for a person of unsound mind 1365 70. Gift of an annuity in trust for a spendthrift and his wife and children 1366 (VIII) Powers of Trustees and Other Trustee Glauses 71. Power as to investments 1367 72. Power to trustees to sell or mortgage for payment of in- cumbrances 1367 1322 FORM BOOK (Ch.40 Page 73. Power to trustees to purchase trust property 1368 74. Power to trustees to appropriate and partition 1368 75. Power to trustees to delegate trusts with regard to proper- ty outside of state 1368 76. Power to trustees to employ agents 1369 77. Employment of trustee as lawyer or In other professional capacity 1369 78. Power to trustees to act on opinion of counsel. 1369 79. Direction that opinion of majority of trustees shall prevail 1370 80. Maintenance of minor children out of common fund 1370 81. Advancements to testator's children 1371 82. Devolution of powers of trustees 1371 83! Power to appoint new trustees 1372 84. Power to appoint additional or separate trustees 1372 85. Trustees' indemnity clause 1373 (IX) Powers of Executors 86. Power to executors to sell real and personal estate 1373 87. Power to executors to mortgage 1373 88. Power to executors to defer calling in debts 1374 89. Power to executors to postpone payment of legacies 1374 90. Power to executors to arrange and compromise 1374 91. Power to executors to carry on testator's business 1375 92. Power to executors to wind up and sell testator's partner- ship business : 1375 (X) Testi/monium Clauses 1376 (XI) Attestation Clauses 1376 Wills 1. Will Giving Entire Estate to Wife and Appointing Her Executrix and Guardian I, , of , declare this to be my last will, hereby revoking all former wills made by me : I devise and bequeath all my real and personal estate what- soever and wheresoever to my wife, , absolutely. And I appoint her sole executrix of this my will and guardian of my minor children. In witness, etc. Ch. 40) WILLS 1323 2. Will Giving Dwelling House and Contents to Wife, Leg- acies to Wife and Children, and Residue to Wife and Children I, , of , declare this to be my last will and tes- tament : 1. [Dwelling house and contents to wiee.] I devise and bequeath unto my wife, , my dwelling house and premises at , together with all the contents thereof, ex- cept moneys, securities for money, and other legal instruments. 2. [Legacy to wiEE.] I bequeath to my said wife the sum of dollars, to be paid to her as soon as may be after my death, with interest at the rate of per cent, per an- num from my death. 3. [Pecuniary legacies to children.] I bequeath to my son, , the sum of dollars ; and to my daughter, , the sum of dollars. 4. [Residue to wife and children.] All the rest and residue of my estate real and personal I devise and bequeath as follows: One-half thereof to my said wife; one-fourth thereof to my said son; and one-fourth thereof to my said daughter. 5. [Appointment oE executor.] I appoint my said son to be executor of this my will. In witness, etc. 3. Will Giving Legacies and Devise of Dwelling House, and Residue in Trust with Income to Wife and Remainder to Children, Etc. Ij , of , hereby revoke all former wills and cod- icils made by me, and declare this to be my last will : 1. [Bequest of household and personal articles to wife.] I bequeath to my wife, , all my household fur- 1324 FORM BOOK (Ch. 40 niture and stores, plate, china, linen, books, pictures, and arti- cles of domestic or personal use or adornment. 2. [Pecuniary legacies.] I bequeath the following pecu- niary legacies : (a) To my said wife the sum of $ , to be paid to her within months {or, so soon as conveniently may be) after my death and in priority to all other legacies hereby bequeathed (such legacy to bear interest at the rate of per cent, per annum from and after my decease). (b) To my sister the sum of $ . (c) To my niece the sum of $- 3. [Devise of dwelling house to wiee.] I devise to my said wife absolutely my dwelling house situate on street, in , but if my said wife shall die in my lifetime the same shall go to my trustees hereinafter named as part of my residuary estate. 4. [Inheritance tax.] I direct that all the legacies and bequests and the devise hereinbefore made shall be free of all legacy duties and inheritance or other taxes. 5. [Residue in trust.] I devise and bequeath all the rest and residue of my estate real and personal whatsoever and wheresoever unto my trustees, hereinafter named and desig- nated, to have and to hold the same upon the trusts herein- after set forth. 6. [Trustees to convert and invest.] I direct my trus- tees, within such period as in their discretion they may deem best to sell, collect, and convert into money all such parts of the said rest and residue of my estate as shall not consist of investments of the nature hereinafter authorized, and to in- vest the proceeds of such collection and conversion in manner hereinafter authorized, and to stand possessed of such invest- ments and of such parts of the said rest and residue of my ■estate as shall at my death consist of such investments, all of Ch. 40) WILLS 1325 which estate and investments are hereinafter called the trust fund, upon the trusts hereinafter set forth. 7. [Income to wife.] I direct my trustees to pay the in- come of the trust fund to my said wife during her life (or, widowhood). 8. [Capital for sons at twenty-one and daughters at TWENTY-ONE or MARRIAGE.] After the death (or remarriage) of my said wife (whichever shall first happen) I direct my trustees to hold the trust fund as to both capital and income for all and every of my children or my child, if only one, who, being sons or a son, have attained or shall attain the age of twenty-one years, or, being daughters or a daughter, shall have attained or shall attain that age or previously marry, and, if more than one, in equal shares : [Substitution of issue of deceased child.] Provided, nevertheless, that in case any child of mine shall have died in my lifetime (or, before the period of distribution) leaving issue living at my death (or, at the period of distribution), such issue shall stand in the place of and take per stirpes, and not per capita, the share of the trust fund which such deceased child would have taken if he or she had survived me (or, been living at the period of distribution) : [Maintenance clause.] Provided, further, that I empow- er my trustees during the minority or minority and spinster- hood, as the case may be, of any such child or issue of any such deceased child of mine to apply the whole or any such part as my trustees shall think fit of the income of the ex- pectant share of such child or issue for or towards his or her maintenance or education, or to pay the same to his or her guardian or guardians for the purposes aforesaid without see- ing to the application thereof ; and in such case I direct that the surplus income shall be accumulated, and such accumula- tion shall be added to the original share and devolve therewith, 1326 FORM BOOK (Ch.40 but shall always be liable to be applied for the purposes afore- said as if the same were income accruing in the then current year. 9. [In default of issue, gift to brothers and sisters.] In the event of no child of mine or issue of a deceased child of mine attaining a vested interest under the trusts hereinbe- fore contained, I direct that from and after the death of my wife the trust fund shall be divided and paid over and trans- ferred to and among my brothers and sisters living at my death in equal shares: Provided, that in case any such brother or sister shall have died in my lifetime leaving issue living at my death, such issue shall stand in the place of such deceased brother or sister and take per stirpes, and not per capita, the share of the trust fund which such deceased brother or sister would have taken if he or she had survived me. 10. [Investment clause.] I direct that any moneys liable to be invested by my trustees may be invested in their names, in any investment sanctioned by law for the investment of trust funds, and, in addition thereto, in any of the following forms of investment, with liberty to vary and transpose the same from time to time, namely : Mortgages of improved real estate situate in the state of ; the bonds of any city of inhabitants regularly paying its interest in any of the follow- ing states ; the first mortgage bonds of any such rail- road corporation in the United States as shall have been built twenty years and shall have paid dividends on all its stock at the rate of not less than five per cent, per annum for a period of five consecutive years immediately preceding the date of the investment ; {or, the bonds, debentures and preferred stock of any (railroad) corporation carrying on business in the Unit- ed States which shall for a period of five consecutive years immediately preceding the date of the investment have paid in full the interest or dividend on the bonds, debentures, or Ch. 40) WILLS 1327 stock on which a fixed rate of dividend is payable standing in order of priority next after that in which the investment is made, or if such stock standing next in priority as aforesaid shall not bear a fixed rate of dividend shall for the said period have paid dividends at the rate of five per cent, per annum at least on such last-mentioned stock.) 11. [Indemnity clause.] I declare that each of my trus- tees shall be liable for his own receipts, payments, and willful defaults, and for nothing else, and that no one shall be liable for the other. 12. [Power oe trustees to sell, mortgage, pledge, or LEASE.] I hereby authorize and empower my trustees to sell at public or private sale (mortgage, pledge) or lease, any por- tion or the whole of the estate real or personal which they may hold under the trusts hereby created, and to execute and deliver good and sufficient deeds and other instruments to con- vey and transfer the same or for any such purpose. And whenever it shall become necessary to make a final distribution of any property held under the said trusts, my trustees shall have like authority for the purpose of such distribution to sell and convert into money the whole or any portion of such property, whether real or personal. And upon all sales by my trustees the purchasers shall not be bound to see to the ap- plication of the purchase money. 13. [Appointment oe trustees — ^Exemption erom bond.] I appoint and to be trustees of this my will; and I direct that my trustees shall be exempt from giving any official bond. 14. [New trustees.] I declare that the number of my trustees shall be kept up to two, and that whenever a vacancy shall occur such vacancy shall be filled in the manner provided by law ; but during her life my said wife shall have the power of appointing a new trustee or new trustees. 1328 FOKM BOOK (Ch.40 15. [Meaning oif "my trustees."] I declare that in the interpretation of this my will the expression "my trustees" shall, where the context permits, mean and include the trustees or trustee for the time being hereof, whether original or sub- stituted. 16. [Appointment of Executors — Exemption from BOND.] I appoint and to be executors of this my will, and I direct that they shall be exempt from giving any afHcial bond. 17. [Executors' Power to sell.] I authorize and em- power the executors at any time acting hereunder, whenever in the settlement of my estate they shall deem it advisable, to sell at private or public sale the whole or any part of my es- tate real or personal, and to execute good and sufficient deeds or other instruments of transfer. And no purchaser at any such sale shall be bound to see to the application of the pur- chase money. In witness, etc. 4. Will Giving Property in Trust for Wife for Life and Thereafter Subject to Her Appointment to Children and Issue of Deceased Children — Power of Trustees to Retain Investments I, , of , do make this my last will and testa- ment: 1. [Debts and Euner-m, expenses.] I direct my executors to pay all my just debts and funeral expenses as soon as may be after my decease. 2. [Household and personal articles to wiee.] I give to my wife absolutely all articles of household, domes- tic, or personal use or adornment belonging to me. 3. [Residue in trust for wife for life with gift over subject to her appointment to children and issue.] I de- Gh. 40) WILLS 1329 vise and bequeath all the residue of my estate, real and person- al, which is hereinafter called the trust estate, unto my said wife and my friend , who and the survivor of whom and all other the trustees or trustee for the time being hereof are hereinafter referred to as "my trustees," to hold the same upon the trusts following, namely : To pay the income thereof to my said wife for her life; and after her death to pay and divide the capital and income of the trust estate among my children and issue in such shares and subject to such powers and provisions as my said wife shall by deed or will appoint ; and in default of any such appointment and so far as any such appointment may not extend to pay and divide the same among my children living at my death and the issue then living of any then deceased child of mine, in equal shares, but so that the is- sue of any such deceased child of mine shall take per stirpes only such share as such child of mine would have taken if then living. 4. [Power of trustees to retain or sell — ^Very broad DISCRETION AS TO INVESTMENTS.] I authorize and empower my trustees to retain the whole or any part of the said residue of my estate in the securities, stocks, or other property in which it may be invested at the time of my death- or to sell the whole or any part thereof and to invest and reinvest the pro- ceeds. And I declare that in making investments my trustees shall not be bound to such securities and property only as are sanctioned by law for the investment of trust funds, but they may in their discretion invest in other securities and property deemed by them to be safe. 5. [Appointment oe executors.] I appoint my said wife and the said to be the executors of this my will. In witness, etc. TiFF.FOKMS— 84 1330 FORM BOOK (Ch.40 5. Will Giving Entire Estate to Wife, and If She Does Not Survive Testator to Children and Issue of De- ceased Children — Minors' Shares in Trust I, — , of , do make this my last will, hereby re- voking all wills and testamentary dispositions heretofore made by me: 1. [Whole estate to wiee ie she survive testator.] I give, devise, and bequeath all my estate whatsoever and where- soever, both real and personal, to which I may be entitled or which I may have power to dispose of at my death, unto my wife, , absolutely, if she shall be living at my death. 2.. [If WIEE DO NOT SURVIVE, TO CHII,DREN AND ISSUE OF DE- CEASED CHILDREN BEING oE FULL AGE.] In the event that my said wife shall not survive me, then I give, devise, and bequeath all my said estate to my children in equal shares; but in case either or any of them shall have died in my lifetime leaving is- sue living at my death, such issue shall take by representation and per stirpes between them the share Which his or her parent would have taken had such parent survived me: Provided, however, that this article shall not be operative in favor of any such person who shall not at my death have attained his or her legal majority. 3. [Shares of minors in trust.] In the event that any person who would otherwise have been entitled under the pre- ceding article to a share of my estate shall not at my death have attained his or her legal majority, then I give, devise, and bequeath, the share to which such person would have been so otherwise entitled unto , of , and r, of , hereinafter called my trustees, in trust to collect and receive the rents, profits, and income of such share, hereinaft- er called the trust fund, and to pay the net income thereof to the guardian of such person during his or her minority, and. Ch. 40) WILLS 1331 when such person shall have attained his or her legal major- ity, to pay over and transfer to Jiim or her absolutely the cor- pus or capital of his or her share, but in the event that such person shall die without having attained his or her legal ma- jority, to divide, pay over, and transfer the said corpus or cap- ital to the persons or person who would under the laws of the state of be entitled to his or her personal estate in case of his or her intestacy. 4. [Investment clause.] {See form No. 3, cl. 10, p. 1326.) 5. [Trustees' indemnity.] {See Form No. 3, cl. 11, p. 1327.) 6. [Power OE TRUSTEES TO SELL, ETC.] {See Perm No. 3, d. 12, p. 1327.) 7. [Appointment oe executors, etc.] I appoint my said wife as executrix of this my will, and if she shall not survive me, then I appoint as executors the persons who are above named as trustees ; and I direct that no bond shall be required of her or them. {Add executor's power of sale, if desired. See Form No. 3, cl. 17, p. 1328.) In witness, etc. 6. Will Giving Business to Son and Residue to Wife if Surviving; Otherwise to Son and Issue I, , of , make this my last will and testament : 1. [Pecuniary legacy to wiee.] I bequeath to my wife, ■ , the sum of $ — — — . 2. [Bequest oe business and devise oe business prem- ises TO son.] I bequeath and devise unto my son , if he shall survive me, the good will of my business of a manu- facture of , at present carried on by me at , and the land, building, and premises on which the said business is carried on, described as {description) ; and I declare that this 1332 FORM BOOK (Ch. 40 gift shall include all trade-marks and letters patent, goods man- ufactured and unmanufactured, stock in trade, machinery, plant, and effects belonging to me in connection with or used for the purposes of the said business, and the benefits of all contracts subsisting in relation thereto at my death, and all book debts which shall then be owing to me in relation to the said business, and all securities for money, cash, or money at the bank to the credit of my business account; and my said son shall take over and discharge all liabilities in connection with my said business existing at the time of my death, and shall indemnify my estate against the same. 3. [Residue to wiEe, if surviving, and otherwise to son AND issue.] All the rest, residue, and remainder of my estate, real and personal, I devise and bequeath unto my said wife absolutely, if she shall survive me. If my said wife shall not survive me, then I devise and bequeath the same unto my said son absolutely, if he shall survive me ; but, if he shall not sur- vive me, then to his issue living at my death per stirpes and not per capita. 4-. [Appointment oe executors.] I appoint my said wife and my said son to be executors of this my wiil. In witness, etc. 7. Will Giving Legacies, Dwelling House and Aimuity to Wife, and Residue to Individuals I, , of , hereby revoke all former wills and cod- icils and declare this to be my last will as follows : 1. [Bequest of watch and personai, articees to son.] I bequeath to my son, , my gold watch and chain, and all my clothing and other articles of ray own personal use and adornment. 2. [Pecuniary eEgacy to wiEE.] I bequeath to my wife the sum of $ , to be paid as soon as possible. Ch. 40) WILLS 1333 3. [Legacy to son.] I bequeath to my said son the sum of $ in money or in securities to be set over to him at their market value. 4. [Bequests to servants.] I bequeath to each of the fol- lowing persons, namely, — ■ , , and , the sum of $ , provided they shall respectively remain in my em- ploy until the time of my decease. 5. [Devise oe dwelling house, freed from mortgage, and of contents, to wife; if she do not survive, to son.] I devise and bequeath unto my said wife absolutely, if she shall survive me, the house and premises now occupied by us and known as No. street, in the city of , free and discharged from all sums secured thereon by way of mort- gage or otherwise at my death, which sums I direct shall be paid out of my estate, together with the contents of the said house not hereinbefore disposed of, and excepting also any moneys, securities, or other evidences of debt or other legal instruments that may be therein at my death. In the event that my said wife shall not survive me, then I devise and be- queath the said house and premises (but subject to any sums secured thereon as aforesaid) and the said contents of the said house unto my said son. 6. [Annuity to wife.] I give to my said wife, if she shall survive me, an annuity of $ during her life, to be paid by equal quarterly installments, and to provide therefor I di- rect my executors hereinafter named to set apart, appropriate, and hold in trust for such purpose such part or parts of my estate as shall, in their opinion, be sufficient by the income thereof to pay such annuity ; and I declare that when such ap- propriation shall have been made such annuity shall be wholly charged on the investments so appropriated, hereinafter re- ferred to as "the annuity fund," in exoneration of the rest of my estate, but the capital of the annuity fund may be resorted to in case at any time the income thereof is insufficient to paj^- 1334 FOEM BOOK (Ch. 40 such annuity; and I further declare that on the cesser of the said annuity by the death of my said wife the annuity fund shall be and become a part of my residuary estate. 7. [IvEGACY IN TRUST FOR GRANDSON UNTII, Hg ATTAINS THIRTY YEARS.] I givc and bequeath to my trustees hereinaft- er named, the survivor of them and their successors, the sum of $ , to take, hold, receive, manage, invest, and reinvest the same, and to apply such part of the income thereof as they shall see fit to the education, support, and benefit of my grand- son, , until he shall attain the age of thirty years, and when he shall attain that age to pay over and transfer to him the principal fund and accumulated income thereon so held in trust. If my said grandson shall not attain the age of thirty years, my trustees shall hold the said trust fund in trust for his issue living at his death, and if there be none such then in trust for such persons as would be entitled to his personal es- tate upon his dying intestate. 8. [Inheritance taxes payabee out oi? estate.] I direct that any and all the foregoing legacies, devises, and annuity shall be clear of all legacy duties and inheritance, transfer, or other taxes, and that all such duties and taxes shall be paid out of my estate. 9. [GlET OE RESIDUE To SON, BROTHER, AND SISTER AND IS- SUE BY REPRESENTATION.] All the rest, residue of my estate real and personal, whatsoever and wheresoever, I give, devise and bequeath unto my said son, my brother, , and my sister, , equally share and share alike, and in case of the death of either or any of them before my own death, leav- ing issue living at my death, such issue shall take between them by representation and per stirpes the share which such son, brother, or sister would have taken had he or she survived me. 10. [Reeease OE DEBTS oE SON.] I release my said son from any legal liability to pay any debt which may be due or owing ■from him to me at the date of my death. €h. 40) WILLS 1335 11. [Provision for wiFB To be in lieu oif dower.] I di- rect that the foregoing provisions for my said wife be taken and accepted by her in lieu and bar of all dower and right of dower or other right in my estate. 12. [Appointment oe executors and trustees — No BOND.] I appwint my said wife and my said son to be execu- tors and trustees of this my will, and no bond shall be required of them or either of them. 13. [Power oe executors and trustees to sell.] I au- thorize and empower the executors or executor and trustees or trustee for the time being hereunder, whether original or substituted, to sell at public or private sale any portion or the whole of my estate or of the estate or estates which they may hold in trust, as the case may be, except such as I have specifi- cally bequeathed or devised to my said wife or my said son, at either private or public sale, at such times and on such terms as they shall deem best, and to execute good and sufficient deeds or other instruments of transfer. 14. [Broad power oe trustees as to intostments.] I au- thorize and empower the trustees or trustee for the time being hereunder, whether original or substituted, to retain and hold under the trusts hereby created any securities, stocks, or other property in which my estate may be invested at the time of my death, with full power to sell the same, and to invest and reinvest the proceeds in such investments other than invest- ments sanctioned by law for the investment of trust funds as they shall deem best. 15. [Provision against contest.^] If any devisee, lega- tee, or beneficiary under this my will shall contest the validity or object to the probate thereof, or attempt to vacate the same 1 A provision for forfeiture in case of contest is generally held valid, but some courts hold that the penalty will not be imposed where the contest is justified under the circumstances. 1336 FOEM BOOK (Ch. 40 or to alter or change any of the provisions thereof, such per- son shall thereby be deprived of all beneficial interest thereun- der and of any share in my estate, and the share of such person shall become a part of my residuary estate, and such person shall be excluded from taking any part of such residuary es- tate, and the same shall be divided equally among the other persons entitled to take such residuary estate. In witness, etc. 8. Will with Various Specific and Pecuniary Legacies, De- vise of Dv^elling House to Wife for Life and Remain- der to Daughter, and Residue in Trust for Wife and Children, with Power in Trustees to Carry on Testa- tor's Business I, , of , hereby revoke all former wills and codicils, and declare this to be my last will as follows : 1. [Appointment of executors and trustees and GUARDIAN.] I appoint , of , and , of , who and the survivor of whom and all other the trus- tees or trustee for the time being hereof are hereinafter re- ferred to as "my trustees," to be the executors and trustees of this, my will, and my wife, , to be guardian of my infant children; and no bond shall be required of them or either of them. 2. [Bequest oe specific legacies.] I bequeath the fol- lowing specific legacies : (1) [HoUSEHOED and personal ARTICLES To WIEE, IF LIV- ING, otherwise to CHILDREN.] I give all my household fur- niture and effects, books, pictures, works of art, musical in- struments, jewelry, clothing, and other articles of household, domestic, or personal use or adornment to my wife, , absolutely, if she shall survive me ; and otherwise I give the same to such of my children as shall survive me, if more than Ch. 40) WILLS 1337 one, in equal shares, to be divided among them in such man- ner as they {or, my executors) think fit. (2) [Ready money to wife.] I give to my said wife ab- solutely all ready money which at my death may be in or about my place of residence, and also any money which may then stand to my credit on account current at the Bank (or, at my banker's ; or, at any bank). (3) [Life insurance policy.] I give to my said wife ab- solutely the policy of insurance on my life for the sum of $ effected with the Insurance Company, dated the day of , and numbered , and all sums payable in respect thereof. (4) [Shares of stock.] I give to my niece, , ab- solutely twenty of my shares of the preferred stock of the Railway Company; and I hereby declare that, if at my death I shall not be possessed of a sufficient amount of the said stock to satisfy the above bequest, my executors shall out of my estate purchase sufficient thereof to make up the de- ficiency. 3. [Bequest of pecuniary legacies — Declaration for PAYMENT FREE OF INHERITANCE TAXES.] I bequeath the fol- lowing pecuniary legacies, which shall be free of all inheritance or other tax or duty: (1) [To WIFE — Declaration as to time of payment, pri- ority, AND interest.] I give to my wife the sum of $ , which shall be paid as soon as possible and in priority of all other legacies hereby bequeathed, and shall carry interest from the day of my death at the rate of six per cent, per annum. (2) [To son, with REDUCTION FOR SUBSEQUENT, BUT NOT PRIOR, ADVANCEMENTS.] I give to my son the sum of $ ; and I declare that any advancement which I have before the date hereof made to him shall be in addition to, and not in satisfaction of, his said legacy, but that any ad- 1338 FORM BOOK (Ch. 40 vancement which I may hereafter make to him, unless I shall in writing direct to the contrary, shall be offset and be taken to be in reduction pro tanto of the said legacy. (3) [Contingent legacy.] I give to , if he shall attain the age of twenty-one years, the sum of $ . (4) [To BROTHER SUBJECT TO DEDUCTION OE DEBTS.] I give to my brother, — ^ , the sum of $ , subject to the deduction therefrom of any sums owing by him to me at the time of my death. (5) [To COIvEEGE To EOUND FELLOWSHIP.] I give to College, for the purpose of founding a fellowship in the said college, to be known as the fellowship, the sum of $ , to be invested and the income paid or applied each year to or for the benefit of some graduate student of the said college pursuing studies therein in the higher branches of philosophy. (6) [To HOSPITAL.] I give to the Hospital the sum of $ absolutely. (7) [To EXECUTORS.] I give to each of my executors who shall prove my will the sum of $ . 4. [Devise oe dwelling house to wiee eor liee, and aeter death to daughter — direction eor repairs and INSURANCE.] I devise my dwelling house and premises {de- scription) to my wife during her life, and after her death to my daughter, , absolutely. And I direct that my wife shall during her life at her own expense keep the said house and premises in good repair and condition and insured against fire to the full value thereof to the satisfaction of my trustees. 5. [Residue in trust.] I give, devise, and bequeath all the residue of my estate real and personal unto my trustees to have and to hold the same, which is hereinafter referred to as the trust fund, upon and for the following trusts and pur- poses : •Ch. 40) WILLS 1339 (1) [iNCOMB TO wife;.] To pay the income to my said wife during her life. (2) [Capital to children with substitutionary GiifTS •TO CHILDREN.] Subject thereto in trust for all my children who, being male, have attained or shall attain majority, or, be- ing female, have attained or shall attain majority or previously marry, the share which would have belonged to any child al- ready dead or who may die before me {or, before the period of distribution) leaving issue then living to go to such issue by substitution per stirpes : [Daughters' share in trust, with power oe appoint- ment.] Provided, that the share of the trust fund of every •daughter of mine who shall survive me {or, the period of dis- tribution) shall be retained and invested by my trustees and held upon the following trusts, namely: To pay the income thereof to her during her life, and from and after her death to pay and transfer the said share to and among such person or persons as she shall by will appoint, and in default of any such appointment in trust for her statutory next of kin as if she had died intestate and such share had formed part of her personal estate. 6. [Power oe Trustees to retain investments or sell and reinvest.] I authorize and empower my trustees to hold and keep all or any part of my estate in the investments or property in which my estate may be invested at the time of my decease, with full power in their discretion at any time to call in and to sell the same or any part thereof at private or public sale, and to execute good and sufficient deeds therefor, and to invest and reinvest the same or any part thereof in such investments proper for the investment of trust funds as they may think fit. And no purchaser at any such sale shall be bound to see to the application of the purchase money. 1340 FOEM BOOK (Ch. 40 7. [Power To carry on testator's business in partner- ship OR otherwise, and introduce sons, etc.] I hereby de- clare that it shall be lawful for my trustees, if they in their sole discretion shall see fit to do so, to carry on the business of now carried on by me at (or, now carried on by me at with and , under articles of partnership dated the day of ) for such period as they may deem expedient, either alone or in partnership with any person or persons who may be a partner or partners therein, or to discontinue the same, as they may deem expedi- ent, and from time to time, and upon the expiration of the term of any partnership for the time being, to renew the same for any period determinable or otherwise as they may deem expedient, and at any time or times to vary the terms con- tained in any partnership articles, and to employ therein or withdraw therefrom any capital which may be employed there- in at my death, or to advance with or without taking security any additional capital which they may deem desirable for ef- fectually carrying on such business, and to arrange and agree for the introduction either immediately or at any future time of any person or persons as a partner or partners therein, and as to the division of the profits thereof or the payment of any sum in lieu of profits to any partner, and as to the hiring or employment of any persons therein at such salary or remunera- tion as they may think proper, and as to the extension or cur- tailment of the business thereof, and for the purposes afore- said to enter into and to execute and do all such agreements, deeds, and acts as may be necessary or expedient. 8. [Appointment oe new trustee.] I direct that the number of my trustees shall be kept up to two, and whenever any vacancy shall occur I desire the court of the county of , and state of , to fill such vacancy by the appointment of the nominee of my said wife during her life, Ch. 40) WILLS 1341 and after her death by the appointment of the nominee of the majority of the cestui que trustent under this my will who are at the time sui juris. 9. [IndBmnity clause.] {See Form No. 3, cl. 11, p. 1327.) 10. [Executors' Power to sei,i-.] {See Form No. 3, cl. 17, p. 1328.) In witness, etc. 9. Will of Widower Making Bequests to Son and Married Daughter, Releasing Mortgage Debt, Giving Residue in Trust, to Permit Two Daughters to Occupy House and Enjoy Income During Spinsterhood, with Discre- tion to Apply Income for Married Daughters, and Remainder to Testator's Children and Issue I, , of , do' make this my last will and testa- ment, hereby revoking all wills by me heretofore made : 1. [Bequest oe personal articles to son.] I bequeath to my son, , my watch and chain and clothing and all other articles of my own personal use and adornment. 2. [Legacies eree oe inheritance tax to son and mar- ried daughter, with provision eor deduction oe ad- vancements.] I bequeath the following legacies, free of all legacy duties and inheritance or other taxes : To my said son, , the sum of $ ; and to my daughter the sum of $ : Provided, that any money or other prop- erty advanced by me in my lifetime to or for the benefil of my said son or of my said daughter which may remain at the time of my death in my books of account charged against him or her shall be offset and applied in reduction pro tanto of their respective legacies. 3. [Release oe mortgage debt to married daughter.] I release to my said daughter , or to her representatives if she shall die in my lifetime, a certain debt of $ , se- 1342 FORM BOOK (Ch. 40 cured by a mortgage to me upon her house and land situate in dated the day of , or so much thereof as shall remain unpaid at the time of my death, and all in- terest thereon, ind I direct that her note for the said debt shall be cancelled and the said mortgage released of record. 4. [RESIDUE IN TRUST.] I devise and bequeath all the rest, residue, and remainder of my estate of every kind and nature whatsoever, which is hereinafter called the trust fund, unto the Trust Company, a corporation organized and ex- isting under the laws of the state of , hereinafter re- ferred to as my trustee, to have and to hold the same upon and for the trusts hereinafter se't forth. 5. [Trusted to permit unmarried daughters or DAUGHTER TO RESIDE IN DWELUNG HOUSE AND USE EURNI- TuRE, ETC. — Provisions eor sale oE house.] I direct that my trustee shall permit my daughters and , so long as they shall both live and remain unmarried, and, in the event of the death or marriage of either of them, shall permit the other, so long as she shall live and remain un- married, to reside in and occupy, or at their or her option to demise and let and receive and enjoy the rents of, my dwelling house, known as number street, in said city of , together with the lands and premises thereto attached and appertaining, and to use all the house- hold furniture and utensils, carpets, linen, plate, pictures, books, and other articles of every kind which shall at the time of my death be therein or thereon or ordinarily used in con- nection therewith, except money, securities, or other evidences of debt, and the articles hereinbefore bequeathed to my said son, without paying any rent or other compensation therefor, my trustee keeping the said premises in good order, repair, and condition, and paying all taxes and assessments thereon, and keeping the same insured against fire and other casualties in Ch. 40) WILLS 1343 such amount as my trustee shall deem proper : Provided, that my trustee may sell the said i house and premises, if requested in writing to do so by my said daughters while both of them shall remain unmarried, or, in the event of the death or mar- riage of one of them, if so requested by the other of them remaining unmarried, and that in the event of any such sale or sales my trustee shall invest the proceeds and pay the in- come thereof to my said unmarried daughters or daughter, as the case may be, so long as they or either of them shall live and remain unmarried in lieu of their or her right to reside in and occupy the said house and premises. 6. [Income of trust fund to unmarried daughters or DAUGHTER — Discretion oe trustee To apply income for MARRIED daughters.] I direct that my trustee shall, sub- ject to the foregoing provisions of article 5 hereof, pay the income of the trust fund to my said daughters and (unmarried daughters) in equal shares, so long as they shall both live and remain unmarried, and, in the event of the death or marriage of either of them, shall pay the whole in- come thereof to the other so long as she shall live and remain unmarried, in quarterly payments, or in more frequent pay- ments if my trustee shall see fit: Provided, that in the event that my said daughter (married daughter), or either of my said daughters or (unmarried daughters) who may have married, shall by reason of having become a widow or for any other cause be in the judgment of my trustee insufficiently provided for, then my trustee shall pay to such daughter or expend for her use and benefit so much of the in- come of the trust fund (not exceeding one-third of the income thereof derived from other sources than the proceeds of any sale made under the foregoing provisions of the fifth article hereof) as my trustee in the discretion of the trustee shall deem proper. 1344 FOEM BOOK (Ch. 40 7. [On death or marriage oe both unmarried daugh- ters Trustee to divide Trust fund among testator's children and issue.] My trustee shall continue to hold the trust fund so long as my said daughters and , or either of them, shall live and remain- unmarried, and no longer; and whenever there shall no longer be one of them living and unmarried, I direct that then my trustee shall di- vide, convey, transfer, and pay the property and estate which shall then comprise the trust fund, absolutely and free of trust, in equal shares, among and to my children who shall survive me, namely, my three daughters and my son above named, and their respective issue, if any one or more of my said children shall have died leaving issue who shall be then living, the is- sue of any such deceased child taking his or her share by rep- resentation and per stirpes. 8. [Power of trustee to sell and lease.] I authorize and Empower my trustee, in the trustee's discretion, at any time, to sell at private or public sale, or to lease, the whole or any part of the estate and property which may comprise the trust fund, subject, however, to the provisions of the fifth article hereof, and to execute and deliver good and sufficient instruments to convey, lease, and transfer the same. 9. [Investment clause.] {See Form No. 8, cl. 6, p. 1339.) 10. [Appointment oe executor — Exemption from BOND.] I appoint the said Trust Company to be ex- ecutor hereof, and I direct that my executor as well as my trustee above named shall be exempt from giving any official bond. {Add executors' power to sell. See Form 3, cl. 17, p. 1328.) In testimony, etc. Ch.40) WILLS 1345 10, Will of Married Woman Exercising Power of Appoint- ment Contained in Her Father's Will in Favor of Her Husband for Life, and if She Has no Children or Is- sue, in Favor of Her Husband Absolutely, and, Sub- ject Thereto, in Favor of Her Children and Issue Ab- solutely, and in Default of Issue in Favor of Next of Kin I, , of , do make this my last will, hereby re- voking all former wills and codicils made by me: 1. [Recital of power.] Whereas, by the last will of my father, , dated the day of , and proved and admitted to probate in and by the probate court of the county of , and state of , on the day of , he gave all the residue of his estate, hereinafter called the trust fund, to the trustees therein designated in trust to pay the income thereof to his wife, , during her life and from and after her death to me during my life, and from and after my death to hold the trust fund in trust for such person or persons as I should by will appoint; and whereas, the said {father's zmfe) has died. [Appointment.] Now, therefore, in the exercise of the said power of appointment and of all powers enabling me in this behalf, I hereby direct and appoint as follows : [Life interest to husband, and, if no issue, absolute- ly.] In the event of my husband surviving me the trustees for the time being of the above-recited will shall from and after my death pay the income of the trust fund to my said husband during his life, but in the event of my said husband surviving me and no child of mine or any issue of any child of mine surviving me the said trustees shall hold the trust fund in trust for my said husband absolutely. TiFF.FOEMS — 85 1346 FORM BOOK (Ch. 40 [Subject theri;to, To chii^dren and issue absolutbi^y.] In the event of any child of mine or any issue of any child of mine surviving me, then, subject alvi^ays to the said trust to pay the income to my said husband during his life if he shall survive me, the said trustees shall hold the trust fund in trust absolutely for my children living at my death in equal shares: Provided, that if any child of mine shall have died in my lifetime leaving issue living at my death, such issue shall stand in the place of such deceased child and take per stirpes the share of the trust fund which such deceased child would have taken if he or she had survived me. [In defaui^t of issu% to next of kin.] In the event of neither my said husband nor any child or issue of any child of mine shall survive me, then the said trustees shall hold the trust fund in trust for the persons or person who would be entitled under the laws of the state of to my per- sonal estate if I had died intestate. 2. [Devise and bequest oe testatrix's own property.] I devise axid bequeath all my estate real and personal (as the case may be). 3. [Appointment oe executor.] I appoint my said hus- band the sole executor of this my will ; but, if he shall not sur- vive me, I appoint as executor thereof. In witness, etc. Ch. 40) WILLS 1347 II Codicils 11. Codicil Substituting Trustee and Executor, Revoking Legacy and Devise, and Giving Devised Premises in Trust I, , of , declare this to be a codicil to my will which bears date the day of : [Recital of former appointment, legacy, and devise, AND DEATH OF APJOiNTEE, LEGATEE, AND DEVISEE.] Whereas, by my said will I appointed my wife, , to be a trustee thereunder and the sole executrix thereof, and bequeathed to her the sum of $ , and devised to her the dwelling house and premises therein described; and whereas, my said wife has since died. 1. [Revocation of appointment and substitution.] Now, I hereby revoke the appointment of my said wife as trustee and executrix of my said will, and I appoint my broth- er to be a trustee thereunder and the sole executor thereof in her place. And I declare that my said will shall be construed as if the name of my said brother were substituted therein as a trustee and as executor for the name of my said wife. 2. [Revocation of legacy and devise and devise in TRUST.] And I hereby revoke the said bequest and the said devise, and I devise the said dwelling house and premises to my trustees thereby and hereby appointed upon the same trusts as are declared in the sixth article of my said will. 3. [Confirmation of will.] In all other respects I con- firm my said will. In witness whereof I have hereunto set my hand this — ^ day of . 1348 FORM BOOK (Ch. 40 12. Codicil Revoking Settlement of Property in Favor of Sister, and Giving the Same to a Niece on the Same Trusts by Reference I, , of , hereby declare this to be a codicil to my will, which bears date the day of : Whereas, by the fourth article of my said will I bequeathed certain property and estate upon certain trusts therein declared in favor of my sister , and her children, issue and next of kin: Now I hereby revoke the said bequest, and declare that my trustees shall hold the said property and estate upon trusts, and with and subject to powers and provisions in favor of my niece , her children, issue and next of kin, simi- lar in all respects to the trusts, powers, and provisions by my said will declared in favor of my said sister, as if the name of my said niece were throughout my said will substituted in re- spect to the said property and estate. And in all other respects I confirm my said will. In witness, etc, 13. Second Codicil, Increasing Legacy to Wife, Giving Lapsed Legacy to Children and Grandchildren of Orig- inal Legatee, and Revoking Another Legacy I, , of , declare this to be a second codicil to my will which bears date the day of : [Increased legacy to wife.] Whereas, by my said will I gave to my wife, , a legacy of $5,000 : Now, I hereby revoke such legacy, and I hereby bequeath to my said wife in lieu thereof the sum of $10,000. [Bequest op lapsed legacy to children and grandchil- dren- OP DECEASED LEGATEE.] And whereas, by my said will I gave to my friend the sum of $ ; and whereas, Ch. 40) WILLS 1349 the said has since died : Now, I hereby revoke the said legacy, and I bequeath the said sum of $ to his children who shall be living at my death, in equal shares: Provided, that if any child of his shall die in my lifetime leaving a child or children living at my death such child or children shall take, equally if more than one, the share of said legacy which his, her, or their parent would have taken if then living. [Revocation of legacy to nephew.] And whereas, by my said will I gave to my nephew the sum of $ : Now, I hereby revoke the said legacy in all respects. [CONEIRMATION OF WILL AND EIRST CODICIL.] In all Other respects I confirm my said will and a first codicil thereto bear- ing date the day of — '■ . In witness, etc. Ill Miscellaneous Clauses (I) Preliminary Clauses 14. Commencement of Will (For forms of commencement, see the preceding Precedents of Wills) 15. Commencement of Concurrent Will This is the last will of me, , of , of the state of , which I hereby declare shall affect and operate upon all my estate, real and personal, saving and excepting only my real estate in British Columbia, which I have devised by another will of even date herewith, such other will to take effect concurrently herewith and independently hereof. 1350 FOEM BOOK (Ch. 40 16. Direction as to Burial I desire that my body may be buried (or, that my body may be cremated and my ashes deposited) in my family vault in the Cemetery. (II) Appointments 0? Executors, Trustees, and Guardians 17. Appointment of Executors * I appoint and to be executors of this, my will. 18. Exemption from Bond * And I direct that he (or, they ; or, my said executors) be exempt from giving any (surety or sureties upon his (or, her ; or, their) ) official bond(s).- 19. Appointment of Trustees with Provision for Substitu- tion in Case of Vacancy * I appoint , , and ■ to be trustees of this my will ; and in case any one or more of them shall die in my lifetime, or shall refuse or be unable to act, then I appoint , , and to fill in the order named any va- cancy in the office of trustee hereof that may occur by reason 2 See, also, preceding forms of wills, Form 3, cl. 16; Form 4, cl. 5 ; Form 5, cl. 7 ; Foi-m 6, cl. 4 ; Form 7, cl. 12 ; Form 8, cl. 1 ; Form 9, cl. 10 ; Form 10, cl. 3. 8 In most states the statute requires a bond, with sureties, in such sum as the probate court may direct, conditioned for the faithful performance of the duties of the trust. Tlie statutes difCer as to how far the testator may dispense with a bond or with sureties. * For other forms, see the preceding forms of wills, viz.: Form 3, cl. 13 ; Form 4, cl. 3 ; Form 7, cl. 12. Ch. 40) WILLS 1351 of such death, refusal, or inability a^ aforesaid. And I de- clare that the expression "my trustees" used throughout this my will shall include, where the context permits, the trustees or trustee for the time being of this my will, whether original or substituted. 20. Appointment of Executors and Trustees I appoint and to be executors and trustees of this, my will. 21. Appointment of Guardian ' I appoint my said wife {or, my friend; or, my trustees) to be guardian(s) of my infant child or children. (Ill) Specific Bequests* 22. Bequest of Furniture and Effects in House I give to absolutely all articles of household or do- mestic use or adornment which shall be in or about my house at (or such other house as I may reside in) at my death. B See, also. Form 1, p. 1322 ; Form 8, cl. 1, p. 1336. 8 For otlier specific bequests see the preceding forms of wills, viz.: Bequest of household and personal articles. Form 3, cl. 1 ; Form 4, cl. 2; Form 8, cl. 2 (1). Bequest of business. Form 6, cl. 2. Bequest of watch and personal articles. Form 7, cl. 1; Form 9, el. 1. Bequest of life insurance policy. Form 8, cl. 2 (3). Bequest of shares of stock. Form 8, d. 2 (4). Release of mortgage debt. Form 9, cl. 3. 1352 POEM BOOK (Ch. 40 23. Bequest of Household and Personal Effects to Daughters I give all my household furniture and effects and my jewelry and all other articles of household or personal use or adorn- ment to such of my daughters as shall survive me, if more than one, in equal shares, to be divided among them in such manner as my executors think fit. 24. Bequest of Household and Personal Effects to Daugh- ters Contingently on Their Attaining Twenty-One Years or Marrying I give all my household furniture, etc. (as in preceding form), to such one or more of my daughters as shall survive me and attain the age of twenty-one years or marry under that age ; and I declare that until the final division thereof my trus- tees may in their discretion either permit any one or more of my daughters, whether her or their interest or interests shall have vested or not, to have the use and enjoyment thereof or of any portion thereof or may deposit the same for safe custody in such place as they think fit. 25. Bequests to Daughter of Effects in Her Rooms I give to my daughter all household furniture, pic- tures and other effects ordinarily used by her in her bedroom and sitting room in my house at . 26. Bequest of Household and Personal Effects to Wife I give all my household furniture, plate, plated articles, linen, china, books, manuscripts, pictures, drawings, prints, engrav- ings, etchings, lithographs, works of art, musical instruments, printed music, watches, jewelry, clothing, and other articles of Ch. 40) WILLS 1353 household or domestic or personal use or adornment to my wife, , absolutely. 27. Bequest to Wife of Such Personal and Household Ef- fects as She May Select and Residue to Daughters I give to my wite, , such of my household furniture, etc. (as in preceding form), as she may select up to the value of dollars, the value of the selected articles to be deter- mined by my executors. The residue thereof not selected by her I give to my daughters in equal shares ; and in case they do not agree as to the allotment thereof between them, I direct my executors to make such allotment as they shall see fit. 28. Bequest of Household and Personal Effects to Wife for Life or Widowhood, and Thereafter to Children I give all my household furniture, etc. (as in Form 26, p. 1352), to my wife, , to be used and enjoyed by her during her life (she keeping the same in good repair and condition, rea- sonable wear and tear excepted, and insured in their reasona- ble value against loss or damage by fire) and after her death (or remarriage, whichever shall first happen) I give and be- queath the same to my children in equal shares. I direct that my executors shall make an inventory of the said chattels, and shall take a receipt of the same from my said wife, and shall file the said inventory and receipt in the probate court.' 7 It is not the practice to require of the life tenant in such case a bond or other security as a condition of delivery of and for safe- keeping the chattels, unless there is danger of their heing wasted, in which case the life tenant may be required to give bond. 1354 FORM BOOK • (Ch. 40 29. Bequest of Farming Stock I give to my son, , absolutely all my stock of corn, hay, and grain, cattle, horses, cows, calves,- sheep, lambs, swine, live stock and animals of all kinds and also my farming uten- sils, tools and implements, reaping, harvesting, threshing, and other agricultural machines, wagons, carts, carriages (automo- biles), harnesses, saddles, and other accoutrements, and all other live and growing crops whatsoever which shall at my death be in and upon my farm at (or any other farm belonging to me at my death). 30. Bequest of Ready Money I give to my wife, , absolutely all ready money which at my death may be in or about my place of residence, and also all money standing to my credit on account current at the Bank (or, at any bank). 31. Bequest of Library I give to my library of books, including the book- cases. 32. Bequest of Letters and Papers I give to all my letters, copies of letters, papers, man- uscripts, memoranda, diaries, and writings, but not legal docu- ments, securities for money, and books of account 33. Bequest of Sporting Implements I give to my son , absolutely, all my fishing tackle, guns, and sporting implements. Ch, 40) WILL8 1355 34. Bequest of a Debt I give to all sums of money owing to me from and all interest due and to become due thereon and all mort- gages or other securities for the same. 35. Release of Debts I forgive and release unto all sums, whether for prin- cipal or interest, which at my death may be owing by him to me, and I declare that, if the said shall die in my life- time, his legal representatives shall be entitled to the benefit of this gift as if he had died immediately after my death. (IV) Specific Devises* 36. Devise of all Real Estate I devise all my lands and real estate whatsoever and where- soever to absolutely. 37. Devise of Described Real Estate I devise all those parcels of land situated in and de- scribed as (description) to absolutely. 38. Devise to Joint Tenants or Tenants in Common I devise my dwelling house and premises described as (de- scription) to my daughters and as joint ten- ants (or, as tenants in common in equal shares). 8 For other specific devises, see tlie preceding forms of wills, viz.: Devise of dvpelling liouse to wife. Form 2, cl. 1 ; Form 3, cl. 3. Devise of dwelling house freed from mortgage. Form 7, d. 5. Devise of dwelling house to wife for life, remainder to daughter. Form 8, cl. 4. 1356 FORM BOOK (Ch.40 39. Devise to a Hospital I devise all the lands and real estate which I now own in to the Hospital absolutely. 40. Devise with Provision against Lapse I devise all that parcel of land (description) to abso- lutely ; and, if he shall die in my lifetime, I declare that this devise shall not lapse, and the said land shall devolve in all respects as if his death had happened immediately after mine. 41. Same — Another Form I devise all that parcel of land (description) to abso- lutely; and, if he dies in my lifetime, I devise the same to the persons or person, not being creditors or a creditor, who would be entitled under the provisions of any testamentary provision made by him or by virtue of his intestacy, as the case may be, if he had died immediately after me. 42. Devise to Person with Gift over on Death without Issue I devise my lands and hereditaments at to absolutely; but, if he dies without leaving issue living at his death, then I devise the said lands and hereditaments to absolutely. 43. Devise to Testator's Children and Issue of Deceased Children I devise all my real estate whatsoever and wheresoever to my children living at my death and the issue living at my death of any child of mine who may have died in my life- Ch. 40) WILLS 1357 time, if more than one, as tenants in common, in equal shares as between brothers and sisters, but so that such issue shall take, through all generations, if more than one, the share which their parent would have taken if such parent had sur- vived me. 44. Devise to Testator's Sons with Successive Gifts Over if They Predecease Him I devise my lands and real estate at , described as (description), to my eldest son, , in fee simple; but, if he dies in my lifetime without leaving issue (male) living at my death, then to my second son, , in fee simple ; but, if he dies in my lifetime without leaving issue (male) living at my death, then to my third son, , in fee simple ; and, if he dies in my lifetime without leaving issue (male) living at my death, I declare that the said lands and real estate shall fall into and become part of my residuary estate. 45. Devise to Testator's Children and Grandchildren At- taining Twenty-One per Stirpes I devise my lands and premises described as (description) iinto and to the use of such child or children of mine as shall be living at my death and the child or children then living of any child of mine who may have died in my lifetime, if more than one, as tenants in common, but so that the children of any deceased child of mine shall together take, if more than one, in equal shares as tenants in common, only the share which their parent would have taken had such parent sur- vived me; but, if any such child or grandchild of mine dies under the age of twenty-one without leaving issue living at his or her death, I devise the share of such child or grandchild so dying, whether original or accrued under this present clause. 1358 FORM BOOK (Ch. 40 to the uses and subject to the provisions, including this present clause, hereby declared in respect to the other shares hereby originally devised to my children and grandchildren living at my death. 46. Devise Subject to Payment of Debts, Legacies, Etc. I devise my lands and real estate situate at , but sub- ject to and charged, in exoneration of my personal estate, with the payment of my debts, funeral, and testamentary ex- penses and the legacies and annuities given by this my will or any codicil thereto, to absolutely. 47. Devise Subject to a Mortgage I devise my land at , described as {description), sub- ject to and charged with the payment of all sums, both prin- cipal and interest, secured thereon by morgtage at my death, to absolutely. 48. Devise in Exercise of Special Power of Appointment In the exercise of the power for this purpose given to me by the will of my deceased father dated the day of , and proved and admitted to probate in and by the probate court of on the day of {or, by an indenture dated the day of , recorded , and made between and of every or any other power enabling me in this behalf, I devise and appoint all the lands and real estate which may at my death be subject to such power of appointment to my daughter absolutely. Ch. 40) WILLS 1359 (V) General Legacies • 49. Legacy with Provision against Lapse I give to the sum of dollars ; and, if he shall die in my lifetime, I declare that this legacy to him shall not lapse, but shall pass to his personal representatives as part of his estate as if he had died immediately before me (or, as if my will had taken effect immediately before his death). 50, Legacy to Daughters of a Friend and the Children of Deceased Daughters I give to each of the daughters of my friend the sum of — ' dollars; and, if any such daughters shall die in my lifetime leaving a child or children living at my death, I give to such child or children a like sum, to be divided among them, if more than one, in equal shares, 51, Legacy Contingent on Attaining Twenty-Five Years or Marrying I give to , if she shall attain the age of twenty-five years or marry before attaining that age, the sum of dollars, together with interest thereon from the date of my death until payment or investment as hereinafter directed at » For other general legacies, see the preceding forms of wills, viz.: Pecuniary legacies. Form 2, els. 2, 3 ; Form 3, cl. 2 ; Form 6, cl. 1 ; Form 7, els. 2-4 ; Form 8, cl. 3. Bequests to servants. Form 7, cl. 4. Contingent legacy. Form 8, cl. 3 (3). leaacy in trust Form 7, cl. 7. Declaration as to time of payment Form 8, cl. 3 (1). Legacies subject to reduction for advancements. Form 8, cl. 3 (2) ; Form 9, d. 2. Legacies subject to deduction of debts. Form 8, cl. 3 (4). Provisions for payment of inheritance tax by estate. Form 3, cl. 4 ; Form 7, cl. 8 ; Form 8, cl. 3 ; Form 9, cl. 2. ]360 FORM BOOK (Ch.40 the rate of per cent, per annum; and I declare that, if the said shall be under that age and unmarried at my death, my trustees shall invest the said sum of dol- lars in any form of investment hereby authorized, with power to vary such investment from time to time, and shall stand possessed of all such investments and of the investments for the time being of any accumulations of income made under the direction hereinafter contained and the income thereof re- spectively, upon trust to pay and apply the whole or any part .of such income to or for the benefit of the said , and from time to time to invest the residue, if any, of such in- come in manner aforesaid, and to stand possessed of all the aforesaid investments in trust for the said ■ if she attains the age of twenty-five years or marries ; but if she dies unmarried under that age, then I declare that the aforesaid investment shall fall into and form part of my residuary es- tate. • 52. Legacy to Children and an Illegitimate Child I give to each of my children, including , the sum of — dollars. 53. Gift to Charitable Institutions of One Year's Sub- scription I give to each of the following hospitals a,nd institutions (naming them) to which I shall in the twelve calendar months preceding my death have subscribed any sum of money which shall be unpaid at the time of my death a sum of money equal to the amount of such svibscription then remaining unpaid, which shall be taken to be in payment of such subscription, and not as additional thereto. Ch„40) WILLS 1361 54. Legacies to Executors I bequeath to each of my hereinafter named executors who shall act in the execution of this my will the sum of dollars, to be in lieu of all commissions and fees, 55. Declaration as to Time of Payment and Priority of Legacies and Payment Free from Inheritance Tax I give the following legacies, which I declare shall be paid within months from my death, and in priority of all other legacies hereby or by any codicil hereto bequeathed, and free of inheritance tax or legacy duty, and shall carry interest from my death at the rate of per cent, per annum, that is to say {specify the legacies). (VI) Gifts of Residue " 56. Devise and Bequest of Residue to Individual I devise and bequeath all my estate real and personal what- soever and wheresoever not hereby or by any codicil hereto otherwise specifically disposed of, (including any property over which I may have any power of appointment) after payment of my debts, funeral and testamentary expenses, and the leg- acies bequeathed hereby or by any codicil hereto, unto absolutely. i» For otter gifts of residue, see tlie preceding forms of wills, Tiz.: Gift of residue to wife and children. Form 2, cl. 4. Gift of residue to wife if surviving, otherwise to son and issue. Form 6, cl. 3. Gift of residue to individuals and issue by representation. Form 7, cl. 9. Gift of residue in trust Form 3, cl. 5 ; Form 4, cl. 3 ; Form 8, cl. 5; Form 9, cl. 4. TlFl'.FOEMS-r-Se 1362 FOEM BOOK (Ch. 40 57. Bequest of Residuary Personal Estate I bequeath all other personal estate, including {or, except) chattels real, not hereby or by any codicil hereto otherwise specifically disposed of, to which I may be entitled at the time of my death, unto absolutely. 58. Devise of Residuary Real Estate I devise all the residue of my real estate other than {or, including) chattels real, not hereby or by any codicil hereto otherwise specifically disposed of, to which I may be entitled at my death, unto absolutely. (VII) Gifts in Trust " 59. Trust of Income for Wife During Widowhood Subject to Obligation to Maintain Children In trust to pay the income thereof to my said wife during her widowhood, she thereout maintaining and educating my sons while under the age of twenty-one years and my unmar- ried daughters. 60. Trust of Income to Daughters with Power of Disposi- tion to Survivor In trust to pay the income thereof to my daughters, , , and , and the survivors and survivor of them during their or her respective lives, and after the death of such survivor in trust as to both capital and income of the trust fund for such persons and in such manner as such survivor shall by will appoint. II For other gifts In trust, see the preceding forms of wills, viz.: Form 3, els. 5-15 ; Form 4, els. 3, 4 ; Foi-m 5, cl. 3 ; Form 7, els. 6, 7 ; Form 8, cl. 5 ; Foi-m 9, els. 4r-8. Ch. 40) WILLS 1363 61. Trust of Personalty for Sons at Twenty-One and Daughters at that Age or Previous Marriage In trust for my children who, being male, attain the age of twenty-one years, or, being female, either attain that age or marry under that age, and, if more than one, in equal shares as tenants in common. 62. Trust of Personalty for Children and Issue of Deceased Children of Testator, Living at his Death, at Twenty-One In trust for my children living at my death who attain the age of twenty-one years and the children or other issue then living of any then deceased child of mine who attain the age of twenty-one years, if more than one in equal shares, as tenants in common, but so that the children of other issue of any deceased child of mine, if more than one, shall take equally between them as tenants in common only the share which their parent would have taken had such parent been liv- ing at my death and attained a vested interest. 63. Trust of Personalty for Children and Grandchildren in Unequal Shares In trust as to two unequal sixth parts for my son ab- solutely; as to one other sixth equal part for my son if and when he attains the age of twenty-one years ; and as to the remaining three equal sixth parts in trust in equal shares for my grandchildren and if and when they shall respectively attain the age of twenty-one years, or in case of my said granddaughter if and when she shall marry under that age. If the share of any of my said sons or grand- children shall fail to vest as aforesaid, my trustees shall hold 1364 FORM BOOK (Ch. 40 such share in trust for the other or others of my said sons and grandchildren in equal shares as tenants in common. €4. Trust of Personalty for Wife and Children Equally In trust for my wife, , and my children in equal shares as tenants in common, my wife's share to be equal to the share of each of my children. 65. Trust of Personalty for Brothers and Sisters and Chil- dren of Deceased Brothers and Sisters In trust for my brothers and sisters living at my death and the children then living of any then deceased brother or sister of mine who attain the age of twenty-one years or, being female, marry under that age, if more than one, as tenants in common, but so that the children of any such deceased brother or sister shall take equally between them as tenants in common only the share which their parent would have taken had he or she survived me. 66. Trust of Personalty for Two as Tenants in Common on Attaining Twenty-One, with Gift Over on the Death of Either to the Other In trust for and if and when they shall re- spectively attain the age of twenty-one years in equal shares as tenants in common, and in case either of them shall die in my lifetime or before attaining the age of twenty-one years I be- queath the share hereinbefore bequeathed to the one so dying to the other of them if and when he shall attain the age of twenty-one years. Ch. 40) WILLS 1365 67. Declaration Against Lapse of Share of Residue I declare that any share of the residue hereinbefore be- queathed shall not lapse by reason of the death in my lifetime of any beneficiary who would, if living, at my death become entitled thereto under this my will, but shall at my death pass to the representatives of such beneficiary as if such beneficiary had died immediately after me {or, but shall be retained by my trustees upon the like trusts as if such beneficiary had died immediately after me). 68. Trust for Imbecile Son I declare that my trustees shall set apart and hold the sum of dollars upon trust to pay and apply in whole or any part of the income thereof to or for the benefit of my son during his life, and to accumulate any surplus in- come^ ^^ at compound interest, with power to pay the said in- come or any part thereof to any person or persons having care of my said son without seeing to the application thereof, and with power also at all times to apply such accumulations as if they were income of the then current year, and after the death of my said son my trustees shall hold the said sum and accumulations, if any, and the income thereof respectively in trust {as may be desired). 69. Gift for Annuity to a Trustee in Trust for a Person of Unsound Mind I give to {trustee) during the life of my son an an- nuity of dollars to be paid by equal quarterly pay- ments, the first of which shall be made three months after 12 In some states the acoumulation of the income of personalty is limited by statute. 1366 FOEM BOOK (Ch. 40 my death. And I authorize my trustees to provide for the payment of the said annuity either by purchase from some insurance company of good standing or by setting apart and appropriating so much of my residuary estate, hereinafter called "the annuity fund," as shall in their opinion be suffi- cient by means of the income thereof to pay such annuity; and I declare that when the said annuity shall have been provided for in either of the ways aforesaid, such annuity shall be wholly charged on the purchased annuity or the annuity fund, as the case may be, in exoneration of the rest of my estate. And I further declare that the capital of the annuity fund, if any, may be resorted to in case at any time the income thereof be insufficient to pay the said annuity, and that on the cesser of the said annuity the annuity fund, if any, shall revert to and become part of my residuary estate, and that any surplus in- come arising from the annuity fund, if any, shall be applied as income of my residuary estate.* And I direct the said (trustee) to hold the said annuity of dollars upon trust to pay therefrom all expenses of and incidental to the provision of a home and the care and maintenance of my said son ; and I declare that the said (trustee) shall have full and uncon- trolled discretion as to the application of the said annuity, and that if and so long as my said son shall reside with the said (trustee) he shall be entitled to retain for his own benefit out of the said annuity the sum of dollars by way of rent. 70. Gift of an Annuity in Trust for a Spendthrift and his Wife and Children (Follow preceding form to *.) And I direct the said (trus- tee) to hold the said annuity of dollars upon trust to pay and apply the same to or for the benefit of my said son during his life, or until he shall alienate or charge or incumber the same, or become bankrupt, or do or suffer any act or thing Ch. 40) WILLS 1367 whereby the same or any part thereof would but for this pres- ent provision become vested in or payable to any other person or persons, and after the happening of any event hereinbefore mentioned,** I declare that the said annuity of dollars shall be applied as income of my residuary estate (or, in lieu of the above words folloiving the,** the effect of which is to terminate the annuity, substitute the following: "Upon trust to apply the said annuity during the residue of the life of my said son either for his benefit or for the benefit of his wife or child or children, if any, for the time being, or any one or more of them exclusively of the others or other of them in such manner in all respects as my trustees may think fit; and in case there is no such wife, child, or children in existence, then for the benefit of my said son or the person or persons for the time being entitled to the income of my residuary estate as my trustees may in their sole and uncontrolled discretion think best.") (VIII) Powers oE Trustees and Other Trustee Clauses 71. Power as to Investments {See the preceding forms of wills, viz.: Form 3, els. 6, 10; Form 4, cl. 4; Form 7, cl. 14; Form 8, cl. 6.) 72. Power to Trustees to Sell or Mortgage for Payment of Incumbrances ^* 1 authorize my trustees at any time or times in their dis- cretion to sell or mortgage at such price and upon such terms and conditions as they may think fit all or any part of the real or personal property forming part of my residuary {or, the 13 A broad power to sell, etc., is usually to be preferred. See Form 3, cl. 12, p. 1327; Form 7, cl. 13, p. 1335; Form 8, cl. 6, p. 1339; Form 9, cl. 8, p. 1344. 1368 FOEM BOOK (Ch. 40 trust) estate for the purpose of paying or securing to the re- spective mortgagees or mortgagee for the time being any mortgage debt or debts owing by me at my death. And I declare that no purchaser or mortgagee shall be concerned to inquire as to the propriety of any sale or mortgage under this power or as to the application of any money raised thereby. 73. Power to Trustees to Purchase Trust Property I authorize my son , notwithstanding that he shall be a trustee of this my will (or, my trustees or any of them), at any time or times to purchase, whether at public or private sale, all or any part of the property forming part of my residuary estate. 74. Power to Trustees to Appropriate and Partition I declare that my trustees shall have power to appropriate and partition any real or personal property forming part of my residuary estate towards the share of any person or persons therein under the trusts hereinbefore contained, and to charge any share with such sums by way of equality of partition as they may think fit, and for such purposes to fix the value of any real or personal estate so appropriated as they think fit. And I declare that every such valuation, appropriation, and partition shall be binding upon all persons interested in this my will. 75. Power to Trustees to Delegate Trusts with Regard to Property Outside of State I empower my trustees or my executors to appoint from time to time upon such terms as they may think fit any person or persons as their attorney or attorneys for the purpose of exercising any of the trusts or powers herein expressly or im- Ch. 40) WILLS 1369 pliedly given to my trustees or executors with respect to any property belonging to me without the state of . 76. Power to Trustees to Employ Agents My trustees shall have power, instead of acting personally, to employ and pay any other person or persons to transact any business or to do any act of whatever nature in relation to the trusts of this my will, including the receipt and payment of money, without being liable for loss thereby incurred. 77. Employment of Trustee as Lawyer or in Other Pro- fessional Capacity Any one of my trustees being a lawyer or being engaged in any profession or business may be so employed to act, and shall be entitled to charge and be paid all professional or other charges for any business or act done by him or his firm in con- nection with the trusts hereof, including acts which a trustee could have done personally. 78. Power to Trustees to Act on Opinion of Counsel My trustees shall have power to take and act upon the opinion of such counsel learned in the law as they may see fit, whether in relation to the interpretation of this my will or any other document or matter or as to the administration of the trusts hereof without being liable to any person beneficially interested with respect to any act done in accordance with such opinion. But nothing herein shall prevent my trustees from applying to the court, if they shall think fit, or shall prevent any of the beneficiaries from so doing. 1370 FORM BOOK (Ch. 40 79. Direction that Opinion of Majority of Trustees shall Prevail I declare that, should any difference of opinion at any time exist between my trustees for the time being of this my will in relation to the doing or forbearing to do anything or other- wise in the execution of the trusts of this my will, the opinion and determination of the majority of such trustees shall pre- vail and be binding (notwithstanding that any one or more of such trustees may be personally interested or concerned in the matter in dispute). 80. Maintenance of Minor Children out of a Common Fund " I direct my trustees to receive the income arising from my residuary estate {or, from the trust fund), or from so much thereof as shall not for the time being have become trans- ferable to any child of mine under the trusts hereinbefore declared, and to pay or apply such income or so much thereof as my trustees shall see fit for the maintenance, education, or benefit of such of my children as shall for the time being be under the age of twenty-one years, or any one or more exclu- sively of the others or other of such children in such propor- tions, at such times, and in such manner in all respects as my trustees shall in their sole discretion think proper, with liberty in my trustees to pay the whole or any part of the said income to the guardian or guardians of any of the said chil- dren for the purposes aforesaid without seeing to the applica- tion thereof. And I direct my trustees to invest the surplus, if any, of the said income in manner hereby authorized, and to accumulate the same at compound interest, with power to 1* For another form of maintenance clause, see Form 3, cl. 8, y. 1325. Ch. 40) WILLS 1371 apply such accumulations as if the same were income for the current year. And so soon as there shall no longer be any child of mine under the age of twenty-one years I direct my trustees to pay and divide the residue of the said accumula- tions remaining unapplied for the purposes aforesaid to and between such of my children as shall have attained the age of twenty-one years in the same proportions as the residuary {or, trust) fund is hereinbefore made distributable among such children. 81. Advancements to Testator's Children I declare that at any time or times (but during the life of only with her consent in writing) my trustees may raise any part or parts, not exceeding altogether one-half {or, any sum or sums not exceeding dollars in the whole), of the then presumptive or vested share {or, legacy) of any child {or other issue) of mine under the trusts hereinbefore declared, and may pay or apply the same as my trustees shall think fit for the advancement or benefit of such child {or issue). 82. Devolution of Powers of Trustees ^^ I declare that all powers or trusts hereinbefore given to or imposed on my trustees hereinbefore named may be exercised or performed by the survivors or survivor of them {or, the executors or administrators of such survivor) or other the trustees or trustee for the time being of this my will. 16 See, also. Form 3, cl. 15, p. 1328 ; Form 8, cl. 1, p. 1336. 1372 FORM BOOK (Ch. 40 83. Power to Appoint New Trustees ** I declare that, if any trustee of this my will shall die, or remain out of the state of for more than one year, or desire to be discharged, or refuse to act, or be incapable of acting as such trustee, then and as often as the same shall happen, it shall be lawful for during his {or, her) life, and after his (or, her) death for the surviving or continuing trustees or trustee hereof for the time being — and for the pur- pose of this clause a retiring trustee shall be deemed a continu- ing trustee if willing to act — or for the personal representatives of the last surviving or continuing trustee, to appoint a new trustee or new trustees hereof in the place of the trustee so dead or remaining out of the said state or desiring to be dis- charged or refusing or being incapable as aforesaid, and that on every new appointment the trust property shall forthwith be conveyed to or otherwise vested in such new trustee jointly with any other trustee thereof for the time being. And I declare that every trustee so appointed shall as well before as after such trust property shall have been so conveyed or other- wise vested in him have the same powers, authorities, and dis- cretions and may in all respects act as if he had originally been appointed a trustee by this my will. 84. Power to Appoint Additional or Separate Trustees I declare that it shall be lawful at all times, notwithstand- ing that there may not be any vacancy in the number of my trustees, to increase the number thereof or to appoint separate trustees of any portion or portions of my estate and property hereby devised and bequeathed and held on separate and dis- iio See, also, Form 3, cl. 14, p. 1327 ; Form 8, cl. 8, p. 1340. Ch. 40) WILLS 1373 tinct trusts, and that any one or more of my trustees may un- der this power be appointed or remain a separate trustee or separate trustees. 85. Trustees' Indemnity Clause " I declare that no trustee of this my will shall be liable for any loss not attributable to his own dishonesty or to the will- ful commission of an act known by him to be a breach of trust (IX) Powers of Executors 86. Power to Executors to Sell Real and Personal Estate ^^ I authorize and empower my executors or the survivor of them, or the executors or executor for the time being of this, my will, if and whenever in the settlement of my estate they shall deem it advisable, to sell at private or public sale at such price as they shall think fit the whole or any part of my real and personal estate, and to execute good and sufficient deeds and other instruments necessary or proper to convey and trans- fer the same to the purchasers, who shall not be bound to see to the application of the purchase money. 87. Power to Executors to Mortgage I authorize and empower my executors or the survivor of them, or the executors or executor for the time being of this my will, if and whenever in the settlement of my estate they shall deem it advisable, to mortgage upon such terms and con- 17 For another form, see Form 3, cl. 11, p. 1327. 18 This power is desirable to obviate the expense and delay of ob- taining from the probate court license to sell, which is otherwise re- quired for real estate. For other forms, see Form 3, cl. 17, p. 1328 : Form 7, cl. 13, p. 1335. 1374 FORM BOOK ■ (Ch. 40 ditions as they may think fit all or any part of my real estate, and I declare that no mortgagee shall be bound to see to its application of any money raised thereby, 88. Power to Executors to Defer Calling in Debts I authorize my executors to defer the calling in of any debt or debts (bearing interest) which may be owing to me from at my death igr such period (not exceeding years) as they may see fit, without requiring any security or further security therefor, provide^ the interest be regularly paid, without being responsible f o!r any loss by reason of such omission to call in or require security. 89. Power of Executors to Postpone Payment of Legacies I declare that the payment of the legacies hereinbefore be- queathed to (names) may, if my executors think fit, be post- poned for not exceeding years from my death, and shall carry interest at the rate of per cent, per annum from my death, payable half yearly. 90. Power to Executors to Arrange and Compromise I authorize the executors or executor for the time being of this my will to pay all debts and liabilities claimed to be owing by me or my estate upon such evidence as they shall think proper, and to satisfy all debts and liabilities claimed to be owing to me or my estate for such sums and upon such terms of payment and security as they shall see fit, and to ac- cept any composition therefor, and to compromise, submit to arbitration, and settle all accounts, matters, and differences re- lating to my estate, and generally to act in the premises as they shall deem expedient, without being answerable for any loss occasioned thereby. Ch. 40) WILLS 1375 91. Power to Executors to Carry on Testator's Business '" I authorize my executors or executor for the time being to carry on the whole or any part of the business of now carried on by me at until such time as they shall deem it expedient to sell the same or to wind up the said business, as the case may be, and to employ therein any capital which may be employed therein at my death, and to augment or decrease the capital employed therein, and to appoint any per- son, including any one or more of themselves, manager, or agent to act therein at a salary or otherwise, and generally to act in the premises as if they were absolute owners thereof without being liable or responsible for any loss arising there- by, and, in case the same shall be carried on at a loss, I de- clare that my executors shall be reimbursed for all loss so incurred by them out of my general estate. 92. Power to Executors to Wind up and Sell Testator's Partnership Business In the event of my dying while I am a member of the firm of , I authorize my executors to ascertain my share in the said business, and either to procure immediate payment of the value thereof, or in their discretion to allow the whole or any part of my share to remain in the said business as a loan bear- ing interest at per cent, per annum for any period not exceeding years from my death, and to arrange for the payment of my said share with or without taking security for such payment and without being responsible for any loss occasioned thereby, and also to sell and concur with the other partners or partner in selling the said business to any company or individual or in winding up the affairs thereof, and in 18 See, also, Form 8, cl. 7, p. 1340. 1376 FORM BOOK (Ch. 40 winding up the said business to pay, compound, or submit to arbitration all accounts, debts, or other sums due or owing upon such evidence strictly legal or not as to my executors may seem satisfactory, and to sell upon credit and give time for payment, with or without taking security therefor, for such price or prices and upon such terms as my executors may think fit, and generally to enter into and do all such agree- ments, releases, and acts as may be necessary to wind up the same in the manner most beneficial to my estate. (X) TESTIMONIUM Clauses (The testimonium clause is followed by the testator's sig- nature and by the seal, if any.) In witness (or, testimony) whereof I (the said ) have hereunto set my hand (or, subscribed my name) this day of . In witness wl\ereof I have hereunto set my hand (and seal) this day of . In testimony whereof I have subscribed my name (and set my seal) to this my last will and testament, contained in (typewritten) sheets of paper, upon each of the foregoing of which I have also written my name (at , in the state of ) this day of . (XI) Attestation Clauses (The attestation clause should be follajved by the signatures of the witnesses, and it is desirable, and in some states pro- vided, that they shall write opposite their names their respec- tive places of residence) Signed (or, subscribed) by the above-named (with his mark) as his last will (or, codicil to his last will, which bears Ch. 40) WILLS 1377 date the — '■ day of ) in the presence of us, who, at his request, and in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses. Signed, sealed, published, and declared by , the above-named testator, as and for his last will and testament, in the presence of us, who at his request, and in his presence, and in the presence of each other, have hereunto subscribed our names as attesting witnesses this day of . The foregoing instrument, consisting of pages, was on this day of subscribed at the end thereof by , the above-named testator, and by him signed, sealed, published, and declared to be his last will and testament, in the presence of us and each of us, who thereupon at his re- quest, in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses thereto. Signed by the above-named testator, , by the hand of , as the last will of the said testator, by his direction and in his presence, and in the presence of us, who at his request (as in first form). (In some states it is required that a person who signs Jhe testator's name by his direction shall write his own name as a witness to the will.) Signed (as in first form), the alteration (pr, erasure ; or, in- terlineation) in line of page hereof having been made previously thereto. TnT.FoKMS — 87 PNDEX [the figtjees eefee to the pages] A ABANDONMENT, Of ship or cargo, notice to underwriters of, 1246. ACCEPTANCE, Of bill of exchange, see Bills of Exchange, Checks, and Prom- issory Notes. Of trust, by assignee for benefit of creditors, 182. ACCOUNT STATED, Acknowledgment of correctness of, 1159. ACKNOWLEDGMENT, Preliminary note on acknowledgment and proof of deeds, 1. Forms recommended by Commissioners on Uniform State Laws, 6. Acknowledgment, by natural persons in own right, 6. By attorney, 7. By corporation or joint stock association, 7. Authentication of proof or acknowledgment, 8. Statutory provisions and forms and other forms In use in the states, 9. Alabama, statutes, 9. Acknowledgment, general form, 10. By corporation, 10. By wife in conveyance of husband's homestead, 11. Proof by subscribing witness, 10. Alaska, statutes, 12. Acknowledgment, 12. Arizona, statutes, 14. Acknowledgment, 15. Arkansas, statutes, 15. Acknowledgment, by one grantor, 16. Deed executed by single man or married or single woman, 17. By husband and wife with relinquishment of dow- er and homestead, 18. Proof of deed by subscribing witness, 18. Of handwriting of grantor and subscribing wit- ness, 19. Tiff. Forms (1379) 1380 INDEX [The figures refer to pages] ACKNOWtiBDGMENT— Continued, California, statutes, 20. General form of acknowledgment, 21. Acknowledgment by corijoratiou, 22. By attorney in fact, 22. Colorado, statutes, 23. General form of acknowledgment, 24. Wife's separate acknowledgment, 25. Connecticut, statutes, 25. Acknowledgment by husband and wife, 26. Delaware, statutes, 26. Acknowledgment, by husband and wife, 28. By corporation, 28. District of Columbia, statutes, 29. General form of acknowledgment, 30. Florida, statutes, .30. General form of acknowledgment, 31. Acknowledgment by husband and wife, 32. Georgia, statutes, 32. Acknowledgment by married women, 83. Proof by subscribing witness, 34. Hawaii, statutes, 84. Acknowledgment, 35. Idaho, statutes, 36. Ordinary acknowledgment, 37. Acknowledgment, by corporation, 38. By attorney in fact, 38. Illinois, statutes, 38. Acknowledgment, 42. By corporation, 43. Proof of subscribing witness, 43. Indiana, statutes, 44. Acknowledgment by husband and wife, 4& Iowa, statutes, 45. Acknowledgment, 46. Kansas, statutes, 47. Acknowledgment by husband and wife, 47. Kentucky, statutes, 48. Acknowledgment, by husband and wife, 48. By corporation, 49. Louisiana, statutes, 49. Acknowledgment, 50. Maine, statutes, 50. General form of acknowledgment, 51. Maryland, statutes, 51. Acknowledgment taken within state, 52. By husband and wife, 53. Taken out of state, 53. INDEX 1381 [The figures refer to pages] ACKNOWLEDGMENT— Continued, Massachusetts, statutes, 53. Acknowledgment, 54. Michigan, statutes, 54. Acknowledgment, 55. Minnesota, statutes, 55. Acknowledgment, 57. Mississippi, statutes, 57. Acknowledgment by natural persons in own right, 58. Proof by subscribing witness, 58. Acknowledgment by married women, 59. Missouri, statutes, 59. / Acknowledgment, 59. Proof of subscribing witness, CO. Montana, statutes, 61. General form of acknowledgment, 62. Acknowledgment, by corporation, 62. By attorney in fact, 63. Nebraska, statutes, 63. Acknowledgment by husband and wife, 64. Nevada, statutes, 65. Acknowledgment, by individual, 66. By corporation, 66. By attorney in fact, 67. When grantor is unknov^n to officer, 67. New Hampshire, statutes, 67. Acknowledgment by husband and wife, 68. New Jersey, statutes, 68. Acknowledgment, by husband and wife, 70. By corporation, 71. New Mexico, statutes, 71. Acknowledgment, 72. New York, statutes, 72. General form of acknowledgment, 76. Acknowledgment by corporation, 76. North Carolina, statutes, 77. Acknowledgment by grantor or maker, 78. Acknowledgment and private examination of wife, 78. Acknowledgment, by husband and wife, 79. By corporation, 80. North Dakota, statutes, 82. General form of acknowledgment, 84. Acknowledgment, by corporation, 84. By attorney in fact, 84. Ohio, statutes, 85. General form of acknowledgment, 85. Oklahoma, statutes, 86. Acknowledgment, by individuals, 86. By corporation, 87. 1382 INDEX [The figures refer to pages] ACKNOWLEDGMENT— Continued, Oregon, statutes, 87. Acknowledgment by liusband and wife, 88. Pennsylvania, statutes, 89. Acknowledgment — By individuals, 90. Appointment by corporation of attorney, 90. Acknowledgment by corporation by attorney, 91. Eliode Island, statutes, 91. Ackuowledgmeot by husband and wife, 92. South Carolina, statutes, 92. AfBdavit of subscribing witness, 93. In case of corporation, 93. Certificate of renunciation of dower, 94. Certificate indorsed on release, 95. South Dakota, statutes, 95. Acknowledgment, by individual, 96. By attorney in fact, 96. By corporation, 97. Tennessee, statutes, 97. Acknowledgment before clerk of county court, 98 Acknowledgment, by husband and wife, 99. By corporation, 100. Proof of subscribing witness, 100. Texas, statutes, 101. Ordinary acknowledgment, 102. Acknowledgment by married woman, 103. Certificate of proof by witness, 103. Utah, statutes, 104. Acknowledgment, by individual, 105. By corporation, 105. Where grantor unknown to officer, 105. Certificate of proof by subscribing witness, 106. Vermont, statutes, 106. Acknowledgment, by husband and wife, 107. By corporation, 107. Virginia, statutes, 107. Acknowledgment, 109. Before commissioner. 109. In behalf of corporation, etc., 109. Washington, statutes, 110. Acknowledgment, by individual, 111. By corporation. 111. West Virginia, statutes, 112. Acknowledgment, 112. By married woman, 113. By corporation, 115. Wisconsin, statutes, 116. Acknowledgment, 117. INDEX 1383 [The figures refer to pages] AOKNOWI/EDGMBNT— Continued, Wyoming, statutes, 117. Acknowledgment, 118. Where wife joins in conveyance of homestead, 119. ACKNOWLEDGMENT OF DEiBT, Barred by limitation, 1159. ACKNOWLEDGMENT OP TITLEI, Of land, 1159. ACTOR, Contract between manager and, 1223. ADMINISTRATOR, Deed of, selling at public or private sale pursuant to license, 489. ADVANCEMENT, See Will. AFFIDAVIT, Stee Chattel Mortgage. • AGENCY, See Power of Attorney ; Service and Agency Contract. AGREEMENT, Preliminary note, 120. Forms of commencement, 121. Forms of testimonium clause, 122. For forms of agreements appropriate to particular subjects of con- tract, see Apprenticeship ; Arbitration and Award ; Auction ; Building Agreement; Collateral Security; Composition with Creditors ; Copyright ; Easement ; Guaranty ; Hire of Goods ; Husband and Wife; Indemnity; Landlord and Tenant; No- vation ; Partnership ; Party Wall ; Patent ; Pledge ; Sale and Purchase of Land; Sale of Goods; Secret Process; Service and Agency Contract; Ships and Vessels; Stock and Stock- holders. ALABAMA, Acknowledgment and proof of deed, statutes, 9. Acknowledgment, general form, 10. By corporation, 10. By wife in convey?.nce of husband's homestead, 11. Proof by subscribe ig witness, 10. Chattel mortgage, statutes, 331. Form of, 333. Conditional sale, statutes, 832. Deed, statutes, 514. Warranty, 515. Quitclaim, 516. Mortgage, real estate, 868. Will, statutes, 1293. 1384 INDEX [The flgurea refer to pages] ALASKA, Acknowledgment of deed, statutes, 12. Form of, 12. Chattel mortgage, statutes, 334. Deed, statutes, 517. Will, statutes, 1293. ALTEKATION, Attestation clause noting, in deed, 513. AMERICAN INSTITUTE OF AKOHITECTS, Forms of, see Building Agreement. ANNUITY, See Will. APPOINTMENT OP PROPERTY UNDER POWER, Preliminary note, 123. Appointment of part of settled real estate to son, su'bject to Ufe estate of appointor, 124. Of a iwrtion to one of three children to be paid immediately out of real estate under power in marriage settlement, 125. Of a reversionary life estate in personalty to an intended wife, 126. Of a ti-ust fund to children under a power in a will, 127. Reservation of power to revoke and appoint anew, to be inserted in an appointment, 128. Revocation of former appointment and new appointment, 128. See Power of Appointment. APPRENTICESHIP, Preliminary note, l.SO. Apprenticeship articles where infant binds himself with consent of parent or guardian, 130. Another form, 132. Apprenticeship agreement providing for evening classes for man- ual and industrial training, with bonus to apprentice for faith- ful performance, 133. ARBITRATION AND AWARD, Preliminary note, 135. Arbitration agreement. For reference of all disputes, short form, 138. Another form, 138. For reference of particular dispute to expert arbitrator, 139. Of matter of account to single arbiti-ator, 140. Of partnership disputes to three arbitrators, 142. Of differences under building agreement to arbitrators or umpire. 144. INDEX 1385 [The figures refer to pages] ARBITRATION AND AWARD— Continued, To three arbitrators with provisions in respect to state- ment of claims and evidence, 145. Clause in agreement for future reference of future differ- ences thereunder, 147. In building agreement, 264, 271, 280, 284, 317. In partnership articles, 1209. In party wall agreement, 1069. Various provisions of arbitration agreements. Statement of claims to be submitted, 146, 148. Pending actions, 139, 148. General powers, 140, 141, 148, 149. Power of arbitrators, as to releases, 149. As to accountant, 143, 149. As to taking advice of counsel, 149. To proceed ex parte, 140, 143. Parties to be examined and to produce, 149. Failure of, to attend, etc., 150. Right of, to inspect books, 150. Power of umpire, award, how made, 150. Evidence, how taken, 151. Where arbitrators fail to act, 151. Where either party impedes, arbitration, 151. Costs, 139, 141, 143, 144, 147, 151. Death of party, 141, 145, 152. Discontinuance of pending action, 139. Statute of limitations, 140. Production and inspection of papers, 140. Particulars of claim to be delivered, 141, 143. Time of award, 142, 145. Parties to attend and produce, 143. Hearing and witnesses, 143, 147. Miscellaneous forms. Arbitration bond, 152. Revocation of submission, 153. Appointment of umpire by arbitrators, 153, Extension of time for award, 153. Award, By arbitrators, 154. Another form, 155. By umpire, 156. By umpire on cross-claims, 157. By two arbitrators and an umpire, the former deciding some matters only, and the latter matters on which the arbi- trators diflfer, 158. ARCHITECT, See Building Agreement. 1386 INDEX [Tbe figures refer to pages] ARIZONA, Acknowledgment of deed, statutes, 14. Form of, 15. Chattel mortgage, statutes, 335. Form of, 336. Affidavit, 33T. Deed, statutes, 517. Warranty, 519. Quitclaim, 520. Mortgage, real estate, statutory, 871. Another form, 872. Will, statutes, 1294. ARKANSAS, Acknowledgment and proof of deeds, statutes, 15. Acknowledgment, by one grantor, 16. Deed executed by single man or married or single wo- man, 17. By husband and wife with relinquishment of dotver and homestead, 18. Proof of deed by subscribing witness, 18. Of handwriting of grantor and subscribing witness, 19. Chattel mortgage, statutes, 337. Form of, 338. Deed, statutes, 520. Warranty, with relinquishment of dower, 521. Mortgage, real estate, 872. Will, statutes, 1294. ARTICLES, Of apprenticeship, see Apprenticeship. Of partnership, see Partnership. Shipping, 1246. ASSENT, By lessor to assignment of lease, see Landlord and Tenant. ASSIGNMENT, Preliminary note, 161. Assignment, of chose in action, short general form, 163. Of contract, by indorsement, 163. With power to sue, 163. Of an account, 163. Another form, 164. Of legacy, 164. Of wages, 165. Of claim for damages, 165, Of a bond, 166. Another form with power to sue and full covenants, 166. INDEX 1387 [The figures refer to pages] A.SSIGNMENT— Continued, Of book debts in consideration of assignor's debt to as- signee, 168. Of part of a debt, 169. Of debts upon trust to collect and pay sum due to assignee and surplus to assignor, 169. Of fire insurance policy by indorsement, 170. Of life insurance policy, 171. Of contract for sale of land by purchaser therein, 171. Of life estate in trust funds, 172. Of judgment, 172. Another form, 173. Another form, 174. Of copyright, 456. Of dower, 495. Of freight on a voyage, 1244. Of lease, see Landlord and Tenant. Of license under patent, see Tatent. Of marine insurance policy, 1245. Of mortgage, chattel, 395, 408, 441. See Chattel Mortgage. Real estate, see Mortgage (Real Estate). Of patent, see Patent. Of secret process, 1112. Of stock, see Stock and Stockholders. Of trade-mark, 683. See Assignment for Benefit of Creditors; Bill of Sale; Collateral Security ; Good Will ; Ships and Vessels. ASSIGNMENT FOB BENEFIT OF CREDITORS, Preliminary note, 176. Assignment by individual without preferences, 178. Another form, ISO. Acceptance by assignee, 182. Assignment by partners, with preferences, 182. For benefit of joint and separate creditors, release of debts, 185. Another form, 192. Assignment to wind up and carry on a small mercantile busi- ness, 197. Assent of creditor to deed of assignment and undertaking to execute same, 200. Deed allowing debtor to carry on business under inspection and control of committee of creditors and providing for assign- ment in certain events, 200. ATTACHMENT, Bond on, 258. 1388 INDEX [The figures refer to pages] ATTESTATION CLAUSE, See Agreement; Will. ATTORNEY, Acknowledgment by, see Acknowledgment. Power of, see Power of Attorney. AUCTION, ■Conditions of sale of real estate, 224. Auction sale agreement, 226. Conditions on sale of goods by auction, 227. AUTHENTICATION, Of proof or acknowledgment of deed, see Acknowledgment. AUTHOR, Agreement by, with publisher, see Copyright. AWARD, See Arbitration and Award. B BANK, Collateral note to, 1129. BEQUEST, See Will. BILL OP LADING, 1244. BILL OF SALE, See Sale of Goods. BILLS OP EXCHANGE, CHECKS, AND PROMISSORY NOTES, Preliminary note, 229. Bill of exchange, payable after sight, 230. Payable after date, 230. Payable on demand, 230. Foreign bill in set of three, 231. Case of need, 231. Acceptance, General, 231. Qualified, 232. Conditional, 232. Partial, 232. Local, 232. As to ^tlme, 232. By some only of drawees, 232. Undertaking by drawer to provide for accommodation bill, 725. Indorsement, in blank, 232. Special, 232. INDEX 1389 [The figures refer to pages] BILLS OF EXCHANGE, CHECKS, AND PROMISSORY NOTES— Continued, Restrictive, 233. Qualified, 233. Check, 233. Voucher check, 233. Order to bank for payment, 234. Promissory note, 234. Joint, 234. Joint and several, 235. Payable at particular place, with interest, 235. Providing that principal become due on default in payment of interest, 235. Providing for costs of collection and attorney's fees, 235. Authorizing confession of judgment, 236. With waiver of exemption, etc., 236. Of corporation, 237. Indemnity to maker of, by comaker, 724. Collateral note, see Pledge and Collateral Security. Conditional sale note, see Sale of Goods. Mortgage note, see Mortgage (Real Estate). Notice of dishonor, to drawer of bill, 237. To indorser of bill, 238. By notary to indorser of note, 238. To drawer of check, 238. Protest of bill of exchange, 239. Where no person authorized to pay or refuse payment can be found, at place of presentment, 240. By person other than notary, 240. Notarial act of honor on payment for honor supra protest, 241. BOND, Preliminary note, 242. Bond, for payment of money and interest, 243. Another . form, 244. Single bond, 244. Joint, of several for i>ayment of money in installments, 244. For deed, 245. Another form, 246. Another form, 247. With surety for performance of building contract, 247. To secure i>erformance of agreement, 248. For performance of contract, 248. With sureties for payment of rent, 249. To indemnify, mortgagor against liens, 250. Mortgagee against mechanics' liens on premises mort- gaged, 250. 1390 INDEX [The figures refer to pages] BOND— Continued, Purchaser, against unsatisfied mortgage, 251, Against defects of title, 252. Against payment of lost note or bill, 253. For liquidated damages to preserve trade secret, 254. Of treasurer of corporation, 254. Of employe, 255. Another form, 256. Sheriff's indemnity bond, 257. Attachment bond, 258. Official bond, 259. Indemnity bond of principal to one who has become surety with him under former bond, 259. Arbitration, 152. Bottomry, 1233. Of indemnity for lost certificate of stock, 1267. Mortgage, 975. And lease of mining property, 809. Standard form of American Institute of Architects, 293. BOOK, See Copyright. BOOKKEEPEE, Contract between merchant and, 1208. BOTTOMRY BOND, 1233. BUILDING, Grant of right of lateral support for, 654. See Building Agreement ; Easement ; Party Wall. BUILDING AGREEMENT, General forms, 261. For building dwelling house, 261. Where owner supplies materials and no architect is em- ployed, 265. For building warehouse, 267. For building stable, owner paying actual cost and a com- mission, short form, 273. For alterations and repairs, owner supplying materials, 274. Bond for performance of, 247. American Institute of Architects' forms, 275. The uniform contract, 275. The builder's uniform subcontract, 280. Standard forms of contract documents, 285. Invitation to submit proposal, 285. Instructions to bidders, 286. Proposal, 289. INDEX 1391 [The figures refer to pages] BUIL.DING AGREEMENT— C!ontlnued, Agreement, 291. Bond, 293. General conditions of contract, 295. BUEIAIi, Direction as to, in will, 1350. c CALIFORNIA, Acknowledgment of deed, statutes, 20, Form, general, 21. By corporation, 22. By attorney in fact, 22. Chattel mortgage, statutes, 339. Form of, 340. Affidavit, 341. Of crop, 341. Deed, statutes, 522. Grant, statutory, 523. Warranty, 523. Quitclam, 524. Mortgage, real estate, statutory, 874. Another form, S74. "Will, statutes, 1295. CERTIFICATE, Of acknowledgment, see Acknowledgment. Of stock, see Stock and Stockholders. Of treasurer of corporation for subscription to stock, 1262. CHARTER PARTY, For a voyage, 1238. Time, 1240. CHATTEL MORTGAGE, Preliminary note, in general, 324. Recording acts, 324. Description of property, 325. After-acquired property, 325. Retention of right to sell, 325. Scope of chapter, 325. Chattel mortgage, general form, 328. Mortgage of a patent, see Patent. Of a vessel, see Ships and Vessels. Statutory provisions and forms and other forms in use In the states, 331. Alabama, statutes, 331. Chattel mortgage, 333. Alaska, statutes, 334. 1392 INDEX [The figures refer to pages] CHATTEL MORTGAGE— Continued, Arizona, I statutes, 335. Chattel mortgage, 336. Affidavit, 337. Arkansas, statutes, 337. Chattel mortgage, 338. California, statutes, 339. Mortgage of personal property, 3-10, Affidavit, 341. Mortgage of crop, 341. Colorado, statutes, 343. Chattel mortgage, 344. Connecticut, statutes, 347. Mortgage of personal property, 347. Delaware, statutes, 348. District of Columbia, statutes, 349. Deed of trust of personal property, 349. Florida, statutes, 352. Chattel mortgage, 352. Georgia, statutes, 354. Chattel mortgage, 355. Idaho, statutes, 356. Chattel mortgage, 357. Affidavit, 357. Illinois, statutes, 358. Chattel mortgage, 359; Acknowledgment, 361. Indiana, statutes, 362. Chattel mortgage, 362. Iowa, statutes, 364. Chattel mortgage, 364. Kansas, statutes, 365. Chattel mortgage, 365. Affidavit of renewal, 367. Kentucky, statutes, 367. Maine, statutes, 368. Mortgage of personal property, 369. Maryland, statutes, 370. Mortgage of personal property, 371. Acknowledgment and affidavit, 371. Massachusetts, statutes, 372. Mortgage of personal property, 373. Assignment of mortgage, 375. Discharge of mortgage, 375. Michigan, statutes, 376. Chattel mortgage, 377. Affidavit, 379. Renewal affidavit, 379. INDEX 1393 [The figures refer to pages] C1HATTEL MORTGAGE— Continued, Minnesota, statutes, 380. Chattel mortgage, 381. Mississippi, statutes, 382. Chattel mortgage, 383. Missouri, statutes, 384. Chattel mortgage, 385. Montana, statutes, 386. Chattel mortgage, 387. Affidavit, 389. Kehraska, statutes, 390. Chattel mortgage, 391. Nevada, statutes, 392. Chattel mortgage, 393. Affidavit, 394. New Hampshire, statutes, 394. Mortgage of personal property, 396. New Jersey, statutes, 397. Chattel mortgage, 399. • New Mexico, statutes, 401. Chattel mortgage, 402. New York, statutes, 404. Chattel mortgage, 406. Assignment, 408. Satisfaction, 409. North Carolina, statutes, 410. Chattel mortgage, 410. North Dakota, statutes, 411. Mortgage of personal property, 412. Another form, 413. Ohio, statutes, 414. Chattel mortgage, 415. Statement of claim, mortgage securing money only, 417. Mortgage to indemnify surety; 417. On refiling mortgage, 418. Oklahoma, statutes, 418. Chattel mortgage, 420. Oregon, statutes, 420. Chattel mortgage, 421. Pennsylvania, statutes, 422. Chattel mortgage, 423. Rhode Island, statutes, 425. Mortgage of personal property, 425; South Carolina, statutes, 427. Mortgage of personal property, 428. South Dakota, statutes, 429. Mortgage of personal property, 431. Acknowledgment of receipt of copy, 431. TlFF.FOEMS— 88 1394 INDEX [The figures refer to pages] CHATTEL MORTGAGE— Continued, Tennessee, statutes, 431. Chattel mortgage, 432. Texas, statutes, 433. Chattel mortgage, 434. Utah, statutes, 435. Chattel mortgage, 437. Affidavit, 438. Vermont, statutes, 438. Mortgage of personal property, 440. Affidavit, 441. Assignment, 441. Discharge, 442. Virginia, statutes, 442. Washington, statutes, 443. Chattel mortgage for $100 or less, 444. Affidavit, 446. West Virginia, statutes, 446. Wisconsin, statutes, 447. Chattel mortgage, 449. Wyoming, statutes, 451. Chattel mortgage, 453. CHECK, See Bills of Exhange, Checks, and Promissory Notes. CHOSEi IN ACTION, See Assignment. CODICIL, See Will. COLLATERAL SECURITY, Preliminary note, 1118. Agreement on transfer of note as, for transferror's note, 1122. Assignment of chose in action as, for indebtedness, 1123. Of mortgage as, 855. Collateral note, pledging stock on bonds, 1124. Another form, 1124. Pledging securities for payment thereof and other liabili- ties, 1125. Another form, 1126. Another form, 1127. Of corporation, pledging stock, 1128. To hank, 1129. COLORADO, Acknowledgment of deed, statutes, 23. General form, 24. Separate by wife, 25. INDEX 1395 [The figures refer to pages] COLORADO— Continued, Chattel mortgage, statutes, 343. Form of, 344. Deed, statutes, 524. Grant, statutory, 523. Warranty, 528. Quitclaim, 524. Of trust, 876. Will, statutes, 1296. COMPETITION, Vendor's covenant not to compete, on sale of good will, 680, 682. 686. COMPOSITION WITH CKEDITOPlS, Preliminary note, 176. Deed of composition, providing for payment by installments with covenant to pay debtor and a guarantor, 209. Providing for payment by installments secured by assign- ment of contracts and notes of debtor and sureties, 212. By partners, providing for payment of one composition to both joint and separate creditors, secured by notes of partners and surety, with assignment of firm business to surety, 217. Agreement between debtor and principal creditor, for composi- tion payable by installments, secured by notes of debtor and third persons, to take effect on signing by creditors and delivery of notes within limited time, 221. For composition and release, although nonesecuting credi- tors be paid in full, 222. CONDITION, Conveyance to railway company, subject to, in case premises not used for station, 503. For right of way, with condition In case of abandonment, 504. CONDITIONAL SALE, See Chattel Mortgage; Sale of Goods. CONNECTICUT, Acknowledgment of deed, statutes, 25. Form, by husband and wife, 26. Chattel mortgage, statutes, 347. Form of, 347. Deed, statutes, 527. Warranty, 527. Quitclaim, 528. Mortgage, real estate, 881. WUl, statutes, 1296. 1396 INDEX [The figures refer to pages] CONTEST, Of will, provision against, 1335. CONTRACT, See Agreement. CONVEYANCE, See Deed; Mortgage (Real Estate). COPYRIGHT, Preliminary note, 456. Assignment of literary copyright, 456. Another form, 457. Of performing rights in a play, 457. Sale of manuscript, with right to copyright, 458. With agreement for publication, 458. Agreement for publication of book, author reserving copyright and receiving royalties, 460. Another form, 462. CORPORATION, Acknowledgment of deed by, see Acknowledgment. Deed by, 478. To, 478. • Mortgage and deed of trust by, 857. Power of attorney by, 1145. Promissory note of, 237. Collateral, 1128. See Stock and Stockholders. COA'BNANT, See Agreement; Chattel Mortgage; Deed; Lease; Mortgage (Real Estate). CREDITORS, Assignment for benefit of, see Assignment for Benefit of Cred- itors. Composition with, see Composition with Creditors. CROP, Mortgage of, 341. Agreement for sale of, of grass, 1189. Of fruit, 1190. CURTESY, Release by tenant by the, 496. INDEX 1397 [The figures refer to pages] D DECLARATION OF TRUST, See Trust. DEED, Preliminary note, in general, 466. Parts of deeds, 466. Restrictions and conditions, 468. Deed iwU and indenture, 469. Acknowledgment, 469. Recording, 469. Forms generally applicable, 475. Warranty deed, indenture, 475. Special warranty deed, indenture, 476. Quitclaim deed, indenture, 476. Warranty deed, deed poll, 476. Quitclaim deed, deed poll, 477. With covenants of special warrants. 477. Deed by corporation to corporation, indenture, 478. Warranty deed subject to mortgage which grantee assumes, 479. Conveyance, subject to a lease, 479. In fee, a lessee joining to merge term, 480. Of life estate, 481. Subject to a life estate, 481. To lease at ground rent, 825. To subpurchaser by vendor under contract of sale, orig- inal purchaser joining, 482. By tenants in common or joint tenants, 483. To joint tenants, 483. To partnership, 484. To tenants in common, 484. By trustees under deed of trust, by indenture, with spe- cial warranty, 485. By deed poll, 486. By trustee in bankruptcy, 487. By executor under power in will, by indenture, 488. By deed poll, 488. Deed, of executor, administrator, or guardian selling at pub- lic or private sale pursuant to license, 489. By sheriff or referee upon judicial sale pursuant to judgment, 490. Conveyance to trustees under a will, 492. Deed of partition between co-owners, 493. Deed executed under power of attorney, 494. Assignment of dower, 495. 1398 INDEX [The figures refer to pages] DEED— Continued, Eel ease of dower, 495. Anotlier form, 496. By tenant by the curtesy, 498. Conveyance, of land with easements of right of way and sewer, reservation of right of way and restrictive covenants against building, 498. Of one lot with restrictions for benefit of all lots em- braced in a general plan, 501. To a railway company subject to a condition in case premises are used for^ station, 50-3. To railway company for right of way with condition in case of abandonment, 504. Deed, to correct mistake in prior deed, 504. Of a mining claim, 505. Conveyance reserving mines and minerals with liberty to work, 506. Reserving coal, 507. Deed by one of full age confirming conveyance made during infancy, 509. Confirming conveyance made under power of attorney, 510. Of gift, 675. Description, city lot, 511. According to plat, 511. Land In government survey, 511. By course and distance, 512. With reference to other land, 512. With reference to map or plan, 512. Attestation clause, where delivery in escrow, 512. Noting alterations, omissions, or insertions, 513. Where signature is by mark, 513. Where signature is written for grantor, 513. Where execution is by attorney, 514. Statutory provisions and forms and other forms ui use in the states, 514. Alabama, statutes, 514. Warranty deed, 515. Quitclaim deed, 516. Alaska, statutes, 517. Arizona, statutes, 517. Warranty deed, 519. Quitclaim deed, 520. Arkansas, statutes, 520. Warranty deed With reUnquishment of dower, 521. California, statutes, 522. Grant, statutory, 523. INDEX 1399 [The figures refer to pages] DEED— -Continued, Warranty deed, 523. Quitclaim deed, 524. Colorado, statutes, 524. Warranty deed, 525. Quitclaim deed, 526. Connecticut, statutes, 527. Warranty deed, 527. Quitclaim deed, 528. Delaware, statutes, 529. Warranty deed, 529. District of Columbia, statutes, 530. Fee simple deed, 532. Deed by husband and wife, 532. Deed of life estate, 533. Deed of trust, 533. Trustee's deed under a decree, 533. Executor's deed, 534. Florida, statutes, 534. Warranty deed, 535. Georgia, statutes, 536. Warranty deed, 537. Hawaii, statutes, 538. Idaho, statutes, 538. Warranty deed, 540. Illinois, statutes, 541. Warranty deed, 541. Quitclaim deed, 542. Indiana, statutes, 543. Warranty deed, 544. Quitclaim deed, 544. Iowa, statutes, 544. Quitclaim deed, 545. Deed in fee simple without warranty, 545. Deed in fee with warranty, 545. Mortgage, 545. Warranty deed, another form, 546. Quitclaim deed, another form, 546. Kansas, statutes, 547. Warranty deed, 547. Quitclaim deed, 548. Kentucky, statutes, 548. Warranty deed, 550. Louisiana, statutes, 550. Sale by married woman, notarial act, 552. Credit sale, notarial act, 554. Promissory note to accompany above, 557. Act under private signature, 557. 1400 INDEX [The figures refer to pages] DEED— Continued, Special power of attorney to represent absent pur- chaser under notarial act, 55S. Maine, statutes, 560. Warranty deed, 560. Quitclaim deed, 561. Maryland, statutes, 561. Deed conveying fee simple, 563. Where married woman is a party, 563. Conveying estate for life, 563. Trustee's deed under a decree, 564. Executor's deed, 564. Massachusetts, statutes, 565. Warranty deed, statutory, 566. Quitclaim deed, statutory, 567. Deed of executor, administrator, trustee, guardian, or conservator, statutory, 567. Release, statutory, 568. Warranty deed, common form, 569. Quitclaim deed, common form, 570. Michigan, statutes, 571. Conveyance, with warranty, statutory, 572. Conveyance in quitclaim, statutory, 572. Minnesota, statutes, 572. Warranty deed, 573. Quitclaim deed, 574. Mississippi,, statutes, 574. Warranty deed, statutory, 576. Deed of trust or mortgage, statutory, 576. Quitclaim deed, 576. Missouri, statutes, 576. Warranty deed, 577. Quitclaim deed, 578. Montana, statutes, 579. Grant, statutory, 580. Warranty deed, ,580. Quitclaim deed, 581. Nebraska, statutes, 582. Warranty deed, 582. Quitclaim deed, 583. Nevada, statutes, 583. New Hampshire, statutes, 584. Warranty deed, 584. Quitclaim deed, 585. New Jersey, statutes, 586. Deed, statutory, 587. Warranty deed, common form, 589. ■Quitclaim deed, common form, 591. INDEX 1401 [The figures refer to pages] DEED— Continued, New Mexico, statutes, 591. Warranty deed, 592. New York, statutes, 594. Deed with full covenants, 597. Executor's deed, 598. Quitclaim, deed witli covenants against grantor's acts, .599. North Carolina, statutes, 599. Warranty deed, 600. Quitclaim deed, 601. North Dakota, statutes, 602. Grant, statutory, 60.3. Warranty deed, common form, C04. Quitclaim deed, common form, 605. Ohio, statutes, 605. Warranty deed, 606. Oklahoma, statutes, 606. Warranty deed, 608. Quitclaim deed, 609. Oregon, statutes, 609. Warranty deed, 610. Pennsylvania, statutes, 611. Deed, statutory, 612. Warranty deed, common form, 613. Rhode Island, statutes, 614. Warranty deed with release of dower, 615. Quitclaim deed, 616. South Carolina, statutes, 017. Conveyance, 618. South Dakota, statutes, 619. Warranty deed, statutory, 619. Quitclaim deed, statutory, 620. Grant, statutory, 620. Tennessee, statutes, 021. Forms, 622. Texas, statutes, 623. Warranty deed, statutory, 624 With vendor's lien, 625. Quitclaim deed, 626. Utah, statutes, 626. Warranty deed, 627. Quitclaim deed, 628. Vermont,- statutes, 628. Warranty deed, 629. Quitclaim deed, 630. Virginia, statutes, 630. Deed, statutory, 631. Deed with covenants, 632. 1402 INDEX [The flgures refer to pages] DEED— Continued, ' Washington, statutes, 633. Warranty deed, 634. Bargain and sale deed, 634. Quitclaim deed, 635. West Virginia, statutes, 635. Deed, statutory, 636. Quitclaim, 636. Wisconsin, statutes, 637. Warranty deed, statutory, 638. Quitclaim deed, statutory, 639. Deed reserving life estate, statutory, 639. Wyoming, statutes, 640. Warranty deed, statutory, 641. Quitclaim deed, statutory, 642. DEED OF TRUST, See Chattel Mortgage ; Mortgage (Real Estate) ; Trust. DEED POLL, See Deed. DELAWARE, Acknowledgment of deed, statutes, 26. Form, by husband and wife, 28. By corporation, 28. Chattel mortgage, statutes, 348. Deed, statutes, .'529. Warranty, 529. Mortgage, real estate, 882. Will, statutes, 1297. DESCRIPTION, See Deed. DEVISE, See Will. DISCHARGE, Of chattel mortgage, 375, 409, 442. See Chattel Mortgage. Of mortgage, real estate, see Mortgage (Real Estate). DISHONOR, Notice of, see Bills of Exchange, Checks, and Promissory Notes. DISSOLUTION, Of partnership, see Partnership. DISTRICT OF COLUMBIA, Acknowledgment of deed, statutes, 29. General form of, 30. INDEX 1403 [The figures refer to pages] DISTRICT OF COLUMBIA--Continue(i, Chattel mortgage, statutes, 349. Deed of trust, 349. Conditional sale, statutes, 349. Deed, statutes, 530. Fee simple, 532. By husband and wife, 532. Of life estate, 533. Of trust, 533. Trustee's, under decree, 533. Executor's 534. Ijease, 786. Mortgage, real estate, statutory, 884. Deed of trust, 884. Another form, 884. Will, statutes, 1297. DORMANT PARTNER, Articles of partnership, where one is, 1030. DOWER, Assignment of, 495. Release of, 496. Another form, 496. DRAMA, Assignment of, performing rights in, 457. E EASEMENT, Preliminary note, 644. Grant of right of way, in perpetuity for all purposes, 645. In connection with dwelling house, 647. For a footway in substitution of right of way released, 648. To railway company, 649. Agreement quieting disputes as to use of way and license, 650. Of right of sewage, 652. Of right to lay footings of wall in land of adjoining owner, 653. Of right of lateral support for building, 654. Of easement of light, 656. Conveyance of land with, 498. Agreement between adjoining owners, as to right of eavesdrop, 656. As to encroaching fence and license, 658. Release of right of way or other easement, 659. See Deed. 1404 INDEX [Tihe figures refer to pages] EAVBSDKOP, Agreement between adjoining owners as to right of, 656. EMINENT DOMAIN, Demised premises talien under power of, 729. Proviso in lease in case of taking under power of, 751, 766. EMPLOYER AND EMPLOYE, See Service and Agency Contracts. ENROLLED VESSEL, See Ships and Vessels. EXCHANGE, Of land, agreement for, 1184, 1185. EXECUTOR, Convej'ance by, under power in will, by indenture, 488. By deed poll, 488. Selling at public or private sale, pursuant to license, 489. See Will. EXTENSION, Of mortgage, see Mortgage (Real Estate). Of lease, see Landlord and Tenant. F FACTOR, Contract between principal and, 1218. FARM, Lease of, see Landlord and Tenant. FENCE, Encroaching, agreement as to, 658. FIRE INSURANCE, Preliminary note, 665. Notice of loss, 665. Proof of loss, 666. Another form, 667. Another form, 669. Certificate of magistrate or notary, 671. Receipt of payment of loss, 671. Agreement for submission to appraisers, 672. Award of appraisers, 673. Policy of, assignment of, 170. Provision as to, in lease, see Landlord and Tenant. In mortgage, see Mortgage (Real Estate). FISHING, License to flsh, 660. INDEX 1405 [The figures refer to pages] FLOEIDA, Acknowledgment of deed, statutes, 30. Form of general, 31. By husband and wife, 32. Chattel mortgage, statutes, 352. Form of, 352. Deed, statutes, 534. Warranty, 537. Mortgage, real estate, 888. Will, statutes, 1297. FOOTINGS, Of wall, grant of right to lay, 653. FREIGHT, Assignment of, for voyage, 1244. FUTURE ADVANCES, Mortgage to secure, 845. G GAS AND OIL, Lease, 809. GEORGIA, Acknowledgment and proof of deed, statutes, 32. Form, of acknowledgment by married woman, 33. Of proof by subscribing witness, 34. Chattel mortgage, statutes, 354. Form of, 355. Deed, statutes, 536. Warranty, 537. Mortgage, real estate, 889. Will, statutes, 1298. GIFT, Preliminary note, 674. Of personal chattels, 674. Deed of, of land, 675. Subscription, for church building, 675. To endow college, 676. To erection of factory, 676. GOLF CLUB, I«ase to, for golf course, 775. License to, for golf course, 661. GOODS, Hire of, see Hire of Goods ; Sale of Goods. 1406 INDEX [The figures refer to pages] GOOD WILL, Preliminary note, 678. Assignment, of good will, and assets of grocery business, 679. By a firm of good will and assets of business to corporation. 681. Of trade-marks, with good will of business and trade-name, 683. By separate instrument, 684. Of good will of medical practice, 685. Valuation of, on determination of partnership, 1025, 1039. GOVERNMENT SURVEY, Description according to, 511. GRANT, ■ See Deed. GROUND RENTS, Mortgage of, 854. Assignment of, see Landlord and Tenant. GUARANTY, Preliminary note, 687. Guaranty, for payment of money advanced, 688. For payment of goods to be supplied, 688. Anotber form, 689. For payment of debt in consideration of forbearance, 689. For payment of note, 689. For collection of note, 689. For performance of contract, 690. Continuing, for payment of goods to be supplied, 690. Joint and several, of advances, with right to withdraw, 692. Continuing, limited in amount, for goods to be supplied, where guarantors are liable in unequal sums, 693. For payment of rent and observance of terms of lease, see Landlord and Tenant. For performance by debtor of composition deed, 209. GUARDIAN, Deed of, selling at public or private sale pursuant to license, 489. Appointment of, see Will. H HAWAII, Acknowledgment of deed, statutes, 34 Form of, 35. Deed, statutes, 538. Will, statutes, 1298. INDEX 1407 [The figures reter to pages] HIRE OF GOODS, Preliminary note, 695. Agreement for hire of furniture, 695. Lease of personal property, 697. Agreement for hire of piano forte to become property of hirer if he makes optional i>ayments, 699. Agreement for hire of machinery with option to buy, 700. HOMESTEAD, See Acknowledgment ; Deed. HUSBAND AND WIPE, Preliminary note, 703. Marriage settlement, of personal property, of intended wife, 704. Of real and personal property of intended husband, 708. Of personal property of wife's father's personalty, 712. Separation deed between husband and wife, the husband grant- ing an annuity to the wife, 714. The wife being otherwise provided for, 716. See Acknowledgment; Deed. I IDAHO, Acknowledgment of deed, statutes, 38, Form, ordinary, 37. By corporation, 38. By attorney in fact, 38. Chattel mortgage, statutes, 356. Form of, 357. Affidavit, 357. Deed, statutes, 538. Warranty, 540. Mortgage, real estate, 890. Will, statutes, 1298. IDI/INOIS, Acknowledgment and proof of deed, statutes, 38. Acknowledgment, 42. By corporation, 43. Proof of subscribing witness, 43. Chattel mortgage, statutes, 358, Form of, 359. Acknowledgment, 361. Deed, statutes, 541. Warranty, 541. Quitclaim, 542. 1408 INDEX [The figures refer to pages] ILLINOIS— Continued, Mortgage, real estate, statutory, 892. With power to af>point receiver, 892. Trust deed, 894. Assignment of, 983. Will, statutes, 1299. INDEMNITY, Preliminary note, 720. Indemnity, to corporation on issue of new stock certificate in lieu of lost certificate, 720. By legatee to executors on payment of legacy in case of in- sufficient assets, 721. Indenture of, by landlord where title is in dispute to tenant against consequences of paying rent, 722. By beneficiaries to trustees in respect to unauthorized In- vestments, 723. To maker of note by comaker who has assumed payment, 724. Undertaking by drawer to provide for accommodation bill and to indemnify acceptor, 725. Bond of, see Bond. INDENTURE, See Deed. INDIANA, Acknowledgment of deed, statutes, 44. By husband and wife, 45. Chattel mortgage, statutes, 362. Form of, 362. Deed, statutes, 543. Warranty, 544. Quitclaim, 544. Mortgage, real estate, statutory, 896. Will, statutes, 1300. INDORSEMENT, See Bills of Exchange, Cheeks, and Promissory Notes. INFANT, Deed by one of full age confirming conveyance made in Infancy, 509. See Apprenticeship. INHERITANCE TAX, Provisions In will for payment of, 1324, 1334, 1337, 1341, 1361. INSPECTORSHIP, Deed of, 200. INSURANCE, See Fire Insurance ; Marine Insurance. INDEX 1409 [The figures refer to pages] INVENTION, See Patent. INVITATION TO SUBMIT PROPOSAL, For building, 285. IOWA, Acknowledgment of deed, statutes, 45. Form of, 45. Chattel mortgage, statutes, 364. Form of, 364. Conditional sale, statutes, 364. Deed, statutes, 544. Quitclaim, 545, 546. In fee simple, without warranty, 545. With warranty, 545, 546. Mortgage, real estate, statutory, 896. Another form, 896. Will, statutes, 1300. JOINT-STOCK ASSOCIATION, Acknowledgment of deed by, see Acknowledgment. JOINT TENANTS, Conveyance by, 483. To, 483. Lease by, 789. To, 791. JUDGMENT, Assignment of, see Assignment. Promissory note authorizing confession of, 236. K KANSAS, Acknowledgment of deed, statutes, 47. Form of, 46. Chattel mortgage, statutes, 365. Form of, 365. Affidavit of renewal, 367. Conditional sale, statutes, 365. Deed, statutes, 547. Warranty, 547. Quitclaim, 548. Mortgage, real estate, 898. Will, statutes, 1301. TiBF. Forms — 89 1410 INDEX [Tbe figures reter to pages] KENTUCKY, Acknowledgment of deed, statutes, 48. Form of, by husband and wife, 48. By corporation, 49. Cbattel mortgage, statutes, 367. Deed, statutes, 548. Warranty, 550. Mortgage, real estate, 899. Will, statutes, 1301. LANDLORD AND TENANT, Preliminary note, 726. Lease, 726. Agreement for, 726. Form and execution of, 726. Contents of, 727. I/essee's covenants, 728. Lessor's covenants, 729. Proviso for re-entry, 729. Eminent domain, 729. Agreement for lease, of dwelling house, 731. For lease of building for business purposes, 733. Conferring option to take lease, 734. For lease to be granted on determination of existing lease, new tenant to make alterations, 735. For tenancy of furnished house for short term, and there- after monthly, 737. Lease, short general form of, 739. With provision for distress, 741. Of dwelling house with options for renewal and purchase, 742. Of building for business purposes, 746. Of warehouse, providing for alterations by lessee with op- tion to determine, 752. With various covenants by lessee, 756. Of land for 99 years, providing for building to be erected by lessee, 760. Of offices, 768. Of suite of rooms in apartment house, 771. Of land for golf course, 775. Of farm, 777. On shares, 779. Short form, 782. Agreement for farming on shares, owner retaining title to crops until division, 784. INDEX 1411 [The figures refer to pages] LANDLORD AND TENANT— Continued, Statutory form, District of Columbia and Maryland, 786. Virginia and West Virginia, 786. By mortgagor and mortgagee, 787. Another form, 789. By joint tenants, 780. By tenants in common, 790. To joint tenants, 791. To tenants in common, 792. By way of renewal or extension of existing term, 792. Deed of covenant for payment of additional rent In considera- tion of alterations to be made by lessor, 704. Under lease varying covenants of superior lease, 795. Mining lease, 797. Another form, 799. Another form, 800. Iron ore, 803. Bond and lease of mining property, 809. Oil and gas lease, 811. Conveyance subject to, 479. Vailous clauses in leases, Reddendum, rent payable in gold coin of present standard, etc., 746. In grains of gold, 761. Lessee's covenants, 7.39. To pay rent, 743, 747, 761, 768, 772. To secure rent by chattel mortgage, 747. Giving right of distress, etc., 741, 759. To pay taxes, etc., 743, 747, 762. To pay water and light rates, 748, 756, 768, 772. To pay costs of enforcing covenants, etc., 750, 765. To keep in repair, 748, 748, 753, 764, 772, 777, 781. To replace broken glass, 748. To keep premises sanitary, 757. To permit lessor to enter and repair, etc., 743, 749, 758, 765, 769, 774. To yield up premises, 743, 749, 759, 765, 770. To permit rent or sale notices, 749. To erect building, 761. Trt make specific alterations, 753. To paint, 753. To cleanse at end of term, 754. To Insure against damage by fire, etc., 747, 763. Against loss of rents, 747. Not to endanger Insurance, 748, 758, 769. To restore and rebuild in case of damage or destruc- tion, etc., 754, 764. To indemnify against accidents and negligence, 748, 773. 1412 INDEX [The figures refer to pages] LANDLORD AND TENANT— Continued, That lessor shall not be liable for water damage, 769. To preserve furniture, 737. To preserve timber, 77S. To farm in husbandlike manner, 777. To use only for specified pui-poses, 758. To conform to regulations, 769, 772. Not to assign or sublet, 743, 749, 759, 762. Not to make alterations, 743, 749, 759, 762, 770, 774. Not to suffer unlawful use, 748, 765, 769. Not to store dangerous materials, 754. Not to carry on offensive trade, 754. Not to injure or overload, 748. Not to keep animals, 773. Not to place signs, 749, 769. Not to suffer lien or incumbrance, 762. Not to obstruct halls, 773. Not to waste heat or water, 773. Not to suffer waste, 769. That property and premises shall be at lessee's risk, 749. That condition of premises is known to lessee, 757. That assent to breach shall not waive future breaches, 750. Covenants, in farm lease, 777, 780, 783. In mining lease, 797, 800, 802, 804. In oil and gas lease, 812. Lessor's covenants. For quiet enjoyment, 740, 744, 774, 776, 787. That lessee shall have option of renewal, 744. Option to purchase, 744. To heat premises, 770, 774. To provide water, 774. To run elevator, 774. To make certain repairs, 779. To permit removal of fixtures, 776. To permit certain waste, 776. That lessee assigning shall be discharged, 765. Proviso, for rereutry, 738, 742, 745, 750, 766, 770, 776, 779, 781, 808. In event of damage by fire, 740, 745, 750, 760. In case of taking by eminent domain, 751, 766. Granting option to purchase, 752. Option to determine lease, 755. Continuation of tenancy after tenn, 742. Service of notices, 755. Release and waiver by landlord of breaches of covenant by ten- ant, 814. INDEX 1413 [The figures refer to pages] LANDLORD AND TENANT— Continued, Guaranty of payment of rent and observance of terms of ten- ancy, 815. By indorsement, 815. Another form, 816. By guarantors with unequal liability, 816. Bond for payment of rent, 249. Assignment of lease, by deed poll, 817. By indorsement, 818. With guaranty by assignor and assumption by assignee of lessee's covenants, 819. Lessor joining to release lessee and taking new cove- nants from assignee, 819. Assignment of leaseholds by lessee, 821. Assignment of an agreement for a lease, 822. By indorsement, 823. Assignment of ground rents with a demise to enable purchaser to recover rent, 824. Conveyance in fee simple subject to a lease at ground rent ■with benefit of lease, 826. Mortgage of leasehold, see Mortgage (Real Estate). Surrender of lease, 826. By indorsement, 827. License, to assign, 827. To underlet, 827. By indorsement, 828. Assent of lessor to assignment, 828. Another form, 828. Notice to quit, by landlord or his agent, 830. By tenant, 830. By landlord to tenant from year to year, 830. By tenant from year to year to landlord, 831. To determine lease in accordance with proviso in that be- half, 831. By landlord to tenant to repair where lease contains cove- nant to repair on notice, 831. To landlord of tenant's election to exercise option to pur- chase, 832. To landlord of tenant's election to take renewal lease, 532. By purchaser of premises requiring payment of rent to him- self, 833. Indemnity by landlord to tenant where title is in dispute against consequences of paying rent, 722. See Hire of Goods. LATERAL SUPPORT, For building, see Easement. 1414 INDEX [The figures refer to pages] LEASE, See Landlord and Tenant. LEASEHOLD, Assignment of, by lessee, 821. See Landlord and Tenant. Mortgage of, see Mortgage (Real Estate). LEGACY, Assignment of, 164. See Will. LETTERS PATENT, See Patent. LICENSE, Preliminary note, 644. License, to fish, 660. To club, to use land for baseball, 660. To gulf club, reserving rent, revocable by notice, 661. Grant of riglit to construct telephone line, in street, 662. Over owner's land, 663. Agreement quieting disputes as to riglit of way and license, 650. License by landlord, to assign lease, 827. To sublease, 828. To make alterations, 828. Under patent, see Patent. LIFE ESTATE, Conveyance of, 481. Subject to, 481. LIMITATION, Acknowledgment of debt barred by, 1159. LIMITED PARTNERSHIP, ■ See Partnership. LOUISIANA, Acknowledgment of deed, statutes, 49. Form of, 50. Deed, statutes, 550. Sale, notarial act, by married woman, 552. Credit, 554. Promissory note to accompany, 557. Act under private signature, 557. Special power of attorney to represent absent purchaser under notarial act, 558. Mortgage, real estate, 900. Note, 903. Will, statutes, 1302. INDEX 1415 [The figures refer to pages] M MAINE, Acknowledgment of deed, statutes, 50. Form of, 51. Chattel mortgage, statutes, 368. Form of, 369. Conditional sale, statutes, 3G8. Deed, statutes, 560. Warranty, 560. Quitclaim, 561. Mortgage, real estate, 904. WUl, statutes, 1802. MANAGER, Contract between, and merchant, 1212, 1214. Between, and actor or singer, 122.3. By co-owners of ship, to employ one as, 1234. MANUSCRIPT, Sale of, 458. See Copyright. MARINE INSURANCE, Assignment of policy of, 1245. Notice to underwriters of abandonment of ship or cargo, 1246. MARINE PROTEST, 1251-1254. MARK, Signature by, attestation clause, 513. MARRIAGE SETTLEMENT, See Husband and Wife. MARRIED WOMAN, Acknowledgment of deed by, see Acknowledgment. Execution of deed by, see Deed. See also Curtesy ; Dower ; Husband and Wife. MARYLAND, Acknowledgment of deed, statutes, 51. Form of, taken within state, 52. By husband and wife, 53. Taken out of state, 53. Bill of sale, 1205. Mortgage of personal property, statutes, 370. Form of, 371. Acknowledgment and affidavit, 371. Deed, statutes, 561. Fee simple, 563. 1416 INDEX rThe figures refer to pages] MARYLAND— Continued, Where married woman party, 563. Estate for life, 563. Trustees under decree, 564. Executors, 564. Lease, 786. Mortgage, real estate, acknowledgment witli affidavit, 906. Deed of trust, statutory, 906. Mortgage, statutory, 907. Another form, 907. Assignment of, statutory, 910. Another form, 984. Release of, statutory, 910. Another form, 991. Will, statutes, 1302. MASSACHUSETTS, Acknowledgment of deed, statutes, 54. Form of, 54. Mortgage of personal property, statutes, 372. Form of, 373. Assignment of, 375. Discharge of, 375. Conditional sale, statute, 373. Deed, statutes, 565. Statutory, warranty, 566. Quitclaim, 567. Of executor, administrator, trustee, guardian, or con- servator, 567. Release, 568. Common form, warranty, 568. Quitclaim, 570. Mortgage, of real estate, statutory, 910. Another form, 913. Assignment of, statutory, 985. Another form, 985. Discharge of, statutory, 991. Another form, 992. Partial release of, statutory, 999. Another form, 999. Extension of, 1006. Will, statutes, 1303. MASTER AND SERVANT, See Service and Agency Contracts. MICHIGAN, Acknowledgment of deed, statutes, 54. Form of, 55. INDEX 1417 [The figures refer to pages] MICHIGAN— Continued, Oliattel mortgage, statutes, 376. Form of, 377. Affidavit, 379. Renewal affidavit, 379. Deed, statutes, 571. Conveyance, with warranty, 572, In quitclaim, 572. Mortgage, real estate, statutory, 913. Another form, 916. "Will, statutes, 1303. MINES AND MINEKALS, Deed of mining claim, 505. Conveyance reserving, 506. Reserving coal, 507. Mining lease, 797. Another form, 799. Another form, 800. Iron ore, 803. Bond and lease, 809. Oil and gas, 811. MINNESOTA, Acknowledgment of deedi, statutes, 55. Form of, 57. Chattel mortgage, statutes, 380. Form of, 381. Conditional sale, statute, 380. Deed, statutes, 572. Warranty, 573. Quitclaim, 574. Mortgage of real estate, 918. Assignment of, 992. Warehouse receipt, terminal, for grain, 1290. Will, statutes, 1304. MISSISSIPPI, Acknowledgment and proof of deed, statutes, 57. Acknowledgment, by natural person, 58. By married woman, 59. Proof by subscribing witness, 58. Chattel mortgage, statutes, 382 Form of, 383. Deed, statutes, 574. Warranty, 576. Quitclaim, 576. Mortgage, real estate, deed of trust, statutory, 922. With power of sale, 922. Will, statutes, 1.304. 1418 INDEX [The figures refer to pages] MISSOURI, Acknowledgment and proof of deed, statutes, 59. Acknowledgment, 59. Proof by subscribing witness, 60. Chattel mortgage, statutes, 384. Form of, 385. Conditional sale, statute, 384. Deed, statutes, 576. Warranty, 577. Quitclaim, 578. Mortgage, real estate, 925. Deed of trust, 923. Satisfaction of, 993. Will, statutes, 1304. MONTANA, Acknowledgment of deed, statutes, 61. Form of, general, 62. By corporation, 62. By attorney in fact, 63. Chattfel mortgage, statutes, 386. Form of, 387. Affidavit, 389. Deed, statutes, 579. Grant, statutory, 580. Warranty, 580. Quitclaim, 581. Mortgage, real estate, 925. Will, statutes, 1305. MORTGAGE (REAL ESTATE), Preliminary note, 834. Provisions of, adapted to special matters, 838. Proviso, for payment of debt and interest, 838. That whole debt shall become due on default in pay- ment or in performance of covenants, 839. For payment of debt and interest according to prin- cipal and interest notes and performance of cove- nants, 839. For payment of current account at bankers, 840. Exemption of mortgagor from personal liability, 841. Covenant of mortgagor, for further assurance, 841. To pay and perform conditions of prior mortgage with provision in case of default, 848. Covenant of mortgagee, to insure, 841. To pay debt, insurance and taxes, 842. To keep in repair, 843. . INDEX 1419 [The figures refer to pages] MORTGAGE (REAL BSTATE)--Continue(i, Provision, that mortgagee may enter and collect rents on default, 844. For appointment of receiver of rents and profits, 844. Definition of parties to include representatives, etc., 845. Form of mortgage, providing for future advances, 845. To secure indorser, 847. For purchase money, 848. To several trustees or others who advance money on a joint account, 848. Of leasehold, by way of assignment, 849, 938. By way of subdemise, 853. Of ground rents payable under and of reversion expectant on termination of 99 years' lease, 854. Assignment of, as collateral security, 855. Corporate mortgage and deed of trust securing bonds, 857. Statutory forms of mortgages and deeds of trust and other forms in use in the several states, 868. Alabama, mortgage, 868. Arizona, mortgage, statutory, 871. Another form, 871. Arkansas, mortgage, 872. California, mortgage, statutory, 874. Another form, 874. Colorado, deed of trust, 876. Connecticut, mortgage deed, 881. Delaware, mortgage, 882. District of Columbia, mortgage, statutory, 884. Deed. of trust, 884. Another form, 884. Florida, mortgage, 888. Georgia, mortgage, 889. Idaho, mortgage, 890. Illinois, mortgage, statutory, 892. Mortgage with power to appoint receiver, 892. Trust deed, 894. Indiana, moi-tgage, statutory, 896. Iowa, mortgage, statutory, 896. Another form, 896. Kansas, mortgage, statutory, 898. Kentucky, mortgage, 899. Louisiana, mortgage, 900. Mortgage note, 903. Maine, mortgage, 904. Maryland, acknowledgment of mortgage with affidavit, 906. Deed of trust, statutory, 906. Mortgage, statutory, 907. Mortgage, fee, city of Baltimore, 907. 1420 INDEX [Tlie figures refer to pages] MORTGAGE (REAL ESTATE)— Continued, Assignment of mortgage, statutory, 91.0. Release of mortgage, statutory, 910. Massacliu setts, mortgage, statutory, 910. Mortgage In common use, 913. Michigan, mortgage, statutory, 916. Anotlier form, 916. Minnesota, mortgage, 918. Mississippi, deed of trust, statutory, 922. With power of sale, 922. Missouri, deed of trust, 923. Mortgage, 925. Montana, mortgage, statutory, 925. Nebraslia, mortgage, 926. Nevada, mortgage, 927. New HampsMre, mortgage deed, 927. New Jersey, mortgage, 928. New Mexico, mortgage, 931. New York, mortgage, statutory, 933. Mortgage on lease of real property, statutory, 938. North Carolina, mortgage, 943. North Dakota, mortgage, statutory, 945. Ohio, mortgage, 945. Oklahoma, mortgage, statutory, 946. Oregon, mortgage, 947. Pennsylvania, mortgage, 948. Rhode Island, mortgage, 951. South Carolina, mortgage, 955. South Dakota, mortgage, statutory, 957. . Tennessee, mortgages and deeds of trust, statutory, 959. Deed of trust, 959. Texas, deed of trust, 961. Utah, mortgage, statutory, 964. Vermont, mortgage, 965. Virginia, deed of trust, statutory, 966. Another form, 966. Release of trust deed, 968. . Washington, mortgage, statutory, 969. Another form, 969. West Virginia, deed of trust, statutory, 971. Wisconsin, mortgage, statutory, 972. Wyoming, mortgage, statutory, 973. Deed of trust, statutory, 974. Mortgage note or bond, 975. Coupon note, 975. Interest coupon, 976. Coupon note, 976. Interest coupon, 977. INDEX 1421 [The figures refer to pages] MORTGAGE (REAL ESTATE)— Continued, Bond, New York, 977. Bond and warrant, Pennsylvania, 979. Assignment of mortgage, 981. By assignee, 982. With power of attorney and covenant by assignor, 982. By indorsement, 983. Illinois, 983. Maryland, 984. Massachusetts, statutory, 985. Another form, 985. New Jersey, 986. New YoTi., 987. Pennsylvania, 988. South Dakota, statutory, 989. Wisconsin, statutory, 989. Satisfaction, release or discharge of mortgage, 990. Satisfaction, California, 990. Release, Maryland, 991. Discharge, Massachusetts, statutory, 991. Another form, 992. Satisfaction, by assignee, Minnesota, 992. Missouri, 993. Discharge, New Jersey, 993. Satisfaction, by assignee, New York, 993. North Carolina, 994. Ohio, 994. Pennsylvania, 994. South Carolina, 995. South Dakota, 995. Release of deed of trust, Virginia, 996. Discharge of mortgage, Vermont, 996. Satisfaction of mortgage, Washington, 997. Release of mortgage or trust deed. West Virginia, 997. Satisfaction of mortgage, Wisconsin, 997. Certificate of discharge, Wyoming, statutory, 998. Partial release of mortgage, Massachusetts, statutory, 999. Another form, 999. New York, 1000. Pennsylvania, 1001. Extension of mortgage, 1002. Short form, 1004. Another form, 10O4. Massachusetts, statutory, 1006. Deed, subject to mortgage, with assumption by mortgagee, 479. 1422 INDEX [The figures refer to pages! N NEBRASKA, Acknowledgment of deed, statutes, 63. Form of, by husband and wife, 64 Chattel mortgage, statutes, 390. Form of, 391. Conditional sale, statutes, 390. Deed, statutes, 582. Warranty, 582. Quitclaim, 583. Mortgage, real estate, 926. wm, statutes, 1306. ISTEVADA, Acknowledgment of deed, statutes, 65. Form of, by individual, 66. By corporation, 66. By attorney in fact, 67. When grantor unknown to officer, 67. Chattel mortgage, statutes, 392. Form of, 393. ^ Affidavit, 394. Deed, statutes, 583. Mortgage, real estate, 927. Will, statutes, 1306. NEW HAMPSHIRE, Acknowledgment of deed, statutes, 67. Form of, by husband and wife, 68, Chattel mortgage, statutes, 394. Form of, 396. Conditional sale, statute, 395. Deed, statutes, 584. Warranty, 584. Quitclaim, 585. Mortgage, real estate, 927. Will, statutes, 1306. NEW JERSEY, Acknowledgment of deed, statutes, 63. Form of, by husband and wife, 70. By corporation, 71. Chattel mortgage, statutes, 397. Form of, 399. Conditional sale, statutes, 398. Deed, statutes, 586. Statutory, 587. Common form, warranty, 589. Quit claim, 591. INDEX 1423 [The figures refer to pages] NEW JERSET-JContinuecl, Mortgage, real estate, 928. Assignment of, 986. Discharge of, 993. Will, statutes, 1307. NEW MEXICO, Acknowledgment of deed, statutes, 71. Form of, 72. Chattel mortgage, statutes, 401. Form of, 402. Deed, statutes, 591. Warranty, 592. Mortgage, real estate, 931. Will, statutes, 1307. NEW YORK, Acknowledgment of deed, statutes, 72. Form of, general, 76. By corporation, 76. Chattel mortgage, statutes, 404. Form of, 406. Assignment of, 408. Satisfaction of, 409. Conditional sale, statute, 405. Deed, statutes, 594. With full covenants, 597. Executor's, 598. Quitclaim with covenants against grantor's acts, 599. Mortgage, real estate, statutory, 933. On lease, 938. Bond, 977. Assignment of, 987. Satisfaction of, by assignee, 993. Partial release of, 1000. Will, statutes, 1308. NORTH CAROLINA, Acknowledgment of deed, statutes, 77. Form of, by grantor or maker, 78. Private examination of wife, 78. By husband and wife, 79. By corporation, 80. Chattel mortgage, statutes, 410. Form of, 410. Conditional sale, statute, 411. Deed, statutes, 599. Warranty, 600. Quitclaim, 601, 1424 INDEX [The flgrures refer to pages] NORTH CAROLINA— Continued, Mortgage, real estate, 943. Satisfaction of, 994. Win, statutes, 1309. NORTH DAKOTA, Acknowledgment of deed, statutes, 82. Form of, general, 84. By corporation, 84. By attorney in fact, 84. Chattel mortgage, statutes, 411. Forms of, 412, 413. Conditional sale, statute, 414. Deed, statutes, 602. Statutory grant, 603. Common form, warranty, 604. Quitclaim, 605. Mortgage, redl estate, 945. Will, statutes, 1309. NOTARIAL ACT OF HONOR, On payment for liouor supra protest, 241. NOTATION, Of marine protest, 1251. NOTICE, Of dishonor, see Bills of Exchange, Checks, and Promissory Notes. Of dissolution of partnership, 1053. Of retirement of partner, 1054. By landlord to tenant, and vice versa, see Landlord and Tenant. To underwriters of abandonment of ships or cargo, 1246. NOVATION, Preliminary note, 1007. Novation, between an original contractor, a substituted con- tractor, and a contractee, 1007. Between executor of deceased partner, continuing and new partner, and a creditor, 1008. Between partners who have transferred their business to a corporation, the corporation, and a creditor, 1009. o OHIO, Acknowledgment of deed, statutes, 85. Form of, 85. Chattel mortgage, statutes, 414. Form of, 415. INDEX 1425 [The figures refer to pages] OHIO— Continued, Statement of claim, money only, 417. Indemnifying surety, 417. On refiling, 418. Conditional sale, statute, 415. Deed, statutes, 605. Warranty, 606. Mortgage, real estate, 945. Satisfaction of, 994. Will, statutes, 1310, OIL AND GAS, Lease, 811. OKLAHOMA, Acknowledgment of deed, statutes, 86. Foim of, by individuals, 86. By corporation, 87. Chattel mortgage, statutes, 418. Form of, 420. Conditional sale, statute, 420. Deed, statutes, 606. Warranty, 608. Quitclaim, 609. Mortgage, real estate, 946. Will, statutes, 1311. OPTION, To purchase land, 1185, 1186. To take lease, 734. In lease, for renewal, 744. For purchase of premises, 744. In partnership articles, for purchase of partner's share, 1037. In agreement for hire of goods, for purchase, see Hire of Goods. ORE, Iron ore lease, see Mines and Minerals. OREGON, Acknowledgment of deed, statutes, 87. Form of, by husband and wife, 88. Chattel mortgage, statutes, 420. Form of, 421. Conditional sale, statute, 422. Deed, statutes, 609. Warranty, 610. Mortgage, real estate, 947. Will, statutes, 1311. TlFI'.FOEMS — 90 1426 INDEX [The figures refer to pages] P PARTIAL RELEASE,, Of mortgage or deed of trust, see Mortgage (Real Estate). PARTITION, Deed of between co-owners, 493. PARTNERSHIP, Preliminary note, 1011. Articles of, in commercial business, short form, 1013. Another form, 1015. Between three, longer form, 1020. Between manufacturers, one of whom is dormant partner, 1030. Between lawyers, 1039. Longer form, 1040. Articles on introduction of new partner, 1044. Articles of, in relation to a single adventure, syndicate agree- ment, 1046. Agreement to continue partnership, by indorsement on articles, 1049. Indenture extending term of partnership with modifications of original articles, 1049. Dissolution of, by indorsement on articles, 1050. Deed of, one partner retiring and assigning his share to con- tinuing partners, 1050. Notice of, 1053. Notice of retirement, 1054. Miscellaneous provisions, Accounts, 1014, 1024, 1036. Books of account, 1016. Annual account, 1016, 1024, 1042. Final account, 1014. Active partner, 1034. Arbitration, 1029. Attention to business, 1013, 1041. Banking, checks, etc., 1015, 1022, 1032. Business and place, 1015, 1040. Capital, 1013, 1015, 1021, 1031, 1032, 1041. Increase of, 1021, 1031. Interest on, 1016. Death or retirement of partner, 1021, 1038. Determination by notice, 1018. Dormant partner, 1034. Drawing by partners, 1017, 1023, 1033, 1042. Duties of partners, 1017, 1035. Acts not to be done without consent, 1017, 1035. INDEX 1427 [The figures refer to pages] PARTNERSHIP— Continued, Execution of securities, 1023. Expenses, 1022, 1033, 1040. Expulsion of partner, 1028. Firm name, 1015, 1020. Good will, valuation on determination, 1025, 1039. Insurance, 1033. Lioansi by partners to firm, 1021. Notice of determination, 1018, 1028. How given, 1029. Private debts of partners, 1024. Purchase of share of deceased partner, 1019, 102'6. Option to purchase on determination, 1037. Reserve fund, 1022. Retirement of partners, 1021, 102T. Shares, in profits and loss, 1016, 1034. In net profits, 1022, 1034. In capital and property, 1021. Term, 1015, 1020, 1031, 1040. Winding up, 1020, 1025, 1036, 1043. Liimited, articles of, where a person is admitted by two general partners as special partner, 1054. Between one general and two special partners, 1059. Conveyance to, 484. Assignment for benefit of creditors by, see Assignment for Bene- fit of Creditors. See Novation. PARTY WALL, Preliminary note, 1063. Agreement, as to party wall to be built by either i)arty, 1064. As to i>arty wall to be built by one paity, 1066. Settling differences as to wall and making it party wall, 1070. Grant of right to use wall of adjoining building so long as it stands, 1071. Conveyance of share in wall so as to make it party wall, 1072. PATENT, Preliminary note, 1074. In general, 1074. Assignments and licenses, 1075. Record and acknowledgment, 1076. Grant of patent to assignee of inventor or discoverer, 1076. Right of purchaser of patented article from inventor before application for patent, 1077. Joint patentees and co-owners, 1077. Restraint of trade, 1078. Secret process, 1078. 1428 INDHX [The figures refer to pages] PATENT— Continued, Assignment, of an entire interest in invention before issue of letters patent, 1079. Of the entire interest in letters patent, 1080. Of entire interest in letters patent and future improvements thereon, 1081. Of an individual interest in letters patent, 1083. Of territorial interest after grant of patent, 1083. Of right to obtain letters patent in foreign countries, 1084. License, shop right, 1086. Not exclusive, with royalty, 1086. Another form, 1088. Exclusive, with royalties, 1090. To sell patented article manufactured by licensor, 1094. Assignment of, 1097. Agreement for sale of patent and future improvements, 1098. Between joint inventors defining their rights in a patent to be applied for, 1102. For sale of patent to corporation to be formed, 1100. To supply funds for developing and obtaining patent for in- vention in consideration of joint grant, 1104. Between inventor and expert mechanic for perfecting inven- tion and obtaining right of improvements made by him, 1106. Mortgage of, 1108. PENNSYLVANIA, Acknowledgment of deed, statutes, 89. Form of, by individuals, 90. By corporation by attorney, 91. Appointment of attorney, 90. Chattel mortgage, statutes, 422. Form of, 423. Deed, statutes, 611. Statutory deed, 612! Common form, warranty, 613. Mortgage, real estate, 948. Bond and warrant, 979. Assignment of, 988. Satisfaction of, 994. Partial release of, 1001. Will, statutes, 1312. PLAN, Conveyance of one lot with restrictions for benefit of all lots em- braced in, 501. Description in deed with reference to, 512. PLAT, Description in deed according to, 511. INDEX 1429 [The figures refer to pages] PLAY, Assignment of performing rights In, 457. PLEDGE, Preliminary note, 1118. Pledge of chattel, receipt for money advanced on, 1118. Acknowledgment by pledgee of delivery, 1119. Receipt for repayment by pledgee, 1119. Agreement on, 1119. See Collateral Security. POWER OF APPOINTMENT, Of property created by marriage settlement, 705, 710. By will, 1328, 1339. Exercise of, by will, 1345. By deed, see Appointment of Proi)erty under Power. POWER OF ATTORNEY, Preliminary note, in general, 1131. Capacity to appoint, 1131. Revocation, 1131. Substitution, 1132. Construction, 1132. Power of attorney, short form, 1133. With substitution and ratification, 1133. To collect debts, 1134. To collect rents, 1134. To mortgage land, 1134. To satisfy mortgage, 1135. To make partition of and recover real estate, 1135. To manage affairs, 1136. To deal with negotiable instruments, 1136. To draw checks, 1136. To accept bills of exchange, 1137. To deposit in bank and draw checks, 1137. To act in all affairs for principal going abroad, full form, 1137. To manage investments for principal going abroad, 1143. To sell lands in another state, 1145. By corporation, 1145. To recover debts in another state or abroad, 1146. To receive share of an Intestate's estate, 1147. From seller to stop goods in transit, 1148. By attorney appointing substitute, 1150. Another form, 1150. Grant of further power by indorsement on original, 1152. Revocation of, 1152. Confirmation of attorney's act under, 1153. Commencement of, where there are several appointors and several attorneys, 1153. 1430 INDEX [The figures refer to pages] POWEB OF ATTORNEY— Continued, Deed, executed under, 494. Attestation, 514. Confirming conveyance made under, 510. For proxies, see Steels and Stockliolders. PREFERENCE, See Assignment for Benefit of Creditors. PREFERRED STOCK, See Stock and Stockholders. PRINCIPAL AND AGENT, See Power of Attorney ; Service and Agency Contract. PROCESS', See Patent ; 'Secret Process. PROMISSORY NOTE, Collateral note, see Collateral Security. Conditional sale note, 1199. Mortgage note, see Mortgage (Real Estate). Guaranty, of payment of, 689. Of collection of, 689. Indemnity to maker of note by co-maker who has assumed pay- ment, 724. See Bills of Exchange, Checks and Promissory Notes. PROOF OF DEED, See Acknowledgment. PROOF OF LOSS, See Fire Insurance. r PROPOSAL, For building, 290. Invitation to submit, 285. PROPRIETARY MEDICINE, Preliminary note, 1078. Assignment of right to compound and sell, purchase money to be paid by installments, 1112, In consideration of cash payment and royalties during given period, 1115. PROTEST, Of bill of exchange, check, etc., see Bills of Exchange, Checks, Promissory Notes. Marine, see Marine Protest. PROXY, To vote, at all stockholders' meetings, 1268. At annual meeting, 1269. Revocation of, 1269. See Stock and Stockholders. INDEX 1431 [TOe figures refer to pages] PUBLISHER, Agreement by, with author, see Copyright. PUBLISHING AGREEMENT, See Copyright. PURCHASE MONEY, Mortgage to secure, 848. QUITCLAIM DEED, See Deed. R RAILWAY COMPANY, Grant of right of way to, 649. Conveyance to, subject to condition, 503, 504. RATIFICATION, Of act of attorney, see Power of Attorney. RECEIPT, Preliminary note, 1154. Receipt of money, 1155. In full, 1155. By agent, 1155. In full by agent, 1155. Where paid by third person, 1155. In full by an agent to an agent, 1155. On account, 1156. For balance of account, 1156. By indorsement on contract, 1156. On account of price of article to be delivered, 1156. For salary, 1156. For rent, 1156. For interest, under mortgage, 1157. By indorsement on note, 1157. By lawyer to client on account, 1157. By legatee, 1157. For price of horse with warranty, 1157. Of watch with warranty, 1158. For money as a loan, 1158. For payment of loss under fire insurance policy, 671. Receipt for chattels, 1158. For documents, 1158. For subscription to corporate stock, 1262. Stee Pledge ; Warehouse Receipt. RE-ENTRY, Proviso for in lease, see Lease. 1432 INDEX [The figures refer to pages] REFEREE, Deed by, upon judicial sale pursuant to judgment, 490. REFERENOEI, See Arbitration and Award. REGISTERED VESSEL, See Ships and Vessels. REGISTRATION OF TITLE, Agreement of sale with provision for, 1179. RECEIVER, Provision in mortgage for appointment of, 844, 894. RELEASE, Preliminary note, 1160. Release, general, 1161. Another form, 1161. General mutual releases by two persons, 1161. To principal by agent who has received payment in satisfac- tion of disputed balance, 1162. Of lost bond, 1163. Of guardian by ward on attaining majority, 1164. To trustees under will on distribution of trust estate, 1165. Of mortgage, see Chattel Mortgage; Mortgage (Real Estate). Of dower, 495, 496. By tenant by curtesy, 497. Of easement, 659. Of debtor, provision for in assignment for benefit of creditors, 185, 194. In composition agreement, 211, 219. RENEWAL, Of lease, see Landlord and Tenant. RESERVATION, Conveyance with, 498. See Deed. RESTRICTION, Conveyance with restrictive covenants against building, 49S. Of one lot with restrictions for benefit of all lots in gener- al plan, 501. See Deed. REVOCATION, Of appointment under power, see Appointment of Property un- der Power. Of power of attorney, 1152. Of proxy, 1269. INDEX 1433 [The figures refer fo pages] JRHODE ISI^NI>, Acknowledgment of deed, statutes, 91. Form of, 92. Mortgage of personal property, statutes, 425. Form of, 427. Deed, statutes, 614. Warranty, with release of dower, 615. Quitclaim, 616. Mortgage, real estate, 951. Will, statutes, 1312. RIGHT OF WAY, See Basement. SALE AND PURCHASE OP LAND— AGREEMENT FOR, Preliminary note, 1167. Agreement for sale and purchase of land, 1168. Another form, 1169. With provisions for examination of title, 1170. Another form, 1173. With provision for purchase money mortgage, 1174. Another form, 1176. With provision for assumption of mortgage, 1178. Price to be determined by valuation, 1179. With provision for registration of title, 1179. With delivery of possession, 1181. And payment by monthly installments, 1182. Agreement for exchange of land, 1184. Another form, 1185. Option to purchase land, 1185. Another form, 1186. Agreement for sale of standing timber, 1188. Of growing crop of grass, 1189. Of growing crop of fruit, 1190. See Auction. SALE OF GOODS, Preliminary note, 1191. Contract, to sell goods, 1192. By separate papers, 1193. To manufacture and sell articles by installments, 1193. To sell goods at a valuation, 1195. Agreement for exclusive state agency for sale of goods, 1196. Conditional sale, note, 1199. Contract for, in form of lease, 1200. Agreement for hire and conditional sale of furniture, 1202. 1434 INDEX [T!he figures refer to pages] SALE OF GOODS— Continued, Bill of sale, short form, 1203. Another form, with warranty of title, 1203. With another form of warranty, 1204. Of horse, with warranty, 1204. Of goods described in schedule, 1204. Of furniture in dwelling house, seller Retaining possession until completion of purchase of house, 1204. Maryland, statutory form, 1205. Of vessels, see Ships and Vessels. See also Auction; Copyright; Good Will; Hire of Goods ; Patent. SALESMAN, Traveling, contract between employer and, 1210. SATISFACTION, Of chattel mortgage, 375, 409, 442. See Chattel Mortgage. Of mortgage or deed of trust of land, see Mortgage (Real Estate). SECRET PROCESS, Preliminary note, 1078. Assignment of, purchase money to be paid by installments, 1112. In consideration of cash payment and royalties during given period, 1115. See Patent. SEPARATION DEED, See Husband and Wife. SERVANT, See Service and Agency Contracts. SERVICE AND AGENCY CONTRACTS, Preliminary note, 1206. Contract, between master and domestic servant, 1207. Between firm and general employe, 1207. Between merchant and bookkeeper, 1208. Between employer and traveling salesman, 1210. Between merchant and manager, 1212. Between corporation and manager of branch establishment, he lending a sum in consideration of a share of profits, 1214. Between principal and factor to take and di-spose of goods abroad, 1218. Between merchant or manufacturer and agent abroad, 1220. Between manager and singer or actor, 1223. With reference to employment of shipmaster or manager, see Ships and Vessels. SETTLEflMENT, Of property in trust, see Husband and Wife; Trust. INDEX 1435 [The figures refer to pages] SEWAGE, Eight of, see Easement. SHERIFF, Deed by, upon judicial sale pursuant to judgment, 490. Indemnity bond to, 257. Attacluuent bond, 258. SHIPMASTER, Agreement to employ, see Sbips and Vessels. SHIPPING ARTICIjES, 1246. SHIPS AND VESSELS, Preliminary note, 1225. BUI of sale, of enrolled vessel, 1226. Of registered vessel, 1227. Mortgage of registered or enrolled vessel, 1227. Another form, 1230. Bottomry bond, 1223. Agreement, between co-owners for management by one, 1234. To employ master, 1237. Charter party, for a voyage, 123S. Time, 1240. Bill of lading, 1244. Assignment of freight for specified voyage, 1244. Of marine insurance policy, 1245. Notice to underwriters of abandonment of ship or cargo, 1246. Shipping articles, 1246. Marine protest, 1252. Another form, 1254. Notation of, 1251. SHOP RIGHT, License, see Patent. SINGER, Contract between manager and, 1223. SOUTH CAROLINA, Acknowledgment and proof of deed, statutes, 92. Affidavit of subscribing witness, 93. In case of corporation, 93. Certificate of renunciation of dower, 94. Indorsed on release, 95. Mortgage of personal property, statutes, 427. Form of, 428. Deed, statutes, 617. Conveyance, 618. Mortgage, real estate, 955. Satisfaction of, 995. Will, statutes, 1313. 1436 INDEX [The figures refer to pages] SOUTH DAKOTA, Acknowledgment of deed, statutes, 93. Form of, by Individual, 9<3. By attorney in fact, 96. By corporation, 97. Mortgage of personal property, statutes, 429. Form of, 431. Acknowledgment of receipt of copy, 431. Deed, statutes, 619. Warranty, 619. Quitclaim, 620. Grant, 620. Mortgage, real estate, 957. Assignment of, 989. Satisfaction of, 995. Will, statutes, 1313. SPECIFIC BEQUEST, See Will. SPECIFIC DEVISE, See Will. SPENDTHRIFT, Annuity in. trust for, in will, 1366. STOCK AND STOCKHOLDERS, Preliminary note, scope of chapter, 1257. Subscription agreements, 1257. Certificates of stock, 1257. Transfer of stock, 1258. Proxies and voting, 1258. Subscription, agreement, before incorporation, 1259. Another form, 12C0. Another form, first payment to trustees, 1260. Individual, 1261. After incorporation, 1261. Trustee's receipt for, 1262. Treasurer's certificate for, 1262. Assignment of, 1262. Stock certificate, 1263. Preferred stock, noncumulative, 1264. Cumulative, 1264. Another form, 1265. Assignment of, 1267. Of portion of stock represented by, 1267. Indemnity for lost, 720. Bond of, 1267. INDEX 1437 [The figures refer to pages] STOCK AND STOCKHOUDERS— Continued, Proxy, unlimited, 1268. Annual meeting, 1269. Revocation of, 1269. Agreement creating voting trust, 1270. STOCK CERTIFICATE, See Stock and Stockholders. STOPPAGE IN TRANSITU, Power of attorney to .stop goods in transit, 1148. SUBLEASE, See Landlord and Tenant. SUBSCRIPTION, To charity, see Gift. To corporate stock, see Stock and Stockboldera. SUBSTITUTION, Of attorney, see Power of Attorney. SURRENDER, Of lease, see Landlord and Tenant, SYNDICATE AGREBMEOSfT; 1046. See Partnership. T TELEPHONE, Grant of right to construct line, in street, 662. Over owner's land, 663. TENANTS IN COMMON, Conveyance by, 483. To, 484. Lease by, 790. To, 792. TENNESSEE, Acknowledgment and proof of deeds, statutes, 97. Form of acknowledgment, before clerk of county court, 98. By husband and wife, 99. By corporation, 100. Proof of subscribing witness, 100. Chattel mortgage, statutes, 431. Form of, 432. Deed, statutes, 621. In fee, vrith general warranty, 622. Covenants of seizin, possession, and special warranty, 622. Quitclaim, 622. Mortgage, 622. Of trust, 622. 1438 INDEX [The figures refer to pages] TENNESSEE— Continued, Mortgage and deed of trust, real estate, statutory, 959. Deed of trust, 959. WUl, statutes, 1314. TESTIMONIUM CLAUSE, In agreement, see Agreement In •will, see Will. TEXAS, Acknowledgment and proof of deeds, statutes, 101. Acknowledgment, ordinary, 102. By married woman, 103. Proof by witness, 103. Chattel mortgage, statutes, 433. Form of, 434. Conditional sale, statute, 434. Deed, statutes, 623. Warranty, statutory, 624. With vendor's lien, 625. Quitclaim, 626. Of trust, 961. Will, statutes, 1315. TIMBER, Standing, agreement for sale of, 1188. TRADE-MAEK, Preliminary note, 678. Assignment of, with good will of business and trade-name, 683. By separate instrument, 684. See Good Will. TBADE-NAME, See Good Will. TRADE SECRET, Provision against divulging by employfi, 1209, 1212. See Secret Process. TRANSFER, Of chose in action, see Assignment. Of stock, see Stock and Stockholders. TRAVELING SALESMEN, Contract between employer and, 1210. TRUST, Preliminary note, 1275. Declaration of trust, of land of person In whose name it was pur- chased, 1276. Of land of person who has purchased on behalf of himself and others, 1277. Of land for equitable owner, 1278. INDEX 1439 [Tbe figures refer to pages] TRUST— Continued, Of shares of stock by person in whose name it was pur- chased, 1279. Another form, 1279. By trustee who has taken a mortgage in his own name, 1281. Voluntary settlement, of real and personal property by single woman, reserving power to revoke and vary, 1282. Of personal proi>erty upon a trust contingently and at trus- tee's discretion for son, 1284. Assignment of life estate in trust fund, 172. Deed of, see Chattel Mortgage; Mortgage (Real Estate). Voting, agreement for, 1270. See Appointment of Property under Power ; Assignment for Benefit of Creditors; Husband and Wife; Trustee; Will. TRUSTEE, Conveyance by, under deed of trust, by Indenture, 485. By deed poll, 486. To, under will, 492. In bankruptcy, conveyance by, 487. See Trust. TT UMPIRE, See Arbitration and Award. UNDER LEASE. See Landlord and Tenant. UTAH, Acknowledgment and proof of deed, statutes, 104. Acknowledgment, by individual, 105. By corporation, 105. Where grantor unknown to ofiicer, 105. Proof by subscribing witness, 106. Chattel mortgage, statutes, 435. Form of, 437. Affidavit, 438. Deed, statutes, 626. Warranty, 627. Quitclaim, 628. Mortgage, real estate, 964. Will, statutes, 1315. V VENDOR AND PURCHASER, See Deed ; Sale and Purchase of Land— Agreement For. VERMONT, Acknowledgment of deed, statutes, 106. Form of, by husband and wife, 107. By corporation, 107. 1440 INDEX [The figures refer to pages] VERMONT— Continued, Mortgage of personal property, statutes, 438. Form of, 440. Affidavit, 441. Assignment of, 441. Discharge of, 442. Conditional sale, statute, 439. Deed, statutes, 628. Warranty, 629. , Quitclaim, 630. ISfbrtgage, real estate, 965. Discharge of, 996. WIU, statutes, 1316. VBSSEXi, See Ships and Vessels. VIBGINIA, Acknowledgment of deed, statutes, 107. Form of, 109. Before commissioner, 109. In hehalf of corporation, 109. Caiattel mortgage, statutes, 442. Conditional sale, statute, 442. Deed, statutes, 630. Form of, 631. With covenants, 632. Lease, 786. Mortgage or deed of trust, real estate, statutory, 966. Another form, 966. Release of trust deed, 968. Will, statutes, 1317. VOTING TRUST, Agreement creating, 1270. VOUCHER, Check, 233. Order to bank for payment, 234. w WAIVER, By landlord of breaches of covenant by tenant, see Landlord and Tenant. WALL, Grant of right to lay footings of, 653. See Party Wall. INDEX 1441 tThe figures refer to pages] WAREHOUSE RECEIPT, Preliminary note, 1287. Common form, 1288. Uniform act, nonnegotiable, 1288. Negotiable, 1289. Minnesota, terminal, for grain, 1290. WARRANTY DEED, See Deed. WASHINGTON, Acknowledgment of deed, statutes, 110. Form of, by individual, 111. By corporation, 112. Chattel mortgage, statutes, 443. Form of, 444. Affidavit, 446. Conditional sale, statute, 445. Deed, statutes, 633. Warranty, 634. Bargain and sale, 634. Quitclaim, 635. Mortgage, real estate, statutory, 969. Another form, 969. Satisfaction of, 997. Will, statutes, 1317. WEST VIRGINIA, Acknovpledgment of deed, statutes, 112. Form of, 112. By married woman, 113. By corporation, 115. Chattel mortgage, statutes, 446. Conditional sale, statute, 446. Deed, statutes, 635. Form of, 636. Quitclaim, 636. Lease, 786. Mortgage or deed of trust, real estate, 971. Will, statutes, 1317. WILL, Preliminary note, in general, 1292. Statutory provisions as to competency of testator and formalities of execution, 1293. Alabama, 1293. Alaska, 1293. Arizona, 1291. Arkansas, 1294. California, 1295. TIIT.FOEMS — 91 1442 INDEX [The figures refer to pages] WILIr-Oontinued, Colorado, 1296. Connecticut, 1296. Delaware, 1297. District of Columbia, 1297. Florida, 1297. Georgia, 1298. Hawaii, 1298. Idaho, 1298. Illinois, 1299. Indiana, 1300. Iowa, 1300. Kansas, 1301. Kentucky, 1301, Louisiana, 1302. Maine, 1302. Maryland, 1302. Massachusetts, 1303. Michigan, 1303. Minnesota, 1304. Mississippi, 1304. Missouri, 1304. Montana, 1305. Nebraska, 1306. Nevada, 1806. New Hampshire, 1306. New Jersey, 1307. New Mexico, 1307. New York, 1308. North Carolina, 1309. North Dakota, 1309. Ohio, 1310. Oklahoma, 1311. Oregon, 1311. Pennsylvania, 1312. Rhode Island, 1312. South Carolina, 1313. South Dakota, 1313. Tennessee, 1314. Texas, 1315. Utah, 1315. Vermont, 1316. Virginia, 1317. Washington, 1317.. West Virginia, 1317. Wisconsin, 1318. Wyoming, 1318. INDEX 1443 [Ttie figures refer to pages] WILI^-Continued, Precedents of wills, 1322. Will giving entire estate to wife and appointing her exec- utrix and guardian, 1318. Giving dwelling house and contents to wife, legacies to wife and children, and residue to wife and children, 1323. Giving legacies and devise of dwelling house, and res- idue in trust, with income to wife and remainder to children, etc., 1323. Giving property in trust for wife for life and there- after subject to her appointment to children and is- sue of deceased children, power of trustees to retain investments, 1328. Giving entire estate to wife, and if she does not survive testator to children and issue of deceased children, minors' shares In tinist, 1330. Giving business to son and residue to wife if surviving, otherwise to son and issue, 1331. Giving legacies, dwelling house, and annuity to wife, and residue to individuals, 1332. With various specific and pecuniary legacies, devise of dwelling house to wife for life and remainder to daughter, and residue in trust for wife and children, with power in trustee to carry on testator's business, 1336. Of widower, making bequests to son and married daughter, releasing mortgage debt, giving residue in trust, to permit two daughters to occupy house and enjoy income during spinsterhood, with discretion to apply income for married daughters, and remainder to testator's children and issue, 1341. Of married woman exercising power of appointment contained in her father's will in favor of her husband for life, and, if she has no children or issue, in favor of her husband absolutely, and, subject thereto, in favor of her children and Issue absolutely, and in default of issue in favor of next of kin, 13-15. Precedents of codicils, 1347. Codicil substituting trustee and executor, revoking legacy and devise, and giving devised premises in trust, 1.347. Revoking settlement of property in favor of sister, and giving the same to a niece on the same trusts by ref- erence, 1348. Second codicU, increasing legacy to wife, giving lapsed legacy to children and grandchildren of original leg- atee, and revoking another legacy, 1348. 1444 INDEX [Ttie figures refer to pages] WILI^Continued, Miscellaneous clauses, 1349. Preliminary clauses, 1349. Commencement, of wills, 1349. Of concurrent will, 1349. Direction as to burial, 1350. Appointment, of executors, trustees, and guardians, 1350. Of executors, 1350. Exemption from bond, 1350. Of trustees witb provision for substitution In case of vacancy, 1350. Of executors and trustees, 1351. Of guardian, 1351. SpecijSc bequests, 1351. Bequest of furniture and effects in house, 1351. Of bousebold and personal effects to daughters, 1352. Of household and personal effects to daughters con- tingently on their attaining 21 years or marry- ing, 1352. To daughter of effects in her rooms, 1352. Of household and personal effects to wife, 1352. To wife of such personal and household effects as she may select and residue to daughters, 1353. Of household and personal effects to wife for life or widowhood, and thereafter to children, 1353. Of farming stock, 1354. Of ready money, 1354. Of library, 1354. Of letters and papers, 1354. Of sporting implements, 1354. Of life Insurance policy, 1337. Of shares of stock, 1337. Of debt, 1355. Release of debt, 1334, 1335. Of mortgage debt, 1341. Specific devises, 1355. Devise of all real estate, 1355. Of described real estate, 1355. To joint tenants or tenants in common, 1355. To hospital, 1356. With provisions against lapse, 1356. Another form, 1356. To person with gift over on death without issue, 1356. To testator's children and issue of deceased chil- dren, 1356. INDEX 1445 [The figures refer to pages] WILLr-Contlnued, To testator's sons with successive gifts over if they predecease him, 1357. To testator's children and grandchildren attaining 21 years per stirpes, 1357. Subject to payment of debts, legacies, etc., 1358. Subject to mortgage, 1358. In exercise of special power of appointment, 1858. Of dwelling house to wife, 1323, 1324. Freed from mortgage, 1333. For life, remainder to daughter, 1338. General legacies, 1359. Legacy with provision against lapse, 1359. To daughters of a friend and children of deceased daughters, 1359. Contingent on attaining 21 years, 1338. Or marrying, 1359. To children and an illegitimate child, 1360. To servants, 1333. To charitable institutions of one year's subscription, 1360. To executors, 1338, 1361. Subject to deduction of debts, 1338. To advancements, 1337, 1341. Declaration as to time of payment and priority of legacies, 1337, 1361. As to payment free from inheritance tax, 1324, 1334, 1337, 1341, 1361. Gifts of residue, 1361. Devise and bequest of residue to an individual, 1361. To wife and chUdren, 1323. To wife if surviving, otherwise to son and issue, 1332. To individuals and Issue by representation, 1334. In trust, 1324, 1328, 1338, 1342. Bequest of residuary personal estate, 1362. Devise of residuary real estate, 1362. Gifts in trust, 1362. Trust of income for wife during widowhood, subject to obligation to maintain children, 1362. Of income to daughters, with power of disposi- tion to survivor, 1362. Of personalty for sons at 21 and daughters at that age or previous marriage, 1363. Of personalty for children and issue of deceased children of testator living at his death, at 21, 1363 1446 INDEX [The figures refer to pages] VVILli-Contiiiued, Of personalty for children and grandchildren in unequal shares, 1363. Of personalty for wife and children equally, 1364. Of personalty for brothers and sisters and chil- dren of deceased brothers and sisters, 1364. Of personalty for two as tenants in common on attaining 21, with gift over on death of either to the other, 1364. Of residue in trust, 1324, 1328, 1338, 1342. Declaration against lapse of share of residue, 1365. Trust for imbecile son, 1365. Annuity, for a person of unsound mind, 1365. For a spendthrift and his wife and children, 1366. To wife, 1333. Legacy in trust for grandson until he attains 30 years, 1334. Powers of trustees and other trustee clauses, 1367. To invest, 1367. Investments proper for trust funds, 1339. Investments sanctioned by law and others desig- nated, 1326. Broad power, 1329, 1335. Power to retain testator's investments, 1329. To sell, 1335. Or mortgage, pledge, or lease, 1327. And lease, 1344. Or mortgage for payment of incumbrances, 1367. To purchase trust property, 1368. To appropriate and partition, 1368. To carry on testator's business, 1340. To delegate trusts with regard to property outside of state, 1368. To employ agents, 1369. Trustee as lawyer or in other professional ca- pacity, 1369. To act on opinion of counsel, 1369. To permit daughters to reside in dwelUng house, 1342. Direction that opinion of majority of trustees shall prevail, 1370. Maintenance of minor children, 1325. Out of common fund, 1370. INDEX 1447 [T'he figures refer to pages] WILJO-Contmued, Advancements to testator's children, 1371. Discretion in application of income among benefi- ciaries, 1343. Devolution of powers of trustees, 1371. Meaning of "my trustees," 1328, 1336. Power to appoint new trustees, 1327, 1340, 1372. To appoint additional or separate trustees, 1372. Trustees' indemnity clause, 1327, 1373. Powers of executors, 1373. Power to executors to sell real and personal estate, 1328, 1335, 1373. To mortgage, 1373. To defer calling in debts, 1374. To postpone payment of legacies, 1374. To arrange and compromise, 1374. To caiTy on testator's business, 137.5. In partnership or otherwise and introduce sons, 1340. To wind up and sell testator's partnership busi- ness, 1375. Provision against contest, 1335. Testimonium clauses, 1376. Attestation clauses, 1376. WISCONSIN, Acknowledgment of deed, statutes, 116. Form of, 117. Chattel mortgage, statutes, 447. Form of, 449. -Conditional sale, statute, 448. Deed, statutes, 637. Warranty, 638. Quitclaim, 639. Reserving life estate, 639. Mortgage, real estate, 972. Assignment of, 989. Satisfaction of, 997. Will, statutes, 1318. WYOMING, Acknowledgment of deed, statutes, 117. Form of, 118. Where wife joins in conveyance of homestead, 119. Chattel mortgage, statutes, 451. Form of, 453. Conditional sale, statute, 452. 1448 INDEX [Tbe figures refer to pages] WYOMING— Continued, Deed, statutes, 640. Warranty, 641. Quitclaim, 642. Mortgage, real estate, 973. Deed of trust, 974. Discliarge of, 998. Will, statutes, 1318. [END OF VOLUME]