PURCHASES.

Right of Common.

LXIII.

Conveyance of a Right of Common of Pasture to a
Purchaser (1).

Variations where it is of Estovers, Turbary, or Piscary.

THIS
day of

HIS INDENTURE of

parts, made the

in the

year of

How grantable.

Enclosure.

(1) In what case, and by what means, a right of common may be granted or conveyed to a stranger, see Sand. Us. and Tr. 32; 1 Elem. Conv. 2d edit. p. 200, et seq.; 4 ib. 37, 177; 1 Saund. Rep. 346, c. n. (2); 2 ibid. 327, n. (11); Drury v. Kent, Cro. Ja. 14. The species of assurance may, in general, be the same as of other incorporeal hereditaments, but commons, or other mere right, unless of a local kind, or the common be for a certain number of cattle, cannot be conveyed by way of use, Gilb. Uses, 281.

It is not uncommon for persons entitled to allotments under enclosure acts, in lieu of a right of common, to sell their commonable rights, in order to give to the purchaser a right to such allotments; in which case recite the act, that the vendor is seised in fee (or as the case may be) of a freehold messuage, &c. situated, &c. in respect of which there is a common right upon or over the lands in, &c. intended to be divided and inclosed by virtue of the said act. That the purchaser has agreed with him for the purchase of the said common right, and all

the reign, &c. and in the year of our Lord PURCHASES. BETWEEN (the vendor) of, &c.

of the one part, and (the purchaser) of &c.

Right of
Common.

of the other part (1). WHEREAS the said (vendor) Parties.
is seised or entitled to him and his heirs of the Recitals.
common or commonable right of pasture, (or
estovers, &c. as the case may be) in the common or
waste ground hereinafter described. AND WHEREAS
the said (purchaser) hath agreed with the said
(vendor) for the purchase of the said commonable
right, at the sum of £
NOW THIS IN-

other his estates, rights, and interests in respect of the said
messuages, by virtue of the said act, for the sum of £
Witness, that the vendor grants, &c. all that the said common
right, and all other the estate, right, title, interest, property,
claim, and demand of him the said vendor, in respect of the said
messuage, &c. in, to, or upon the lands, &c. so intended to be
divided and enclosed under or by virtue of the said estate, and
of, in, and to all and every allotment and allotments to be made
in pursuance thereof. To hold to, and to use of the purchaser,
his heirs, and assigns for ever. As the vendor cannot covenant
for title, add clause of warranty from vendor and his heirs against
him and them, and all claiming under them.

(1) If the wife of the vendor have a title to dower out of the Dower, &e. common (which if the common be in gross, she may), or if

the conveyance be intended to be made to a trustee of the purchaser for preventing a title to dower; or if the vendor took the common to himself and a trustee for that purpose; or if the common be a moiety only, or in remainder or reversion (all which cases may occasionally happen, see 1 Elem. Conv. 2d edit. 231), the student is referred to the variations adapted to those and other circumstances in Vol. II. No. XXXI.; but they are so little likely to occur in the conveyance of a commonable right, that it was deemed unnecessary to add or particularly refer to them here.

PURCHASES. DENTURE WITNESSETH, that in pursuance of the said agreement, and in consideration of the sum of £ of lawful current money of England,

Right of Common.

WITNESS,

the vendor

money.

to the said (vendor) in hand, paid by the said in consideration (purchaser), at or immediately before the sealing of the purchase and delivery of these presents, the receipt whereof in full for such purchase as aforesaid, the said (vendor) doth hereby acknowledge, and of and from the same doth, by these presents, fully and absolutely acquit, release, discharge, and exonerate the said (purchaser), his heirs, executors, and administrators, He the said (vendor) HATH granted, bargained, and sold (1), and by these presents DOTH grant, bargain, sell, and confirm unto the said (purchaser) and his heirs, ALL (2) that the common of pasture, and right, title, advantage, and privilege of and to common of pasture, feeding, and levant and couchant for twenty beasts, three

Grants, bar

gains, and sells the common, &c.

Common of piscary.

Common of turbary

(1) The word grant is here the operative word, as a bargain and sale under the statute of a common or other thing not in esse, would be inoperative: see Baudeley v. Brook, Cro. Jac. 189, pl. 13.

(2) Or if the common be of piscary, say,

"Common of piscary, and right, privilege, and advantage of fishing, and of taking, retaining, and using, all and all manner of fish of whatever sort or kind in and from the river of A." &c.

Or if the common be of turbary, say,

"Common of turbary, and right, privilege, and advantage of digging, taking, and using peat turf," &c. &c. according to the species of common, and all and singular the rights and privileges incident thereunto.

Right of Common.

hundred sheep, &c. &c. of him the said (vendor), PURCHASES. of, in, and upon the common or commonable fields or grounds of , situated, &c. and of, in, and upon all other the common fields, wastes, and other commonable grounds and places in the parish of , or elsewhere within the manor of , or howsoever otherwise the

said commous, fields, and places, or any of them now are, or is, or heretofore were or was situated, called, known, described, or distinguished; and all, and all manner of other rights, privileges, advantages, appendages, and appurtenances whatsoever to the said common, hereditaments, and premises, or any of them, or any part thereof respectively belonging, or in anywise appertaining, or reputed or deemed so to be, or with the same or any of them, now or heretofore holden, used, occupied, or enjoyed; and the remainder and remainders, reversion and reversions of and in the same: AND all the estate, right, title, interest, use, trust, property, possession, possibility, powers, remedies, claim, and demand whatso-. ever, both at law and in equity, of him the said (vendor) in, to, out of, upon, or respecting the said common, hereditaments, and premises. TO HAVE AND TO HOLD the said commonable rights, privileges, and advantages, hereditaments, and all and singular other the premises hereinbefore described, and hereby granted, bargained, and sold, or otherwise assured, or mentioned or intended so to be, with their and every of their rights, members, privileges, appendages, and appurte

TO HOLD to the

purchaser in

fee simple.

Right of Common.

Covenant by

is seised in fee.

PURCHASES. nances, unto and to and for the use and behoof of the said (purchaser), his heirs and assigns (1), for ever. AND the said (vendor) for himself, his heirs, executors, and administrators, DOTH hereby covendor that he venant, declare, grant, and agree with and to the said (purchaser) his heirs and assigns, in the manner following, (that is to say) that for and notwithstanding any act, deed, matter, or thing whatsoever, at any time heretofore made, done, executed, occasioned, or knowingly suffered, or omitted by him the said (vendor) or any of his ancestors, he the said (vendor) at the time of the sealing and delivery of these presents, is lawfully, rightly, and absolutely seised, or otherwise well entitled in his own right, and to his own use, to him and his heirs, of and to all and singular the right of common, hereditaments, and premises hereinbefore granted, bargained, sold, and confirmed, or mentioned or intended so to be, as of, in, and for a good, perfect, clear, absolute, and indefeasible estate of inheritance in fee simple and in severalty, without any manner of trust, condition, qualification, restriction, cause, matter, or thing whatsoever, which can or may revoke, determine, abridge, alter, charge, incumber, or prejudicially affect the same in any manner howsoever, (except, &c.) [AND that he

"Assigns."

(1) It has been said that a common in gross, and without number, will not be assignable by the grantee unless the word sed "assigns" be used in the grant: see Shep. Touch. 239, quære, and see 2 Roll. Ab. 45,. contra.