articles, are sometimes entered into as a preliminary to a future settlement; and if they be put in writing and signed by the parties or some person duly authorised in that behalf, as the statute requires, they will be valid. Nor is it necessary that they should be drawn up in the form of an agreement to make them binding in equity. Bonds entered into for making settlements are considered as good marriage articles. Prec. Chan. 237; Cannel v. Buckle, 2 P. Wms. 243. So likewise letters, provided they contain an absolute promise, and sufficiently define the terms of agreement. Randal v. Morgan, 12 Ves. 67. Prec. Chan. 526, 561. 2 Vern. 322. Cooke v. Tombs, 2 Anstr. 420. 2. If an agreement intended to be reduced into writing, is prevented by fraud from being so done, equity will compel a specific performance. Prec. Chan. 526. So likewise a parol agreement in part performed. Taylor v. Beech, 1 Ves. 297. But the acts which are considered to amount to a part performance, must be such as could be done with no other view than to perform the agreement. 1 Fonbl. Eq. 187. n. Sudg. V. & P. 107. 8th edit. 3. Articles being, for the most part, little more than heads or minutes of an agreement, cannot be followed in all respects literally; but if a settlement, in pursuance of articles, depart from their spirit and import, it will be deemed an imperfect execution of the articles, and be rectified in a court of equity. West v. Erissey, 2 P. Wms. Randall v. Willis, 5 Ves. 273. Wherever, therefore, it appears from the marriage articles that a strict settlement was intended, although it be not expressed in positive terms, a court of equity will execute the articles in strict settlement. Trevor v. Trevor, 1 P. Wms. 622; and 2 B. P. C. 122. Where, in articles for a settlement, there is no express declaration that the usual powers of sale should be inserted, such a power, it seems, cannot be inserted. Wheate v. Hall, 17 Ves. 80. Sugd. Pow. 142. 5 edit. But where marriage articles contained a clause for all usual powers, it has been decided, that powers of sale and exchange come within this clause, and ought to be inserted in the settlement. Peake v. Penlington, 2 Ves. & B. 311. (As to settlements, see further Settlements.) Articles for a Settlement of the Freehold, Copyhold, and This Indenture made the 18 day of in the age of Recital of agreement for the marriage. year of the reign, &c. and in the year of our Lord Partics. Between (intended wife) spinster, &c. of the first part (guardian or father) of, &c. of the second part (intended husband) of, &c. of the third part and (trustees) of the fourth part Whas a marre is intended to be shortly had and solemnized betn the sd (IH) and sd (I W) And whas the sd (I W) will attain her 21 years the day of next ensuing And whas by the last will and testament of W C late of, &c. deceased bearing date on or about, &c. and several codicils thereto, &c. the sd (I W) is seised of or entitled to divers freehd and copyhd estes and is possessed of or entitled to a share of personal estate to a considerable amount and eventually may become seised or possessed of or entitled to or. freehd copyhd and psnl estes under and by virtue of the same last will and codicils thereto. E Lady will attain her age, &c.; is seised of freehold estates, &c. under a will. that the lady's pro perty shall be settled. Testatum. Marriage And whas on the treaty for the sd marre it was agrd by Settle- and betn the sd (I W and IH) with the approbation ment. of the sd (guardian) testified by his signing and sealAgreement ing these prests that the sd freehd copyhd and psnl estes or the share or respive shares of the sd psnl este of which the sd (I W') is or from time to time shall be or become seised of or entitled to under or by virtue of the sd will and testament and codicils as afd shall be settled upon the trusts and for the ends intents and purps and under and subject to the powers provoes declons and agrmts hnaftr directed and agrd to be limited expssd and decld of and concerning the same. Now this Indenture witnesseth That in contemplation and conson of the sd intended marre and for making some provision for the sd (I H and I W) resply during their respive lives and for the issue (if any) of the sd intended marre it is hby decld and agrd by and betn the pties to these prests to be the intent and meaning of them and these prests and the sd (IH) with the consent of the sd (I W and guardian) testified as afd Doth hby for himself his hrs exs and ads covt and agree with the sd (T) their exs ads and ass and the sd (I W) doth hby declare direct and appt that in case the sd intended marre shall be solemnized Then immly after the solemnization of the same the sd freehd and copyhd and also the sd psul este and the rents divs int and income shall be held upon the trusts hnaftr mentd And that he the sd (IH) and the sd (I W) his intended wife shall within three calr mths after the sd (I W) shall attain her age of 21 yrs at the costs and chas in in all things of the sd (IH) make do and exte all such deeds and assures whatsr as shall become necessy and proper for conveying and assuring unto or vesting in the sd (7) or the survor of them his hrs exs and ass the sd freehd and copyhd messes, &c. and the sd psnl este or pts or shares thof of which the sd (IW) now is or at any time or times hereafter may be or become possessed or to which she shall or may become entitled under or by virtue of the sd in part recited will and codicils of the sd WC upon the trusts and under and subject to the powers provos declons and agrts hinaftr mentd that is to say Upon trust That they the sd (T) or the survor of them or the hrs exs or ads of such survor do and shall from time to time during the jt lives of the sd (I W and I H) with their consent in writing or the consent of the survor of them and after the death of the survr of them then in their or his discretion or of their proper authty make any lease or leases in posson at an improved yrly rent Husband and wife to concur in conveying the freehold, &c. of the wife to trustees. Upon trust. To make leases; money. To stand or rents of all or any pt of the sd freehd or copyhd estes Marriage And upon the request and with the consent of the sd Settle(1 H and 1W) or the survor of them as afd make sale ment. and absolutely dispose of the sd freehds and copyhds To sell the or any of them or any pt thof and convey and surren- real estates. der the same to the purchaser or purchasers thof and rece into their or his hands the money arising from such sale or sales And upon this further trust That they the sd (trustees) or the survor, &c. his or hr hrs, &c. do and shall from time to time during the jt lives of the sd (I H and I W) or the survor of them and after their dece in the discretion and of the proper authty of them the sd (trustees) or the survor, &c. sell and dispose of and convert into money the sd psnl este of the sd (IW) To convert or any pt thof and with such consent and in such dis- personal cretion as afd lay out and invest the money arising estate into from such sale or sales and also the money arising from the sale of all or any of the sd freehds and copyhds in or upon any govt or real secties in Gt Britain And do and shall stand and be possd of the sd freehds and copyhds in the mean time until such shall be sold And stand and be possd of the sd psnl este and the produce thof and also of the produce of the sd freehds and copyhds in case the same shall be sold and of the stocks funds and secties in and upon which such produce of real and psnl estes as afd shall from time to time be invested Upon trust to permit the sd (IH) during his natural life to rece and take one moiety or equal half pt of all the divds int and income which shall become due for the sd trust mos stocks funds and secties And do and shall during the jt lives of the sd (IH and IW) retain and take the or. moiety or half pt of the same divds int and income and stand and be possd thof Upon trust for the separate use of the sd (IW) independently of him the sd (IH) And in case the sd (1 H) shall die in the lifetime of the sd (IW) then from and after the death of the sd (IH) Upon this further trust That they the sd (T) or the survor, &c. do and shall permit the sd (I W) and her ass to rece and take all the divds int and income which shall become due for the sd trust mos stocks funds and secties from thenceforth during her natural life And after the death of the sd (I W and I H) and the survor of them Then upon trust for such children as the sd (I H and IW) shall jtly appt and in deflt of apptmt as the sd (IW) if she survive shall appt by deed or will And in deflt of apptmt then to all the chn equally share and share alike And in case there shall be no chn Then upon this further trust That they the sd (trustees) or the survor, &c. shall con In trust to ceive one the wife. If wife survive, to receive all the divi dends, &c. for her. Settle ment. Money arising from sale dered as Marriage vey and assure the sd freehds and copyhds unless sold in the mean time unto and to the use of the sd (I W) her hrs and ass and do and shall assign and transfer the sd psnl este to her exs ads and ass And it is hby decld and agrd That in the sd settlement shall be contd a provision That in case all or any pt of the sd freehds and copyhds shall be sold pursuant to the trusts hinbefe contd then after such sale or sales shall be made the money arising therefrom shall for all the purps of the intended settlement and as agst all psns to be entitled to any bent under the same be considered as fully and effectually to all intents and purps as if the money arising from such sale or sales had been settled as money And that in case no such sale or sales as afd shall be made or as far as the same sale or sales shall not extend the same freehds and copyhds shall remain and be considered as real este And also a declaration that psns having trust mos shall not be anse for the trustees misapplication thof And also a provision enabling trustees to apply rents, &c. in maintenance and advancement of childr And also a clause of indemnity to trustees and all other clauses provisions declons and agrts usually inserted in settlements of like kind In Witness, &c. Agreement that a Person shall hold Title Deeds as a Obs. It is a rule in equity, grounded on the decision of Lord Thurlow, in Russell v. Russell, 1 B. C. C. 209, that a mere deposit amounts to an equitable mortgage; but as the question respecting the intentions of the parties has been frequently raised, a writing is absolutely necessary, in order to prevent litigation. Į Articles, &c. Betn (borrower) of, &c. of the one part and (lender) of, &c. of the other part Witness That in conson of the sd (L) having on or about the day of instant transferred into the name of the sd (B) the sum of £3 per cent. consolidated Bk Annties the property of the sd (L) for the accommodation of the sd (B) and by way of loan to him he the sd (B) Hath deposited and by these prsts Doth declare that he hath deposited with the sd (L) and in his hands put the sevl deeds and papers mentd or enumerated in the schedule to these prsts being deeds and papers which relate to or concern the title of all that piece or parcel of ground messuage, &c. (Parcels) with the rights members and appts To the intent that the same deeds and the same piece or prel of grnd messe, &c. and the fee simple and inhance thof may be a secty to the sd (L) his exs ads and ass for the transfer by the sd (B) and his exs of the sum of £ 3 per cent, con, solidated Bk Annties as afsd and for the paymt in the Mortgage. meantime by the sd (B) his hrs exs ads and ass to the sd (L) his exs, &c. of the divds which would have become payable on or for the sd sum of £ 3 per cent. &c. if standing transferred in his or their names And the said (B) doth hereby agree to purchase or cause to be purchased the sd sum of £3 per cent. consld Bk Annties and transfer the same and pay the amount of the intermediate divds thereon to the sd (L) his exs, &c. at or on the times hinbefe apptd for the transfer and paymt thof resply without any abatement or deduction whatsr And moreover if the sd sum of £-3 per cent. &c. and amount of divds should remain on this secty at any time after the day of next ensuing then he the sd (B) his hrs exs or ads shall and will at any time thraftr at his and their own costs and chas upon the request of the sd (L) his exs, &c. by such conveys assignmts and assurs as he or they or their counsel shall in that behalf advise well and effectually convey the sd pce or pcl of grnd messe, &c. with their and evy of their appts unto the sd (L) his hrs exs, &c. free from all incumbs subject nevss to a provo for redemption thof to be contd in such conveys togr with all or. covs clauses and stipulons as are usual in mortgs of a like kind In Witness, &c.' Agreements for a Partition. Partition by parol; where good and where Obs. 1. At common law, coparceners might make partition by parol without deed; Litt. s. 250; also tenants in common might make partition by parol, if they afterwards executed the partition by livery of seisin. A parol partition between joint-tenants of freeholds was not good. Dyer. 350. b. Co. Litt. 169. a. Cro. not. Eliz. 95; but joint-tenants as well as tenants in common might make partition of a term of years without deed. Dyer. 350. b. Cro. Eliz. 95. The author of the "Commentaries," and after him Mr. Cruise, observe, that the Statute of Frauds has abolished this distinction, and made a deed necessary in all cases.' It is, however, the more general opinion, that a writing only is necessary on partition by coparceners, and a writing executed with livery of seisin by tenants in common. 2 Comm. 324. 4 Cru. Dig. 96. s. 16. Oakley v. Smith, Ambl. 368. Allnat on Part. 130. In the case of joint-tenants, a deed is always necessary now as it was at common law, whether on partition of corporeal hereditaments, where there must be mutual conveyances, Johnson v. Wilson, Willis, 248; or on the partition of incorporeal hereditaments, where an agreement under the hands and seals of the parties, is held to be sufficient. 1 Ld. Raym. 536, 7. 1 Salk. 43. (As to partition by deed, see further Partition.) 2. An agreement between joint tenants, to hold in severalty, will operate in equity to sever the joint-tenancy, so that the jus accrescendi, or right of survivorship, is destroyed. 2 Comm. 185. Brown v. Raindle, 3 Ves. Jun. 256. But it appears that a mere verbal agreement will not be sufficient; there must be some note or Effect of a parol agreement to hold in severalty. |