UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY 1 LOW, Bind. 43, Southirptor liuiMlnga, |Ue:.CurltorSI s "si* r\ PRINCIPLES CONVEYANCING. 3/4 C f 4^ %\ y- . TO r \ " \ / r "-j i. >/ AN ELEMENTARY WORK FOR THE USE OF STUDENT/J?/ HENRY c. PEANE, OF LINCOLN'S INN, IIAUEISTEU-AT-LAW. LONDON: STEVENS & HAYNES, lab |)ublisbrrs, BELL YARD, TEMPLE BAR. 1874. T JOHN GUILDS AND SOS, PRINTERS. I PREFACE. THE plan of this book has not, it is believed, been adopted in any previous work, with the exception of Watkins' Principles of Conveyancing, the last edition of which, although published some thirty years ago, is still in considerable demand. So many changes have taken place since then in tin- law and practice of conveyancing that the Author has ventured to hope that there may be room for another treatise of a somewhat similar nature. The present work, however, is purely elementary ; it contains nothing which is not familiar to the practitioner, and aims only at the assistance of students entering upon the difficulties of real pro- perty law. The second part comprises, in sub- stance, some lectures delivered by the Author at the Law Institution in the years 1873 and 1874, and is inserted here by the kind permission of the Council of the Incorporated Law Society. LINCOLN'S INN, October 1874. CONTENTS. PAGE INTRODUCTION, ....... 1 PAET I. OF CORPOREAL HEREDITAMENTS. (HAP. I. OF THE EARLIER TENURES OF LAND, . . .4 II. OF AN ESTATE FOR TEARS, . . . .31 in. OF AN ESTATE FOR YEARS (continued), . . .59 IV. OF AN ESTATE FOR LIFE, ... . . .81 V. OK AN ESTATE TAIL, . . . . .110 VI. OF AN ESTATE IN FEE SIMPLE, . . . .125 VII. OF COPYHOLDS, . . . . . .163 VIII. OF THE STATUTE OF USES, . . . . .182 IX. OF A REVERSION AND OF A REMAINDER, . . . 193 X. OF AN EXECUTORY INTEREST, .... 207 XI. OF ESTATES IN JOINT-TENANCY, TENANCY IN COMMON, AND CO-PARCENARY, ..... 226 XII. OF HUSBAND AND WIFE, . . . . .234 XIII. OF AN EQUITY OP REDEMPTION, . . .239 XIV. OF AN EQUITY OF REDEMPTION (tOntillHe. Holtby, 120 Bellamy v. Cockle, 260 Bence v. Gilpin, 164 ^ Bonnet v. Davis, 87, 236 v Bennett v. Womack, 348 Benson v. Scott, 172 Berkeley r. Hardy, 352 Berrey r. Lindley, 45 XIV TABLE OP CASES. Belts r. Thompson, 171 Bewick r. Whitfield, 95 Binks r. Rokeby, 323 Bennington v. Harwood, 255 Birch r. Stephcnson, 364 Bird r. Boulter, 307 Biscoe v. Elliott, 58 Bishop v . Fountaine, 204 Black v. Jobling, 420 Blackford v. Davis, 252 Blagden v. Bradbcar, 303 Blair v. Nugent, 250 Boehm v. Wood, 322 Bond r. Rosling, 350 Bonithon r. Hockraore, 253 Boraston's Case, 198 Borrows v. Ellison, 143 Botting i\ Martin, 65 Bourdillon v. Collins, 303, 328 Bourne v. Taylor, 169 Bover^. Trueman, 163 Bovey v. Skipwith, 271 Boyce v . Greene, 302 Boyd r. Shorrock, 371 Boydell v. Drummond, 304 Bowles r. Stewart, 104 Bowies' Case, 94, 389 Bowman v. Taylor, 333 Brace v. Marlborough, 266, 267, 268, 276 Bradford v. Belfield, 378 Brandon v. Brandon, 252 Braybroke v. Inskip, 415 Brereton, Re, 421 Brereton v. Evans, 45 Brewster v. Kidgill, 357 Bridges r. Stephens, 95 Briggs v. Jones, 282 Bringloe v. Goodson, 223 Brown v. Cole, 247 Brown v . Quilter, 53 Brown's Case, 171 Browne r. Amyott, 144 Bruce v. Bruce, 220 Brudenell v. Elwes, 201 Brummell v. M'Pherson, 60 Brunt v. Brunt, 422 Bryan r. White, 408 Brydges v. Stevens, 97 Bubb t>. Yelverton, 97 Buchanan v. Greenway, 259 Buckland ?. Butterfield, 57 Buckland v. Hall, 64 Buckley v. Howell, 222 Buckmaster r. Harrop, 312 Bullock r. Domini tt, 359 Bulwer v . Astley, 243 Bunter v. Coke, 411 Burgess v. Wheate, 192 Burnell v. Martin, 248 Bun-ell v. Egremont, 98 Burt v. Haslett, 58 Butler v. Kynnersley, 95 Inuxton v. Rust, 304 Byrd, Re, 407 CADELL v. Palmer, 214 Cadge, Re, 405 Caldecott v. Brown, 94 Caldwell v. Fellowes, 228 Callaghan v. Lismoro, 69 Calisher v. Forbes, 270 Campbell v. Lewis, 62, 339 Campbell v. Sandys, 122 Canada Permanent Building So- ciety v. Young, 319 Capron v. Capron, 145 Carey v. Doyne, 281 , Carr v. Erroll, 208 Carroll r. Robertson, 268 Carter v. Carter, 277 Carwardine v. Carwardine,.211 v!asborne v. Scarfe, 241 Cassamajor v. Strode, 318 Casson v. Dade, 407 Castle v. Fox, 414 Caswall, Exparte, 219 Caulfield v. Maguire, 97 Chadwiok v. Doleman, 394 Chamberlayne v. Dummer, 96 Champernoon v. Gubbs, 391 Chaplin r. Chaplin, 113 Chetham v. Williamson, 50 Chichester v. Donegall, 383 Chisholm r . Sheldon, 252 Cholmley v. Oxford, 247 Church v. Brown, 63, 340, 347 Clark, Re, 407 Clarke, Re, 381 Clarkson v. Scarborough, 107 Clavering v . Clavering, 93 Clay v. Sharpe, 378 Clayton v. Blakey, 351 TABLE OF CASES. XV Clayton r. Burten*haw, 349 Cleare r. Cloare, 407 Clere's Case, 218, 415 Clifton r. Molincux, 173 Cliniio v. Wood, 371 Clinan r. Cooke, 303, 304 Cline, Re, 109, 145 Clove r. Awdry, 416 Clun's Case, 106 Cobb r. Stokes, 70 Cockell r. Bacon, 248 Cockerell r. Cholmeley, 221 Codrington v. Foley, 395 Coffin r. Coffin, 96 Cole r. ,Scott, 413 le v. Sewell, 201 Colegrave r. Dias Santos, 131, 336 Coles v. Trecothick, 307 Coles r. Winch, 268 Collingwood t>. Stanhope, 394 Colman, Re, 407 Colman v. St Alban's, 246 Colyer r. Finch, 282 Coming, Ex par U, 279 Constable r. Howick, 259 Coomber r. Howard, 355 Coombs, Re, 406 Coope r. Creswell, 251 Cooper r. Emery, 312 Coppingor v. Gubbins, 94 Corbet's Case, 213 Cordingley v. Cheeseborough, 320 Corder v. Morgan, 378 Coslakev. Till, 322 Cotterell v. Purchase, 244, 289 Cotteroll v. Stratton, 248 Cottrell t'. Cottrell, 340 Cottrell P. Hughes, 80 Cowbridge, Ry. Co., Re, 136, 245 Cox v. Bennett, 414 Cox v. Dolman, 249 Cozens r. Crout, 410 Cresswell v. Cresswell, 409 X Croft v. Lumley, 68, 361 Crook v. Corporation of Seaf ord, 306 Crosse p. Raw, 358 Crusoe v. Bugby, 361 Cullick r. Swindell, 371 Cunningham v. Moody, 172 Cuninghame v. Thurlow, 225 Curling v. Mills, 46 DADDS, Re, 422 Daglish, Ex part t, 371 Dance r. Goldingham, 309 Daniel v. Gracie, 50 Daniels p. Davison, 34, 35 Dashwood r. Blythway, 260 Davoy r. Durrant, 380 Davis v. Marlborough, 95 1 );ivis c. Shepherd, 335 Davis v. Thomas, 243, 244 Davison v. Stanley, 73 Dean of Windsor's Case, 62 Dennett v. Atherton, 339 Denny v. Hancock, 309 Do Visme v. Do Visme, 323 D'Eyncourt r. Gregory, 104 Diaper, Re, 409 Digby v. Atkinson, 359 Digge's Case, 223 Dilkes, Re, 434 Diramock v. Hallett, 308 Dinham v. Bradford, 304 Dixon v. Muckleston, 282 Dodd v. Acklom, 73 Dodds r. Thompson, 390 Doe v. Alexander, 362 Nioe r. Aplin, 201 Doe v. Ashburncr, 46 - * Doe v. Bartle, 174, 402 Doe v. Batten, 71 Doo v. Bell, 351 Doe f. Bird, 361 Doe r. Cadwallader, 245 Doe v. Carter, 361 Doe r. Cavendish, 218 Doe v. Chaplin, 228 Doe v. Clark, 156 Doep. Clarke (7 B. 211), 247 Doe v. Clarke (2 H. Bl. 399), 203 Doe v. Cole, 286 Doe v. Cox, 382 Doe v. Crick, 71 Doe v. Eyre, 263 Doe t'. Gwinnelli, 172 Doo v. Halley, 201 Doe P. Hellier, 163 Doe v. Hogg, 361 Doe r. Howell, 212 Doe P. Huntingdon, 154 Doo v. Jones, 67 Doe v. Keeling, 361 Doer. La we*, 169,295,412 XVI TABLE OF CASES. Doe r. Lewis, 92 Doe v. Lightfoot, 251 Doe v. Maisey, 246 Doe v. Massey, 263 Doe v. Masters, 362 Doe v. Mewx, 360, 363 Doe v. Morse, 45 Doe v. Olley, 382 Doe v. Ries, 47, 349 Doe v. Roe, 35 Doe v. Smaridge, 71 Doe v. Smith (1 Man. & Ry. 137), 45 Doe r. Smith (5 A. & E. 35), 71 Doe v. Steele, 338 Doe v. Strickland, 157, 158 Doe v. Tofield, 159 Doe v. Tom, 382 Doe v. Williams (7 C. & P. 322), 73 Doe t'. Williams (5 A. & E. 291), 262 Doe v. Wilson, 362 Doe v. Wood, 33 Doe v. Wroot, 366 Dougall v. Foster, 230 Downshire r. Sandys, 107, 389 Drewe v. Corp, 309 Drewe v. Hanson, 318 Driscoll, Re, 282 Drury v. Buckingham, 83 Duddell v. Simpson, 327 Dudley v. Warde, 104 Dumergue v. Rumsey, 68 Dumpor's Case, 60 Duncombe v. Mayer, 104 Dungannon v. Smith, 214 Dunk v. Hunter, 349 Duppa r. Mayo, 107 Durance, Rt, 420 Durham v. Lcgurd, 320 Dyas v. Currie, 319 Dyer v. Hargrave, 318, 319 Dykes, Re, 221 Dykes r. Blake, 309 Dyne v. Nutley, 335 EAST v. Harding, 170, 173 East r. Twyford, 403 East London Waterworks Co. v. Bailey, 306 Easton v. Pratt, 359 Eaton r. Jacques, 366 Eckersley v. Platt, 422 Eddlestone v. Collins, 158, 373 Ede v. Knowles, 279 Edwards v. Champion, 174 SEdwards v. Cunliffe. 259 Edmunds v . Povey, 276 Elliot, Re, 402 Ellis v. Griffiths, 259 Ellison r. Thomas, 394 Elwes v. Maw, 57 Emmerson v. Heelis, 307 Emuss v. Smith, 413 Ensworth v. Griffith, 243 Esdaile v. Stephenson, 324 Espley v. Wilkes, 353 Evans v . Bicknell, 282 Evans v. Jones, 244 Evans v. Upsher, 166 Everest v. Glyn, 166 Eyre v. Hanson, 259 FANE v. Spencer, 313 Farebrother v. Simmons, 307 Farewell v. Dickenson, 60 Farmer v. Curtis, 274 Farrar v. Winterton, 419 Fairer v. St Catherine's College, Cambridge, 423 Faulkner v. Bolton, 247 Fawcet v. Lowther, 241 Fell v. Brown, 274 Fenwick, Re, 418 Fettiplace v. Gorges, 237 Fildes v. Hooker, 246 Finch v . Finch, 422 Fisher v. Dixon, 130 Fisher v. Wigg, 227 Fitch v. Stuckley, 164 Flack v. Downing College, 367 Flattery v. Anderdon, 67 Fleetwood's Case, 132 Flight v. Booth, 320 Flower v. Hartopp, 317 Footner v. Sturgis, 280 Ford v. Chesterfield, 244 Ford v. Wastell, 259 Fordyce v . Ford. 309 Forth v. Norfolk, 132 Foster v. Harvey, 260 Fowler v. Fowler, 392 TABLE OF CASES. XV11 \Fo*r. Clarke, 335 Francis r . Minton, 367 Freeman v. Freeman, 420 Freke r. Carbery, 410 French v. Barow, 263 Frend r. Buckley, 314 Fry r. Noble, 87 Fuller r. Abbott, 64 GARDKN v . Ingrain, 376 Gardiner r. Parker, 67 Gardner r. Howe, 190, 296 Garland r. Jekyll, 168 Garland r. Mead, 176, 412 Garlick v. Jackson, 269 Gurranl r. Tuck, 76 Garth v. Cotton, 389 Garthahore r. Chalio, 83, 390 Gateward's Case, 171 Gaze r. Gaze, 407 Gibbons r. Snape, 167 Gibson r. Holland, 304 Gibson v. Ingo, 269 Gilbert v . Lewis, 236 Gilbertson v. Richards, 60 Giles v. Warren, 422 Gilliatt i'. Gillintt, 311 Gisbourn v. Hunt, 61 Glass v. Richardson, 176, 412 Glenorchy v. Bosville, 191 Glover r. Lane, 166 Godfrey r. Watson, 263 Godwin v. Francis, 307 Godwin v. Winsmore, 172 Goodlad v. Burnett, 413 Goodman r. Grierson, 243 \ Goodright v. Cator, 223 Goodright v. Cordwent, 71 Goodright v. Glazier, 423 Goodtitle r. Billington, 211 Goodtitle v. Morgan, 78 Gordon v. Eakins, 266 Gordon v. Lothian, 267 Goreley, Ex parte, 63, 376 Goring v. Bickerstaffe, 211 Gosling v. Gosling, 214 ^xGoss t>. Nugent, 304 Gossip v. Wright, 243 Graham v. Sime, 161 Grant v. Astle, 162, 164 Gravenor v. Watkins, 416 "\ Gray v. Fowler, 326 c. Greaves v. Mattison, 396 Greene v. Cole, 94 Gregory v. Wilson, 68, 70 Griffith r. Pownall, 218 Griffiths r. Evan, 111 Griffiths v. Griffiths, 408 Griffiths v. Vere, 216 Grimwood r. Moss, 68, 73 Grissell v. Robinson, 346 Grute v. Locroft, 238 Grymes v. Boweren, 104 Gully t\ Davis, 414 Gutteridge v. Munyard, 369, 361 HAINES v. Welch, 33 Halford v. Hatch, 366 Hale v. Pew, 202 Hale v. Tokelove, 424 Hall v. Betty, 314 Hall . City of London Brewery Co., 363 Halsey v. Grant, 318 Hamilton v. Graham, 364 Hamilton r. Jackson, 390 Hampton v. Fellows, 381 Harding v. Crethorn, 72 Hardy v. Felton, 381 Hardy v. Reeve, 263 Hare v. Groves, 62 Harmer r. Priestley, 248 Harnett *. Maitland, 33, 54 Harrington v. Harrington, 214 Harrison v. Good, 361 Barter r. Harter, 404 Hastilow v. Stobie, 407 Hastings r. Astley, 373 Hatton v. Haywood, 136, 246 Hawkes v. Hubback, 236 Hawkins v. Gardiner, 333 SHawtrey r. Butlen, 369, 371 Hearlo r. Greonbank, 172 Hemming r. Griffith, 394 Henderson r. Squire, 72 Henfrey i . Henfrey, 419 Henkel r . Pape. 307 Herbert v . Salisbury Ry. Co., 374 Hervey v. Hervey, 389 Hewitt r. Nanson, 260 Heydon r. Smith, 168, 170 leydott's Case, 166 Hewitt r. Loosomore, 282 Hiutt f . Hillman, 366 b XV111 TABLE OF CiSES. Hibbert e. Cookc, 94 Higgins v. Frankis, 273 Hill v. Barclay, 68 Hill v. Buckley, 319 Hills r. Laming, 333 Hills v. Rowland, 68 Hindmarch, Be, 405 Hinds, Re, 405 Hitchin r. Groom, 305 Hobart v. Hammond, 164 Hodgson r. Johnson, 302 Hodle v . Healey, 256 Holder v. Preston, 175 Holford v. Hatch, 64 Holford v. Yate, 258 Holland, Ex parte, 328 Holland v. Hodgson, 371 Holliday v. Denison, 337 Holloway v. Berkeley, 168 Holtzappfel r. Baker, 52 Honywood v. Foster, 157 Hony wood v. Honywood, 93 Hood v. Barrington, 303, 328 Hood t'. Easton, 252 Hooke v. M'Queen, 308 Hopewell v. Ackland, 416 Hopkins r. Robinson, 171 Hopkins v. Rolt, 269 Horsefall v. Mather, 55 Horeefall v. Testar, 360 Horlock v. Smith, 254 Homer v. Swann, 225 Howard, JRe, 420 Howard v. Digby, 392 "^Howard v. Harris, 242 Howard v. Norfolk, 211 Howard v. Shaw, 33 Howland t?. Norris, 318 Hoy v. Smithies, 319 Hubert v. Treheme, 306 Hudson v. Temple, 322 Hughes v. Williams, 252 Hulme r. Tenant, 238 Humphreys v. Harrison, 246 Hungerford v. Clay, 253 Hunloke v. Cell, 218 Hunt r. Hunt, 406 x XHunter v. Walters, 281, 282 Hurst v. Hurst, 223, 275 Hussey v. Hussey, 95 Hutchins v. Osborne, 416 Hyde r. Dallaway, 257 . Sayer, 220 Irbyr. Irby,268 Ireson v. Denn, 272 Isaacson v. Harwood, 368 JACKMAV v. Hoddesdon, 162 Jackson v. Innes, 373 James r. Dean, 34 James v. James, 280 James v. Plant, 337 James c. Williams, 304 Jefferies v. Alexander, 127 Jeffrey v. Neale, 358 Jenkins v. Gething, 57 Jenkins v. Jones, 379, 380 Jenner v. Clegg, 71 Jenner v. Morgan, 107 Jennings v. Major, 347 Jervis v. Bruton, 112 Jodrell v. Jodrell, 392 Jolland v. Stainbridge, 269 Jones, Re, 406 Jones v. Griffiths, 273 Jones v. Mudd, 323 Jones v. Newman, 305 Jones v. Reynolds, 46 Jones v. Smith, 268 Jones v. Thorne, 361 Jones v. Williams, 269 Jones v. Winwood, 218 KEECH v. Hall, 246 Keigwin v. Keigwin, 407 Kemeys v. Proctor, 307 Kendall v. Micfield, 372 Kennard t;. Futvoye, 280 Kennedy v. Green, 269 Kensington, Ex parte, 279 Kensy v. Richardson, 166 Kenworthy v. Schofield, 303 -Kenworthy v. Ward, 227 SKerr's Policy, Re, 281 Kine v. Balf e, 344 King v. Smith, 246 Kinnersley v. Orpe, 361 Kirkewood v. Thompson, 380 Knapp v. Knapp, 394 Knight v. Crockford, 306 LACON v. Allen, 280 Lacon v. Merlins, 377 TABLE OP CASKS. MX Lainson r. Tremere, 333 Lake v. Currie, 416 Lampet's Case, 211 Lanipon v. Corke, 333 Langdale r. Briggn, 413 Langley v. Hammond, 336 Langstaffe r. Fcawick, 253 Latch v. Furlong, 380 Lawton v. Lawtoii, 104 Lawton r. Salmon, 104 Layard r. Maud, 282 Leech . Thomas, 54 Leader v. Home-wood, 58 Lechfonl's Case, 163 Lechmere v. Clamp, 281 Lee r. Alston, 93 Lee r. Lancashire Ry. Co., 333 Lee r. Risdon, 57 Lee v. Smith, 46 Leech v. Schweder, 339, 363 \ Leeds v. Cheetham, 53, 359 Legh r. Hewitt, 55 Lemage r. Goodban, 420 "X.Le Neve c. Lc Neve, 269 "vyLedie r. Thompson, 319 Lees v. Whiteley, 376 Lester r. Foxcroft, 191, 305 Lewis r. Branthwaithe, 169 Lewis v. Mattthews, 415 Lilford v. Powyskeck, 413 Lin* v. StophciiHon, 363 Lingen, R*, 92 LlewelljTi P. Jersey, 335 Llewellyn v. Rous, 108 Lloyd c. Carew, 208 Lock v. Do Burgh, 108 Lockhart c. Hardy, 248, 257 ^^Lofil v. Dennis, 52 Long r. Rankin, 224 Longbothain v. Berry, 371 LongHtaffo r. Meagoe, 369 Love r. Windhara, 210 Lowther r. Raw, 166 Lowthian v. Hasel, 268 Loshington v. BoUlcro, 94 Lyde v. Russell, 58 Lyle r. Richards, 335 MAA r. Sheffield, 402 Machcr v. Foundling Hospital, 68, 361 Mackensie r. Robinson, 246 Mackreth v. Symmons, 277 Major v. Lansley, 237 Makin r. Wilkinson, 64 Manlovo v. Bale, 242 ^-Manning's Case, 211 Mansfield, Re, 407 Mai-diner v. Elcott, 169 Marsh v. Leo, 276, 277 Marshall, Ex parte, 415 Martin v. Cotter, 320 Martin v. Laverton, 415 \Martin v. Smith, 351 Martinez v. Cooper, 282 Martyn v. Clue, 62 Massey v. Barton, 218 Massy v. Lloyd, 395 Massy v. Rowen, 236 Matthew v. Osborne, 159, 295, 412 Matthews v. Gooday, 280 Matthews r . Matthews, 414 Maundrell v. Maundrcll, 77 Maxfield v . Burton, 281 Mawson v. Fletcher, 320, 326, 327 Mayhew r. Crickitt. 244 Mayor of Kidderminster v. Hard- wick, 306 MTarlane v. Dickson, 344 M'Murdo, Re, 401 M'Queen v. Farquhar, 319 M'Vicar, Re, 418 Melling v. Leak, 33 Mihvitch v. Luter, 12 Menzies v . Lightfoot, 270 Meux v. Allen, 371 Midland Ry. Co., Re, 413 Mildred r. Austin, 245 Minshull r. Oakes, 62, 63 Miles v. Furber, 51 Miles r. Miles, 414 Millett r. Davey, 252 Mills v. Trumper, 107, 109 Mogf v. Mogg, 203 [oody v. Walters, 206 Moor v. Raisbeck, 419 Moore v. Webster, 88 ^Morgan v. Bissell, 46, 349 Morgan r. Milman, 312 Morley r. Saundera, 98 Morris v. Morris, 97 Morritt f. Douglas, 407 XX TABLE OP CASES. \Mortimert;. Bell, 310 Morton v. Woods, 382 Moose v. Salt, 375 Moule v. Garrett, 64, 342 NANHY r. Edwards, 268 Natal Land &c. Co. v. Good, 269 National Bank of Australasia r Cherry, 279 Naylor r. Collinge, 58 Neath New Gas Co. r. Gwyn, 322 Nelthorpe r. Holgate, 319 Nesbam v. Selby, 303 Neve v. Pennell, 270, 271, 275 \Jfewcomb v. Bonham, 243 Newlands v . Paynter, 236 Newman r. Selfe, 260 Newton r. Clarke, 407, 408 Newton v. Newton, 424 Nickells v. Atherstone, 73 Nicolls r. Sheffield, 208 Noble v. Willock, 402 . Noke v. Awder, 287 Nokes' Case, 363 Norfolk v. Stanway, 154 Norfolk p. Worthy, 308 Northen v. Carnegie, 91 Norton p. Bazett, 408 OLDBRSHAW v. Holt, 356 Oliver v. Richardson, 84 Olding, Re, 407 Ord t\ Smith, 256 Orme's Case, 187 Ossulton v. Yarmouth, 374 Oswald, Re, 420 Otter v. Vaux, 278 O'Toole v. Browne, 413 Otway v. Sadleir, 417 Oxwith v. Plummer, 366 V Pa PAOBT v. Foley, 249 Paggett r. Gee, 124 , Paine v. Coombes, 344 \ Palmer p. Earith, 358 Palmer p. Hendrie, 251 Palmerston v. Turner, 323 Papillon p. Voice, 113 Parish v. Sleeman, 348 Parker r. Housefield, 281 Rwkerv. Taswell, 350 Parker v. Watkins, 252 Parkinson v. Hanbury (L. R. 2 H. L. 1), 252 Parkinson v. Hanbury (2 De G. J. & S. 450), 379, 380 Parteriche v. Powlett, 228, 231 Patch v. Ward, 383 Patch v. Wild, 254 Payne v. Burridge, 368 Payne v. Cave, 310 Payne v. Hayne, 359 Pawlett r. Att.-Gen., 240 ates v. Boen, 125 Yellowly v. Gower, 54, 94 syelverton v . Yelverton, 187 ZOUCH v. Parsons, 126. Zouch v. Willingale, 71. ADDENDA. 93, note (6), Honywood v . Honywood is now reported L. R. 18 Eq. 306. 315, note (r), Waddell v. Wolffe is now reported L. R. 9 Q. B. 515. 403, line 6, after enacts insert (s 1 ), and add at foot as note (a 1 } S. 9. CORRIGENDA. 192, note (y), for 3 & 4 Will. IV., c. 104, read 3 & 4 Will. IV., c. 105. 305, note (x),for 5 B. & C. 520", read 5 C. B. 520". PRINCIPLES OF CONVEYANCING. INTRODUCTION. Tm: object of this work is, first, to present to the Object of the student an elementary view of the various forms of w ownership of land which exist at the present day ; and, next, to examine the simpler forms of convey- ance used in transferring land from one person to another. Land acquired, from an early date, the name of Land known as Real Property. For, since it is immovable, the owner of it could always recover the thing (res) itself from any person who had wrongfully deprived him of it ; whilst in respect of movable property, such as furni- ture, or money, his only remedy was to bring an action for damages against the person (persona) who had done him the wrong, and such property was, accordingly, distinguished as personal property. Land, again, and property connected with land, are Hereditament*, said in legal phrase to consist of hereditaments; because when any owner of them dies without having disposed of them by his will, the law transfers his ownership (with an exception to be presently noticed) to a person, selected in accordance with certain fix* orea l and Incorporeal. Corporeal hereditaments have been hereditament*. c. A 2 INTRODUCTION. defined as those which affect the senses, and may be Incorporeal seen and handled bodily : incorporeal as those which hereditaments. ,, , . f ,. .,-, -, are not the object 01 sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation (a). In other words, corporeal hereditaments comprise land, and tangible property annexed to, and forming part of, land ; whilst incor- poreal hereditaments consist of rights derived from the ownership of land ; such, for example, as the right of presentation to an ecclesiastical benefice, a right of Corporeal way, and many others. Of these incorporeal here- only to be ditaments some will be considered, incidentally, in treated of. various parts of this work ; but we do not propose, except to that extent, to treat of this particular subject. And since the special way in which a man owns cor- poreal hereditaments is called (for a reason which will be explained hereafter) his estate in them, it follows that estates in corporeal hereditaments and modes of assurance relating to them are alone to be the direct object of our attention. Term of years , . ty was mentioned above that there is one form of ^nlrT* 1 " ; esSfe*iS" / land which does not in the event of its propcrij. . * /*-T owner's intestacy go to his heir. This is the limited ownership which arises when a person is entitled to the use of land for a term of years, and which is con- sidered by the law as personal, and not as real, property. Such property is, however, so closely con- nected with land that it may, it is thought, be appro- priately included amongst the subjects of a work which does not, otherwise, deal with personal property. Necessity of an A knowledge of the law relating to estates in land w^thTheearHer wou ^ ^ e insufficient unless accompanied by a slight tenures of land, acquaintance with the circumstances under which their characteristics were gradually changed. These causes can only be ascertained by studying the history (a) 2 Bl. Com. 17. INTRODUCTION. of the ownership of land, and of the gradual modifica- tions which took place in it. The system which now obtains even yet bears marks of its ancient origin : indeed the old rules of real property law are still almost literally preserved in the case of copyholds. We will, consequently, devote our first chapter to a brief inquiry into the earlier modes of tenure, and the way in which they have been modified; by which means we shall also arrive at a knowledge of the different varieties of estates in corporeal hereditaments which exist in our own times. PART I. OF CORPOREAL HEREDITAMENTS, CHAPTER I. OP THE EARLIER TENURES OP LAND. Difference be- J T j s we n known that the system of land tenure tween the ,.,...... , present and which obtains in this country at the present day per- former systems m its of land being, practically, the subject of absolute of land tenure. *' property ; so that its owner may do as he pleases with it during his lifetime, and dispose of it unrestrict- edly by a will to take effect after his death. But in the earlier systems from which our own is derived no such absolute proprietorship was recognised. If a Tenure by the tribe settled down on a tract of country, part of the land was distributed in lots amongst the families who composed the tribe, whilst the rest was allowed to re- main uncultivated, and formed the common property of all. At first the portion allotted to each family did not belong to it absolutely, but might be taken from it with a view to a fresh distribution of the land amongst the various members of the State (a). In time, however, each family acquired a right to hold its land in perpetuity, the management of the estate, and its ostensible ownership, belonging to the head of the family. But his interest in it did not extend beyond his own lifetime, and he had no power to prevent it from devolving on his descendants after his death. He had, therefore, that which we now call an (a) See the account of Irish Gavelkind, 3 Hallam, Con. Hist. 458. OP THE KAKLIER TENURES OF LAND. O estate for life, whilst the family, as a whole, had that kind of interest from which our present estate tail is derived. As the tribe grew in importance, and became a nation, certain families (those usually who formed the original stock) acquired higher rank than the others ; the head of the most important of these became, with varying title, chief of the State, whilst the principal members of the others composed his council. The whole of the public land was vested in the chief as representing the State, and he, when a fresh tract of country was acquired, by conquest or otherwise, would retain some of it for his own use, and distribute part of the remainder amongst the principal leaders of the people. By this means the great families came The heads of to have more land than they could cultivate them- but it is probable that as the kingdom became tenure. more settled, and trade increased, many of the Nor- mans held lands in this way (/), since we learn that tenants by Socage were numerous even before the Fealty an inci- reign of Edward the First (fc). Every tenant by So- tenure. cage was bound to take an oath of fealty to his lord, and later on, when the obligation of military service Homage some- ceased to be personal, he appears to have occasionally times added. -, , i / j\ done homage also (I). Every tenant Besides the public ceremonies of homage and fealty, was a ^ so necessai 7 that every tenant, whether by (h) Somner on Gavelkind, 128. (') The derivation of this word has been ascribed by some writers to the French soc, a ploughshare, because the tenants were originally bound to assist in ploughing their lord's lands by others to the Saxon soc, which signifies a franchise or privilege. (j) As early as the date of Domesday Book (1085) many of the burdens of tenures had been commuted into money payments. 1 Ellis, Domesday viii. (/t) 2 fiallam's Middle Ages, 483. (1) 2 Bl. Com. 79. OF THE EARLIER TENURES OF LAND. 1 1 Knight Service or by Socage, should be openly pnt in poewim of formal possession of the land which he was to hold. This was called " livery (delivery) of the seisin," and Liyery of might be accomplished either by a delivery by the lord to the tenant of some fantastic symbol ; or by a public acknowledgment of the grant made by both parties in one of the king's courts ; or, on the land, by the lord's handing to the tenant, before witnesses, some symbol of the land itself, such as a sod or piece of turf. When the king made a grant he usually directed a writ to the sheriff of the county where the lands lay, commanding him to deliver seisin of them to the grantee (m). The vassal to whom livery of seisin had been made was deemed to be in full pos- session of his feud, and was therefore said to bo " enfeoffed." In addition to this formal putting into A deed also possession, it was usual, as early as the Conquest, to U8ual- have a charter or deed, evidencing the fact of feoff- ment having been made (n). Those barons who received their lands direct from Tenants the king were called tenants in capite (in chief), and J^fJek these naturally did homage and fealty to him. Other But other tenants at first did so only to the lords from whom *"" *" they had received their lauds, but about twenty years A change in- after the Conquest a law was passed that all freemen tro^ced, should profess themselves to be vassals of William as king, and thus bound to do homage and fealty to him as well as to their lords. The king, from whom the Kine styled lands were originally derived, was in consequence mo ^ llt ui said to be the " lord paramount," whilst the inter- mediate donors were called " mesne " (middle) lords, Other lordi and thus sprung up the theory, which still holds good, that all lands in this country are held from the sovereign, who (homage having been abolished) is still entitled to an oath of fealty from every owner of land, although the obligation is never enforced. And (m) Mad. Form. Ang. x. (M) Ibid. iii. nt)l 12 OP CORPOREAL HEREDITAMENTS. hence also ifc is that, as mentioned in our Introduction, it is more accurate to speak of a person as having an " estate " in land, or as being a tenant of land, than as being the owner of land. Court Baron In addition to the various services which he was entitled to claim from his tenants, every baron who * had received a manor from the Crown had, as an essential incident of his grant, the right to hold a Court Baron (o), to which all his free tenants were bound to come. It was at these courts that homage and fealty were publicly performed, and they also served the purpose of adjusting claims and differences between the lord and his tenants, or between the tenants themselves. In these matters the tenants were the judges, and the proceedings were recorded by the lord's steward or deputy on the manor roll. Courts Baron had, originally, a criminal, as well as a civil, jurisdiction, but their criminal jurisdiction was soon taken away from them, and since civil proceed- ings originated in them were liable, at any stage, to be transferred to the king's courts, the Court Baron soon fell into disuse. Villein Tenure. Besides the tenures of Knight Service and Socage, by one of which every freeman held his lands, there gradually arose another of an inferior nature. There had existed amongst the Saxons, previously to the Con- quest, a large number of serfs, or slaves, who were either the descendants of the ancient Celtic population, or else Saxons who, through extreme poverty (p), or the commission of some crime, had fallen into a state of slavery. These wretched creatures were but little affected by the Conquest beyond the change of masters which it entailed. Some of them were employed in the lowest menial offices, the others (called by the Normans "villeins,") were employed in cultivating (o) Melwich v. Litter, 4 Rep. 26". (p) 2 Hallam's Middle Ages, 384. OF THE EARLIER TENURES OF LAND. 13 the lords' demesne lands, and were allotted in return a small plot of ground from which to extract subsist- ence for themselves and their families. These lands they held entirely at the will of their lord, a natural consequence of their being themselves his property. This tenure (if indeed it can be said to have been originally a tenure at all) was called " Villein tenure/' and was said to be base, both on account of the nature of the services rendered, and of the uncertainty which accompanied them ; the serf being also unable to quit the manor without his lord's permission. Thus the three great tenures established in this Three great country soon after the Conquest were, Tenure by ^"e^^"^ Knight Service, Socage Tenure, and Villein Tenure, quest were Tenure by Knight Serv- There was also another variety of Socage tenure xenunTand which deserves mention. We learn from Bracton (q) Villein Tenure, that there were in his time (about 1285) on the king's ViUein Socage. demesne, in addition to the serfs, free men (probably of the lowest class amongst the Saxons), who had formerly held their lands by services free and certain, and that after the Conquest these received their hold- ings back again to hold in villenage (that is, by Villein tenure) on condition of performing services base, but freely performed and certain. " These indeed," he says, " are said to be bound to the soil, but they are none the less free, and although they may do base services, they do them, not by reason of their per- sonal condition, but by reason of their tenure ; and they are said to be bound to the soil because they enjoy this privilege, that they cannot be removed so long as they perform their due services ; nor can they be compelled to remain unless they choose. And to these no deeds" (showing their title to their lands) "are given, but if wrongfully dispossessed of their lands (9) Lib. i. c. 11,11. 14 OP CORPOREAL HEREDITAMENTS. they can be restored, because tney can show that they knew the certainty of their services and works by the year." This tenure was called " Villein Socage " because it partook of the nature of both free and base tenures. It is to be found only in lands of ancient demesne, that is, in lands belonging to the Crown immediately after the Conquest, or in manors originally granted Villein Socage by the Crown, from which cause it is sometimes called tenure a by tenure by ancient demesne, and was probably the ancient de- result of the policy of the Conqueror, who, in the earlier years of his reign, made many attempts to ingratiate himself with his new subjects. Burgage Tenure. Tenure in Frankal- moign. There were, besides, some other varieties of Socage tenure which may be here briefly noticed. Of these was Burgage (or Borough) tenure, where houses, or lands formerly the sites of houses, were held of the king, or of some lord, by a certain established rent (r). These boroughs had often customs of their own, such as that of Borough English, by which a man's land descended to his youngest son, and the custom of the City of London, by which all sons succeeded in equal shares on the father's death. These customs are for the most part abolished, but one, namely, Gavelkind, still prevails in some parts of Kent : its principal cha- racteristics are, that the possessor of lands thus held could always alienate them by will (a privilege not ex- tended to other tenants until the time of Henry the Eighth), and that the course of descent is to all the sons equally. There was also tenure in Frankalmoign, which was where the religious houses or corporations received land to hold in perpetuity, generally on condition of (>) Boroughs held of the King were often let out to farm, 1 Mad. Exch. 330. They were also subject to the payment of " tallage," or tax, to the king, or to the lord of whom they were' held. OF THE EARLIER TENURES OF LAND. I " praying for the donor and his heirs. No obligation of fealty attached to this tenure, the divine service ren- dered being considered of a higher nature. This form of tenure exists at the present day, and is that by which the parochial clergy, and many ecclesiastical and charitable foundations, hold their lands. The original incidents of tenure by Knight Service New incidents , TT j -n mi * tenure oj were, as we nave seen, Homage and realty. Ihere Knight Sert- soon, however, grew up many others of a more bur- ice - densome kind ; some of which appear to have been borrowed from the pre-existing Saxon tenure, but all having reference to the fact that the earlier grants had been matters of bounty. Thus, when it first became customary to allow the child of a deceased tenant to succeed him in his feud, this was a matter of favour, not of right, and the successor or heir would therefore pay to the lord a sum of money called a Relief () in Belief, acknowledgment of the benefit conferred. Similarly, when later on the tenant attained to the privilege of transferring his feud during his lifetime (t) (a point to which we shall advert presently), he paid to the lord a Fine in order to obtain his permission for so doing, and Fine, the name of Fine thus came to be given to any sum 01 money paid to the lord on a transfer of the tenant's land, whether by sale or in consequence of his death. Again, the vassal, who owed everything to the bounty of his lord, might naturally be expected to assist him in any pressing emergency. Thus if the lord were taken a prisoner, the faithful vassal would be bound to assist in procuring his ransom. If his eldest son were knighted, or his daughter married (both matters in- volving considerable outlay), the vassal would be expected to contribute ; and these payments or Aids, at Aids, first voluntary, soon grew to be regular incidents of his tenure. The favours conferred on the tenant (*) From the Latin retfrarf, to lift or take up. (t) In illicit-lit times alienation was accomplished by the tenant's sur- rendering his fee to the lord, who regranted to the tenant's nominee. 16 OF CORPOREAL HEREDITAMENTS. Wardship. Marriage. Escheat and Forfeiture. Burdens of tenure by Knight Serv ice become very heavy. benefitted his family as well as himself. It was natural, therefore, that the children of a deceased tenant should seek the protection of their benefactor. If the heir was under age, and unable to render the services the performance of which had been the condition of his father's tenure, the lord would constitute himself his guardian, and take charge of his lands until the heir was fit to do so, receiving in the mean time the profits of the estate in lieu of the services to which he was entitled. This Wardship continued until the heir, if a male, had attained the age of twenty-one or, if a female, that of sixteen years. It then came to an end, and the heir was entitled to enter into possession of the land without paying any relief. In addition to wardship there was the incident of Marriage. The feudal barons were often engaged in small private wars, and it was therefore of importance to the lord that no tenant of his should wed one of his enemies. He claimed, in consequence, a right to forbid any pro- posed marriage, and if he were the guardian of a female ward he would naturally himself look out for a husband for her. Lastly, there were Escheat and For- feiture. If the tenant died without heirs the land " escheated " (u) to the lord who had granted it ; if he neglected to perform the services due from him, or if he were convicted of cowardice, or of some grievous crime, his feud was taken from him, and became for- feited to his lord. But these incidents, not unreasonable in their origin, and so long as they were kept within due limits, came in time to assume formidable proportions, and the burdens which they imposed seemed the more grievous as the original principle on which feuds were con- ferred was lost sight of. For in time the transmission of a man's feud to his heir, or the alienation of it during his lifetime, originally matters of favour, grew to be (M) From the French etchoir, to fall in. OF THE EARLIER TENURES OP LAND. 17 looked upon as rights, whilst on the other hand the lords took every opportunity of enriching themselves at the expense of tenants who no longer recognised them as their benefactors. Thus a fine was still im- posed on alienation or succession, whilst the amounts claimed were at first arbitrary, although afterwards ^ regulated according to the value of the land. Aids too were claimed on various pretexts other than those originally contemplated. But it was chiefly in the matters of wardship and marriage that the rapacity of the lords was shown. For the lord, who formerly was the careful guardian of the heir's estate, now began to consider his charge as a mere opportunity for plun- der. Timber was cut down, hedges and buildings allowed to fall into decay, and, in addition, the heir was now compelled to pay a sum equal to half a year's value of his land before the lord would grant him that livery of seisin necessary to perfect his title. As to marriage, the lord now claimed the right to dispose of his ward in matrimony, and to suggest a match which he considered suitable, having previously bargained to receive a sum of money from the relatives of the pro- posed husband or wife. The ward who refused to come into this arrangement was liable, if a male, to forfeit double the sum which the lord was to have received; or, if a female, could not sue out her livery until she attained the age of twenty-one : whilst even if the lord had not proposed any marriage, he was entitled, on the ward's coining of age, to such a sum as he might be expected to have received had ho negotiated an alliance. It must not bo imagined that the lords themselves received any better treatment at the hands of the king. On the contrary, the burdens imposed on them were still more grievous, and formed some excuse for the pressure which they put on their own tenants. For in addition to those already mentioned, the ten- ants in capite were liable to that of Primer Seisin, or c. B 18* OF CORPOREAL HEREDITAMENTS. right which the king had to take the profits of an estate for a year and a half after the heir had attained full age ; and besides this, every heir was bound to be made a knight, an occasion which served as a pretext for fresh extortions (v). Another and more recent burden pressed heavily upon all tenants by Knight Service, whether from the king or from a mesne lord. The obligation of military service had been at first personal, but after a short time it became usual for the army to be made up of hired soldiery, the tenants by Knight Service paying a tax called Escuage in lieu of personal service (w). From the time of Henry the Third escuage became almost universal (so that the name of Tenure by Escu- age replaced that of Tenure by Knight Service), and although knights and gentlemen might be found serving in the army, they did so for pay and not by virtue of their birth or the tenure of their land (x). Advantages of From many of these burdens Socage tenure was over tenur^by f ree > whilst those which it did sustain pressed less Knight Serv- heavily. Thus Relief was due from the heir of a tenant in Socage : but it consisted simply in the pay- ment of a sum equivalent to one year's rental of the land. Fines were payable on alienation, and lands held in Socage were liable to Escheat and Forfeiture. The tenants were also bound to furnish Aids for knighting the lord's son and marryinghis eldest daugh- ter. And tenants in Socage became further liable to payment of Escuage, but the amount was always certain (?/). But it was principally in respect of Ward- ship and Marriage that Socage tenure and that by Knight Service differed : for in the former the wardship (t>) For an illustration of the height to which these abuses had risen, see Christie's Memoirs of Sfinffesbury, pp. 7 12. (w) This tax still remained uncertain, being assessed by Parliament after the termination of a war. Litt. Ten. s. 98. (x) 2 Hallam's Middle Ages, 479. (>/) Litt. Ten. s. 98. OP THE EARLIER TENURES OP LAND. 19 of an infant heir did not belong to the lord (inasmuch as he was not entitled to claim military service) but to the infant's nearest relation, not being one capable of succeeding him by descent, who, on the infant's coming of age, was bound to account to him for all rents and profits of the land received during minority ; and in like manner the guardian could gain no benefit by his ward's marriage. Whilst the free tenures thus put on new burdens, Improvement the position of the tenants by base tenure gradually Tenure, improved. The clergy of that day lost no opportunity of impressing uponthe lords the sinfulness of keeping their Christum brethren in bondage, whilst the courts were quick to construe any dealings between the lord and his villein as the manumission of the latter (z). The consequence was that by the time of Edward the Sixth nearly all the villeins had become freemen, / f t except a few belonging to the clergy (a). J At the same time that the personal status of the villeins was thus changed for the better, their tenure also improved. For when it became usual to allow them and their children to enjoy their possessions without interruption, the courts began to decide that they had acquired, by their long-continued enjoyment, a right to hold their lands without reference to their lord's will, so long as they performed their accustomed services, which now included fealty. From this the next step was, as in the case of feuds, to make to them grants of land so worded as to entitle their issue, if they had any, to succeed them. Their lands were still granted to them to be held at the will of their lord, and their tenure was still conditional on the performance of their due services, and had as its in- cidents Relief (here called Heriots), Fines, Escheat, and (.-) Thus taking homage from & villein made him a freeman. () 2 BL Com. 96. 20 OF CORPOREAL HEREDITAMENTS. Forfeiture ; but gradually such grants came to express that the tenant was to hold, not only at the will of the lord, but " according to the custom of the manor;" and these words were laid hold of by the courts as a means of restricting the lord's privileges. For it was now said that the lord's will must not be arbitrary, but that the tenant who could show that it had been the custom that lands should be permitted to remain in the same family should not be turned out of his land so long as he performed the services due from him, and this rule held good even in the case of grants made only for a life, or lives, if it could be shown to be the invariable custom of the manor to renew them from time to time as became necessary. The tenants were also held entitled to any privileges which had been enjoyed by them time out of mind ; and, in the sameVay, the heriots and fines to be paid were to be regulated by the custom of the manor, and even the custom was afterwards made subject to the condition that it must bg_ reasonable. Establishment When the villeins thus came to acquire a prescriptive ri g ht to tlieir lands ^ was tne interest botn of tn e lords and of themselves to preserve an accurate record of the lands which they held, and of the various customary rents and services on which they held them. For this purpose Customary Courts were established, at which, by analogy to the Court Baron, all the customary tenants were bound to attend. But, unlike the freeholders at a Court Baron, the customary tenants were not judges, that office being held by the lord's steward. At each meeting of this court, which generally took place once in three weeks, the steward produced the roll of the manor containing the names of the tenants and their services, the tenants, who were said to form the Homage, proceeded to " present " for the information of the lord any matters affecting the manor which had taken place since the last sitting, and these were all duly entered by the steward on the OF THE EARLIER TENURES OP LAND. 21 court roll. Tenants of this kind received no deed or evidence of their title, which depended entirely upon the court roll and upon the copies of, or extracts from, it made by the steward. For this reason these tenants became known as tenants by Copy of Court Roll, or Copyholders, and their tenure as Copyhold (6), and Villein tenure thus their position was made much the same as that uphold*" of the tenants by Villein Socage : the various services Tenure, which they were bound to render being, as a rule, gradually converted into fixed money payments. Thus the copyholders practically acquired fees, but the tenure itself remained, in contemplation of law, one at the will of the lord, and is still spoken of as base Copyhold in contradistinction to the free Socage tenure which |^ re Is s at the present day. The heavy burdens of tenure by Knight Service were Tenure by partly taken away by the Charter of Henry the First, Sl!aUito and by the Great Charter of John, but still continued Socage Tenure. to exist, although in a lesser degree. As trade in- creased, and the middle classes obtained more influence, the grievance of military tenures became i ntolerable. Consequently, at the Restoration of Charles the Second, Parliament seized the opportunity of abolishing military tenures, and a law (c) was passed, enacting that all wardships, liveries, primer seisins, values and for- feitures of marriage, by reason of any tenure of the king or others, be totally taken away : that all fines for alienations, tenures by homage, knight service, and escuage,and also all aids for marrying the daughter and knighting the son, and all tenures of the king in '!<:, be likewise taken away : and that all sorts of 1 enures held of the king or others be turned into free and common Socage, save only tenures in frankalmoign, copyholds, and the honorary services, of grnml-ser- jeanty, which consisted in carrying the king's banner, (*) Co. Liu. 58. (c) 12 Car. 11. c. 24. 22 OP CORPOREAL HEREDITAMENTS. Earlier fees Fees were heirs. "Heirs "on- ginally meant issue. Heirs now in- clude brothers and collateral relations capa^ ble of succes- sion. or his sword, or in being his butler, champion, or other officer at his coronation. * We have now seen how tenure by Knight Service became merged in that of Socage, and also how copy- hold tenure became gradually established amongst us; the result being that these two tenures, the one free, the other base, are the only kinds by which land is now held in England. We proceed next to inquire what estates may be held in land ; and this will in- volve the necessity of first tracing the steps by which the present power of alienating real property was arrived at. It has been previously mentioned that one of the earliest forms of estates in land was that which con- ferred an estate for life upon the recipient, and at the same time gave his children, if he had any, a right to succeed him in the possession of the land after his death. These estates were, as we have seen, called Feuds or Fees, and the course of descent was usually to the eldest son and his issue, or if he had none, then to the next son and his issue, and so on ; and failing these, to the daughters and their issue. But in the event of the tenant's having no issue, or of his issue failing, his estate escheated to his lord. When fees were first established, the deed which usually followed livery of seisin expressed that the land in question had been granted to the tenant or "feoffee" and his "heirs." The word " heirs " originally meant only a man's j ssue . they alone being the persons entitled to suc- ' ceed him. Gradually, however, it became allowable, if a tenant died without issue, for, at first, a brother, and finally, all collateral relations, provided they were Descended from, and were of the blood of, the feoffee (d), to succeed him in his feud, and the word "heirs thus t o include all such persons. The heir, whoever (d) Wright. Ten. 18. OP THE EARLIER TENURES OP LAND. - ; 5 he might be, was entitled to succeed to a fee, not by reason of any favour of the tenant in possession of it, but because ho had been designated for that purpose in the grant of the fee. He had thus a material interest in preserving the fee, and his consent was Heir's om^-nt therefore, at first, necessary to allow of its alienation, So also was that of the lord, for he, having granted it tion f ' ( ' to certain persons, had a right to insist that no one ' else should hold it ; since otherwise the rents and services on condition of rendering which it had been granted might not be properly performed, and the lord would also have less chance of regaining the lands by escheat. But when the word " heirs " came Lords permit 1 * *' to have a more comprehensive meaning, the lord's f e ^ nc prospect of escheat was considerably diminished. He had therefore no great interest in preventing his ten- ant from alienating a part of his fee : on the contrary, if he could get an immediate payment or fine for giving his consent, alienation was to his advantage, for the old tenant still remained subject to the perform- ance of all the services due to the lord, whilst the land acquired by the new tenant remained liable for the payment of all the rents in consideration of which it had been originally granted (?). Moreover, the lords took care, after a time, to guard themselves against risk of losing their tenant's services by inserting in the Great Charter of Henry the Third a proviso (/) that no freeman should, from thenceforth, give or sell any part of his land but so that, of the residue, the lord of the fee might have the services due to him which belonged to the fee. Since then, the tenant, who was anxious to sell his land, and the lord, who was the only person powerful enough to prevent him, had come to an understanding on the subject, it i- not to be wondered at that the heir's right of sue- IMr's o-.n-.-u cession was soon ignored, and his power of forbidding "* ii'.r. -VIM . (<) Perking' Profitable Book, . 674. (/) 9 lien. III. c. 32. 21 OF CORPOREAL HEREDITAMENTS. a transfer of the fee lost to him. These changes were not indeed effected all at once ; for instance, the first law, which permitted the alienation (rf) of fees, only applied to lauds which a man had himself purchased, which must, moreover, have been expressed to be granted to him, his heirs, and " assigns " ; and after- wards, when the alienation of inherited lands was permitted, its exercise was limited to one-fourth of such lands (Ji). But as early as the year 1290, the statute of Qnia Emptores (i), to which we shall have occasion to refer again presently, allowed all persons except the king's tenants in capite to alienate all or any part of their lands at their discretion. And even these tenants in capite were not long afterwards (f) permitted to alienate their fees on paying a fine to the king. Passing of the The loss of the heir's right to prevent the alienation Qiia Emp- ^ a ^ ee bid fair at one time to involve the loss to the tores. lord of the feudal rights subject to which the fee was held. For when once the privilege of alienating fees without the heir's consent had obtained a firm footing, the tenants began to look upon them as their own ; and taking advantage, probably, of the disordered state of the kingdom at the time of the crusades, be- gan, without the consent of their lords, to "subin- feudate," that is, to grant parts of their fees to sub- tenants, between whom and themselves the relation of lord and vassal was to subsist, without any reference to the lord, whose signorial rights were thus infringed upon. But when the kingdom became more settled under Edward the First, the lords quickly resumed their former rights. It was too late to forbid the transfer of a fee without the lord's consent, but they put a stop to the practice of subinfeudation by causing (g) LI. Hen. I. c. 70. (h) 2 Bl. Com 289. () 18 Ed. I. stat. 1. (j) 1 Ed. III. c. 12. OF THE EARLIER TENURES OF LAND. to be passed a statute (/), (known, from its opening words (/), as the statute of (jni timptores), which enacted (m) that it should be lawful for every freeman to sell at his own pleasure his lands and tenements, or part of them, but so that the feoffee should hold the same of the chief lord of the same fee by such serv- ices and customs as his feoffor held before, and (7*) tint if he sold any part of such lands and tenements to any, the feoffee should immediately hold it of the chief lord, and should be forthwith charged with the services, for so much as pertained or ought to pertain to the same chief lord, for the same parcel, according to the quantity of the land or tenement so sold. The alienation of a fee which had been granted to a man and his heirs, or to him his heirs and assigns, was thus established, and involved the right to transfer an estate granted to the feoffor for life only, which, when it came into the hands of another person, was called an estate pur autre vie, one, that is, held for the life- time of another. But during the period of time neces- sary to bring about these changes there had grown up another kind of fee, to which different rules applied, and which now claims our consideration. It will be recollected that the earlier fees descended Origin of the only to a man's issue, and that the word " heirs " fee tail - denoted only persons answering to that description. It is probable that fees limited to the feoffee's issue were the only kind known at the time of the Con- quest, since fees only began to be introduced into Europe about the year 1 000 (o). It was immaterial, therefore, at that time whether a grant were made to a man and " his heirs," or to him and " the heirs of his body ". But when the word " heirs " came to mean a great many people besides the feoffee's issue, there (*) 18 Ed. I. stat. 1. (I) All the older statutes were in legal Latin. () C. 1. () C. 2. (") Somner on Gavclkind, 102. 2(5 OF CORPOREAL HEREDITAMENTS. Conditional Fees. Statute De arose a marked difference between the two forms of grant. For although the new construction put upon the word " heirs," by taking away to a great extent the lord's chances of escheat, rendered him indifferent to the alienation of a fee granted to a man and his heirs, it was far otherwise when the fee had been given to a man and the heirs of his body, since these words did not admit of any larger interpretation, and consequently the lord's chances of escheat were still of considerable value. Hence, although when fees began to be alienated those granted in such a manner were not left untouched, a certain amount of restric- tion was imposed with regard to them. For the courts held that such a fee only conferred an alienable inter- est provided that the grantee had issue born to him ; and that until that event happened, he could not part with his fee. Such fees acquired, in consequence, the name of Conditional Fees, as being conferred on con- dition that the feoffee had issue, failing which they reverted to the lord. This view of the case did not, however, by any means please the lords, who saw their chances of escheat thus seriously diminished. Therefore in the reign of Edward the First, shortly before the passing of the statute of Quia Emptores, another act (p) was passed, known as the Statute De Donis Conditionalibus, which, first reciting that in cases of lands given upon condition, after issue be- gotten and born between them unto whom they were given upon such condition, heretofore such feoffees had power to aliene the land so given and to disin- herit their issue of their land, contrary to the minds of the givers, and contrary to the form expressed in the gift, enacted that thenceforth the will of the donor should be observed according to the words expressed in the deed of gift, and that lands or tenements given to a man and the heirs of his body or the like should go to his issue, if any, or, if there were not such (p) 13 Ed. I. st. 1. OP THE EARLIER TENURES OP LAND. 11 issue, should revert to the donor and his heirs. Such an estate in consequence lost its name of a Conditional Comliti..n.ilF..r Fee, and acquired that of Fee Tail, since it was said to ' ' be cut out (/) of the entire fee (henceforth distin- other : guished as a Fee Simple), and was to last only so long gf,, 1 ,' fi/ ' as there remained heirs of the body of him on whom it was bestowed. These fees remained inalienable for about two hundred years after the statute De Donis ; after which time they became, as we shall see hereafter, capable of being turned into Fees Sim- ple, and therefore subject to alienation. It will be observed that we have, hitherto, spoken Alienation of only of the alienation of an estate during its owner's lifetime : alienation by will not having been estab- lished until comparatively recent times. One reason for this was that the feudal system only permitted land to be transferred by public delivery of the im- mediate ownership of it, a rule evidently inconsistent with a transfer by will. To a certain extent this diffi- culty was overcome, by making a feoffment and livery of seisin to a person who was, after the death of the feoffor, to hold it for the benefit of such persons as the feoffor desired ; and this transaction would be upheld by the Court of Chancery. But the right of alienation by will was not recognised by the Common Law or by Statute until the time of Henry the Eighth. In the reign of that king an act (r) was passed which enacted that all and every person having, or who there- after should have, any manors, lands, tenements, or hereditaments holden in Secage, or of the nature of Socago tenure, should have full and free liberty, power, and authority, to give, dispose, will, and devise as well by his last will and testament in writing, or otherwise by any act or acts lawfully executed in his lifetime, all his said manors, lands, tenements, and heredita- ments, at his free will and pleasure ; and when by the (q) French taillt. (>) 32 lien. VIII. c. 1. 28 OP CORPOREAL HEREDITAMENTS. act of Charles the Second, previously mentioned (), the greater part of the land in this country became held by Socage, the power of alienation by will became of great value. It did not, however, until recent times, enable a person to dispose of real property other than that which he had at the time of making his will. But by the present Wills Act (/) it is enacted (u) that the power of disposition by will shall extend to all real estate to which the testator may be entitled at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will. The earlier Wills Act did not, moreover, extend to copyholds ; but we shall see, when we come to the chapter specially devoted to estates in land of this tenure, that they also can now be disposed of both during lifetime and by will. Estates for It remains to add a few words on the subject of Estates for Years. The Feudal System, as we have seen, dealt only with tenure by Military Service : it despised all others. In time, however, there grew up a system of allowing persons of inferior degree to cultivate lands belonging to the lords on condition of accounting for the produce, out of which they received a certain allowance for themselves. They were thus little more than bailiffs, removable at their lords' pleasure. In time, however, the custom of letting lands became general, and such a tenancy ceased to imply a necessary superiority on the part of the person who let the land (or " lessor ") over the person to whom it was let (or "lessee"). The lessees conse- quently arrived at a more independent position, pay- ing a fixed rent for their lands, and, provided they did this, and also complied with any other conditions on which they held, were entitled to undisturbed posses- sion during their term. (*) 12 Car. II. c. 24. (t) 1 Win. I\'. & 1 Viet. c. 26. () S. 3. OP THE EARLIER TENURES OP LAND. At first, however, they had this right as against their landlord only. For although a lessee, who had been wrongfully turned out of his holding by his lessor, was, after a time, permitted to bring an action of ejectment against him, and thus recover the land, besides obtaining damages for the wrong done, the case was different if the lessee had been turned out by some other person claiming by a title paramount to th;it of the lessor. For then the lessee could indeed bring an action against his lessor for not securing him undisturbed possession of the land, but could not recover the land itself. This was made a means of defrauding the tenant, for a lessor who wished to put an end to a lease, would get some friendly plaintiff to bring a preconcerted action against him for the land which he would take care not to defend ; judgment would accordingly be given against him, and the plain- tiff could then proceed to eject the lessee. An act, known as the Statute of Gloucester (r), was passed in the reign of Edward the First, with a view to put a stop to this practice, but with little effect : and the lessee still remained liable to be ejected by the pro- cess above mentioned, until the passing of the 21 Hon. VIII., c. 1^, which enacted that lessees, whether holding by a parol or written lease, or by one by deed, might prove that the action was fictitious, and that in that case the lessees should, notwithstanding such actions, hold their terms according to their leases. But a lease was never recognised by the law aa of equal dignity with estates for life, or in fee ; it is still, therefore, only personal estate, and the feudal seisin remains in the person who has the first estate Estate for for life, or in fee, after the term comes to an end ; and who is therefore distinguished as the freeholder, since it is he, and not the lessee, who holds from the lord paramount. One advantage indeed formerly gained Always alien- by the low estimation in which terms of years are held (r) 6 Ed. I. c. 11. 30 OF CORPOREAL HEREDITAMENTS. * by the law was that they could be, unlike more hon- ourable estates, freely disposed of either during the tenant's lifetime or by his will ; but this advantage has now disappeared, being, as we have seen, no longer peculiar to personal estate. Summary. The estates, therefore, in corporeal hereditaments which we have to consider are, besides the minor estates conferred by a tenancy at will, or at sufferance (terms to be explained hereafter), Estates for Years, Estates pur autre vie and for Life, Estates in Fee Tail, and Estates in Fee Simple. We will go onto examine them separately, taking them in the order in which they have just been named. In so doing we shall, at first, treat of such estates as being held in land of freehold tenure only, reserving the subject of copy- holds for special consideration in a subsequent chapter. 31 CHAPTER II. OP AN ESTATE FOE YEARS. WE saw in the previous chapter that one great dis- tinction between estates for years and those for life or any greater interest is that the former are personal, and the latter real, property. There is also an- other way in which the difference between them is strongly marked. In early times no freeman would condescend to accept an estate in land to endure for a shorter time than his own life ; and, on the other hand, no man not a freeman was, at first, allowed to hold land for so long a time. Hence, land held for life, or (fcnyAjoj> longer term, was said to be "freehold" (that is, held by a freeman), and although in process of time it was thought that a freeman might hold land for a shorter term than his life without loss of dignity, the old distinction still remains in the name ; hence the estates which may be held in land are divided into two great classes, namely, Estates of Freehold Eatate*of Froe- (which include life estates and estates of inheritance) E^tes"!*** and Estates less than Freehold. Of the latter kind than Fm-hold. estates for years are by far the most important, and the consideration of them will, consequently, occupy the greater part of this chapter; but before coming to them a few remarks are necessary on two minor varieties of estates less than freehold, which are, respectively, known as Estates by Sufferance, and Estates at Will. We shall, therefore, proceed to dis- cuss these, and in doing so will follow the course proposed to be adopted with reference to all estates with which we are about to deal, by inquiring, 1st, What they are, and how they may be created ; 2nd, 32 OP COEPOREAL HEREDITAMENTS. The incidents attaching to them ; and 3rd, How they may be alienated or put an end to. Estate by suf- An estate by sufferance is where one who comes in by right holds over without right (a). If, for instance, a tenant for years after the expiration of his tenancy continues to occupy the land of which he was tenant, without either the assent or dissent of his landlord, he is a tenant by sufferance, the law not considering him a trespasser, because, having been originally rightfully in possession, it will be assumed in his favour that he is so still. It will not be necessary to say any more about this estate, since it is obvious that it has the barest existence, and can only arise by implication of law, inasmuch as any recognition of it by the owner of the lan). But every lease at will must, at law, be at the will of both parties, and therefore upon a lease to hold at the will of the lessor, the law implies it to be at the will of the lessee also (c), and consequently the lessee may leave when- ever he pleases. Such a tenancy seldom exists except in the few cases where it is implied by law. Thus, if a trustee of land, who is in the eye of the law the owner of the (a) Co. Litt, 57 b . (b) No notice is necessary a statement of the lessor's will that the tenancy should terminate, at once puts an end to it. fallen v. Brewer, 1 C. B. (N. S.) 371. (c) Co. Litt. 55". OP AN ESTATE FOB YEARS. ' 33 property confided to him, permits the person who has the beneficial interest (and who is called his ct'stni que trust) to remain in possession as actual occupant of the land, the law will imply a tenancy at will on the part of the cegtui que trust (d). Again, an implied tenancy at will arises in the case of a person entering upon land under an agreement for a sale of it to him and remaining in possession after the contract has gone off (f). A tenancy at will may, however, exist by express agreement between the parties, where the money rent, or other compensation to be made to the lessor, is to accrue from day to day and is not refer- able to a year or any aliquot part of a year (/) ; or where there is no rent paid, or any proof of an agree- ment to pay rent (g). The incidents of the estate of a tenant at will do not incidents of an call for much notice, since both his responsibilities and ^^ at w '^ - Ins privileges are very limited. He is not bound to take any care of the property which he occupies, and is not therefore accountable for " permissive waste," that is, for allowing buildings or fences to get out of repair by mere neglect (//). But he is, notwithstand- ing, entitled, if his estate is summarily determined by his lessor, to have Emblements, that is, to come upon EmblemenU. the land after the expiration of his tenancy in order to take away such crops (provided they produce an annual profit) as were sown by him during his occu- pation. Ho will, also, if paying a rent equal to the full value of the land (t), come within the provisions of the 14 & 15 Viet., c. 25. This statute enacts (j) \ that when the lease or tenancy of any farms or lands & ' held by any tenant at rack rent shall determine (that is, (J) Melting T. Leak, 16 C. B. 652. () Jlowaril v. S/,,,,i; 8 Mee and W. 119. (/) Richardton T. Langridgt, 4 Taunt. 128. (a) Doe v. Wood, 14 Mee and W. 682. (A) llarnen v. Maitland, Hi Mce and W. 257. (i) llainn v. U'etch, L. R. 4 C. P. 91. U) S. 1. c. c OF CORPOREAL HEREDITAMENTS. be put an end to) by the death or cesser of the estate of any landlord, entitled for his life or any other un- certain interest, the tenant shall, instead of claims to emblements, continue to hold until the expiration of the then current year of his tenancy, at which time he shall, without being required to give or receive notice, quit upon the terms of his lease or holding, in the same manner as if his tenancy were determined by effluxion of time, or other lawful means, during the continuance of his landlord's estate. The succeeding owner is to be entitled to recover (as the landlord could have done if his interest had continued) a fair proportion of the rent for the period elapsed from the termination of the landlord's interest to the time of quitting : and the succeeding owner and tenant re- spectively are to be entitled, as against each other, to all the benefits, and be subject to the terms, to which the landlord and tenant respectively would have been entitled or subject in case the tenancy had determined in manner aforesaid at the expiration of such current year. How tenancy A tenant at will cannot transfer his interest to an- termined. ther person, either during his lifetime, or by will, because that could only be done with the consent of his lessor, and this consent would, of itself, create a new lease. His estate is put an end to by the death of either himself or his lessor (A*), or by any act of either party inconsistent with the existence of the tenancy. Thus an agreement by the lessor to sell his land (Z), or his making a new lease to another person, although with a proviso that the new lessee shall not enter upon the land until some future period, at once puts an end to the tenancy at will : as does also any act by the lessor in regard to the land for which he () James v. Dean, 11 Ves. 383, 391. (I) Daniels v. Davison, 16 Ves. 249, 252. OF AN ESTATE FOR TEARS. would otherwise be liable to an action of trespass at the suit of the lessee (m). The inconveniences which attach to tenancies at will are so many that these estates are not favoured by the courts, which always prefer, if possible, to con- strue them as leases from year to year (n) ; and any reservation of a yearly rent will be taken to imply a tenancy from year to year (o), which cannot be put an end to by either party without due notice. This last- mentioned estate is only a modified form of an estate for years, to which, accordingly, we will next turn our An estate for years is generally spoken of as a Estate for " term " (p) of years, because it is essential to its * ea existence that both its commencement and its dura- tion should be either certain or capable of being made certain. Littleton defines a tenant for a term of years thus : " Tenant for a term of years is where a man th lands or tenements to another for a term of t-i i tain years at the number of years that is accorded bt-tween the lessor and the lessee, and the lessee entereth by force of the lease, then he is tenant for years (7)." The term for which the lease is made is called in every case a term of years; for although the lease may be made for only half a year, or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings, a year being the shortest term which the law in this case takes notice of (r), and therefore any tenancy of definite duration, as for instance one for three months certain, is a term (). The grant of such a term is (m) Turner v. Bennett, 9 Mce and \V. 643. (n) Danielt v. Daciton, 16 Ves. '249, 2V.'. (o) Pope v. Garland, 4 Yo. and C. (Ex.) 394. (p) Latin terminus, an end. (?) Co. Litt. 43''. (r) 2 Bl. Com. 140. (a) Doe r. Roe, 5 13. and Aid. 766. 30 OF COEPOEEAL HEREDITAMENTS. also called a " demise/' and the term itself is distin- guished as a " chattel real," a phrase which points, on the one hand, to the fact of its being personal pro- perty and, on the other, to its connection with land. By whom it A term of years may, as a general rule, be created ' by any one having an estate greater than the term itself. Thus not only can a tenant in fee, or for life, create a term of years, but, moreover, one who is him- self a tenant for years can carve a smaller estate out of his own. The grantor (that is, the person making the grant of the term) is also called the " reversioner," because after the expiration of the term the estate out of which it was granted reverts or returns to him (and is therefore called his " reversion"), unless he has, at the same time, parted with the rest or " remainder " of his estate to another person, who, in such a case, is called the " remainder-man." A lease made by a ten- ant for years out of his own term was always binding on his representatives after his death, but, with this exception, the rule at one time was that if the grantor had an estate less than a fee simple all leases made by him were put an end to by his dying, or by his for- feiting his estate, and did not bind the reversioner or Tenant in tail, remainder-man. Thus if a tenant in tail made a lease, and died before the expiration of the term, the lease was not binding even on his issue. This was :i2 Hen. VIII. partly remedied by the 32 Hen. VIII., c. 28, under c. 28. which tenants in tail were enabled, subject to certain restrictions, to make leases of such lands as had been accustomed to be let for the last twenty years past, for a period not exceeding twenty-one years or three lives. Such leases, however, only bound the issue of the tenant in tail, and not the remainder-man, or reversioner ; but now, under the Statute for the Abo- Abolition of lition of Fines and Eecoveries (t}, a tenant in tail can Fines and Re- ma k e a lease for anv term not exceeding twenty- one covenes Act. J (t) 3 & 4 Wm. IV. c. 74, ss. 15, 40, 41. OF AN ESTATE FOE TEARS. 37 years, provided the lease is made by deed, and com- mences from the date of such lease, or from any time not exceeding twelve calendar months from the date of such lease, and that a rent is thereby reserved which, at the time of granting such lease, is a rack rent (u), or not less than five-sixth parts of a rack rent. He may also make a lease for any term, by deed inrolled according to the provisions of the act ; and all such leases will be binding on the issue in tail, reversioner, and remainder-man. The last-mentioned act rendered the 32 Hen. VIII. c. 28 unnecessary, and it has therefore been repeal- ed (r), except so much of it as relates to leases made by persons in right of their churches. A tenant for life also could not, until lately, make Tenant for liiv. binding leases to endure beyond his own life ; but it is now enacted, by the Leases and Sales of Settled Estates Act (w), that it shall be lawful for every per- Leases and son entitled to the possession, or to the receipt of the Sales of St-nl.-d rents and profits, of any settled estates for an estate for life, or for a term of years determinable with his life, or for any greater estate, either in his own right or in right of his wife, and claiming under a settle- ment made since the 1st of November, 1856 (), to make, from time to time, unless the settlement con- tains an express declaration to the* contrary, leases of such estates, or any part thereof, except the principal mansion-house and the demesnes thereof, and other lands usually occupied therewith, for any term not ex- ceeding twenty-one years to commence from the date of the lease, provided that the demise be made by deed, and the best rent that can reasonably be ob- ^ (u) A rack rent (from rachetcr, to buy back) is a rent equal to the full value of the land, or nearly so. (r) By the L9 & 20 Viet. c. 120, s. 35. (to) 19 & 20 Viet c. 120, s. 32. (*) SS. 44, 46. 38 OF CORPOREAL HEREDITAMENTS. tained be thereby reserved, without any fine or other benefit in the nature of a fine, which rent shall be in- cident to the immediate reversion ; and provided that the lease contains certain clauses enumerated by the Tenants by act. Tenants who have life estates by curtesy or by l)ower ya y dower (terms which will be explained hereafter) (y], Leases and are also enabled by the same act (z) to make leases for Sales of Settled twenty-one years/ subject to the same conditions as ordinary tenants for life. The act makes (a) every demise thus authorized valid against the person grant- ing the same, and against all other persons entitled to estates subsequent to the estate of such person, if the estate be settled ; and in the case of unsettled estates, against all persons claiming through or under the wife or husband (as the case may be) of the person grant- Leases and ing the same. The Leases and Sales of Settled ffg t e a S t^ fSettled Estates Amendment Act (6) makes such demises Amendment valid also against the wife of any husband making such demises of estates to which he is entitled in right of such wife. The Leases and Sales of Settled Estates Act (c), and the Leases and Sales of Settled Estates Amend- ment Act (d), also enable the Court of Chancery to authorize various other leases of any settled estates, and without reference to the date of the settlement, but subject to the conditions contained in the acts. The principal of these conditions are, that every lease shall be made to take effect in possession at, or within one year next after, the making thereof, and shall be for a term of years not exceeding, for an agricultural or occupation lease, twenty-one years ; for a mining lease, or lease of water, water-mills, way leaves, water leaves, or other rights or easements, forty years ; (;/) See Chaps. IV. and VI. (z) 19 & 20 Viet. 120, s. 32. () S. 33. (b) 21 & 22 Viet. c. 77, s. 8. (c) ia-&eoA T iet.-iaej S ' (rf) 21 & 22 Viet. c. 77> OP AN ESTATE FOB YEARS. ''& r>r building leases ninety-nine years (e) ; and for repairing leases sixty years (/) ; and that the rent ;-ved shall be the best that can reasonably be ob- tained without taking any fine or other benefit in the nature of a tine (j/). The acts contain provisions for tin- benefit of the remainder-man, where the lease is one of any earth, coal, or mineral ; and no lease is to authorize the felling of trees, except so far as is neces- sary for clearing the ground for buildings, excava- tions, or other works authorized by the lease (/*). 'rite court is further empowered, if satisfied that it will be for the benefit of the inheritance, to extend the above terms, except in the case of agricultural leases (/). Terms of years may, moreover, be created within Persons under am limits by persons under disability; such as dmblllt > inurried women, infants, lunatics, bankrupts, and con- victs. As to married women, the powers conferred Married by the Leases and Sales of Settled Estates Act (f) ^^' md have been already noticed; it is also enacted by the Sales of Settled Act for the Abolition of Fines and Recoveries (k) that E f ta , t . 69 Act ' . , , Abolition of it shall be lawful for every married woman, except Fines and Re- where she is a tenant in tail, bv^deed to dispose of coverie * Act - lands of tiny tenure as fully and effectually as she could do if she were unmarried, provided that she does so with the consent of her husband, and that the tli -I'd in question is publicly acknowledged by her in the manner prescribed by the act. And a lease made by a husband and wife, or by the husband alono, of a wife's freehold property, although without anvjg>ecial formalities, is binding on them during the^ joint lives (/). If the married woman is a tenant in tail (e) 19 & 20 Viet. c. 120, 8. 2. (/) 21 & 22 Viet. c. 77, s. 2. (y) 19 & 20 Viet. c. 120, s. 2. (A) Ibid. (0 21 & 22 Viet. c. 77. . 4. (j) 19 & 20 Viet. c. 120, s. 32. (*) 3 & 4 Win. IV. c. 74, e, 77. (/) Batcman v. Allen, Cro. Eliz. 437, 438. 40 OF CORPOEEAL HEREDITAMENTS. Infants. 11 Geo. & 1 Wra c. 65. IV. IV. she can make a lease by the same process as if she were unmarried, but with the additional requisites of obtaining her husband's consent, and acknowledging the deed (m). Infants cannot of themselves make binding leases ; it has therefore been enacted (n) that where any infant is seised or possessed of, or entitled to, any land in fee, or in tail, or to any leasehold land for an absolute interest, it shall be lawful for such infant, or his guar- dian in the name of such infant, by the direction of the Court of Chancery, to make such lease of the whole, or any part, of his land, for such terms of years, and subject to such rents and covenants as the court shall direct. But in no case is any fine or premium to be taken, and the best rent that can be obtained, regard being had to the nature of the lease, is to be reserved. And no lease is to be made of the capital mansion-house and the park and grounds respectively held there- with, for any period exceeding the minority of such infant. Lunatics. The principal enactments relating to leases being made of the estates of lunatics are contained in the 16 & 17 Viet 16 & 17 Viet., c. 70, which enacts (o) that where any C- ' 0> lunatic shall be seised or possessed of, or entitled to, any land in fee, or in tail, or to leasehold land for an absolute interest, the committee of his estate may, in his name and on his behalf, under order of the Lord Chancellor, make such a lease of the land, or any part thereof, as the Lord Chancellor shall order. This includes (p) power to make leases of mines already opened, or ( - some term of years determinablo on three lives ; and not exceeding, in the case of repairing leases, the terra of fifty years. And the Commissioners of Woods and Forests may (w) grant leases of Crown land, vested in them, for thirty-one years, or, in the case of leases of buildings or of ground for building on or for making gardens, for any term not exceeding ninety-nine years, subject to the conditions of the enabling act as to the leases being made for a rent amounting to the full value of the land unless they are granted for building purposes. () 32 & 33 Viet. c. 71, s. 15, 17. (0 33 & 34 Viet. c. 23, B. 12. () 19 & 20 Viet. c. 120, . 36. (v) 1 Anne, c. 1, i. 6. (w) 10 Goo. IV. c. 50, SB. 2233. 42 OF CORPOREAL HEREDITAMENTS. Ecclesiastical As to Ecclesiastical Corporations, incumbents of livings may (x), under certain conditions, and subject o & 6 \ictc. ' . J v " 27. to obtaining the consent of their patrons and bishops, make binding leases for fourteen, and in some cases 5 & 6 Viet. c. for twenty-one years. And by the 5 & 6 Viet., c. 1 08, ecclesiastical corporations, including incumbents, may, with the consent of their patrons and bishops, and of the Ecclesiastical Commissioners, make, subject to certain restrictions, building leases for terms not ex- ceeding ninety-nine years. Other ecclesiastical corporations can of themselves 32 Hen. VIII. make leases of lands or hereditaments commonly let 5' Geo III c ^ or twenty years before such leases (?/),and also of 17. tithes, tolls, and other incorporeal hereditaments (z), for terms not exceeding twenty-one years or three lives from the making thereof, subject to the observ- 5 & 6 Viet. c. ance of certain conditions. They may also (a), with the consent of the Ecclesiastical Commissioners (6), make building leases for terms not exceeding ninety- nine years (c), and leases of way leaves or water leaves for any term not exceeding sixty years (d), subject to the restrictions contained in the enabling act. Moreover, they may (e), under special circum- stances, with the consent of the Ecclesiastical Com- missioners, make leases for such terms, and subject to such conditions, and generally in such manner, as Universities the Commissioners think proper and advisable. Special 21 ft 22 vTct. powers of leasing have also been given by statute to ? 44 - the Universities of Oxford, Cambridge, and Durham, c. 59. and the Colleges of Eton and Winchester (/). ) 5 & 6 Viet. c. 27. ) 32 Hen. VIII. c. 28, sa. I, 2. (;) 5 Geo. III. c. 17. (a) 5 & 6 Viet. c. 108. (b) S. 20. (c) S. 1. (d) S. 4. (e) 21 & 22 Viet. e. 57, s. 1. (/) See the 21 & 22 Viet. c. 44, and the 23 & 24 Viet. c. 59. OF AN ESTATE FOB TEARS. 43 Municipal Corporations are enabled to make leases, Muniripl Tor- subject to certain restrictions () Webb v. Atutin, 7 Man & Or. 701, 724. (o) lirerrton v. Evan*, Cro. Eliz. 700. (p) Doe\. Smith, 1 Man. & Ry. 137. (?) Doe T. Jfbrw, 1 B. & Ad. 365. (>) 29 Car. II. c. 3. Berrty T. Lindtty, 3 Man. & Or. 498. 46 OP CORPOREAL HEREDITAMENTS. By parol or By deed. Act. Form of Amendment Act (s) (both of which will be referred to presently), have been held to create tenancies from year to year. A lease for a term of years may, except in the case of leases under statutory powers, be granted by parol, or by writing, if the term is for less than three years, and if the rent reserved amounts to two-thirds of the full improved value of the land (t), but a tenancy for any longer term, or for a lower rent, would formerly, under the Statute of Frauds (w), have had the force and effect of a tenancy at will only, unless created by writing ; and now it is enacted by the Eeal Property Amendment Act (v) that all leases formerly required bv laW to be in ^t^g are to be made ty deed ; ^at is, by an instrument sealed as well as written. No formal words are necessary to create such a term, any words denoting an intention to give pos- session being sufficient (iv); and hence before the passing of the Real Property Amendment Act (x) questions often arose as to whether certain writings were leases, or only agreements for leases. The general rule is, that in each case the answer depends upon the intention of the parties as collected from the instrument (y] : therefore if the words are of them- selves apt for creating a lease, but no intent appears, no lease will be created (z). Thus, where there was an agreement to lease a mine but the mode of working was to be determined by some competent person (a), and, again, where the lessee agreed to accept a lease (s) 8 & 9 Viet. c. 106. Lee v. Smith, 9 Exch. 662. (t) The full improved value is the rent which a tenant would pay who was bound to keep the premises in repair. Richardson v. Kensit, 5 Man. & Gr. 485, 497. () 29 Car. II. c. 3, s. 1. M 8 & 9 Viet. c. 106, s. 3. (w) Curling \. Mills, 6 Man. & Gr. 173. (z) 8 & 9 Viet. c. 106. (y) Morgan v. Eissell, 3 Taunt. 65. (z) Doe v. Ashburner, 5 T. E. 163. (a) Jones v. Reynolds, 1 Q. B. 506. OF AN ESTATE FOB YEARS. 17 on condition that the premises were put into repair (//), it was held that no lease had been created. But, on the other hand, the use of the words " agree to let," although with a stipulation that a lease and counter- part should be prepared, has been held to create a present demise (r). Since the passing of the act such questions cannot arise as to writings, except where the term does not exceed three years, but may still do so as to deeds in cases where the wording of the (K.d is very ambiguous. If the lease is for an alter- native period, such as for seven, fourteen, or twenty. one years, the lessee alone has the option of putting an end to it at the expiration of either of these terms ( i- mini or right to enter. It should be here noticed that terms of years may Long terms of 1 created for purposes other than the existence of the ordinary relation of landlord and tenant. When estates for years received the same protection as other estates it was soon discovered that, besides answering the purpose of short leases, they might, from their peculiar nature, when extended in duration, be applied vviili advantage in the settlements and complicated arrangements of real property, which became neces- sary in the advancing state of civilization (e). The manner in which long terms of years are used for this purpose will be more fully considered at the end of this chapter ; at present we will confine our attention to terms of years created for the benefit of an ordi- nary lessee, and observe the rights and obligations which they confer and impose in the absence of any stipulation between the parties : questions as to the (A) (e) Doer. Clarke, 7 Q. B. 211. Doe v. Hi ft, 8 Bine. 178. (d) Price v. Dyer, 17 Ve. 356, 363. (*) Watkins' Principles of Conveyancing, 45. 48 OP CORPOREAL HEREDITAMENTS. ordinary form and effect of such stipulations being reserved for a subsequent part of our work. Incidents of an In considering the incidents of such an estate, the years ' ^ rs ^ ^ ^ e noticed is the payment of rent to the lessor Rent or Rent- by the lessee. This rent, when it exists, is properly lemce. called a Kent- Service, and is an annual return made by the tenant in retribution for the land that passes to him (/) . It may be paid either in labour, money, or provisions ; but is, at the present day, almost uni- versally paid in money. Rent Service There is always an implied obligation on the part of reversion. le the lessee to render rent-service to the reversioner, and rent is, therefore, said to be " incident " to, or follow, the reversion. The amount payable is pre- sumed, in the absence of stipulation, to be equivalent to the annual value of the premises occupied, but it is the almost universal practice for the parties themselves to agree upon the precise amount of rent Former conse- to be paid. A consequence of the rule that rent is B incident to the reversion was, formerly, that if the reversion were destroyed the rent incident to it was destroyed also. Now it is a rule of law when two estates immediately reversionary to each other meet in the same person, in the same right, that the one which gives the title to possession, unless it is an estate tail, will, if less in quantity than the rever- sion, be merged or drowned in the other, and be- come extinct .({/). If, therefore, a tenant for life, or for years, of land makes a lease and afterwards ac- quires the fee simple of the same land, his tenancy for life, or for years, is merged in the fee simple, and before the passing of the act to be presently mentioned the rent reserved by the lease would have been extinguished, because the reversion to which it (/) Gilbert on Rents, 9. ()/) Watkins' Principles of Conveyancing, 54. ^ OF AN ESTATE FOR YEARS. 40 was incident had ceased to exist : the same fate would have also attended the covenants of the lease. Thus, it was held in one case (h) that a tenant for years, who had made a lease out of his estate for years, and subsequently taken a conveyance of the fee simple of the same lands, could not maintain an action against his lessee for breach of covenant to pay rent and to repair the premises, since the acquisition of the fee simple had merged his former reversion, and that being gone the covenants incident to it had also be- come extinguished. But, notwithstanding this, the lessee continued to be entitled to hold his land for the remainder of the term granted to him, since the merger of the reversion was no act of his, and it could not be permitted that a lessor should be able, by any voluntary acts, to defeat his own grant (*). Again, if a tenant for years made an under-lease, and afterwards sur- rendered his own lease to his lessor in order to have it rcm-wrd, cither to himself or to another person, the benefit of the rent and covenants contained in the under-lease was lost. This last hardship was remedied by the 4 Geo. II., * Geo. H. c. c. 28, which enacted (j) that when a lease was sur- rendered in order to be renewed the new lessee should be in the same position as if the original lease had been kept on foot ; and now it is provided by the 9th section of the Real Property Amendment Act (k) that Real Prop, riy when any reversion expectant on a lease, made either j^ before or after the passing of the act, is surrendered, or merged in a greater, the next estate is to be deemed the reversion for the purpose of preserving such inci- dents and obligations as would have subsisted but for the surrender or merger. (A) ircbb r. Ruttrll, 3 T. R. 393. () button's Ca, 12 Mod. 557, 668. ( S. 6. (*) 8 & 9 Viet. c. 106. OP CORPOREAL HEREDITAMENTS. How vent must be reserved. Distress for rent. Rent service must issue out of the thing- demised, and must be reserved out of lands or tenements to which the lessor can have recourse, and therefore (except in. a demise by the Crown) cannot be reserved out of any incorporeal inheritance (/), nor out of goods (in). Consequently if rent is reserved out of two things, only one of which is capable of supporting rent, it will be presumed that all the rent was reserved out of that (n). It must also be reserved to the lessor himself (o), and not to a third party. Moreover it must be certain, but will be considered certain if capable of being reduced to certainty (_/>). If these precautions are not attended to, the lessor will lose his common law right of Distress, that is, a right to enter upon the demised premises between the hours of sunrise and sunset (q) and seize any corn, grass, or other product growing on any part of the land demised (?), and also (subject to the exceptions to be presently noticed) any personal chattels found on the premises. The lessee must then either pay all rent due, and the costs incurred in the seizure, or, if he disputes the lawfulness of the seizure, ho must " replevy " (s) the goods, by giving a bond to prose- cute an action to recover them within a limited time (f) . ]/ If he fails to adopt either of these courses within five '/ days after notice in writing has been given to him of the distress being made ()> the lessor may proceed to sell the goods, taking care not to include in the distress more than is reasonably likely to produce, when sold, a sum sufficient to pay the rent due and all (0 Co. Lite. 47. (m) Spencer s 'Crou ' ctlon Act - immediate tenant may serve the landlord, or any per- SOM employed by him to levy the distress, with a de- claration in writing setting forth that the immediate tenant ha- no interest in such goods, and that they the property, or in the lawful possession of, the lodger; ami thereupon, and upon payment of the rent (if any) due by the lodger to the immediate tenant, the landlord is prohibited from proceeding to levy a distress upon the goods of such lodger. If the tenant Bistres* under fraudulently removes his goods from the premises, the ^g 1 (ie ' ll ' landlord may, within thirty_ days, follow and distrain the ^r....ds of such toiianT(Dut not those of any other person), unless they have been previously sold to a liana ji>l< purchaser (//). , Tuder the Statute of Limitations, 3 & 4 Win. IV., Am>ar*/iitn; \ King. 283. (x) .SV/.-r v. /.,,,,-A, 18 (,'. K. (X. 8.) 479. M Miles v. /in-'. .IK s (I II. 77. ~4- (z) Simpson v. Hartopp, Willes, 612. ' (a) 34 & 35 Viet. o. 79. (4) 11 Uco. II. c. 19,88. 1, 2. (c) S. 42. OF CORPOREAL HEREDITAMENTS. or next after an acknowledgment of the same in writing given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent. This statute applies to every case where the rent has been reserved by a parol, or by a written, lease. But if the lease has been made 3&4 Wm. IV. by deed, the lessor is, under another Statute of Limit- ations (d), passed in the same year, in a more favour- able position, so far as regards the time within which he may bring his action. For this statute enacts (e) that all actions of debt for rent upon an indenture (that is, a deed) of demise shall be commenced within twenty years after the cause of such action, but not after ; this time being, however, extended (f) if the person entitled to bring the action is an infant, a married woman, a lunatic, or beyond seas ; or if (g) any acknowledgment has been made either by writing signed by the party liable by virtue of such indenture or his agent, or by payment or part satisfaction on ac- count of any principal or interest then due (h). Not- withstanding the statutes of limitation, it is settled that so long as the relation of landlord and tenant exists as a legal relation, the right to rent is not barred by non- payment, for however long a period, although the amount to be recovered is, in every case, limited to six years' rent (>') Lessee's liabi- The lessee is bound to pay rent, although the lessor rent* ^ mav nave failed to do repairs which he has covenanted to do (j). This obligation continues, both at law and in equity, even if the premises are burnt down (k), (d) 3 & 4 Wm. IV. c. 42. See Paget v. Foley, 2 Bing. X. C. 679. () S. 3. - (./) S. 4. (ff) S. 5. (A) As to the conflicting nature of these statutes, see Sug. R. P. Statutes, 142, note (I). (i) Archbold v. Scully, 9 H. L. C. 360. (j) Surplice v. Fartisworth, 1 Man. & Gr. 576. (K) Baker v. Holtzappfel, 4 Taunt. 45 ; Holtzappfef v. tinker, 1 8 Ves. 115 ; Hare v. Groves, Anstr. 687 ; Lo/t v. Dennis, 1 E. & E. 474. OF AN ESTATE FOR TEARS. unless there is some stipulation to the contrary, for in the absence of agreement the lessor is not bound to it-build premises destroyed by fire, nor will such an ;i<_Tt cment be implied from a covenant on his part that the lessee shall have quiet enjoyment of the premises(/). At one time it appears to have been doubted whether the lessor could claim payment of rent without re- building the premises, if he had insured them and received the insurance money (?) ; but it is now well settled that he can (n). But under 8. 83 of the Metropolitan Building Act (o), any person interested Metropolitan in any house or premises which may have been burnt down can require the directors of the office in the which the same had been insured to lay out the insurance money in rebuilding them, and it has been decided that the application of this section of the act is general, and not limited to the metropolis (p). By the 5 & 6 Viet., c. 35 (q) the lessee is bound in Payment of the first instance to pay income tax, and then to deduct ^ XC8nn<1 ratM - it from his rent ; and no bargain between the lessor 3.5. ;nid lessee to the contrary is to have any binding tilrct. As to other taxes, the lessee, in the absence of any agreement, is bound to pay all personal charges in respect of the land, but not taxes on the laud itself. He is therefore, in general, bound to pay poor, watch- ing, water, highway, and county rates, but not land tax, sewer's rates, paving rate, or tithe rent' charge, and if he does pay them he is entitled to deduct them from his rent, but only to the amount which the lessor would be bound to pay on his rent reserved (r) ; and a tenant who has paid Tiis full rent without deducting the amount which he has paid on account of taxes (I) Bai/ne v. JTalktr, 3 Dow, 233 ; ttiotcn Y. Qutftet; Arab. 619. (m) Brown v. Quitter, Amh. 619. (n) Isedt v. Cheetham, 1 Sim. 146. (o) 14 Gco. III. c. 78. (p) Exparte Goreiy, 34 L. J. (Bankr.) 1. (q) 8. 73. (r) Andrew v. Hancock, 1 Brod. & B. 37. Til OF CORPOREAL HEREDITAMENTS. which the landlord ought ultimately to bear cannot recover it back (s). Repairs. A tenant for years is, in the absence of covenant, bound to keep the premises which he occupies wind and water tight, but not to do substantial repairs (t), and it would seem to follow that if he chooses to do them he cannot recover the amount so spent from his landlord. He is also, it would seem (it), liable for per- missive waste, and is consequently entitled, in the absence of any proviso to the contrary, to take reason- Estovers, able "estovers" or "botes," that is, to cut wood for fuel and for repairs, and to cut underwood and loppol- Keeping boun- lards. If he has land of his own adjoining that of his daries distinct. leggor ifc ig hig duty to keep ^ toun a ar ies between such lands distinct, and if he fails to do so he must either restore the lessor's land specifically or substitute land of equal value (v) ; or, if he has suffered the boundaries to become confused, so that the lessor cannot tell to what he is entitled, must make good the loss to the lessor out of what may be considered as the common fund (w). The lessor is not bound to keep the demised premises in repair unless he has expressly agreed to do so (ie), but it is probable that, if he has, the lessee could recover from him any money which he (the lessee) has expended on repairs, even though he had previously paid his rent to the lessor without claiming any deduction on that account. But a lessor covenanting to repair must have had notice that repairs are necessary, in order to render him liable to an action for breach of his covenant (y). (*) Andrew v. Hancock, 1 Brod. & B. 37. See Fuller v. Abbott, 4 Taunt. 105. (t) Auicorth v.' Johnson, 5 C. & P. 239 ; Leach v. Thomas, 1 C. & P. 327. (it) Harnett v. Maitland, 16 Mee & W. 257 ; Yettowly v. Gowcr, 11 Exch. 274, 294 ; but see Torriano v. Young, 6 C. & P. 8. (v) AUt/-Genl. v. Fullerton, 2 Ves. & B. 263. (w) At'ty-Genl. v. Stephens, 6 De G. M. & G. Ill (x) Gott v. Gandy, 2 E. & B. 845. (y) Makin v. Wilkinson, L. E. 6 Ex. 25. OF AN ESTATE FOR TEARS. A lessee is under an implied covenant to cultivate Wt. liis land in a husband! ike manner (z) and according to the custom of the country in which it is situate^/), lie is not entitled to commit "waste," which has been defined as a spoil or destruction in houses, gardens, S or other corporeal hereditaments, to the disin- heritanceof him that lias the reversion or remainder (//). Jlr may not, therefore, pull down houses, cut timber, open niiiii-s, dig for minerals, or alter the nature of the property demised as by converting arable land into woodland, or meadow or pasture land into arable. A t-nant lor years who did any of these things might formerly, under the Statute of Gloucester (r), have a ( writ of waste brought against him by his lessor, the result being that the place wasted was forfeited, and tin- tenant liable moreover to pay treble the amount of the damage which he had committed. The writ of waste lias now been abolished ((/), but a lessor may bring an action at law and recover damages against a lessee committing waste. He may also obtain fmm the Court of Chancery, or from the Court of Law iu which he has brought, or is bringing, an action for wa>te, an injunction restraining the lessee from any repetition or continuance of waste (c). On the other hand, the lessee has the benefit of the 14 & 1 ") Viet .. c. 'Jo, already referred to as having been sub- stituted for the former law relating to cmblcments. Questions occasionally arise between the lessor and Fixtim*.] the lessee as to the right of the latter to remove fixtures put up by him during his term. Fixtures include anything annexed to the freehold, that is fa > tuned to or connected with it; mere juxta-position (--) HnnefM v. Mather, Holt, X. I 1 . C. 7,9; Potcley v. Walker, 5 T. U. 373. (a) Lfyh v. llncitt, 4 Eat, 154. (f>) 1 I nut. . 67. (r) 6 Ed. I. c. 5. (rf) 3&4 Win. IV. c. 27,8. 36. (e) 17 & 18 Viet. c. 12.5, ss. 79, 82. <> OF CORPOREAL HEREDITAMENTS. or laying an object, however heavy, on the freehold not amounting to annexation (/). According to the older law anything once annexed to the soil be- came part of it, and could only be removed by the owner of the soil, but exceptions to this rule have been gradually established in favour of the persons who may have put up fixtures, or their repre- sentatives. Trade fixtures. The first exception appears to have been made in the case of fixtures put up by a tenant for years for the purposes of his trade. Thus, it was held in an old case (g) that a soap boiler was entitled to remove vats, &c., which he had put up for the purposes of his trade, and in a later case (h), where a lessee had erected buildings during his term for the purposes of his trade, it was held that he might lawfully remove such parts of them as consisted of a wooden structure raised on a brick foundation. But it appears to be doubtful whether he could remove a building, such as a lime kiln, having its foundations let into the ground (i). The general rule has been stated as follows : " Things which a tenant has fixed to the freehold for purposes of trade or manufacture may be taken away by him, whenever their removal is not contrary to any r prevailing practice, when it will not cause material injury to the estate, and when they were of themselves of a perfect chattel nature before being put up (j). Domestic Notwithstanding some former decisions to the con- nxtm-ts. trary (k), it is now well settled that the tenant has (/) 2 Smith, L. C. 170. (g) Pook's Case, Salk. 367. (h) Penton v. Robart, 2 East, 88 (t) Threslier v. East London Waterworks Co., 2 B. & C. 608. (j) Amos on Fixtures, 48. (Jt) Poole's Case, Salk. 367. OF AX ESTATE FOR YEARS. also a right (though not to the same extent as in the case of trade fixtures) to remove fixtures put up inside a house for domestic use, or for ornament. Thus, it has been held that wainscots screwed to the wall, grates, and the like, may be removed (I), as may also an ornamental wooden chimney-piece (w) ; but that a tenant is not entitled to remove a conservatory on a brick foundation, attached to the walls of the house (n), or green-houses on frames fixed with mortar to a foundation of brickwork (o). With regard to fixtures put up for agricultural Agricultural purposes, it was formerly held that, farming not being a trade, a fanner tenant had not the- same privileges as one who was a trader. Thus, in one case (p), it was decided that a tenant could not remove brick and mortar buildings which he had put up for agricultural purposes. Now, however, it is provided by the 14 & u & lo Viet. 15 Viet'., c. 25 () Khrn T. Maw, 3 East, 38, and, with notes, 2 Smith, L. C. 163. (9) S. 3. OF CORPOREAL HEREDITAMENTS. "When fix- The tenant's right to remove fixtures should be removed. 5 exercised during his term. For it has been decided that a yearly tenant, who had quitted the premises of which he was tenant, had no right to recover bells and other fixtures which had been subsequently re- moved by the landlord (>). But it appears to be doubtful whether a tenant may not remove fixtures, notwithstanding that his term has expired, if he remains on the premises as a tenant by sufferance (*). Affect of cove- The tenant may, of course, deprive himself of the fixtures tC right to remove fixtures by entering into a covenant to that effect with his landlord (t). If, however, the articles enumerated in the covenant are all " landlord's fixtures" (that is, fixtures which the tenant would not be entitled to remove even in the absence of such a covenant), any other general words in the covenant which would prima facie include tenant's fixtures will be held to refer to the landlord's fixtures only (?/). (>) Lyde v. Rmnell, 1 B. & Ad. 394. (t) Teuton v. Robart, 2 East, 88 ; Weeton v. Woodcock, 7 Mee () OP CORPOREAL HEREDITAMENTS. contained in the act in favour of lessees, as against the assignees of reversions. Under this statute C, in the case we supposed above, could now re-enter on the land, or sue B for breach of covenant. If, however, A had only granted part of the reversion to C, or had granted the whole, not to C only, but in part to C and the rest to D ; either of the new lessees could under the statute bring an action against B for any breach of covenant (b), but the statute did not confer on either of them a right of re-entry, which was in many cases far more valuable than that of bringing an action. For the common law had another doctrine applying to conditions, although not to covenants, namely, that a condition was entire and indivisible, and, consequently, that none but an assignee of the reversion of all the pre- mises could take advantage of it, unless the reversion had been severed by operation of law (c). The doctrine that conditions were indivisible also gave rise to another difficulty. Leases often contain a covenant by the lessee not to assign or underlet the premises, with a condition that if he does so the lease Dumpor* Case, shall be forfeited. But in Dumpor's case (d), decided in the year 1603, it was held that a condition in a lease that neither the lessee nor his assigns should alien it without the licence of the lessor was determined by an alienation by licence, and that consequently no subsequent alienation was a breach of the condition. The application of the general rule to the facts of this case seems to have been erroneous, and the cor- rectness of the particular decision was afterwards questioned by Lord Eldon (e), but it was nevertheless () Twynam v. Pickard. 2 B. & Aid. 105, 112. (c) Winter's Case, Dyer, 308 b . (rf) 4 Rep. 119". (e} Bruminell v. McPkerson, 14 Yes. 173. OP AN ESTATE FOR YEARS. '! law until the passing, in the year 1859, of the 22 & 23 22 A 23 Vkt. \ ict., c. 35, which in effect provides (/) that every licence to do an act which, without such licence, would create a forfeiture, or give a right to re-enter, under a condition in any lease granted before or after the passing of the act, shall, unless otherwise expressed, extend only to the permission actually given, but not so as to prevent any proceedings for a subsequent breach unless otherwise specified in such licence, and tlmt (g) a licence so given to one of several lessees or co-owners to assign or underlet his share or inter- est, or to do any other act prohibited to be done with- out licence, or to any lessee or owner, or to any one t v reservation allotted or belonging to him. ^ (/) 8.1. (y) 8. 2. (h) S. 3. '- OP CORPOREAL HEREDITAMENTS. coven- Of the various covenants contained in leases, some iiuts run with , . -,. , ., , . th<> laud. are binding only on the persons actually making them, or on whose behalf they are made, others again are said to " run with the land/' meaning that the liability to perform them, and the right to take advantage of them, passes to every assignee of the land, this reci- procity being essential to their existence. Spencer's Case. The leading case on this subject is Spencer's Case (i), in which it was held (1) that covenants run with the land and bind the assignees, whether mentioned or not, when they extend to things in esse parcel of the demise, such, for instance, as to repair an existing house ; but (2) that covenants relating to things not in esse at the time of the demise do not bind assignees unless mentioned ; and (3) that if the thing to which the covenant relates is merely collateral to the land, such as to build a house on land of the lessor not part of the land demised, the assignee is not bound although mentioned. Covenants of the first sort are by the lessor, that the lessee shall have quiet enjoyment of the premises during his term (j), or for renewal of the lease if required (/<;) : by the lessee, to repair the pre- mises when required (I), or to put them in repair and leave them peaceably and in good repair (in), or to insure them (??), or not to assign them without licence (o). The soundness of the second resolution in Spencer's Case has been questioned in a modern case (p). in which the judges of the Court of Exchequer gave it as their opinion that covenants of the second kind ought to bind the assignee whether mentioned or not, (i) 5 Rep. 16% and see notes, 1 Smith L. C. 45, et seq. (j) Campbell v. Lewis, 3 B. & Aid. 392. (k) Re v. JIayley, 12 East, 464, 469; Simpson \. Clayton, 4 Bing. N. C. 758. (1) Dean of Windsor's Case, 5 Pep. 24 b . (in) Marty n v. Clue, 18 Q. B. 661. (n) Vernon v. Smith, 5 B. & Aid. 1. (o) William* v. Earlt, L. R. 3 Q. B. 739. (p) Mimhull v. Oakes, 2 H. & N. 793. OF AN ESTATE FOE YEAE8. and such would seem to be the preferable view, but it would appear that the resolution in *Sy ha /'.> C I, covenants did not run with the reversion, but since tin- passing of that statute all covenants running with the land will also run with the reversion, and be available for the assignees of the whole or part of the reversion of the demised premises. We have now arrived at the third division of our The alienation subject, namely, the alienation or determination of an and detcnmnu- estate for years. \Ve have already seen who may estate for create and who may acquire terms of years : also that ye ? re ' . e u v i c u -ii -i J Alienation, terms or years may bo disposed or by will, provided, of course, that the person purporting to act thus is capable of making a will. A term may also be the subject of involuntary alienation by being taken from the owner, or from his representatives after his death, in order to pay his debts. But of this we propose to treat more fully when considering the alienation of estates in fee simple, and will for the present content ourselves with calling attention to the other ways in which a term may be alienated. In the absence of any covenant on his part to the By assignment, contrary, every lessee of a term, whether from year to year, or for a longer term, may assign all or part of his it withstanding that the lease may not have been e.\pres>ly granted to him and his "assigns" (/). The same privilege belongs to every subsequent assignee, but the original lessee still remains liable Liability of under the covenants contained in the lease (), as does es ?' e .l.vl^lli < -. also his assignee so long as he does not himself (q) Dart V. & P. 701, note (i) ; sec however the remarks on Mintkull T. Oakfx in 1 Smith, 1,. C. 67. () Chm-fh v. llrnu-H, Li Vis. 2.58, 264. (*) Statues v. Morri*, 1 Ves. & B. 8, 11. OF CORPOREAL HEREDITAMENTS. 22 & 23 c. 35. assign (), although the lessee may not have cove- nanted for his assigns (u~) ; but an under-tenant who is not an assignee of the whole term is not liable (v). Every lessee who assigns his lease is, therefore, entitled to a covenant by his assignee for indemnity against any breach by the assignee of the covenants contained in the original lease ; but such a covenant would probably be in any case implied, since it has been held that even the assignee of a lease by mesne assignments, who has entered into no covenants with the lessee, is bound to indemnify him against breaches of covenants in the lease committed during such assignee's own tenancy; and this obligation is not affected by the covenants which the assignee may have made with his immediate assignor (w). Viet. In order to protect the assignee of a lease from any liability in respect of a breach of covenant to insure, such breach having been committed before the assign- ment to him, it is enacted by the 22 & 23 Viet., c. 35 (x), that where on the bond fide purchase, after the passing of the act, of a leasehold interest under a lease containing a covenant on the part of the lessee to insure against loss or damage by fire, the purchaser is furnished with the written receipt of the person en- titled to receive the rent, or of his agent, for the last payment of rent accrued due before the completion of the purchase ; and there is subsisting at the time of the completion of the purchase an insurance in con- formity with the covenant, the purchaser, or any person claiming under him, shall not be subject to any liability by way of forfeiture, or damages, or otherwise, in respect of any breach of the covenant committed at any time before the completion of the Buckland v. Hall, 8 Ves. 9f, 94. u) Vyvyan v. Arthur, 2 Dow & Ry. 670. v) Holford v. Hatch, 1 Doug. 183. w) Moule v. Garret t, L. R. 7 Ex. 101. (*) S. 8. OP AX ESTATE FOR YEARS. 65 purchase, of which the purchaser had not notice before the completion of the purchase. The lessor, under these circumstances, still retains a right of action for breach of covenant against the original lessee. By the Statute of Frauds (/), no lease (except in Assignment copyholds) is to be assigned except by writing, and c "j this includes leases originally made by parol (z), and now, under the Real Property Amendment Act (a), - every surrender of a lease must be made by deed. y\ JA* ^ A lessee may also part with his estate by death or By death or by bankruptcy. No restriction against assignment can now prevent the lease from vesting in his execu- tors or administrators, or his trustee in bankruptcy, as the case may be. His executors and administrators have the same interest in the lands demised, and are subject to the same liabilities under the lease, as the lessee himself, although the latter may have been only a tenant from year to year. In order to protect ex- ecutors and administrators from a continuing liability in respect of their testator's leasehold estate, it is enacted by the 22 & 23 Viet. c. 35 (/>), that when an 22 & 23 Viet, executor or administrator who has acquired a lease c ' by virtue of his office shall have satisfied all claims under any such lease, which may be due and claimed up to the time of the assignment thereinafter men- tioned, and shall have set apart a sum sufficient to meet any ascertained liability under the lease, and shall then have assigned such lease, he shall not be subject to any further personal liability to the lessor. If the lessee becomes bankrupt the lease will vest in his trustee in bankruptcy, who could always assign it to another party, unless the lease contained a (//) 29 Car. II. c. 3, 8. 3. (;) Hotting v. Martin, 1 Camp. 317. () 8 & 9 Viet. c. 106, 8. 3. () S. 27. C. E _ ./7 j / " 66 OF CORPOREAL HEREDITAMENTS. covenant by which "assigns" were expressly re- strained from assignment (c). Under the former Bankruptcy Acts (d), the trustees (who were at that time called assignees) of a bankrupt were to elect within a reasonable time whether they would take to any leases the property of the bankrupt. And now it Bankruptcy is provided by the Bankruptcy Act 1869 (e) that the trustee of any bankrupt may, by writing, disclaim any lease acquired by him under the bankruptcy, and the lease is thereupon to be deemed to have been sur- rendered on that day. But (/) the trustee is not entitled to disclaim in cases where an application in writing has been made to him by any person interested in the property, requiring him to decide whether he will disclaim or not, and he has, for a period of twenty- eight days, or such further time as may be allowed by the Court of Bankruptcy, declined or neglected to t rL f /L J3five notice whether he will disclaim or not. It has been held that the Act does not put an end to the lease if ihc bankrupt was only an ai^nee of the lease, and not the original lessee, notwithstanding that 1 xhe word " surrender" means prima facie a delivering .^ , up of the lease in order that it may be put an end to. If therefore the assignee of a lease becomes bankrupt, and his trustee disclaims it, the person who had as- signed the lease becomes the unwilling owner of the property with which he imagined himself to have parted, and liable upon all the conditions and covenants of the lease (y). Determination A term of years may also be put an end to by -ea a rs term f W forfeiture > ( 2 ) bv effluxion of time; (3) by notice properly given by a landlord or by a tenant ; and (4) by surrender. (e) Philpot \. Hoare, 2 Atk. 219, note (2). (cf) 12 & 13 Viet. c. 106, s. 145 ; 24 & 25 Viet. c. 134, s. 131. () 32 & 33 Viet. c. 71, s. 23. (/) S. 24. (y) Smyth v. North, L. R. 7 Ex. 242. OP AN ESTATE FOR YEARS. 117 Most leases contain various covenants by the lessee, By forfeiture. as that ho will pay rent, keep the premises in repair, or insure them ; and to these is added a proviso that on his failing to observe the covenants of his lease, the lessor shall be at liberty to re-enter on the premises, and put an end to the term. It is evident that there are many cases in which the enforcement of this proviso by the lessor may work great hardship. Consequently there are various cir- cumstances under which he will not be allowed to exercise this power. In the first place, he will be presumed to have Presumption .t waived his right to a forfeiture, and be prevented there- walve ? . f f c c *. -f /v i. i_ lessor mght to fore from enforcing it, if, after being aware of a breach a forfeiture. of covenant, he does any act which amounts to the recognition of a subsisting tenancy by his lessee. Thus, a waiver will be presumed in such a case by the lessor's acceptance of rent, or by his bringing an action for rent due, unless the breach of covenant is a continuing one (h), or unless the acceptance is that of rent due on a day before that on which the for- feiture was incurred. So also, if a breach of covenant is known to a lessor, and he afterwards deals with the lessee so as to lead him to suppose that a forfeiture will not be insisted on, it will be presumed that the right to a forfeiture has been waived (i). And a distress for rent in pursuance of the lessor's common law right, even though only for rent due before the covenant was broken, waives his claim to a forfeiture; since the privilege of distress only belongs to him on the assumption that the person on whom he distrains is his tenant (j). But acceptance of rent is not a waiver of a breach of covenant unknown to the lessor at the time of acceptance (k), although the rent received (A) Doe v. JoHfi, 5 Exch. 498. (i) Flattery v. Anderdott, 12 Ir. Eq. R. 219. 0') Co. Lilt. 21 l h ; Price v. W'orwood, 4 H. & N. 512. (*) oe v. llarruon, 2 T. R. 425. ) Macher v. Foundling Hospital, 1 Ves. & B. 188. (*) Hilly. Barclay, 18'Ves. 56. (t) Wadman v. Calcraft, 10 Ves. 66". OP AN ESTATE FOE TEARS. '!' unless accompanied by a breach of other covenants, and that, without reference to the length of time which had elapsed since the forfeiture. Subsequently it was enacted by the 4 Geo. II., c. 28 (u), that every lessee 4 Geo. II. c. might, before the trial of any action for ejectment ' brought for nonpayment of rent, pay to the lessor, or into court, all rent then due, and all costs incurred, and that thereupon all proceedings in the action should cease ; and further, that every lessee ejected for non- payment of rent might, if he applied within six calendar months, obtain relief from the Court of Chancery, on condition of paying, within forty days from the lessor's putting in an answer swearing to the amount due for rent, such sum, together with all expenses incurred ; and that in either of these cases the lessee should be entitled to hold the demised lands according to the lease thereof made without any new lease. This was re-enacted by the Common Law Procedure Act 1852 (v), and now by the Common Law Procedure Act 1860 (w), in case of any ejectment Common I ..i\r for nonpayment of rent, any Superior Court of Com- " 11 mon Law may relieve in the same manner as the Court of Chancery. If the lessee has been ejected, and is re-admitted under these statutes, the lessor is to be accountable only for so much as he shall bond //'-> & 23 Viet, has, however, been provided by the 22 & 23 Viet., c. 35 (a), that a Court of Equity shall have power to relieve against a forfeiture for a breach of a covenant or condition to insure against loss or damage by fire, where no loss or damage by fire has happened, and the breach has, in the opinion of the court, been committed through accident, or mistake, or otherwise without fraud, or gross negligence, and there is an insurance on foot at the time of the application to the court in conformity with the covenant to insure, upon such terms as to the court may seem fit ; but (b) the same person is not to have such relief more than once in respect of the same covenant or condition, nor if a forfeiture under the covenant in respect of which relief is sought shall have been already waived out of court in favour of the person seeking the Common Law relief. And under the Common Law Procedure Act IS 6 ^ 6 ACt 186 ( (> ) a Superior Court of Common Law is em- powered to give relief in all cases in which relief could be obtained in the Court of Chancery, and upon similar terms. Uy effluxion of If a term of years is made for a fixed period of time it comes to an end when that period has expired, and no notice either to leave, or of an intention to leave, the demised premises need be given by the lessor, or by the lessee (cT), except in cases where the lessor desires to establish a claim, under a statute which will be presently referred to, against a lessee wrongfully remaining on the premises after the expiration of his i term. K\ notice. If the tenancy is one from year to year it may exist as long as both parties please, but is determinable at (z) Gregory \. Wilson, 9 Ha. 683 ; Reynolds v. Pitt, 19 Yes. 134. (a) S. 4. (b) S. 6. (c) 23 & 24 Viet. c. 126, s. 2. () Cottrell v. Hughes, 15 C. B. 532. 81 CHAPTER IV. OF AN ESTATE FOB LIFE. HAVING thus discussed estates less than freehold, we will now ascend to the next stage, and consider those estates which are of a freehold nature, first pausing to remind the reader that there is a distinction between freehold estates and estates in land of freehold tenure. For there maybe a freehold estate (i.e., one for life or in fee) in copyholds, which are estates of a base, and not of a freehold, tenure. Freehold estates may be classed under the two principal headings of, 1st, Freeholds of inheritance, or estates in fee simple and in fee tail ; and 2nd, Freeholds not of inheritance", orestates for life. It is proposed in this chapter to notice the chief points relating to estates for life. These are of two kinds, namely, those which are Estate for life, conventional, or expressly created by act of parties ; and those which are legal, or created only by con- struction and operation of law (a). The former are the more usual, and exist when a man has an estate in land which is to last for the term of his own life, or for that of another, or for the lives of two or more persons, of whom ho may or may not be one. Such an estate may be created by any person, not By whom it under disability, who has an estate of freehold. But ay be created. a tenant for years, however long his term may be, cannot create an estate for life; because, having only a chattel interest, he cannot out of it create that which (a) 2 131. Com. 120. 82 OF CORPOREAL HEREDITAMENTS. Corporations, the law considers a greater interest than his own. We have already seen that corporations may, to a cer- Jnfants. IS & 19 Viet, c. 43. tain extent, create estates for life (b), and we have to add that an infant may also create such an estate under special circumstances. For it is enacted by the 18 & 19 Viet., c. 43, that, from and after the passing of the act (c), it shall be lawful for every male infant not under the age of twenty years, and for every female infant not under the age of seventeen years (rf), upon or in contempla- tion of his or her marriage, to make (e), with the sanction of the Court of Chancery, a valid settlement of all or any part of his or her property, or of property over which he or she has any power of appointment. By means of such a settlement, then, an infant may create an estate for life, but the act goes on to pro- vide (/) that any appointment or disentailing assurance executed under the provisions of the act by an infant who is a tenant in tail, shall be void if the infant after- wards dies before attaining the age of twenty-one years. Mode of creat- An estate for life may be created (1) by operation f laW ' ^ by deed ' V ^ by Will< The estates lor life which are created by the first-named process are 1st, Estates in Dower ; 2nd, Estates by Curtesy ; and 3rd, Tenancy in tail after possibility of issue extinct. An Estate in Dower is that which a widow may have, during her lifetime, in hereditaments, of which her husband was tenant for an estate of inheritance. It will be necessary to explain this subject somewhat fully, and since the former law relating to dower was materially altered by the Dower Act (g) now in force, (b) 32 Hen. VIII. c. 28; 5 Geo. III. c. 17; 5 & 6 Viet. c. 108. (c) 2nd July, 1855. (d) S. 4. (e) S. 1. (/) S. 2. ( 3 & 4 Wm. IV. c. 105. for life. By operation of law. Estate in Dower. OP AN ESTATE FOE LIFE. (which applies only to women who were married after the 1st of January 1834), we will first explain how the law stood before the passing of that statute. Under the old law, a widow was deemed to be en- Former law of titled to an estate for life in one-third part of all c hereditaments, corporeal or inco~rporeal, of which her husband, at any time during the coverture, had had the solo legal possession for an estate in fee simple or in fee tail, and which any of her issue, actual or pos- sible, was capable of inheriting. Of the right to this estate she could not be deprived, j^ter her marriage, by any alienation or disposition which her husband might make of the hereditaments in question, unless she formally assented thereto and expressly released her right to dower. If before her marriage she, or her guardian for her (k), if she were an infant, accepted a jointure (that is, a competent livelihood of freehold for her life of lands, to take effect in possession im- mediately on her husband's death (),) then she was, under the Statute of Uses (J), deprived of her right to dower. She would also have been restrained by the Court of Chancery from claiming dower if the pro- vision thus made for her were sufficient, although it might not have come out of property strictly within the terms of the statute (/.). She could not be de- prived of her dower by any jointure made for her after her marriage, but she would, in such a case, have been compelled to give up either her dower or her jointure. If, however, nothing had been done which barred her dower, her right to it was paramount to the claims of all purchasers, incuinbrancers, or creditors, from, or of, her husband. The widow herself was not entitled to take posses- Drury v. Buckingham, 3 Bro. P. C. 492. (i) Co. Litt. 36". 0') 27 lien. VIII. c. 10, s. 6. (k) U'illiam* v. Ckitty, 3 Yes. 545 ; Co. Litt. 36>>, note B. ; Vizard T. LviigcLile, cited 3 Atk. 8 ; Gart/uhore v. L'/ialir, 10 Yea. 1. 81- OP CORPOREAL HEREDITAMENTS. sion of any land for her dower, but it was the duty of jthe heir to assign one-third of her husband's lands for "j 'that purpose ; if he neglected to do so, or made an un- fair assignment, she was entitled to a writ of dower, in pursuance of which the lands out of which her dower was to be derived would be marked out by the sheriff of the county in which they lay. If any dower was to come out of incorporeal hereditaments, she was entitled to receive one-third of the profits derived from them. She could also claim arrears of dower which had become due, either from neglect in paying her or in consequence of no land having been assigned for her benefit. At one time there was no limit, either at law or in equity (/), to the amount which might be so claimed, but her rights in this respect were afterwards limited to six years' arrears of dower (m). The former law of dower was not open to much objection in the days when the alienation of land was prohibited, but afterwards it became a source of very serious inconvenience. The Court of Chancery did indeed permit a purchaser of land to protect himself against the dower of the vendor's wife, if he could manage to procure the assignment, to a trustee for him- self, of one of those long terms of which we spoke in the last chapter. He could also prevent his own wife's right to dower from fastening upon land which he purchased, by framing the conveyance of it to himself in a manner which need not be particularized here, further than to say that, by means of the intervention of a life estate, given to a trustee for the purchaser, the latter did not take a legal estate of inheritance in the lauds, in the absence of which, as we have seen, his widow had no claim to dower. A man might also (/) Oliver v. Richardson, 9 Ves. 222. (j) 3 & 4 Wm. IV c. 27, s. 41. OF AN ESTATE FOR LIFE. coerce his widow into relinquishing her dower, by making some provision for her in his will conditional on her doing so. Practically, therefore, the widow's claim to dower was in most instances evaded, though not without considerable expense and some risk, and the Legislature consequently decided to make a sweep- ing change in the law. This was effected by the Dower Act (n), which Dower Art. applies, as wo said, to all women who were married after the 1st of January 1834 (o). The act (p) gives every widow to whom it applies a right to dower not merely out of all legal, but also out of all equitable, or partlycquitable and partly lognl f estates of inheritance in possession (other than estates in joint tenancy) to which her husband was beneficially entitled at the time of his death, or which (q) he had a right to enter upon. The act in this respect applies as well where the parties were married before as after its passing (r). It also affirmed by fresh enactment what had been the law previously, namely, that (s) no gift made by a hus- band to his widow by will of personal estate or of any of his land not liable to dower should defeat or prejudice her right to dower,| unless a contrary intention were declared by the will.f But the other sections of the act render the widow's dower very precarious, and entirely dependent upon the pleasure of her husband. For it is enacted that (t) no widow shall be entitled to dower out of any " land " (a term which in the act extends to all hereditaments liable to dower, cor- poreal or incorporeal, and to any share thereof (n),) which shall have been absolutely disposed of by her M 3 & 4 Win. IV. c. lOJ. (o) S. 14. (P) S. 2, (9) 3 3. I- 1 .!/,/ W, v. Jl'ood, 15 Grant, 92. (*) S. 10. (/) S. 4. () S. 1. 86 OP CORPOREAL HEREDITAMENTS. husband in his lifetime or by will (v) ; that all partial estates and interests, and all charges created by any disposition, or will, of a husband, and all debts, incum- brances, contracts, and engagements to which his land shall be subject or liable, shall be valid and effectual as against the right of his widow to dower ; that (w) a widow shall not be entitled'to dower out of any land of her husband, when in the deed by which such land was conveyed to him, or by any deed executed by him, it shall be declared that his widow shall not be entitled to dower out of such land ; that (#) a widow shall not be entitled to dower out of any land of which her husband shall die wholly or partially intestate, when by his will he shall declare that she shall not be entitled to dower out of such land, or out of any of his land ; that (?/) the right of a widow to dower shall be subject to any conditions, restrictions, or directions, which shall be declared by the will of her husband ; and (z) that where a husband shall devise any land out of which his widow would be entitled to dower but for such devise, or any estate or interest therein, to, or for the benefit of, his widow, such widow shall not be entitled to dower out of, or in, any land of her said husband unless a contrary intention is declared by his will. But it is provided (a) that the Court of Chancery may enforce any covenant or agreement entered into by, or on the part of, any husband not to bar the right of his widow to dower out of his lands, or any of them ; and (fe) that the act shall not extend to the dower of any widow who shall have been, or shall be, married on or before the 1st of January 1834; and shall not give to any will, deed, contract, engage- ment, or charge executed, entered into, or created (r) S. 5. (w) S. 6. (*) S. 7. (y) s - 8- (r) S. 9. (a) S. 11. (*) S. 14. Or AN ESTATE FOR LIFE. 87 before the said 1st of January 1834, the effect of .iting or prejudicing any right to dower. It result s from these enactments that a declaration against dower, contained in a deed executed before the 1st of January 1 #:j t, will not bar the dower of a woman who was married after that date (c) ; and that the old form of conveyance which was* employed to bar dower is no longer effectual, since a widow can now claim dower out of land in which her husband had only an equit- able estate of inheritance. If a wife dies seised of an estate of inheritance, Estate by cur- e-it her legal or equitable (d), in any hereditaments, ***? her husband, if he survives her and has, had by her issue born alive and capable of inheriting her estate, i- t-utitled to hold the lands for the remainder of his life (?). He is said in such a case to have an estate by the curtesy of England, or more shortly an estate by curtesy. The wife's estate must have been one of inheritance, consequently there can be no ctntesy out of an estate granted for lives however numerous (/). It is also necessary that the husband's children by her might have been able to claim the estate as heirs ; if it has been expressly given to them after their mother's death, they will take as purchasers, and their father's claim to curtesy will be excluded (rf). The result will be the same if ah instrument giving a life estate to the wife expressly declares that, upon her death, the inheritance shall descend to her heir, and that her husband shall not be tenant by the curtesy (//). Curtesy, unlike dower, could never be barred by getting in a prior attendant term, since it always took effect out of equitable, as well as out of legal, estates, but it would appear to be doubtful (f) Fry v. Noblf, 7 De G. M. & G. 687. (d) Stcettapple v. Jiindoit, 2 Ver. 536. (*) 2 BL Cora. 126. (/) Stead v. Platt, 18 Benv. 60, 66. (ff) Barker v. Barker, 2 Sim. 249. (A). tt,net Y. Davit, 2 P. WniB. 316. 88 OF CORPOREAL HEREDITAMENTS. whether the husband's curtesy is not barred by an estate being given to the wife with a declaration that the whole of the estate shall be held for her separate use independently of her husband (/). Tenancy after A tenancy after possibility of issue extinct may eVtiact ccur where land has been given in special tail, as for instance, to a man and the heirs of his body by his present wife (j). Here, if the wife dies without issue the man cannot have issue who can take the estate ; his possibility of issue is therefore said to be extinct, and he himself, since he is prohibited by statute (&) from barring the estate tail after his issue have become extinct, has an estate in the land for his life only, but with the privilege of committing waste ; a privilege which, as we shall see hereafter, is not incident to the estate of any other tenant for life. By deed. An estate for life can also be created by deed. Such an estate, if intended to take effect during the lifetime of the person creating it, might, before the passing of the Statute of Frauds (/), have been created either by means of a deed, or by feoffment and livery of seisin without any writing. The statute, however, enacted (ra) that all estates of freehold in messuages, manors, lands, tenements, or hereditaments, made or created by livery of seisin only, and not put in writing and signed by the parties making or creating the same, or their agents thereunto lawfully authorized by writing, should have the force and effect of estates at will only, and no greater force and effect : any con- sideration for making such estates, or any former law or usage to the contrary, notwithstanding. Hence, before the passing of the statute next to be mentioned, (') Lewin on Trustees, 524 ; Moore v. Webster, L. E. 3 Eq. 267 ; but see Appleton v. Rou-lcy, L. B. 8 Eq. 139. (j) 2 Bl. Com. 124. (k) 3 & 4 Wm. IV. c. 74, 6. 18. (0 29 Car. II. c. 3. (/) S. 1. OF AN ESTATE FOR LIFE. an estate for life might be created either by feoffment ami livery evidenced by writing, or by deed. But now it is provided by the Real Property Amendment Real Pi Act (n) that a feoffment made after the 1st day of A en October 1845, other than a feoffment made under a custom by an infant, shall be void at law unless evidenced by deed. An estate for life may moreover be created by will, By will, which must be in writing, but need not be under seal. The words of a deed or will creating an estate for Form of tin- recipient's own life do not, obviously, include any w person besides the tenant himself. It is not neces- sary that the estate should be expressly conferred on him for life. A grant by deed "to A " is enough to give A an estate for life in the land, and will not give him any greater estate. It is a general rule of law that a grant is to be construed most strongly against tin- grantor, and hence, if in the case supposed the grantor had an estate in fee simple in the land, it would seem to follow that A ought to acquire that estate and not one for his life only. But this case is an exception to the general rule. The earlier fees, as we know, were granted only for life, and thus a grant " to A " would then have given him all that the grantor was capable of bestowing, and would, therefore, have complied with the rule. And after- wards, when it became possible to acquire a fee of *** inheritance, it was made essential that every grant by t *^^^"~ >^a feoffment or by deed of such an estate should be made itJ (- ~*~ to the grantee's " heirs " or the " heirs of his body " / e as well as to himself, failing which he still takes an estate for life only. As to wills, the rule is now dif- ferent; for a devise of real estate "to A" gives him the whole estate or interest which the testator had (n) 8 & 9 Viet. c. 106, a. 3. 90 OF CORPOREAL HEREDITAMENTS. power to dispose of by will in such real estate, unless a contrary intention appears by the will (o). Limitation of an estate pur autre vie. Estate pur autre vie not, at one time, (Irvisable. An estate granted to one person, and which is to last so long as one, or more, other person, or persons, live, is called an estate pur autre vie, that is, for the life of another. In order to provide for the event of a tenant pur autre vie dying before the expiration of the life or lives for which his estate is granted, it is cus- tomary to " limit " or define the boundaries of it, by specifying the persons who are, if necessary, to take it after his death. Before the passing of the Statute of Frauds (p) this was a matter of importance, since an estate pur autre vie was not devisable. If, therefore, the estate had not been limited to any person after the tenant, and the latter died in the lifetime of a cestui que vie (or person for whose life it was granted), the estate became vacant ; for the heir could not claim it, since it was not an estate of inheritance; and the executor could not claim it, since it was real estate, and an executor, as such, has only a right to receive the personal estate of his testator ; whilst at the same time the estate continued to exist so long as any cestui que vie was alive. The consequence of this, in the case of a corporeal hereditament, was that the first person who could get possession of the land, by actually entering upon it, might keep it during the rest of the term as " general occupant." And this person, even if he happened to be the heir of the tenant pur autre vie, was not liable, in respect of this estate, to pay any of the tenant's debts, since the estate had not come to him by descent. But an estate pur autn : ri<; in a corporeal hereditament may be limited either to the tenant and his heirs, or to him and his executors or administrators (in which latter case it becomes personal estate), and the persons so named will take (o) 7 "Win. IV. & 1 Viet. c. 26, s. 28. (p) 29 Car. II. c. 3. OP AN ESTATE FOR LIEF. ''I tin- estate as "special occupants," and would at any time have prevented general occupancy. If the estate pur autre vie was in an incorporeal hereditament there could be no general occupancy, because there could be no entry, but such an estate, if no person was named to succeed the tenant pur nii.tr'- //'-, was put an end to by the death of the latter. If, however, the estate had been limited to the tenant and his heirs, the heir could take as special occupant. It is doubtful whether an estate pur autre vie in an incorporeal hereditament can be limited to the tenant and his executors or administrators (q), but this point is not at present of much importance. For it was statute- of enacted by the Statute of Frauds (r), that, from thence- Frauik forth, the owner of an estate pur autre vie might dispose thereof by his will, and by that act and the I 1 ( !eo. II., c. 20, general occupancy was put an end to. H Oeo. II. c. The sections of these statutes relating to estates }<,- ~ tinh-i- //<; were repealed, but substantially re-enacted, by the Wills Act (*), which provides (t) that all Wills A. -i. estates in- nntri- vie shall be devisable whether there shall, or shall not, be any special occupant thereof, and also (u) that if no disposition be made by will of any estate pur nutrr r/> of a freehold nature, the same shall bo chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land held in fee simple: and in case there shall be no special occupant of any estate />/ ', whether freehold or cus- tomary freehold, tenant- right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate there- fo) Bacon's Ahrid^cmen'. Title Estate for life, R 8. 3 ; Sug. Pow. 197", but see eontni, Xort/itH v. Cannyif, 4 Drew. 587. (r) '29 Car. II. c. 3. () 7 Win. IV. & 1 Viet, c, 26. (0 S. 3.f (") 8 02 OF CORPOREAL HEREDITAMENTS. of by virtue of the grant : and that if the same shall come to the executor or administrator by reason of special occupancy, or by virtue of the act, it shall be assets in his hands, and shall be applied and dis- tributed in the same manner as the personal estate of the testator or intestate. The result of these acts is that there can no longer be any genei'al occupancy, and that if there are no special occupants of an estate pur autre me, or if those named cannot take, the estate will go to the tenant's executors or adminis- trators as personal estate (v). la order to prevent any person, having an estate pur autre vie, from keeping possession of it wrong- /f fully after the death of the cestui que vie, it was 6 Anne, c. Z2r 'enacted by the 6 Anne, c. ?3 (w), that any person having a claim to any estate after the death of any other person, upon making an affidavit that he has reason to believe that such person is dead, and that his death is concealed, may, once a year, obtain from the Lord Chancellor, or Keeper of the Great Seal, an order to the person suspected of the concealment, directing him to produce the cestui que vie, and if the person so ordered refuse or neglect to produce the cestui que vie, the latter shall be taken to be dead, and the person claiming may enter upon such lands, tene- ments, or hereditaments as if the cestui que vie were actually dead (x) ; and it is also provided that any persons having an estate determinable upon any life or lives who, after the determination of such estate, without the express consent of the person next entitled, shall remain in possession of such lands or hereditaments, shall be adjudged to be trespassers (y). (t>) Doe v. Lewis, 9 Mee and "W. 662 ; Reynolds v. Wright, 25 Beav. 100, and 2 De G. F. & J. 590. (w) S. 1. (x) For the course of procedure to obtain the benefit of the Act, see Re Linr/en, 12 Sim. 104. (y) S. 5. OP AN ESTATE FOR LIFE. Inasmuch as an estate for life, even when it extends Inri.!< nt ..t : ,i, beyond the lifetime of the grantee, gives the tenant but a limited interest in the property, he cannot, with- out permission, do any act which will change the nature of the thing demised, by either diminishing the value of the inheritance, or increasing the burdens already imposed upon it. Thus, he is entitled to estovers, but Estovers. only for the purposes of the estate from which they are taken (z). He may get stone, for the purpose of doing Stone for n-- repairs on the property of which he is tenant, from any paire ' existing quarries on the estate ; and has a right to cut underwood when fit for cutting, and to have for his Underwood. own benefit the thinnings of trees, such as fir-trees, Thinnings of which are planted for the protection of other trees tree *' rather than for profit (a), and of timber cut for the necessary purposeof preserving, or allowing the growth of, other trees (6). He may also work mines lawfully Mines. opened by a preceding tenant, although such opening may have been made subsequently to the settlement untU'i- which he himself claims (<) ; and may fell tim- Timber for ber for repairs. n 'l mirs But he may not, under ordinary circumstances, Tenant commit any act of waste on the property. He can- mn .y "".* i i i F i i on " ar ". v ' not, therefore, cut down timber, although decayed, commit u for any other purpose than that of doing repairs on the estate ( ; 7?. v. Frrrybridgt, 1 B. & C. 375. (/;) 7///uWv. Hon'ytcood, W. N. (1874) 131. (c) Wavering v. Clarrrino, 2 1'. \\'nw. 38* (rf) J'en-utt "v. fcrrott, 3 Atk. 94. 91 OF CORPOREAL HEREDITAMENTS. expense on the inheritance (e). lie cannot, in short, do any act which would immediately occasion any damage to, or impose fresh burdens on, the inherit- ance ; even though such act would, ultimately, lead to the improvement of the estate (/). We have already seen, in the previous chapter, that a tenant for years may be restrained by injunc- tion by the Court of Chancery or by a superior Court of Common Law from committing waste, and the same remarks apply to the case of a tenant for life who wrongfully commits waste. A tenant for life is also liable to an Action for permissive waste (g), al- though a Court of Equity will not interfere in such a case. Rule when If buildings are blown down by the force of the timber is blown -, , / T /> i i , i down. wind, a tenant tor hie has a special property in the timber of such buildings for the purpose of rebuilding them (/t). Subject to this right, the proper course, when timber is blown down, appears to be to sell it, invest the proceeds, and pay the interest to the suc- cessive tenants for life ; the fund itself becoming ultimately the property of the first owner of an estate of inheritance who succeeds to the possession of the land (i). When wrong- If timber or other things are wrongfully severed from the inheritance by the tenant for life, then, according to recent decisions, it would seem that the same course is to be adopted, but that the wrongdoer himself is to be excluded from receiving any benefit from the fund (J). (e) Caldecott v. Brown, 2 Ha. 144; Hibbert v. Cooke, 1 S. & S. 552. (/) Coppinyerv. Gubbins, 9 Ir. Eq. R. 304. (ff) Yellowly v. Goirer, 11 Exch. 274, 294; Greene v. Cole, 2 "Wms. Saunders, 644, 646 note (c). (h) Howled Case, 11 Rep. 79 b . (i) Bateman v. Hatch kin, 31 Beav. 486. (/) Welledey v. Wettenley, 6 Sim. 497; Lmhington v. Solders, 15 'Beav. 1 ; Bateman v. Hotchkin, 31 Beav. 486 ; Bagot v. Bayot, OF AN ESTATE FOB LIFE. If timber is in a decaying state, and it is for the Cutting tim!-r b.-M.'ut of the inheritance that it should be cut down, Court of Chancery will sanction the cutting of Chum siu-h timber, provided that it is decaying or is j 11 ring the growth of other trees (/). But the timber must be actually decaying, not merely ripe for cut- ting (/). If timber is cut thus under the sanction and direction of the court it will be sold, and the proceeds of the sale will belong to the first owner of an estate of inheritance who succeeds to the possession ; and in tin- mi-mi time the income of the fund will be paid to the tenant for life for the time being in possession of tip- If it is desired that the tenant for life shall have " Without im- power to commit waste, the instrument creating his ^ c te ' tn ' estate must contain a declaration that he is to be tenant for life " without impeachment of waste/' or some other words to that effect. It is clearly settled thiit, since the Statutes of Marlebridge (), and of Glou- cester (o), a tenant unimpeachable of waste is not 1 1 if rely protected from the penalties which those statutes impose, but is authorized to convert to his own use timber, minerals, Ate., severed from the r~tate(/). A tenant for life however, although un- Tenant has no impeachable for waste, has no property in such timber, ft^^" or minerals, until he has actually severed them from until seven d. the estate. Forgetfulness of this fact gave rise to very serious hardship in the well-known case of Cockcrell Cocktreii v.l * v. Cholmt'ley () Note to Davit v. Marlborough, 2 Swan, 145 ; Bridget r. Sttphent, 2 Swan, 150". (g) 1 Russ. & My. 418, 1 CL & F. 60. i"i OF CORPOREAL HEREDITAMENTS. estate which they were authorized to sell, sold it with the growing timber on it, and allowed the tenant for life to receive the value of the timber : the conse- quence was that the sale was set aside some forty years afterwards, although the mistake had been dis- covered in the mean time, and the tenant for life had repaid to the trustees the amount which he had re- ceived for the timber. 2:2 & 2:5 Viet, c. :*>. In order to meet any future case of this kind it is enacted by the 22 & 23 Viet., c. 35 (r), that where, under a power of sale, a bond fide sale shall be made of an estate with the timber thereon, or any other arti- cles attached thereto, and the tenant for life, or any other party to the transaction, shall by mistake be allowed to receive for his own benefit a portion of the purchase-money, as the value of the timber or other articles, the Court of Chancery may remedy the mis- take, upon payment by the purchaser of the full value of the timber or other articles at the time of the sale, and interest. Eijuitable Waste. A tenant for life, although without impeachment of waste, will be prevented by the Court of Chancery from committing what is known as " equitable waste," that is, capricious, or extravagant, waste. A case is reported as early as the year 1717, in which the Court restrained a tenant for life from committing equitable waste, and since that time it has restrained, as being equitable waste, the pulling down a mansion-house on the estate (.ulled down (w) ; and cutting saplings not ready to be felled (.r), or underwood not fit for cutting (y). The court has also decided that under no circum- stances can the words " impeachable for waste," or any others of like nature, have the effect of permitting a truant for life to commit equitable waste. "The principle on which the court proceeds in these cases is, that the tenant for life of an estate is liable to ant in equity for an improper use of his legal powers in committing equitable waste (2)." On this principle, a tenant for life unimpeachable for waste was held not liable to account for the ma- terials of an old mansion-house which he had pulled down, he having employed the same materials in building a new mansion-house on the estate (a). If ornamental timber has been actually severed, the amount of damage which the tenant for life can be made to pay can only be measured by the damage actually done to the inheritance (6). A tenant for life in possession is bound to keep Keppinjc down the interest on any charges, carrying interest, lnterest - which may have been properly imposed on the land, even though the whole rent derived from the estate may be required for this purpose (<) ; but he is not bound to pay more than the amount of the rent, nor is he bound to pay off interest allowed to full into linear during the possession of the estate by a previous tenant for life ( Vis. 107. (//) Jtn/(f) fiubb v. YelrertoN, L. K. 10 Eq. 465. (r) Trarvv. l!rrrf,,rd. '1 Hm. C. (;. 1'28 ; Krrrl r. Jfatkint ,i, 1 Vcs. 93. (rf) fan/ fi, 1,1 v. M,i.,ni,c. -2 Jo. & L. 141. 0. O 97 1)8 OF CORPOREAL HEREDITAMENTS. brancers, since the obligation to keep down interest exists only as between himself and the remainder- man, and not as between himself and the incnm- brancers on the estate (e). If the tenant for life pays off a charge on the estate, he is pt-imd facie entitled to keep it up for his own benefit, it not being assumed, in the absence of evidence to the contrary, that he intended the payment to be for the benefit of the inheritance (/). ~\Ve have already seen that a tenant for life may grant leases, in some cases on his own authority, in others by leave of the Court of Chancery. The Sales under Leases and Sales of Settled Estates Act (g], the same Court of Chan- wmcn authorizes the court to sanction the granting of leases, provides (h) also that it may authorize a sale of the whole, or any parts, of any settled estates, or of any timber (not being ornamental timber) grow- ing on any settled estates; that (/) on any sale of land, any earth, coal, stone, or minerals may be ex- cepted; and (/) that the court may direct that any part of any settled estates be laid out for streets, roads, paths, squares, gardens, or other open spaces, sewers, drains, or water-courses, either to be dedi- cated to the public or not. Tower to grant -ery. Makin im- s & 9 Viet. c. Several acts have been passed with the object of enabling tenants for life to improve the property of which they are in possession. Thus by the 8 & 9 Viet., c. 56 (), it is enacted (I) that any person entitled in possession to any land, either as tenant by curtesy, or for his own life, or for any other life or lives, or an (e) Norley v. Sounders, L. R. 8 Eq. 594. (/) Biirrell v. Egrenwnt, 7 Beav. 205, 227 (>) 19 & 20 Viet. c. 120. (>() S. 11. (*) S. 13. (j) s - 14. (/t) Repealing the 3 & 4 Viet. c. 55. (/) S. 3. OF AN ESTATE FOE LIFE. infant entitled as aforesaid, by his guardian or next friend, or a lunatic entitled as aforesaid, by hit* committee, or any married woman entitled as afore- said, by her next friend, or the husband of any married woman entitled as aforesaid in her right, may apply to the Court of Chancery for leave to make any permanent improvements in the land to which such person shall be so entitled, by draining the same, or by warping, irrigation, or embankment in a permanent manner, or by erecting any buildings thereon of a permanent kind, in connection with such improvements, and shall be at liberty to pray that such permanent improvement may be made a charge on the inheritance of the land, under the provisions of the act. The court may (m), after proper inquiry (n), authorize or permit such permanent improvements to be made, and thereupon (o) the inheritance of the land shall be charged with the sum expended and interest not exceeding the rate of 5 per cent, per annum, payable half-yearly (p). The principal so ad- vanced is to be repaid by instalments, which, in the case of improvements by draining, warpage, irriga- tion, or embankment, are not to be less than twelve nor more than eighteen in number, and, in the case of improvements by the erection of buildings, not 1- than fifteen, nor more than twenty-five, in number (/). The person on whose application such charge is made, and every succeeding tenant for life, or other person having only a limited interest in the land charged, is to pay the interest and instalments which become from time to time due and payable during the con- tinuance of his title to the land, and on the termina- tion of such title, by death or otherwise, the inherit- ance is to remain chargeable with no more than six (m) 8. 5. () 8. 4. (:) S. li. (P) 8. 8. (9) 8. 9. 100 OP CORPOREAL HEREDITAMENTS. months' arrears of interest then due, and one half of the last instalment then due, and the interest and instalments thereafter to become due (r). Every tenant for life, or other person having a limited interest, is bound also to keep in repair any buildings erected or built, or embankments or works for irriga- tion constructed or made, under the provisions of the act, as if he were tenant for life subject to impeach- ment for waste (*). Private Money By the Private Money Drainage Act 1849 (/) pro- iraiBage Act. v j s j on was ma( J e for enabling tenants for life to borrow money from private persons, for the purpose of im- proving the lands occupied by such tenants. This act is repealed, except so far as regards proceedings and charges under it then in existence, by the Im- Improvement provement of Land Act 1864 (). Under this latter and Act. ac ^ ft ] alic j owner (who is defined (v) to mean any person in actual possession of, or in receipt of the rents and profits of any land of any tenure, except where such person is tenant for life or lives holding under a lease for life or lives not renewable, or tenant for years holding under a lease or agreement for a lease not renewable whereof less than twenty-five years shall be unexpired at the time of making such application), who is desirous of borrowing or advancing money under the act for the improvement of his land, is to make an application on the subject to the Inclosure Commissioners. The improvements con- templated by the act are (w) the drainage, the irriga- tion and warping, the embanking, and the reclamation of land ; the making of permanent farm roads, and permanent tramways and railways, and navigable canals, for all purposes connected with the improve- M S. 10. () S. 11. (t) 12 & 13 Viet. c. 100. () 27 & 28 Viet. c. 114. (*) S. 8. M S. 9. OP AN ESTATE FOR LIPK. mcnt of the estate ; the clearing of land ; the erection of labourers' cottages, farm-houses, and other build- ings, and the improvement of those already existing ; planting for shelter; the constructing or erecting any engine-houses, mills, kilns, shafts, wells, ponds, tanks, reservoirs, dams, leads, pipes, conduits, water-courses, bridges, weirs, sluices, floodgates or hatches, which will increase the value of any lands for agricultural purposes ; the construction or improvement of jetties or landing-places on the sea coast, or on the banks of navigable rivers, or lakes, for the transport of stock or things for agricultural purposes, provided that the Commissioners approve thereof: and, finally, the exe- cution of all such works, as in the judgment of the Commissioners, may be necessary for carrying into effect any of the above improvements, or for deriving the full benefit thereof. The Commissioners may (x) sanction any of the proposed improvements, or any part of them, and fix a rate of interest, not exceeding 5 per cent, per annum, to be allowed on their cost. They may (y) from time to time, as such improvements are executed, charge the inheritance of the land with the sum thus expended, and interest. Every charge created under the act is (z) to be by way of rent- charge, payable half-yearly, extending over the term of years fixed by the order of the Commissioners. Every landowner on whose land a charge has been made under the act, and every succeeding person having a limited interest in the land so charged, is (a), as between himself and the persons in reversion or remainder, bound to pay the periodical payments of such charge which become payable during the con- timiance of his interest, and if in actual occupation or entitled to an apportioned part of the rents and profits of the land up to the time of the termination (x) 8. 25. (y) 8. 49. (c) 8. 61. (<> 8. 66. 102 OP CORPOREAL HEREDITAMENTS. of his interest, is to pay an apportioned part of the rent-charge which becomes due next after the termina- tion of his interest. But he is not to be liable, as between himself and the persons entitled to the rent- charge, to pay any arrears of the charge which were due at the time of his becoming entitled in possession, beyond the amount of two years' payment of such charge. The landowner is bound (b), so long as the land continues charged under the act, to uphold all the improvements and works in respect of which the charge is made, unless expressly relieved from this responsibility by the Commissioners (c). The act also contains similar provisions (d) enabling a land- owner to subscribe for shares or stock in any railway company whose works are upon, or near to, and will improve or benefit his lands, and to charge the amount of such subscription, or any part of it, on the lands. Limited The Limited Owners' Residence Act 1870 (e), which Owners Re- - g ^ Q ^e cons t ru ed as one with the Improvement of Land Act 1864 (/), enacts (g) that the erection, com- pletion, and improvement of mansion-houses, with their usual and necessary buildings and offices, are to be included under the definition of improvements, but it is provided (h) that the sum expended on erecting any mansion-house is not to exceed the amount of two years' clear rental of the estate, to be calculated as therein provided. By the Limited Owners' Residence Amendment Act 1871 (i), part of the act of 1870 was repealed, in order to remove doubts as to its meaning, but the repealed sections were substantially re-enacted by the act of 1871, which is to be (j) construed as one with the former act. (*) S. 72. (c) S. 76. (d) SS. 7889. (e) 33 & 34 Viet. c. 56. (/) S. 2. (g) S. 3. (A) S. 4. () 34 & 35 Viet. c. 84. (j) S. 4. OF AN ESTATE FOB LIFE. 109 Under the Public Money Drainage Acts (k), the Public Mn.- Commissioners of the Treasury are empowered to ad- vauce money to any owner (which term by reference to the Tithe Commutation Act (/) includes any person in actual possession or receipt of the rents or profits of any land, except any tenant for life or lives, or for years, holding under a lease or agreement for a lease on which a rent of not less than two-thirds of the clear yearly value of the premises comprised therein shall have been reserved, and except any tenant for years whatever holding under a lease or agreement for a term which shall not have exceeded fourteen years from the commencement thereof ) who desires to make improvements on his land by drainage, and who has obtained the sanction of the Inclosure Commissioners to such advance. The land is thereupon (m) to be charged with a rent charge at the rate of six pounds ten shillings for every hundred pounds so advanced ; the rent charge to last for twenty-two years. The owner, and every person having a limited interest in the land, is (n) to pay the instalments of rent charge which become due during his possession, with provi- sions similar to those contained in the Improvement of Land Act 1861. He is (o), so long as the land con- tinues charged with the rent charge, to uphold the works on account of which the lands have been charged, and he is (p) to have power to redeem the rent charge on making certain specified payments. Persons having a life estate in lands may also sell Sale under them under certain circumstances, it being provided by the Lands Clauses Consolidation Act 1815 ( and pictures not in panels were alone removable; although it was proved that the tapestry, other pictures, and frames, could be removed without doing any dam- age to the house, and that the statues, figures, vases, and garden-seats only rested on the soil, and therefore according to the definition of fixtures previously given were not fixtures at all. If a tenant for life dies, leaving fixtures which he Time for n- would himself have had a right to remove, his execut- ors may remove them, provided they do so within a reasonable time. The decision as to what is a " reasonable time " would probably vary with the circumstances of each case. A tenant for life of lands may, if he pleases, assign Alienation of his estate, during his lifetime, to some other person, j^ 68 Such an assignment must be made or evidenced (w) Assignment, by deed, and his assignee will thereupon have the same rights, and be subject to the same liabilities in re- spect of the estate, as his assignor, except where the latter is tenant after possibility of issue extinct. For i although such a tenant is unimpeachable of waste, \ this privilege is personal to himself, and does not pass to his assignee. A tenant for life may, moreover, sur- Surrender, render his estate to the remainder-man or reversioner, whereupon it will become merged. This also must be done by deed (x). An estate for the tenant's own life cannot, of course, be disposed of by will, but an estate By will. l>ur autrc vie may be, whether there is, or is not, any special occupant of it, and whatever its tenure may be, and whether the same is a corporeal or an incor- poreal hereditament (y). We have already seen what are the provisions of the Wills Act when there is no disposition made of an estate jour autre vie of a free- hold nature (z). (ir) 8 & 9 Viet. c. 106, (. 3. (x) Ibid. % (y) 7 Wm. IV. & 1 Viet. c. 26, . *. (z) 7 Wm. IV. & 1 Viet c. 26, . 6. im; OF CORPOREAL HEREDITAMENTS. Involuntary alienation. Determination. Old law of forfeiture. By death of tenant. Kent not formerly ap- portionable. An estate for life may also be the subject of in- voluntary alienation, either by being taken under the statutes relating to judgments (a point to be explained in a subsequent chapter), or, if the tenant becomes bankrupt, by vesting in the trustee under his bank- ruptcy, who may dispose of it for the benefit of the tenant's creditors (a). An estate for life might formerly have been put an end to by forfeiture. This occurred if the tenant endeavoured, by means of a feoffment, to grant a greater estate in the land than that which he himself possessed. But now, under the Real Property Amend- ment Act (6), such a feoffment made by a tenant for life will merely convey his life interest, and will not work a forfeiture. OL U*>mWA>4 tjLettf The tenant's estate may also come to an end by his death. Until the year 1 738, lessees from a tenant for life whose leases were put an end to by his death were not bound to pay any rent accrued due between the last day when the rent fell due and the date of the death of the tenant for life. This rule was founded on the Common Law doctrine that an entire contract cannot be apportioned, and that under a lease with a periodical reservation of rent, the contract for the payment of each portion is distinct and entire (c). Rent is not due until the last day fixed for payment, because it is to be rendered out of the issues and profits of the land (d), and differs in this respect from interest, which accrues from day to day. From this it followed that on the determination of a lease by the death of the lessor before the day appointed for the payment of the rent, the event on the completion of which that payment was stipulated (namely, the occu- (a) 32 & 33 Viet. c. 71, as. 17, 25. (6) 8 & 9 Viet. c. 106, B. 4. (c) 1 Swan, 338. (d) Clwt't Cote, 10 Rep. 127. OF AN ESTATE FOB LIFE. I "7 pation of the lands during tho period specified) never occurring, no rent became payable at law, nor would the Courts of Equity afford any assistance (e). This state of things was partly remedied by the H G>. II. c. 11 Geo. II., c. 19, which enacts (/) that where any tenant for life shall happen to die before, or on, the day on which any rent was reserved, or made payable,* upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, the executors or administrators of such tenant for life shall, and may, recover of and from such under-tenant or under-tenants of such lands, tenements, and hereditaments if such tenant for life shall die on the day on which the same was made payable, the whole of or if before such day, then a proportion of such rent, according to the time such tenant for life lived, of the last year or quarter of a vcur or other time in which the said rent was growing due as aforesaid, making all just allowances, or a proportionate part thereof, respectively. This act included the case of a lease made by a tenant for life, professedly under a power given to him for that purpose, but determined by his death from not having been exercised in conformity with his power (g) ; but it did not apply to cases where a tenant for life had made a lease which was binding on the remainder- man (h), and which did not therefore come to an end on the death of the tenant for life. In that case, the under-tenant had to pay his rent, on the day next fixed for its payment, to the remainder-man or rever- sioner, because his obligation to do so was incident to the reversion, but no part of it could be claimed by the representatives of the tenant for life. In order (e) Jtnntr v. Morgan, \ P. Wins. 392. (/) S. IK. (. (/) Any person taking an estate otherwise than by descent is said in law to be a purchaser. (g) Atty-Genl. v. Marlbnrough, 3 Madd. 498, 532. (A) Jervis \. Bruton, 2 Yer. 251. Or AN ESTATE TAIL. Ill On account also of the power which a tenant in tail Not tmnnd to has over his estate, he cannot be compelled to keep ^ t "* n down the interest of incurabrances affecting it, unless charge*. he is an infant and therefore incapable of barring it (i). Should he, however, pay off any charges on the estate, it will be presumed, in the absence of evidence to the contrary, that he has done so for the benefit of the inheritance, and not for that of his personal representatives (j). A tenant in tail in possession is entitled to the cus- Custody of tody of the title-deeds of the entailed lands (Ar). Since a tenant in tail has, as an inseparable incident Fixture*. of his estate, the right to commit every kind of waste, he may, whilst in possession of the property, remove any fixtures put by a previous tenant or by himself, and that without reference to the object, or to the mode, of their annexation. But this right ceases with his death. If ho has himself put up fixtures during his possession, and the estate tail comes to an end on his h, his executor or administrator has, as against the remainder-man orreversioner, the same right in respect of fixtures as the executor or administrator of a tenant for life has, as against the person entitled to an estate aiUT the expiration of that for life. But if the tenant in tail is succeeded by another person claiming under the entail, questions as to fixtures are decided as if tln-y arose between the heir and the executor of a truant in fee simple ; a point which will be gone into in the next chapter. We have already seen that a tenant in tail can, by MaYing leases. deed, make leases for terms not exceeding twenty-one years; or for longer terms, provided that the deed is (i) Seryeton v. Sealty, 2 Atk. 411, 416; Chaplin T. Chaplin, 3 P. Wms. 234. 0') St Paul*. Dudley, 16 Tea. 167, 172. (*) J'apillon v. Voice, 2 P. Wms. 470. C. H Mi Hairing estates tail. Statute De J toxin. Suffering a Recovery. OF CORPOREAL HEREDITAMENTS. inrolled in manner required (/) by the Fines and Recoveries Abolition Act. An estate tail, as such, cannot be the subject of alienation. A tenant in tail, it is true, can dispose of his estate by deed, but the very fact of his doing so converts it into either a fee simple or some lesser estate, according to the form of disposition made. And if he wishes to dispose of his estate by will, he must first convert it into an estate in fee simple, in which case it will be subject to the rules governing the alienation of such estates. We proceed therefore to show how the power of barring estates tail arose, and the means by which it can now be exercised. It will be recollected that the statute 1>< Don't*. passed in the year 1285, put a stop to the alienation of estates in fee simple conditional, in lands of free- hold tenure, and converted those fees into fees tail which could not be alienated. The statute remained in force until about the year 1473, at which date means were found to bar estates tail, by converting them into estates in fee simple, and thus to render the statute a dead letter. This might be effected by a process known as " suf- fering a recovery," which was, in fact, a legal fiction countenanced by the courts, in order to evade the statute. The process was usually as follows A pre- concerted action was brought in the Court of Common Pleas, against the tenant for life who was in possession of the property entailed. This was either a tenant who had a life estate in the land prior to the estate tail, by virtue of the grant creating the entail, and whose con- " sent was necessary in order to admit of the recovery being suffered, or, if there were no existing life estate prior to the estate tail, some person who had had a life (/) 3 & 4 \Vm. IV. c. 74, s. 41. OP AN ESTATE TAIL. . II") estate conveyed to him by the tenant in tail, for the purpose of enabling the action to be brought. The tenant for life was called the tenant to the pr&cijir, or writ by which the proceedings were com- menced. The plaintiff or "demandant" began by alleging to the court that the tenant to the ^mW/ had no right to the possession of the land, but that it belonged to him (the demandant) in fee simple. Thereupon the tenant to the jn-a'cipr stated that his title had been warranted as good by the tenant in tail, and asked that the latter might be allowed to appear and defend it. This was called "vouching " (in) the Voucliinjr to tenant in t;iil to warranty. The tenant in tail, in his w turn, vouched to warranty a third person, who really knew nothing at all about the matter, but who had agreed to be one of the actors in this solemn farce. '. . ' This person, who was called the " common vouchee," accordingly appeared, and proceeded to defend the title : whereupon the demandant asked leave from the court to " imparl," or speak in private with, the com- mon vouchee. This was granted as a matter of course; the demandant and common vouchee left the court together for that purpose, and after a short time the demandant returned alone, the common vouchee having meanwhile disappeared. On this, the court assumed that the common vouchee was unable to de- fend the title, and proceeded to give judgment that the demandant should recover the land which la- claimed from the tenant for life, :md that the latter should be recompensed by the tenant in tail, who in his turn was to be indemnified by the rmmon vouchee-. Thus the demandant obtained the fee simple of tin- land, and having done so might re->nvey it in tee simple to the tenant in tail, nr otherwise dispose of it ' as the latter thought lit. This form of recovery \Y:IN said to be with double (m) From the French roucfor to cull. 116 OF CORPOREAL HBREDITAMENTS. voucher, and had the effect of barring not only the issue claiming in virtue of the estate tail, but also all remainders or reversions expectant on the determina- tion of that estate. After this process of defeating the expectation of those claiming after the tenant in tail had been invented, the courts, in order to make it effectual, held that the right to suffer a recovery was inseparable from every estate tail (n). Leryinga Another, but less efficacious, way of barring an estate tail, was " levying a fine." A fine (o) was an amicable composition of a suit, with the consent of the court in which it was commenced ; the terms agreed upon being preserved in the records of the court. It was originally made use of in order to secure doubtful titles, by giving public notice that the possession of the estate was in dispute, after which all claims not asserted within a specified time were absolutely barred. The idea was taken from the Roman law : it appears to have been unknown to the Normans before the Con- quest, but was commonly in use in Normandy in the sixteenth century (p). A fine was, like a recovery, a fictitious proceeding, but it was necessary that the suit to be compromised should be actually commenced in the usual way (q), by a friendly plaintiff bringing, against the person intending to levy the fine (who must have had some interest in the lands in question), an action for the breach of a supposed covenant to convey the lands to him. The defendant at once admitted himself to be in the wrong, and was sup- posed to make overtures to the plaintiff, who thereupon obtained leave from the court to make up the matter with him. In pursuance of this supposed compromise, the de- () Portington's Case, 10 Rep. 36*. (o) From the Latin finis an end. (p) 1 Cruise on Fines and Recoveries, 10. (q) 18 Ed. I. st. 4. OF AN ESTATE TAIL. ] 1 7 fendant appeared in open court, and acknowledged the right of the plaintiff; a note was made of this acknow- ledgment and of the other proceedings, and proclaimed in court on successive occasions, and all persons not asserting their claims to the land within a fixed time were thereafter deprived of all right to do so. A fine duly levied barred the issue in tail, but not persons in remainder or reversion, unless the tenant himself had the immediate reversion, in which case he did, indeed, acquire a fee simple estate in the lands, but became liable for all incumbrances created by any of the per- sons through whom the reversionarv fee had descended . to him. The process of barring an estate tail by means of a 32 Hen. VIII. fine was afterwards recognised by the 32 Hen. VIII., c> c. 36, which enacted that fines levied by any person of full age to whom, or to whose ancestors, land had been entailed, should be a perpetual bar to them and their heirs claiming by force of such entail. The reader may here be reminded that an estate tail does not merge in an estate in fee simple in the same land, even though the two estates happen to be united in the same person, without any other inter- vening estate ; for if they did, a tenant in tail might easily have destroyed the estate tail by purchasing the reversion, and thus, from the first, have frustrated the object of the statute De Doni*. If a tenant in tail who barred his estate had not BSM fee. the immediate reversion, he, and any person to whom he transferred his estate, had only a qualified fee simple, which lasted so long as the tenant had heirs of his body who could have claimed the estate if the entail had not been barred : but on the failure of such issue, the land went to the remainder-man or reversioner; and such an estate was therefore called a base fee, as being inferior to an ordinary feo simple. 118 OF CORPOREAL HEREDITAMENTS. Abolition of Fines and Re- coveries Act. Fines and re- coveries abol- ished. Every tenant in tail to have power to dis- pose of his estate. Neither of the above-described modes of barring estates tail were satisfactory. The proceedings in both were complicated, and if in a recovery any mis- take were made in selecting the tenant to the prcecipe, the whole proceedings might be reversed, whilst a fine did not as a rule entirely bar the estate tail ; it was therefore generally necessary first to levy a fine, and then to make the plaintiff in that proceeding tenant to the prcecipe in a suit commenced in order to suffer a recovery : for this tenant, having been declared entitled to the freehold in a court of law, could not be objected to as not having the freehold in possession. This expensive and complicated process was at length abolished by the Act for the Abolition of Fines and Recoveries (r). By this statute it is enacted that (s) no fines or recoveries shall be levied or suffered after the 31st of December 1833; that any fine or recovery levied or suffered contrary to this provision shall be absolutely void ; and (t) that all war- ranties of lands which, after the 31st of December 1833, shall be made, or entered into, by any tenant in tail thereof, shall be absolutely void against the issue in tail, and against all persons whose estates are to take effect after the determination of the estate tail. But on the other hand (M), every actual tenant in tail has given to him full power to dispose of, for an estate in fee simple absolute, or for any less estate, the lands entailed, as against all persons claiming them by force of any estate tail which shall be vested in, or might be claimed by, or which but for some previous act would have vested in, or might have been claimed by ,the person making the disposition at the time of his making the same : and also as against all persons, (r) 3 & 4 Wm. IV. c. 74. (*) S. 2. (I) S. 14. (u) S. 15. OF AN ESTATE TAIL. 1 1 including the Crown, whose estates are to take effect after the determination of the estate tail. He (v) can also convert into a fee simple absolute any base fee, whether created before or after the passing of the act. But (w) a widow who is tenant in tail of lands which have been inherited or purchased by her husband, or which were conveyed to her and her husband in tail by any of the ancestors of the husband, or by any trustee for the husband, or for his ancestors, cannot bar the estate tail without the consent of the persons next entitled to the inheritance (x). The statute puts a certain amount of restriction Protector of .1 f i. j. -i A v f !- the settlement, on the power of a tenant in tail to dispose of his estate, by enacting (t/) that if, at the time when there shall be a tenant in tail of lands under a settlement, there shall be subsisting, in the same lands, or any of them, any estate for years deterrninable on the dropping of a life or lives, or any greater estate (not being an estate for years) prior to the estate tail, then the person who shall be owner of the prior estate, or t IK- first of such prior estates if more than one, then subsisting under the same settlement, or who would have been so if no absolute disposition thereof had been made, shall, subject to a provision to be presently mentioned, be the protector of the settlement so far as regards the lands in which such prior estate shall be subsisting. The term " owner of a prior estate " includes a tenant by curtesy (2) ; two or more owners of a prior estate (a) ; and a husband and wife where the prior estate belongs to the wife (1>). But it does not include lessees at a rent (c) ; nor a woman in respect (0 8. 19. () S. 16. (x) 11 Hen. VII. c. 20; 32 Hen. VIII. c. 36, t. 2; Shelf. R. P. Statute*, 322, note (?). (y) s. -J2. It) 8. ML (a) 8. 23. (b) B. 24. (t) S. 26. 120 OP CORPOREAL HEREDITAMENTS. of her dower, or a bare trustee, heir, executor, ad- ministrator, or assign (d) : for where these persons have the first existing estate, then the person entitled to the next estate (if any) prior to the estate tail is to be the protector of the settlement (e). Settlor may The owner of the prior estate will not, however, 1>r necessai % be tne protector of the settlement ; for the act further provides (/) that it shall be lawful for any settlor entailing lands to appoint, by the settle- ment by which the lands are entailed, any number of existing persons, not exceeding three, and not being aliens, to be protector of the settlement in lieu of the person who would otherwise have been protector. Such person or persons may be protector of the settle- ment for any part, or for the whole, of the period for which the person whose substitutes they are might have continued protector, but not, it will be observed, for any greater period of time. The settlement appointing a protector may contain a power to per- petuate, during the whole, or any part, of such period, the protectorship of the settlement, by filling up vacancies caused by the retirement or death of any person appointed protector. It has also been recently decided that where this power is omitted, and one of the persons named as protector dies, the survivors or survivor may execute the office (g). Powers of pro- The protector's consent is necessary (/,) to enable a tenant in tail, if not entitled to the remainder or reversion in fee simple immediately expectant on the determination of his estate tail, to create an estate larger than a base fee. Moreover (t), so long as (d) S. 27. (e) S. 28. (/) S. 32. ( execution. The 33 Hen. VIII., c. 39, made estates tail liable for Crown Debt*, debts due to the Crown, and by the 2 & 3 Viet., c. 1 1, 33 Hen. v 1 1 1 c 39 2 & 3 and the 22 & 23 Viet., c. 35, judgments obtained by y'ict. c .~n : V> the Crown are put on the same footing as other judg- & 23 ^ ict - c - ments ; but under the 28 & 29 Viet., c. 104, writs of %$ & 29 Viit. execution obtained by the Crown may be registered c. 1C immediately on being obtained, and thereupon bind the debtor's land, without the necessity of taking it in execution. Lastly, the estate of a tenant in tail may be put an Determination end to by his death. In that case the Apportionment ^ 8 D y j, Acts (a) will apply to any leases which he has made, death, since although he might, if he pleased, have turned A W (at) The law relating to judgments will be more fully explained in the next chapter. (a) 11 Geo. II. c. 19; 4 & 6 Wm. IV. c. 22; 33 & 34 Viet. c. 35. 124 OP CORPOREAL HEREDITAMENTS. his estate into a fee simple, yet, not having done so, he was at the moment of his death merely a tenant for Emblements. life (b). For the same reason, his executor or admin- istrator is entitled to embleinents, as against the heir in tail, remainder-man, or reversioner. (b) Pagget v. Gee, 9 Mod. 482. 125 CHAPTER VI. OP AN ESTATE IN FEE SIMPLE. WE have now arrived at the consideration of an estate in fee simple the greatest which the law recognises in a subject, and that out of which all other estates in land are derived. This estate may be either " absolute." which is the Is absolute or 1 " ' I more ordinary form, or "qualified." An instance of q the latter kind occurs if an estate is given to A and his heirs " tenants of the manor of Dale : " here, whenever the heirs of A cease to be tenants of that manor the grant is entirely defeated (a). No person can create an estate in fee simple, unless Creation of a he has himself that estate in the lands with which he ^ esi ? lple . . . By whom it professes to deal, .There are also certain persons who may be created. are, more or less, unable to create such an estate, from the fact of their having only a limited power of alienation. Thus any conveyance, or will of land } TM.-ule by an idiot or lunatic (unless made in a lucid Idiots and interval) is absolutely void (6). A married woman, Lunatics. I- u i j r v. i Married too, is unable to dispose by deed ot her real estate, women. unless it is settled to her separate use (a point to be adverted to hereafter), or unless the previous owner has given her a power to appoint that it shall go to certain persons (in which case she is merely acting as agent of the person who conferred the power), except with her husband's consent, and by a deed acknow- ledged in manner provided by the Fines and Recoveries (a) 2 Bl. Com. 109. (t>) l'at(t\. ofti, Str. 1104. 120 OF CORPOREAL HEREDITAMENTS. Abolition Act (c). She cannot dispose by will of any land other than that over which she has a power of appointment (d), or which is settled to her separate Infants. use (e) . 'And an infant cannot, as a rule, make a con- veyance, by deed, of land, which will be binding upon him if he chooses to repudiate it at, or before, coming of age, although it will be binding upon a purchaser from him (/). But we have already seen, in previous chapters, that an infant may, under the 18 & 19 Viet., c. 43, make a binding settlement of land, and thus create an estate in fee simple, in contemplation of his marriage. An infant cannot dispose of land by will, being incapable of making a valid will (|/). Who may have At Common Law all persons are capable of acquiring fee simple!" lands, but various restrictions have been imposed on this capacity by statute. We must notice these, in order to understand the difficulties which they oppose to the creation of estates in fee simple. From an early period, the feudal lords objected to lands being Corporations, acquired by the monasteries and other religious houses who made up the greater number of the earlier cor- porations ; for the fact that these bodies were perpetual, made it impossible that their lands should ever escheat as in ordinary cases, and lands held by them were con- sequently said to be in mortmain (in inortud manu). Magna Charta. Hence we find a provision in Magna Charta (h), for- bidding gifts to them, and afterwards it was enacted Statute De by the statute De Religiosis "(/) that no persons, religious or other ecclesiastical corporation, b,odypolitic ecclesiastical or lay, sole or aggregate, should buy or sell lands, whereby the same should come into mort- main, under pain of forfeiture. This was extended by (c) 3 & 4 Wm. IV c. 74, ss. 77, 79, 91. (rf) Sug. Pow. 153 ; 7 Win. IV. & 1 Viet. c. 26, s. 8. () Taylor v. Meads, 13 W. R. 394. . ( /) Zouch\. Parsons, Burr. 1794 ; Allen v. Allen, 2 Dru. & War. 30". (>) 7 Wm. IV. & 1 Viet. c. 26, s. 7. (h) 9 Hen. III. c. 36. (0 7 Ed. I. c. 1. OP AN ESTATE IN PEE SIMPLE. 1^ the 15 Ric. II., c. 5, to all lands purchased by guilds 16 Ric. II or fraternities, on the ground that mayors, bailiffs, and commons of cities, boroughs, and other towns, were as perpetual as people of religion. Consequently, it be- l-i " iV'-m came customary, on the foundation of a lay corporation, to insert in its charter a licence from the Crown to hold lands, and the validity of these licences was recognised by the 7 & 8 Wm. III., c. 37, which permits the Crown, 7 & 8 Wm. III. when it thinks fit, to grant to any persons, or bodies c> politic or corporate, licence to alien in mortmain, and also to purchase, acquire, take, and hold, in perpetuity or otherwise, any hereditaments whatever. With respect to religious corporations, the old law Charitable still obtains to a great extent; the principal actrelat- Cor po ratl0 ""- ing to this subject being that generally known as the Mortmain Act (j ), passed in the reign of George the Mortmain \< t Second. This act only applies to gifts of land, or any interest in land, or of money to be invested in land, al- though it would appear from the preamble that it was the intention of its frame rs to give it a wider application (k) . It enacts (/) that no manors, lands, tenements, rents, ad- vowsons, or other hereditaments, corporeal or incor- poreal, or any sum or sums of money, or personal estate whatever, to be laid out or disposed of in the purchase of any lands or hereditaments, shall be given, granted, or in any ways conveyed to any persons, bodies politic or corporate, or otherwise, for any estate or interest what- ever, in trust for, or for the benefit of any charitable uses whatsoever, unless made by a deed executed in the presence df two or more credible witnesses, twelve calendar months at least before the death of the donor or grantor, and inrolled in Chancery within six calen- dar months after its execution. The deed must also be intended to take effect in possession for the charit- able use, immediately from the making thereof, and be (j) 9 Gco. II. c. 36. (/.) See the judgments in Je/crtit r. Alexander, 8 II. L. C. 594. (0 S. 1. 128 OP CORPOREAL HEREDITAMENTS. 29 & SOVict c. 57. 31 & 32 Viet. c. 44. Charitable Trusts Acts. without any power of revocation, reservation, trust condition, clause, or agreement whatever, for the bene- fit of the donor or of any person claiming under him. But these provisions are not (m) to extend to any purchase made bond, fide for valuable consideration, or (n) to prejudice the Universities of Oxford and Cambridge, or the Colleges of Eton, Winchester, and Westminster. The time allowed for inrolling conveyances under the Mortmain Act was enlarged by subsequent sta- tutes (o), and now it is provided by the 29 & 30 Viet., c. 57, that (p ) any trustee of a charity may, at any time, apply to the Court of Chancery for an order authorizing the inrolment of any deed, or other in- strument, whereby any hereditaments have been conveyed for charitable uses, or any deed connected with any charitable trust, which deed ought to have been inrolled, but has not been inrolled within the time limited by law. By a subsequent act (q), grants of lands made to a trustee or trustees on behalf of any society or body of persons associated together for religious purposes, or for the promotion of education, arts, literature, science, or other like purposes, in order to erect a building thereon, or whereon a building used, or intended to be used, for such purposes, or any of them, shall have been erected, are to be exempted from the necessity of inrolment, provided they are made bond fide and for valuable consideration, and provided that each such piece of land shall not exceed two acres in extent or area in each case. In addition to the above, the Cha- ritable Trusts Act, 1853 (?), and the Charitable Trusts (m) 8. 2. (n) S. 3. (o) 24 & 25 Viet. c. 9 ; 25 & 26 Viet. c. 17 ; 27 & 28 Viet. c. 13. (/) S. 1. (q) 31 & 32 Viet. c. 44. (r) 16 & 17 Viet c. 137. OF AN ESTATE IN FEE SIMPLE. ! J'.' Amendment Act, 1855 (), enable trustees of charities to purchase lands for building purposes, and the 33 & 3 1 Viet., c. 34, permits (t) corporations and trustees 33 & 34 Viet. holding monies in trust for any public or charitable c- 34- purposes to invest the same in any mortgages or charges of lands and hereditaments of any tenure (it). With respect to corporations formed for purposes Corporations not strictly charitable, the law of mortmain has been not chariul)le - of late considerably relaxed. Thus, highway boards Highway are now empowered to take lands without a licence board6 - from the Crown (c), as are also joint-stock companies Joint-stock formed under the Companies' Act 1862 (w), it being, com P* nie *- however, provided by this act (x) that no company formed for the purpose of promoting art, science, religion, charity, or any other like object, not involv- ing the acquisition of gain by the company, shall hold more than two acres of land without the sanction of the Board of Trade. Aliens were also, until recently, Aliens, forbidden to hold land in this country, except for business purposes, and then only for terms not ex- ceeding twenty-one years, but now the Naturalization Naturali/.ition Act 1870 (y) provides that real and personal property Act 1870 ' of every description may be taken, acquired, held, and disposed of by an alien, in the same manner in all respects as by a natural-born British subject; and that a title to real or personal property of every description may be derived through, from, or in suc- cession to an alien, in the same manner, in all respects, as through a British subject. An estate in fee simple may bo granted or given, H O W a fee by deed or by will, by any competent person. We 8 , imi |K may be () 18 & 19 Viet. c. 124. (0 8. 1. () S. 3. (r) 25 & 26 Viet. c. 61, i. 9. (u>) 25 & 26 Viet, c. 89. (*) S. 21. (y) 33 Viet. c. 14, s. 2. 130 Form of words. OF CORPOREAL HEREDITAMENTS. have already seen that the use of the word " heirs " is essential in order to confer such an estate by deed, although not so where a disposition is made of it by will. Incidents of an The incidents of an estate in fee simple do not estate in fee . , , , . . ,111, simple. require any lengthy notice, since the absolute powers which its possessor has over it enable him to commit any kind of waste on the property, or to sell, lease, or incumber it at his pleasure, and free him from any obligation, as between himself and his successors, to keep down the interest on any charges which may exist on the land. But a few remarks may be made Fixtures. on the subject of fixtures. During his lifetime, a tenant in fee simple has uncontrolled power over any fixtures put up by a previous owner of the property, or by himself. He may also, if he pleases, dispose of .them by his will. But if he dies, having neither removed them nor specifically bequeathed them, the right of his executor, or administrator, to claim them is less than in the case of any other deceased tenant. The old rule appears to have been that the executor or administrator of a tenant in fee simple was not entitled to any kind of fixtures (z). And even in modern times, it has been laid down by the House of Lords that the decisions in other cases in favour of trade fixtures do not apply as between the heir and executor, or administrator, of a tenant in fee; and hence, that machinery put up by such a tenant for the purpose of better using his land went, in the absence of any disposition of it having been made by him, to his heir, and not to his executor (a). And as to un- disposed of ornamental or domestic fixtures, such as kitchen ranges, stoves, grates, or blinds, it has been (z) Amos on Fixtures, 152; Warner \. Flectivood, cited 4 Rep. 64 < ; Woodv. N>nit/i, Cro. Jac. 129. , (a) Fisher v. Dixnn, 12 Cl. & F. 312,331; and sec Trappes v. Harter, 2 Cr. & Mee, 153, 180. OP AN ESTATE IN FKE SIM1M.K. l hold that they also belong to the heir (b). It would seem therefore that the executor, or administrator, has no right to undisposed of fixtures of any kind, except where they have been merely loosely affixed to the freehold, in a manner which showed a clear inten- tion that they should be removable. Our previous remarks on the creation of a fee Alienation of simple apply equally to its voluntary alienation by the f^g^^!" tenant. We have next, therefore, to see how this Voluntary estate can be the subject of involuntary alienation. Involuntary. Forfeitures of land, on account of its owner having committed some crime, having been recently abolish- ed (r), the two principal grounds on which a tenant in fee simple may now be deprived of his estate are, his having failed to pay debts declared to be due from him by the judgment of a court of justice, or his having become bankrupt. 1 1 will be recollected that the question of the effect Judgments, of judgments on the various estates in land which we have discussed in previous chapters, was purposely deferred until we should have reached the stage at which we have now arrived. We will proceed, there- fore, to state briefly the law of judgments, with reference to such estates generally. Before the passing of the Statute of Westminster (ip of freehold and copyhold estates could not be taken in NX t -' :illll " t<| - execution for debt, but under that act (the provision- of which relating to judgments were somewhat ex- tended by the Statute of Frauds (/')) a creditor who had recovered a judgment in one of the King's court- might, at his option, have either a writ of ji> ri (b} See 11'iiin v. /_>.">: Culitirart \. />i, Sa,,l,.i, 1 I', -v 0. 76. (r) 33 & 34 Viet. c. 23, *. I. (!> Car. II. .-. 3, ss. 10. It. H. 132 OF CORPOREAL HEREDITAMENTS. directing the sheriff, or other officer, to sell the debtor's chattels, including hits leaseholds, in order, out of the proceeds, to satisfy the debt ; or he might Writ ot elegif. have a writ of elegit, under which the sheriff might deliver to him the chattels of the debtor at an appraised value, without having been sold, and also, if these were not sufficient to pay the debt, one half of the debtor's land, again including leaseholds (/) ; which the creditor might hold until he had repaid himself out of the rents and profits. These statutes did not apply to an estate by the curtesy, or to an estate tail as against the issue in tail, or to copyholds, or to some forms of incorporeal hereditaments. Neither did they include an equitable estate in leaseholds, nor an equitable estate in free- holds if the trustee parted with it at any time before the writ of elcgit was sued out. But where they did apply, a judgment became, under the Statute of Judgment a' Westminster ( . ' to he bound included leaseholds) ot the person against whom until delivery suc } 1 wr ^ was sued forth, but from the time that such cution. writ had been delivered to the sheriff to be executed. The result was that as against an estate for years a judgment alone had no effect (/). And as regards (/) FleetwoocCs Case, 8 Rep. 17 1. &) 13 Ed. I. c. 18. (A) A judarment is " entered up " by inscribing the fact of its haying been obtained on the records of the Court. (') Prid. Judgments, 9. (j) 29 Car. II. c. 3. (k) S. 15. (1) Shirley v. Watts, 3 Atk. 200 ; Forth v. Norfolk, 4 Madd. 503, 506. OP AN ESTATE IN PEE SIMPLE. !'! other estates in land it was enacted by the 4 & 5 * & 5 Wm. & Me 20 Wm. and M., c. 20 (m), that no judgment should affect p^ujj, not . any lands or tenements of the debtor's, as, against to be bound bonajide purchasers or mortgagees of the lands, unless ^J^j^.tti. .! it had been previously docketed in a book belonging to the court in which such judgment had been obtained. Next came various statutes passed in the present reign in order to give a more complete remedy to creditors. The first of these, the 1 & 2 Viet., c. 110, 1 & 2 Viet. c. enacts (n) that it shall be lawful for the sheriff or other officer to whom any writ of elegit shall be directed at the suit of any person, upon any judgment which at the time of the commencement of the act (o) shall have been recovered, or thereafter shall be recovered, in any of the superior courts at West- Sheriff may minster, to take and deliver execution, unto the i. in( j 8 un der party in that behalf suing, of all such lands, tene- writ of mcnts, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execu- tion is so sued or any person in trust for him shall have been seised or possessed of at the time of enter- ing up the said judgment, or at any time afterwards, or over which such person shall, at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit, in like manner as the sheriff or other officer might at the time when the act was passed have made and delivered execution of one moiety of the lands and tenements of any person against whom a writ of elegit was sued out. Lands and hereditaments thus taken in execution are to bo held and enjoyed by the person to whom such execution is delivered, subject to his being liable to account in a Court of Equity for the (m) 8. 3. () 8. 11. (o) 1st of October, 1838. 131 OF CORPOREAL HEREDITAMENTS. rents and profits received. Under this act (p) a Entered up judgment entered up against any person in any of the judgment to 3 . , \, r 6 . L J * ./ bind lands as superior courts at Westminster, and also all orders against debtor o f courts of equity, and all rules of courts of common Claiming under l aw > or of the Lord Chancellor in matters of bank- ruptcy or of lunacy (q), were to operate as a charge upon all lands and hereditaments in which such person had, or should have, a legal or an equitable estate, or over which he had a disposing power which he might exercise for his own benefit without the assent of any other person, and were to be binding not only as against him, but also as against all persons claiming under him after such judgment, and also as against the issue of his body, and all other persons whom he might, without the assent of any other person, cut off and debar from any remainder, reversion, or other interest, in or out of any of the said lands and here- But not against ditaments. But (r) no judgment of any of the supe- morteaffees r * or cour *'S, nor any decree or order in any court of and creditors equity, nor any rule of a court of common law, nor tered. an J order in bankruptcy or lunacy, was, by virtue of the act, to affect any lands, tenements, or heredita- ments, as to purchasers, mortgagees, or creditors, unless and until a memorandum of the judgment was registered in a book to be kept by the senior master of the Court of Common Pleas. The effect of this act was to make a registered judgment a charge on the debtor's lands generally, even as against purchasers and mortgagees, since they had now an opportunity of finding out for themselves 2 & 3 Viet. c. that such a judgment existed. But the 2 & 3 Viet., c. 11, passed in the following year, enacted (s) that, as against purchasers and mortgagees without notice of such judgments, such judgments should not bind any (p) S. 13. (?) S. 18. (r) S. 19. (*) S. 5. OF AN ESTATE IS FEE SIMPLE. 1 o" lands, tenements, or hereditaments, or any interest therein, although duly registered, further than they would have done had the 1 *& 2 Viet., c. 1 10, never been passed. Hence, as against purchasers and mortgagees without notice, leaseholds again become unaffected by judgments, although duly registered until a writ of execution hud been delivered tothe sheriff (t) ; whilst freehold and copylrohfr e"sTates were, as~to~one moiety, bound by the fact of the judgment being registered. The 2 & 3 Viet., c. 11, ancf subsequent statutes () also improved the system of registration, and required judgments to be re-registered every five years. They were followed by the 23 & 24 Viet., c. 38, which, after 23 & -24 Vi.-t. reciting that it was desirable to place freehold, copy- c ' hold, and customary estates on the same footing with leasehold estates in respect of judgments, as against purchasers and mortgagees, enacted (v) that no judg- ment to be entered up after the passing of the act (w) should affect any land of any tenure as to a bond fide purchaser or mortgagee, (whether with notice or not), unless a writ of execution of such judgment should have been issued and registered before the conveyance to him, nor even then, unless the writ of execution were put in force within three months from the time when it was registered. Meanwhile the Mercantile Law Amendment Act 1856 (x) had enacted (y) that no writ of execution against the goods of a debtor should prejudice the title of a bond fide purchaser of the goods before their actual seizure by virtue of such writ, unless the pur- chaser had notice, at the time of his purchase, of the writ having been issued. '0 Wettbrooke v. Blythe, 3 E. & B. 737. 3 & 4 Viet c. 82 ; 18 & 19 Viet c. 15. M 8. 1. (w) 23rd July, 1860. (x) 19 & 20 Viet c. 97. (y) 8. 1. 136 OF COEPOEEAL HEEEDITAMENTS. It would appear that the word " goods " in this act did not include terms of years, for the next act re- lating to judgments which we have to notice, the '27 & 2B Viet. 27 & 28 Viet., c. 112, recites that it is desirable to assimilate the law affecting freehold, copyhold, and leasehold estates to that affecting purely personal estates, in respect of future judgments ; and proceeds to enact (z) that no judgment to be entered up after the passing of the act (a) shall affect any land, of whatever tenure, until such land shall have been actually delivered in execution by virtue of a writ of eleffit, or other lawful authority, in pursuance of such judgment. In the construction of this act, land is (b) to include all hereditaments, corporeal or incorporeal, or any interest therein. And a creditor to whom any land of his debtor has been actually delivered in exe- cution by virtue of any such judgment, and whose writ or other process of execution has been duly registered, may (c) obtain from the Court of Chancery an order for the sale of his debtor's interest in such land. The result is that judgments entered up after the 28th of July 1864 do not operate at all as a charge on land, as to any interest therein, until it has been actually delivered in execution ; but when this is done, the creditor has a speedy means of ob- taining payment of his debt, by a sale of the land under the order of the Court of Chancery. As to equitable interests of the debtor, and property which cannot be taken in execution from any cause, it has been lately decided that a creditor who has obtained a judgment and sued out a writ of elegit must apply to the Court of Chancery, whose order with reference to the matter will be a delivery of execution within the statute (d). (z) S. l. (a) 28th July, 1864. (b) S. 2. (r) S. 4. (d) Hattott v. Haywood, L. E. 9 Ch. 229; and see re Cowlridge, Jty. Co., L. R. 5 Eq. 413; Beckett v. Buckley, L. E. 17 Eq. 435. OP AN ESTATE IN PEE SIMPLE. I >7 The above remarks apply to debts due from one Crown Debt*, subject to another. The law relating to judgments obtained by the Crown against a subject is very simi- lar. For every such judgment must be registered (e), and periodically re-registered (/), in order to bind land as against purchasers, mortgagees, and creditors, and, if obtained after the 5th July, 1865, must have been followed up by the issue of a writ of execution, which must also have been duly registered (. 22. (g) 28 & 29 Viet. c. 104, 8. 48. (A) 32 & 33 Viet. c. 71. (i) 8. 6. U) 3. 14. 138 OF CORPOREAL HEREDITAMENTS. Payment of debts out of real estate. bankrupt (k) is to be entitled only to any surplus remaining after payment of his debts, and of the costs, charges, and expenses of the bankruptcy. A man's real estate is also liable to be taken, after his death, in order to satisfy debts and obligations incurred by him during his lifetime (I). For a long time, the common law doctrine was that debts were payable out of personalty only, the one exception to this rule being that lands which had not been disposed of by will were subject to the payment of the owner's debts by specialty in which the heirs were bound, that is, debts for which some bond or covenant had been given, in which the heirs were specially named as undertaking to pay. If, however, the land had been devised, the devisee was not liable to pay his testator's debts. The first statute which struck a blow at this doctrine was the 3 Wm. and Mary, c. 14, known as the Statute of Fraudulent Devises, which, after reciting that it often happened that persons, who by bonds and other specialties had bound themselves and their heirs, had, to the defrauding of their creditors, devised or disposed of their lands, in such manner that such creditors had lost their debts, enacted that all wills of lands should (only as against such creditors) be deemed fraudulent and void. ileal estate Thus the real estate of all persons became liable for pafmenfof to payment of their specialty debts. The next step was specialty debts, the passing of the 47 Geo. III., c. 74, which enacted 47 Geo. III. c. ^at the real estate of any person who was at the time Heal estate of of his death a trader, should be " assets " (m) to be r t hT d f r t0 be administered in the Court of Chancery for payment of ment of all his all the just debts of such person, as well debts due by Statute of Fraudulent Devises. debts. (k) S. 45. (/) No reference is made in the following remarks to the order in which personalty and realty are respectively applied in payment of debts : that subject not being considered as within the scope of this work. () From the French assez, enough. OF AN ESTATE IN FEE SIMPLE. 1-19 simple contract as by specialty : provided that cre- ditors by specialty in which the heirs were bound should be paid the full amount of their debts before any of the creditors by simple contract, or by specialty in which the heirs were not bound, were paid any part of their demands. These two acts were repealed, as to the wills of 11 Oeo. IV. i persons who died after the 16th of July 1830, by the ^7?' 1V 11 Geo. IV. and 1 Win. IV., c. 47, but were, in sub- stance, re-enacted by the latter act. Next came the 3 & 4 Wm. c. 3 & 4 Wm. IV., c. 104, which at length made the real J^j ^^ of estate of all persons, traders or not, liable for the pay- all persons ment of all their debts; reserving however the privi- L^enfof Sf leges previously given to specialty creditors. But now their debts. it is enacted by the 32 & 33 Viet., c. 46, that in the J 2 4 * 33 Vict - administration of the estate of every person who shall x preference die on or after the 1st of January, 1870, no debt or to specialty liability of such person shall be entitled to any pi-iority or preference, by reason merely that the same is secured by, or arises under, a bond, deed, or other instrument under seal, or is otherwise made or con- stituted a specialty debt : but that all the creditors of such deceased person shall be treated as standing in equal degree, and be paid accordingly out of the assets of such deceased person. An estate in land may also be lost, if the owner Estate lost allows some other person to take and keep posses- "" sion of it, in a manner inconsistent with its being the property of such owner. For it is enacted by the 3 3&4 Wm. IV. & 4 Wm. IV., c. 27, that (n) after the 31st day of c ' 27 \. v ' 'No action to December, 1833, no person shall make an entry or be brought hut distress, or bring an action to recover any land or within twenty ' . . ' y J yean fnuu rent, but within twerity years next after the time at time when which a right to make such entry or distress, or to " firet ac " bring such action, shall have first accrued to him or, *4 I A** 140 OP CORPOREAL HEREDITAMENTS. if he claims through some other person, to the person through whom he claims. " Land " in this act means every kind of corporeal hereditament, and every share, estate, or interest therein, whatever the tenure may be; whilst the word "rent" includes all services and When right to suits for which a distress may be made (o). The have e first d * "g^ * ma ^ e an entry or distress, or to bring an accrued. action, is to be deemed to have first accrued in man- Person in pos- ner following. If the person claiming, or the per- son through whom he claims, shall, in respect of the estate or interest claimed, have been in possession, or in the receipt of the profits, of such land, or in the receipt of such rent, and shall, while entitled thereto, have been dispossessed, or have discontinued such pos- session or receipt, then such right is to be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received. Person claim- If the person claiming claims the estate or interest of deceased per- some deceased person who continued in such posses- son in posses- gion or receipt, in respect of the same estate or inter- est, until his death, and who was the last person en- titled who was in such receipt or possession, then such right shall be deemed to have first accrued at the Person claim- time of such death. If the person claiming claims an ing under a estate in possession assured by some instrument, conveyance of ... an estate in other than a will, to him, or some person through possession. whom he claims, by a person being, in respect of the same estate or interest, in possession of the land or rent, and no person entitled under such instrument shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time at which the person claiming, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument. Person claim- If the estate or interest claimed shall have been one e" advance 3 of * n reversion or remainder, and no person shall have mi estate in reversion. W s. i. OF AN ESTATE IN FEE SIMPLE. 141 obtained tho possession or receipt of the profits of such laud, or the receipt of such rent, in respect of such estate or interest, then such right shall have been deemed to have first accrued at the time at which such estate or interest became an estate or in- terest in possession. And when the person claiming, Person claim- or the person through whom he claims, shall have become entitled by reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred or such condition was broken. But if the right to take advan- tage of a forfeiture has first accrued in respect of any estate or interest in reversion or remainder, and the land or rent has not been recovered by virtue of such right, then the right is to be deemed to have first ac- crued, in respect of such estate or interest, at the time when the same became an estate or interest in posses- sion (p). The statute goes on to provide for the case of the land or rent being in the possession of tenants of Where land in tho owner. It enacts (q) that when any person shall be in possession as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, shall be deemed to have first accrued either at the determination of such tenancy, or at the expira- tion of oneyeiirafterthecommencementof such tenancy. Of tenant from That (r) where any person shall be in possession as ^ e ^ yeaj truant from year to year or other period, without any lease in writing, the right of the person entitled sub- ject thereto, or of the person through whom he claims, shall be deemed to have first accrued at the deter- mination of the first of such years or other periods, or at the last time when any rent payable in respec-t of such tenancy shall have been received (which shall last happen). And that (*) when any person shall be in Of tenant posses-ion by virtue of a lease in writing, by which a|"^ ( P ) SS. 3, 4. ('/) S. 7. (r) S. 8. W S. 142 OF CORPOREAL HEREDITAMENTS. rent amounting to a yearly sum of twenty shillings or upwards shall be reserved, and the rent reserved by such lease shall have been received by some person wrongfully claiming to be entitled in reversion ex- pectant on the lease, and no payment in respect of the rent reserved by such lease shall have been afterwards made to the person rightfully entitled thereto, the right of the person entitled, or of the person through whom he claims, shall be deemed to have first accrued at the time at which the rent reserved by such lease was first so received by the person wrongfully claim- ing as aforesaid. But the mere fact of a tenant under a written lease not paying any rent at all for any number of years will not, provided the lease is still running, affect the right of his lessor to the reversion or remainder expectant on the determination of t he- lease. Written ac- The act also provides (/) that when any acknowledg- 3n ' ment of the title of the person entitled to any land or rent shall have been given to hirn or his agent, in writing, signed by the person in possession, then such possession shall be deemed to have been the possession of the person to whom, or to whose agent, such acknowledgment shall have been given at the time of giving the same, and the right of such last- mentioned person, or any person claiming through him, to make an entry or distress, or bring an action, shall be deemed to have first accrued at, and not be- fore, the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was Extension of given. The period for recovering land or rent is also * 1 . mo ' !" cases of enlarged if at the time when the right of any person first accrued, such person was an infant, a married woman, a lunatic, or^ absent :_ boy ond seas (//). In any of these cases, such person, or the person claiming through him, may, subject to a proviso to be pre- . ((} 8. 14. C/JtC/ (') S. 16. L* V OF AN ESTATE IN PEE SIMI'I.K. sently noticed, make a distress or entry, or bring an action, at any time within 4e- years next after tin- time at which tlfe person to whom such right first / accrued ceased to be under any such disability, or died, whichever first happened. It has been held, with refer- ence to this clause, that when the person to whom the right to bring an action accrues is under a disability, as by being an infant, and before the removal of that disability falls under another, as in the case of a woman by being married, the act preserves the right to bring . ^ an action until -toft-years after the removal of the lat- ter disability (r). I Jut in no case does the act per- No pxu>m*i(.n mit an action to be brought but within -fiafty years J^"' in-xt alter the time at which such right first accrued, _ although the person entitled may have been under Usability for the whole of such forty years, or al- though the term of^en years from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired (). The act also Tenant in tail. provides (x) that where the right of a tenant in tail has been barred by lapse of time, no entry, distress, or action shall bo made, or brought, by any person claiming any estate, interest, or right which such tenant in tail might lawfully have barred. Uut in all Express. tnM. cases where land or rent has been vested in a trustee upon an express -trust, the right of the <.) S. 17. (') s - -I (//) s. ->.-.. 144 OP CORPOREAL HEREDITAMENTS. Real Property Act"i874. n time at which such fraud shall be, or with reasonable diligence might have been, first known or disco- vered (z). This, however, is not to prejudice a bond fide purchaser who has not assisted in the commission of such fraud, and who, at the time when he made the purchase, did not know, and had no reason to believe, that any such fraud had been committed. The provisions of the 3 & 4 Wm. IV., c. 27, will, in course of time, be materially altered by the Real Property Limitation Act 1874 (a), which is to be read as one with it. For under this act, which will come into force on the 1st of January, 1879, no land or rent will be recoverable by persons not under disability but within twelve years after the time when the right of action has first accrued. In cases of infancy, cover- ture, or lunacy, a further time of six years will be allowed, but so that no action can, under any circum- stances, be brought but within thirty years from the time when the right of action first accrued. And no extension of time will be allowed on the ground of absence beyond seas. Results of Apportion- ment We have already seen how an estate by curtesy, or in dower > ma 7 arise on the death of a tenant in fee simple. There was not, formerly, on the happening of such an event, any apportionment, between the tenant's real and personal representatives, of any rents which he had reserved to himself; but such rents all went to the heir or, if the tenant had made a will, to the devisee of the lands out of which the rent issued (b). Now however, under the Apportionment Apportionment Act 1870 (r), the executor or administrator is entitled to Act 1870. a proportion of such rents, and it would seem that, as between the executor and a devisee the act applies, (z) S. 26. (hall be a total failure of heirs of the purchaser, or where any (A) S. 1. (0 8. 2. (j) S. 19 of the 22 & 23 Viet. c. JM. 148 New First Canon. OP CORPOREAL HEREDITAMENTS. lands shall be descendible as if an ancestor had been the purchaser thereof, and there shall be a total failure of heirs of such ancestor, the land is to descend, and the descent to be traced, from the person last entitled to the land as if he had been the purchaser. Turning then the first proposition of Blackstone's canon into a rule in conformity with the statute, we may state it thus I. Inheritances shall descend lineally to the issue of the last purchaser in infinitum. Blackstone's The second, third, and fourth canons as laid down 4th'canoi nd b y Blackstone remain unaltered. They are as fol- unaltered. lows Second Canon. II. The male issue shall be admitted before the female. Third Canon III. Where there are two or more males in equal degree, the eldest only shall inherit : but the females all together. Fourth Canon. IV. The lineal descendants in infinitum of any person deceased shall represent their ancestor : that is, shall stand in the same place as the person himself would have done had he been living. Thus, the child, grand- child, or great-grandchild (either male or female) of the eldest son succeeds before the younger son, and so in infinitum (k). Rule where tenant dies without issue. Blackstone's Fifth Canon. We now come to the rules which govern the descent of an inheritance, if the person last in possession dies without issue. Blackstone's canon is, that on failure of lineal descendants or issue of the person last seised, the inheritance shall descend to his collateral relations, (k) 2 BL Com. 217. OF AN ESTATE IN FEE SIMPLE. 1 l' being of the blood of the first purchaser ; and he adds that the collateral heir of the person last seised must be his next collateral kinsman of the whole blood. Under the old law, a relation of the half blood (that is, one not descended from a common pair of ancestors, male and female,) could not inherit : a man's half bro- ther, for instance, could not inherit from him. The original feudal rule had been that no one could succeed to an inheritance unless he could show that he was descended from the first grantee of the feud. When collateral relations were allowed to inherit, it often became difficult to comply with this requirement, and a new rule was therefore introduced, namely, that no collateral relations could succeed unless they were of the whole blood of the person from whom descent was to be traced, that is, of the person last seised. Thus, if A had two sons, B and C, by different wives, and died, leaving B, the elder son, to succeed him : on B's death without issue, C could not inherit, not being of the whole blood of B, the person last seised : al- though if B had not lived to inherit, C could have taken as heir of A. Blackstone (I) goes into an ela- borate defence of the rule, although he admits that it sometimes produced hardship, but it is now almost Alteration entirely done away with by the act, which provides (/) m * de b J the that any relation of the half blood of the person from whom descent is to be traced may be his heir, and is to be entitled next after any relations, in the same degree, of the whole blood, and their issue, where the common ancestor is a male, and next after the common ancestor, where the common ancestor is a female. The act also puts aside the feudal rule which prevented a father from succeeding his son, for it enacts (n) that every lineal ancestor is to be capable of being heir to any of his issue, and that in every case where there is no issue of the purchaser,his nearest lineal ancestor is to be (/) 2 Bl. Com. 227. (m) 8. 9. (/.) 8. 6. 150 Xew Fifth Canon. OF CORPOREAL HEREDITAMENTS. his heir, in preference to any person tracing his descent through such lineal ancestor or in consequence of there being no descendant of such lineal ancestor. The reader will also recollect that, by canon IV., the lineal descendants in infinitnm of any person deceased are to represent their ancestor. We thus arrive at the following rules V. On failure of lineal descendants or issue of the purchaser, the inheritance shall descend to his nearest lineal ancestor, and the issue of such ancestor in inji- nitum. New Sixth Canon. New Seventh Canon. VI. Every relation of the half blood of the purchaser is to be entitled next after any relations in the same degree of the whole blood, and their issue, where the common ancestor is a male ; and next after the common ancestor, where the common ancestor is a female. The next question is, how the nearest lineal ancestor is to be chosen whether preference is to be given to ancestors on the father's side or on the mother's ? and further, what is to be the order of inheritance amongst the favoured class whether, for instance, an aunt is to inherit before a grandfather ? The act supplies an answer to these questions, by enacting (o) what we may take as the next rule, viz. VII. None of the maternal ancestors of the person from whom the descent is to be traced, nor any of their descendants, shall be capable of inheriting until all his paternal ancestors and their descendants shall have failed ; no female paternal ancestor of such person, nor any of her descendants, shall be capable of inherit- ing until all his male paternal ancestors and their descendants shall have failed ; and no female maternal ancestor of such person, nor any of her descendants, (o) S. 7. OF AN ESTATE IN FEE SIMPLE. ' I "' I shall be capable of inheriting until all his male mater- ual ancestors and their descendants shall have failed. Thus we see, that on the death of the purchaser without issue, his father, is the next heir, and after the father his issue, that is, the purchaser's brothers and sisters; the brothers taking singly in order of seniority, and being represented by their issue, if any : and on failure of these, the purchaser's sisters will be his co- heiresses, and be in their turn represented by their issue. Failing issue of the purchaser's father, the in- heritance will next go to his grandfather and his issue, and so on until the whole line of male paternal ances- tors and their issue is exhausted. After this, the female line on the father's side is to be admitted. It was formerly greatly disputed whe- ther preference should, in such a case, be given to the nearer, or more remote, female ancestor ; for instance, whether the purchaser's paternal grandmother, or his paternal great-grandmother, had the best claim to be taken as the root of descent, and similarly in tracing descents on the mother's side. This question is now settled by the act, which has decided (p) in favour of the more remote female ancestor, whether on the paternal or maternal side, and thus we arrive at our last rule. VIII. Where there shall be a failure of male pater- New Eighth nal ancestors of the person from whom the descent Canon - is to be traced, and their descendants, the mother of his more remote male paternal ancestor, or her de- scendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male paternal ancestor, and her descendants : and where there shall be a failure of male maternal ances- tors of such person, and their descendants, the mother (p) 8. 8. 152 OF CORPOREAL HEREDITAMENTS. of his more remote male maternal ancestor, and her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor, and her descendants. If, therefore, there is a failure of the purchaser's male paternal ances- tors, ami his heirs must be, sought for amongst his female paternal ancestors,,his father's mother, or her descendants, will come last in order of selection. Next, if all the paternal ancestors, male and female, of the purchaser, and their heirs, have failed, recourse must be had to his maternal ancestors. In that case, his mother will first be his heir, and then descent must be traced through her ancestors, by the same process as has been followed in tracing descent through the purchaser's father, and thus, supposing all the intervening heirs to have failed, the inheritance will at last devolve upon his maternal grandmother and her heirs. If these fail, there will be no more heirs of the purchaser : in that case, the person last entitled must be sought for, and the process gone through again with him. Finally, if it is utterly impos- sible to find any person entitled to the inheritance, it will escheat to the Crown as lord of the fee. 153 CHAPTER VII. OP COPYHOLDS. THE origin of copyholds has been treated of in an earlier part of this work. It is, therefore, only neces- sary, as to that point, to add that joo^cog^hplds can No copyhold be created at the present day. The existing form of copyhold tenure is the result of a number of very gradual changes, each of which, being an encroach- ment upon the rights of the lords of manors, was not recognised by the law until it had been impressed with the stamp of long-continued custom. Hence arose the say ing, that "time is the nurse of manors (a)." And since it is manifestly impossible to create a cus- tom, it follows that it is impossible to create a copy- hold to be held according to that custom. Nor is it possible to create a copyhold, by providing for land being held according to the custom of some existing manor. For in every copyhold there must be " per- fect tenure between very lord and very tenant (b) ; " in other words, all the services due from the tenant must be centred in one lord. But it has been for a long time impossible to originate such a tenure, inas- much as the Statute of Quia Emptores (c), passed in the year 1290, enacted that every feoffee of lands should hold them of the same chief lord, and by the same services and customs, as his feoffor had done. If, then, a feoffor does not reserve any new services to himself the land is held by its former tenure ; if he does, the services due from the tenant are not cen- () Co. Cop. s. 31. () Ibid. (c) 18 Ed. I. c. l. 1 5 t OP CORPOREAL HEREDITAMENTS. tred in one lord, and there is not therefore a perfect tenure. " Upon the reason of this it is, that if the lord of a manor purchase foreign land, lying without the precincts and bounds of the manor, he cannot annex this to the manor, though the tenants be willing to do their services ; for this amounteth to the crea- tion of a new tenure, which cannot be effected at this 15ut7). A surrender could, formerly, only be effected by the _-v " x tenant's coming to the steward in court, or (if the (JT) Dot v. Law, 7 A. & E. 19.1. (y) Mattfiftct v. Oborne, 13 C. B. 919. (.-) Doe v. TofitU, 11 East, '246. (a) A custom. u \ Ix-ir is the person entitled as heir by the custom of nuntor. (6) 7 Win. IV. & 1 Viet. c. 26, s. 3. 160 f -^ OP CORPOREAL HEREDITAMENTS. ^t custom allowed) out of court (c), and then, by the / delivery of some customary symbol (d), resigning into JVr the hands of the lord, all his title and interest to the estate, in trust to be again granted out by the lord, to such persons, and on such trusts, as were named in the surrender, and the custom of the manor would warrant (e) : but now, by the Copyhold Act 1841 (/), the lord or his steward may (g), either in or out of the manor, make grants of land in the usual way, and may also (h) admit new tenants, either within or with- out the manor, and without holding any court for the purpose. No special words are necessary to make a good surrender : any words signifying a clear inten- tion to that effect being sufficient. Tresentment Before the passing of the act lastly referred to, the s " surrender, if made in court, was immediately inrolled, and the new tenant became thereupon entitled to ad- mittance : if it had been made out of court, it was necessary that this fact should be " presented/' and the surrender inrolled, at a customary court. If this was not done within the time prescribed by the custom of the manor, which was generally at the. next meet- ing of the court, the surrender was void at law (?'), and the surrenderee therefore no longer able to claim admittance. Now,' however, all difficulties of this kind have been removed by the act which enacts (j) Change made that every surrender, made either at any court at hy the Copy- wn i cn the homaere are assembled, or out of court, hold Act 1841. . . and also every grant and admission, are to be forthwith entered on the roll of the manor, and then (c) Tn some manors the custom allowed the tenant to surrender his estate into the hands of two other tenants. (d) This symbol was often a rod or twig, from which cause copyholders are sometimes spoken of as tenants by the verge (Lat. virga, a twig). (e) 2 Ul. Com. 366; 4 & 5 Viet. c. 35. /) * * fi YJP.ti afi (ff) S 87. (h) S. 88. (0 Co. Litt. 62. 0') S. 89. OP COPYHOLDS. 161 to have the force of a presentment, which (k) is no longer essential to the validity of the admission of any person. The lord is bound to observe the confidence on which the estate was surrendered to him, and can, if neces- sary, be compelled to do so, by a writ of mandamus from the Court of Queen's Bench. It follows, from the above, that a surrender has be- come practically a mode of conveyance, of which an admittance is only the formal completion, and conse- quently admittance, when made, dates back to the time of the surrender. The admittance follows the form of the surrender as to the estate conferred, the formal part consisting in the delivery, by the steward to the tenant, of the customary symbol of admittance. The tenant is also, in strictness, bound to take an oath of fealty on admittance, but this is now invariably respited, an entry to that effect being, at the same time, made on the court roll. The statute of Charles the Second which abolished Incident? of military tenures (/) having expressly excepted copy- holds from its operation, the lord is still entitled to a fine on the admittance of every new tenant ; but since Fines on the fine only becomes duo by reason of admittance, he a ^ ienatlon - is not entitled to it until after admittance (rn), except in manors where there is a special custom to the con- trary. He is, moreover, bound to admit the person entitled, although the amount of the fine may be in dispute () ; that being a matter which can be pro- perly settled afterwards, and if there is any doubt as to the proper person to be admitted, the lord is bound to admit all persons who claim ; as otherwise he would (*) S. 90. (/) 12 Car. II. c. 24. (MI) Jt. v. Utndon, 2 T. R. 484 ; Graham v. Sine, 1 East, 632. () Jt. v. U'elltsley, 2 E. 4 B. 924. C. L 162 OP CORPOREAL HEREDITAMENTS. be taking upon himself the decision of the conflicting claims (0). Amount of fine The amount of the fine to be paid is primd facie custom 3 n uncertain, and must, partly, depend upon the custom of the manor. Until the time of Elizabeth, the courts do not appear to have imposed any restriction on a But custom custom as to the amount of the fine. In that reign, must be reason- nowever ^ j t was decided that the amount of the fine Eule as to must be reasonable (p). And it appears to have been amount of fine gradually assumed that no fine for the admission of on admission . * of one tenant a single tenant to one tenement should exceed the to a single amount of two years' improved value of the land, tenement. * * that is, the value of the land after making a deduction of the annual amount necessary to keep the premises in repair (q). This rule, after some little fluctuation of opinion, is now firmly established (r), but it applies only to cases where the lord is bound to admit, and where he is entitled to a fine on the admittance of every new tenant. If the admittance is voluntary, the lord may make any bargain he pleases. The lord can- If a copyhold tenement is surrendered by a tenant admScI of a in favourof a purchaser, the lord has no right, except by purchaser. virtue of a special custom, to compel the purchaser to be admitted and thus make himself liable to the pay- ment of a fine. For the lord's right to a fine on alienation only arises upon an actual transfer of his tenant's land, and not upon a mere agreement to transfer, to which alone a surrender without admittance Rule where a amounts in law. But if the tenant dies, the case is different. For in that event, the lord is entitled to have on the manor roll a new tenant, capable of per- forming the services due in respect of the tenement in question, and he has also a right to a fine when that tenant is admitted. As a general rule, the heir or (o) B. v. Hexham, 5 A. & E. 559. (p) Jackman v. Hodfasdon, Cro. Eliz. 351. (q) Richardson v. Kensit, 5 Man. & Gr. 485. (r) Willowes Case, 13 Rep. 1 ; Grant Y. Astle, 2 Doug. 722, 724. OP COPYHOLDS. devisee of a copyholder cannot be compelled to be admitted to the estate of his ancestor or testator, but may, if he prefers, forfeit the estate instead. The lord is, however, permitted to take measures Proclamation. in order to force him to decide which course he will adopt. With this object the lord may, on the decease of any tenant, make proclamation for the person en- titled to his estate to come in and be admitted to it. This proclamation must be made at three consecutive courts, and all the customary ceremonies must be strictly observed (*). If, after due proclamation, no one appears in order to be admitted, the lord is en- Seizure, abeo- titled to seize the lands, either absolutely, if there is J^f or qw( a custom to that effect (t), or else quousque, that is, until some person comes to be admitted. A custom to seize absolutely was never good as Protection against an heir beyond seas, nor against married t women, infants, or lunatics, who from their position are sons under incapable of being admitted. (u). As to them, it is now duablllt y- enacted by the 11 Geo. IV. & 1 Wm. IV., c. 65 (follow- ing the 9 Geo. I., c. 29), that infants, married women, or lunatics may be represented, for the purpose of admittance to copyhold estates, by their guardians, attorneys, or committees, and (v) that the lord may, if necessary, appoint such persons for the purpose of admittance*! after their admittance, the lord's fines may (w) be demanded by a notice in writing, and if they are not paid he may seize until payment, but he must, upon demand, render quarterly accounts of his receipts, and (x) when the amount due for the fines is satisfied, he is to deliver up possession; moreover (y), the estates of the above persons are not to be liable () Sonet- v. Tritfnian, 1 B. & Ad. 736. (t) Dot v. Jfeltier, 3 T. R. 162. (u) Leehforeft Case. 8 Ken. 99*. (r) 8. 6. (w) S. 6. (*) S. 7. (y) s. 9. OP CORPOREAL HEREDITAMENTS. to forfeiture for non-payment of fines or refusal to appear and be admitted. Admittance In some manors there is a custom by which the is heir of a co Py holder wll has died intestate can be a special compelled to come in and be admitted, and such a custom is good, and in that case the heir must pay the proper fine : the same rule would probably apply also to a devisee, if there were any custom compelling him to be admitted (z), Amount of fine The rule as to the amount of the fine payable on spedalVases ^ e admission of a single tenant to one tenement has On admittance been already stated. If there are more tenements o several tene- than one, held by different services, the lord is entitled to a fine for each, and it is his duty to assess the amount of each fine separately (a), but if undivided tenements forming separate fees are afterwards re- united in one person, the lord is entitled to one fine only. On admittance If there is more than one tenant to be admitted, the one tenant. lord is entitled to a fine in respect of each, but if the tenants only make up one fee, as in the case of a tenant for life and remainder-man, or of joint- tenants, or co-parceners (b), only one admission is necessary, although the amount of the fine may be greater than on the admission of a single tenant (c). If one of several joint-tenants is admitted, his admittance is that of all the other joint-tenants, who become, conse- quently, thereupon bound to pay the customary fine (d). Tenant for life It does not appear to be certain what fine the lord and remainder- - g en titled to, in the absence of custom, on the ad- mission of a tenant for life and remainder-man (e). (z) 1 Wat. Cop. 290". (a) Hobart v. Hammond, 4 Eep. 27 b ; Grant v. Astle, 2 Doug. 722. (b) R. v. Bonsall, 3 B. & C. 173. (c) Fitch v. Stuckley, 4 Rf p. 22 b . (d) See Bence v. Gtlpin, L. R. 3 Ex. 76. (e) Scriv. Cop. 227, note (y). OF COPYHOLDS. Where there is a custom, the fine payable by the remainder-man is usually one half of that payable by the tenant for life (/). In the case of joint-tenants, Joint-tenant*. the rule is that the lord is entitled to a single fine for the first tenant, one half of that for the second, one fourth for the third, and so on, by which means the total amount of the fine can never quite amount to four years' value of the land (g). It was formerly necessary for a copyholder who Heir or deriaee wished to dispose of his estate by will, first to surrender it to the lord to the uses of his (the copyholder's) will, holder, and then to make his will, naming the devisee, or the person who was to carry out the intentions expressed in the will. A surrender to the use of the copyholder's will was a matter of right, without any special custom, but unless it were done, no devise of his estate could be effectual. We have already seen that the law on this point has been altered by the 55 Geo. III., c. 192 and the 7 Wm. IV. and 1 Viet., c. 26, but the latter act, in order to prevent the power of devising copy- holds without a previous surrender from operating to the prejudice of lords of manors, further provides (h) that when the devisee of an unadmitted testator is admitted to copyholds, the same fines shall be paid as would have been payable if the testator himself had previously been admitted. Consequently, on such an admission, the lord is entitled to a double fine, and in this case half at least, if not the whole, of the fine must be paid before the new tenant can claim ad- mittance (/). A tenant is liable, in some manors, to pay a fine Fines on on every change of the lord, and also on obtaining & licence to demise any part of his lands. The former to dvm. (/) 1 Wat Cop. 374. (//) JHlson v. lloare, 10 A. & E. 236. (A) S. 4. (i) . v. Wilberton, 29 L. T. 126. 166 OF CORPOREAL HEREDITAMENTS. custom is good where the change takes place by the death of the lord (j} } but not otherwise. With re- gard to the latter, the rule is that, in the absence of custom, a copyholder cannot demise his land for more than a year, unless he first obtain a licence from his lord (k) ; otherwise he will forfeit his estate, and cannot obtain any relief, even in equity (I). There is no rule of law as to the reasonableness of the amount of fine pay- able on a licence to demise, but where there is a cus- tom in the manor regulating that amount, both the lord and the tenant are bound by it (m). If, however, there is no custom, the lord may make any demand he pleases ; but a tendency to claim exorbitant fines, and thus prevent improvements from being made on the land, is, as we shall see hereafter, checked by various acts of parliament, under which a copyholder can compel the lord to enfranchise the land altogether. Steward's fees. In addition to the payment of fines to the lord, the copyholder is liable to pay fees to the lord's steward, whenever the services of this officer are called into requisition, a case which occurs most often on the admittance of a new tenant. The amount of the steward's fees is, like that of the lord's fines, deter- mined by the custom of each manor, and it seems that the courts will not interfere to regulate the occasions on which a steward is entitled to fees, that point depending entirely on the custom (n). But they will not allow him to demand an unreasonable amount for any fee (o), and where there is no special custom on the subject, he can only claim a sum pro- portionate to the amount of work done by him (p). (j) Lowther v. Saw, 2 Bro. P. C. 451. (k) See Kensy v. Richardson, Cro. Eliz. 728. (/) Peachy v. Somerset, Str. 447, and, with notes, 2 L. C. 1082. (m) See Porphyry \. Legingham, 2 Keb. 344. () Evans v. Upsher, 16 Mee & W. 675. (o) See TraJierne \. Gardner, 5 E. & B. 913, 940. (p) Everest v. Glyn, 6 Taunt, 425; Traherne v. Gardner, 5 E. & B. 913. OF COPYHOLDS. 167 We have already seen why it is that the payment of fines is still one of the incidents of copyhold tenure. The same reason makes a copyholder liable to those other burdens which we are about to enumerate. The first to be mentioned consists of those pay- Quit Rentf. ments, generally known as Quit Rents, which represent either small rents originally payable by the tenants of a manor according to agreement, but the amount of which has become settled, or else sums which have been fixed upon by the lord and the tenant as a compensation for those personal, and other, services to which the former was anciently entitled. Quit rents cannot be claimed by the lord unless he can show that they have been paid immemorially and without variation (q). Another relic of the old system Heriot custom, of tenures is the right which the lord has, in certain manors, to receive Heriots from his tenants. This is a custom whereby the lord is entitled, on the death of a tenant, to claim some personal chattel belonging to the deceased, or, occasionally, a fixed sum of money instead. This custom would seem, in the case of free Origin of the tenants, to have been substituted for a still older CU8tom - custom, whereby the lord was entitled, on the death of a tenant, to claim the military weapons of the latter; and in the case of villein tenants, to have grown out of a favour accorded to them by the lord, who contented himself with taking their best chattel instead of seizing all their goods, as he might lawfully have done, seeing that the villeins themselves were his property : and as the villeins became gradually emancipated, this custom grew to be a fixed right. This form of heriot was called Heriot Custom, in Distinguished order to distinguish it from Heriot Service, which was in fact only a reservation, in favour of the lord, (q) Scrir. Cop. 248. 168 OP CORPOREAL HEREDITAMENTS. of a chattel, instead of money, by way of rent. A When heriot heriot by custom can only be claimed where the lord 16 ' can show an immemorial usage for its payment, and is only due on the death of a tenant who is solely seised of his fee. Consequently, when a number of persons make up one tenant, as in the case of joint- tenants, or co-parceners, no heriot is payable until the death of the last survivor of them. And although if land held by one tenant is given by him to several persons, to take as tenants in common, each of them must pay a separate heriot, yet if the same property is afterwards re-united in one person, the lord becomes again entitled to one heriot only (r). But even where there is one tenant, a heriot is payable in respect of every distinct tenement, except in manors where there is a special custom to the contrary (s). Eights of lord The distinction between freehold and copyhold and tenant as tenure is also strongly marked in questions as to the to timber and J ^ . minerals. relative rights of the lord and of his tenants, with respect to the timber or minerals which are on, or under, the tenant's land. For whereas in freeholds a tenant in fee has an absolute dominion over such property, the contrary rule prevails in copyholds. We know that a copyholder is, in contemplation of law, only a tenant at will of his lands, which are sup- posed to belong to his lord. He is, therefore, in the absence of custom, in a position similar to that of a tenant at will of freeholds, being unable to do any act which amounts to a committal of waste, such as cutting down timber, or opening mines. On the other hand, the lord cannot, without a custom, do any of these acts. For his entry on the tenant's land for such a purpose would, if lawful, have the effect of determining the tenancy at will (t), and, as has been (r) Garland v. Jekyll, 2 Bing. 273 ; Holloway v. Bwkeley, 9 Dow & Ry. 83, overruling Attree v. Scutt, 6 East, 476. (*) See Scriv. Cop. 264, note (*). (<) See Heydon $ Smith's Case, 13 Rep. 67. OP COPYHOLDS. 169 already explained, the copyholder's tenancy, although nominally at will, cannot be determined at the arbitrary pleasure of his lord. If then, there is a custom author- In the abwnce izing either the lord or the tenant to cut timber or ne^e"^,, cut open mines on the land of the latter, that custom is timber or open good (w), except where the tenant's estate is merely m one for life (v), or pour autre vie (w) ; but failing its existence, neither party can exercise such rights with- out the consent of the other. This point was first settled with reference to the opening of mines. In an early case (x), the lord of a manor applied to the Court of Chancery for an injunction to restrain one of his tenants from continuing to work a copper mine, newly opened by the tenant. The court sent the case to a court of law for trial before a jury, who found that the tenant's acts had not been authorized by any custom of the manor. The Court of Chancery therefore decided that neither the tenant without the consent of the lord, nor the lord without the co'nsent of the tenant, could dig in a new mine. This rule was subsequently extended to a case where the lord sought to abstract minerals from under his tenant's land, by driving a shaft from adjoining land of his own (y). A decision consistent with the above was afterwards arrived at in the Court of King's Bench, on an action by a copyholder, against his lord, for entering upon the lands in the tenant's possession and there digging for coal (z). A distinction was, at one time, sought to be made between the cutting of trees and the opening of mines, on the ground that minerals need not be worked at any particular time, whereas timber, if not cut when ripe, would rot away and be wasted (a). But (M) Stebbing v. Gomal, Cro. Eliz. 629. (r) 1'ou-el v. Peacock, Cro. Jac. 30. (v>) Mardiner v. Ellcott, 2 T. R. 746. (x) Winchester v. Kniyht, 1 P. W. 406, 407. (y) Lewis v. Branthwaithe, 2 B. & Ad. 437. (z) Bourne v. Taylor, 10 East, 189. (a) See Aahmcad r. Ranger, Sulk. 638. 170 OP CORPOREAL HEREDITAMENTS. it is now clearly settled that the courts will not attend to any consideration of this kind (b). A copyholder may, however, without being authorized by any cus- tom, work mines or quarries which have been already lawfully opened upon his land. He is also entitled by the custom of most manors to estovers, and would seem to be entitled to them of common right, apart from any custom, since he, unlike an ordinary tenant at will, is bound to keep his premises in repair (c). Rights of Com- In the first, chapter of this work, it was stated that the lord who obtained the grant of a manor from the Crown ordinarily allowed part of it to remain unen- closed, in order that it might serve as grazing ground for the cattle of himself, or of his tenants, or as wood or marsh land, wherein his tenants were permitted to cut turf, or to take timber for repairs. Long-con- tinued custom has, in most manors, turned these pri- vileges of the tenants into rights, subject however to such modifications as have also become customary; and these rights, being shared by all the tenants together with the lord, have acquired the name of Bights of Common. Ordinary meaning of term. Common of Piscary. Common of Turbary. Common of Estovers. A right of common, in its most usual acceptation, signifies a right of pasture for cattle, but the term is also applied to rights of fishing (common of piscary), of cutting turf (common of turbary), and of taking timber for repairs (common of estovers). In addi- tion to the above, the tenants may have a customary right to dig on the lord's waste, and to remove thence soil or gravel. Rights of com- These customs are founded on prescription, that is, fo^d^d on *^ e P resum pti n of law that a right which has been prescription, exercised from time immemorial was originally ac- (J) Whitechurch v. Holworthy, 19 Ves. 212, and 4 Man. & Sel. 340. (c) See Hey don $ Smith's Case, 13 Rep. 67 ; East v. Harding, Cro. Eliz. 498. OP COPYHOLDS. 171 quired by means of a grant from the then lord of the manor to his tenants (d). But the courts will not Hence mint be support any alleged right which is unreasonable, for they will decline to believe that it could ever have been granted. For instance, they have refused to presume a grant under which the tenants of a manor claimed to exclude the lord altogether from the waste (e), and, conversely, have held customs to be bad under which the lord claimed to make long leases of the whole of the waste (/), or to enclose it entirely at his pleasure (g), since such privileges on his part would be inconsistent with the existence of commonable rights in his tenants. The lord of a manor is, however, empowered by the Statute of Mer- ton (h) to enclose the waste, providedTeleaves suffi- clOTt for the tenant's pasture (i), and a custom for him to grant part of it with the consent of his ten- ants (j ) is good, as is also one enabling him to dig for clay or minerals in the waste, even though he may thereby not leave sufficient pasturage for the tenant's cattle (k). We come next to the consideration of the copy- Cnrtesy and holder's estate, apart from any rights of the lord. It Freebench - will be recollected that an estate of inheritance in freehold land is, in certain cases, subject to the inci- dents of curtesy and dower. These are reproduced, with some variations, in copyholds, but both their existence and their peculiar form depend upon, and are regulated by, the custom of each manor (/). Thus, there can be no curtesy in such an estate except No curtesy except by custom. M 1 I) rf) See QatncartCt due, 6 Rep. 69 b . ') Co. Litt. 122' ; Hopkin* v. Robinton, 1 Mod. 74. ) Badger T. Ford, 3 B. & Aid. 163. ArUtt v. JSV/u, 7 B. & C. 346, 366. 20 Hen. III. c. 4. Se Bettt T. Thompton, L. R. 6 Ch. 732. * Steel v. Priekett, 2 Stark, 463, 470. Rnttton v. Green, 6 T. R. 411. /) See Brown' t Gate, 4 Rep. 21. 172 OP CORPOREAL HEREDITAMENTS. by custom (?>i),but, on the other hand, where there is Birth of issue a custom, it is not always necessary that the husband necessary. 8 should have had issue born to him, and it would even seem to be doubtful whether the birth of issue is in Curtesyin any case essential (n). A husband may also have an estates estate by curtesy, where his wife has had an equitable estate of inheritance in copyholds (o), except in cases where the wife's estate has been given to her entirely for her separate use (p). Freebench de- Dower is more generally known in copyholds as custom. Freebench. It only exists when sanctioned by cus- tom (q), by which also it is regulated. The widow's right to freebench does not, except in some special cases (?), attach to any land other than that of which Maybede- her husband died seised (s). Hence, any surrender band's sur- made by him will bar her right to freebench, although render. the surrenderee may not be admitted until after the husband's death (t), since, as previously mentioned, ad- mittance, when it takes place, dates back to the time of the corresponding surrender. Neither is she en- titled to dower out of copyholds to which her husband had not been admitted, although they had been sur- rendered to his use (). It would seem that the Dower Act (v) does not apply to copyholds (w). But a widow who has had any other provision made for her out of her husband's lands, will be compelled to choose between that and her dower (x). (m) Rivet's Case, 4 Rep. 22 b . The word " cannot " is evidently omitted in the report. (n) See 2 Wat. Cop. 74 ; Scriv. Cop. 64. (o) See Sweetappk v. Bindon, 2 Ver. 536 ; Cunningham v. Moody, 1 Yes. 174. (p) Hearle v. Greenbank, 1 Ves. 298, 306. (q) Shaw v. Thompson, 4 Rep. 30 b . (r) See Doe v. Gtcinnell, 1 Q. B. 682. () Benson v. Scott, 4 Mod. 251 ; Godwin v. Winsmore, 2 Atk. 525, 526. (t) Fotcdrellv. Jones, 18 Jur. 1111. (u) Smith v. Adams, 18 Jur. 968. (v) 3 & 4 Win. IV. c. 105. (w) Powdrellv. Jones, 18 Jur. 1111, 1112. (z) Walker v. Walker, 1 Ves. 54. OP COPYHOLDS. 17 We come next to the alienation of the copyholder's Alienation of estate, which may be either involuntary, as where it is toWw^eatate taken for payment of his debts, or is forfeited to his lord, or voluntary, as when he disposes of it during his lifetime, or by his will. Copyholds could not formerly be extended under a writ of elegit, for non-payment of the tenant's debts. Now, however, the 1 & 2 Viet., c. 110, has (y) ex- Judgment*, pressly included lands and hereditaments of copyhold or customary tenure amongst those which may be taken in execution under such a writ, but provides that the party to whom any copyhold or customary lands shall be delivered in execution shall be liable, and is thereby required, to make, perform, and render to the lord of the manor, or other person entitled, all such and the like payments and services as the person against whom such execution shall be issued would have been bound to make, perform, and render, in case such exe- cution had not issued ; and that the party so suing out such execution, and to whom any such copyhold or cus- tomary lands shall have been so delivered in execution, shall be entitled to hold the same until the amount of such payments and the value of such services, as well as the amount of the judgment, shall have been levied. Forfeiture of a copyholder's land is incurred if he, Forfeiture, without licence from his lord, and unauthorized by custom, commits on his land any act of waste, either voluntary or permissive (z), or if he, under similar circumstances, demise his land for more than one year (a) ; but a copyholder may safely make a lease for one year, with a condition to renew it the next year, and so on, for this passes no interest greater than that for one year. We have already seen that a voluntary alienation Will* of copy- hold*. (y) S. 11. (.-) Clifton v. Molineux, 4 Rep. 27". (a) East T. Hai-iHn*/, Cro. Elu. 498 ; Feaehy r. Somtrttt, Str. 447. 174 OF CORPOREAL HEREDITAMENTS. of his land by a copyholder requires, if made by some instrument other than a will, a previous surrender to the lord of the manor, and that the same formalities were formerly essential to the devise of a legal inter- est in copyholds. An equitable interest in copyholds cannot be the subject of a surrender, excepting an equitable estate tail, and the equitable estate of a married woman, for which special provisions have been made by the Fines and Kecoveries Abolition Act (b). Hence an equitable interest in an estate which can be disposed of by will, always passed by will, without a previous surrender (c), and it followed that the devisee of such an interest could also devise it without a surrender (d). And now the Wills Act (e) has made a surrender to the use of a will unnecessary, in all cases where it was only a matter of form (f). From this it will be seen that a will of copyholds is now similar to one of freeholds, but a remark may be made here as to the best form of devise, where it is desired that such property should be sold immediately after the testator's death. Devise on trust A devise to trustees on trust for sale will give them an estate in joint-tenancy, and we have seen that a larger fine is payable on the admittance of joint- tenants than on that of a single tenant (g). It is true that this difficulty may be partly overcome by making all the trustees except one disclaim, for in such a case the lord is bound to admit that one on payment of a single fine (h). But it will still be necessary to pay a second fine on the admittance of the purchaser. The better plan, therefore, in the case supposed, is for the testator to devise the estate to such uses as the trus- (i) 3 & 4 Wm. IV. c. 74, ss. 50, 90. (e) Tu/nell v. Page, 2 Atk. 37. (d) Phillips v. Phillips, 1 My. & K. 649. (e) 7 Wm. IV. & 1 Viet, c. 26, s. 3. ( f) See Doe v. Sartle, 5 B. & Aid. 492 ; Edwards T. Champion, 3 De G. M. & G. 202. (g) Wilson v. Hoare, 10 A. & E. 236. (h) Wellesley T. Withers, 4 E. & B. 750. OF COPYHOLDS. I.PPS of hia will shall appoint ; they may then sell without being admitted, and 'the lord must admit teir vendee on payment 6! a sittfly flliy ('<>: It IB to* beTTTinreil thai this plan cannot In- adopted when- the estate is not to be sold. It is well settled that the will of a copyholder is nothing more than a direction to the lord as to the person who is to be admitted into the tenancy (j), and that on his death his estate de- scends to his heir, subject to the right of his devisees to be admitted. Consequently, if his devisees are not trustees, and choose to disclaim the benefits conferred on them by the will, the heir has a right to be ad- mitted on payment of a single fine (k). But if the de- visees are trustees the case is different. For under such circumstances, unless the trustees disclaim their trust altogether, the lord cannot be compelled to admit the heir (/), although he will not be allowed to seize quousque if the heir is willing to be admitted (m). It remains to add, with reference to this part of Descent of our subject, that the descent of copyholds is, in the ^Py* 10 absence of custom, the same as that of freeholds, but there is often some custom under which they descend in a different way (n), and such customs, when estab- lished, are good. The foregoing remarks will have made it apparent Enfranchise- that copyhold tenure is by no means so advantageous m to a tenant as freehold, whilst the lord is often much hampered by the difficulties which lie in the way of his establishing such rights as he has. Various statutes have accordingly been passed with the object Statute* relat- of giving facilities for the conversion of copyhold, () Holder v. Fretton, 2 Wil. 400 ; 7?. v. Wilton, 11 W. R. 70. (j) Glass T. Richard*,. 9 Ha. 698, 701, 2 De G. M. & G. 658;. Garland v. Mead, L. R. 6 Q. B. 441, 447. *) R. v. Wihon, 10 B. & C. 80. (/) R. v. Gin-land. L. U. 6 Q. B. 269. () Garland v. Mead, L. U. 6 Q. B. 441. (N) See Garland v. Jltait, L. R. 6 Q. B. 441. 176 OF CORPOREAL HEREDITAMENTS. into freehold, tenure ; and a brief notice of them will form the concluding part of this chapter. The first Copyhold Act to be noticed is the Copyhold Act 1841 (o). This act commences by reciting (p) that it is expedient to provide the means for an adequate compensation for the rents, fines, and heriots payable to the lords of manors in respect of lands of copyhold and customary tenure, and in respect of other lands subject to such payments, or any of them, and for facilitating the voluntary enfranchisement of such lands, and for im- Appoints copy- proving such tenure. It then proceeds (q] to appoint hold Coramis- E, T 1J rk. c ^ sioners. Uopyhold Commissioners for carrying out the pro- Lord and ten- visions of the act, and enacts (r) that any lord or I! comuti ee l r ds of any manor, whose interest shall not be less tion of rents, than one-fourth of the whole annual value of such herio'ts, and of manor, or any tenant or tenants of any manor to the lord's rights in number of ten, or where there shall not be so many tenants as ten, then one-half of the tenants of such manor, may call a meeting of the lords and tenants of the manor, for the purpose of making an agreement for the general commutation of the rents, fines, and heriots thereafter to become due in respect of lands holden of such manor, and of the lord's rights in timber. The lords and tenants present at this meeting may, provided the tenants are not less in number than three-fourths of the tenants of the manor, and that the interest of the lord and the interest of the tenants in the manor are not less than three-fourths of the total value of the manor, proceed to execute such an agreement. And the commutation may also, by express agreement, extend to rights in mines and Considerations minerals. The agreement for the commutation of the ri g hts f the loi>d maV & be f r the P a y ment of an annual sum by way of rent- charge, and of a small (o) 4 & 5 Viet. c. 35. (p) S. 1. (?) S. 2. (r) S. 13. (*) S. 14. OP COPYHOLDS. 177 fixed fine, in no case exceeding five shillings, on death or alienation, or for the payment of a fine only, on death or alienation or at any fixed period or periods, to be agreed upon by the parties (t). It is to be (M) confirmed by the copyhold commissioners, and Commutation is then to be binding on all persons interested in the by^yhold"* 1 manor. The act also enables any individual tenant to cbmmissioncrs, free his land from the various"burdens before enumer- *" ^H all l j r '_ ated, by providing (r) that it shall be lawful for the sons interested IT/* / / i in the niiiiior. lord or an\ r manor, or lor any tenant or such manor T ,. . , ' J Individual ttn- (whatever may bo their respective interests), to enter ant may enter into an agreement, with the consent of the commis- |"' t . j^ ','" sioners, for the commutation of the lord's rights to lord, rents, fines, and heriots, or of any of such rights respectively, and any other of the lord's rights affect- ing the land which shall be included in such agree- ment : the commutation being made in consideration of a rent-charge and of a fine, or of a fine alone. Besides thus alleviating the principal inconveniences Voluntary rn- of copyhold tenure, the act provides for their total fran ' >hl * e " ien ' abolition. For it further enacts (w) that it shall be .lawful for the lord of any manor, whatever may be his estate or interest therein, with the consent of the commissioners, at any time after the passing of the act, to enfranchise all, or any, of the lands holden of his manor, in consideration of such sums of money as shall be agreed to be paid by the tenant or tenants whose lands shall be enfranchised ; and that it shall be lawful for any tenant, whatever may be his estate or interest, with the consent of the commissioners, to accept such enfranchisement on the terms agreed upon. This is followed by a proviso that whenever Notice to be the estate of any party to such enfranchisement shall & 1Ten in certar " be less than an estate in fee simple in possession, or (0 S8. 11, 1.3. (M) S. -':<. (v) S. 62. (w) 8. 66. C. M 178 OF CORPOREAL HEREDITAMENTS. corresponding copyhold or customary estate, notice shall be given to the other parties interested in the estate, and if they dissent from the proposed arrange- ment, the commissioners are to withhold their consent to it until, upon further inquiry, they shall be satisfied that it is not fairly open to objection. Provision is Distribution of also made (x) for the distribution of the enfranchise- menTmoney, ment mone y> or of tne liability to pay it, amongst and of liability the successive lords or tenants between whom the agreement is made, when such persons have, re- spectively, limited interests in the enfranchised lands. After a commutation of the lord's rights under the act, the lands included in such commutation are to be held and conveyed in the same way as before the Commuted commutation (y}, but they are to cease to be subject to any customary mode of descent, or to any custom subject to same J > f j laws as to de- relating to freebench, or curtesy, and are, instead, to tu^oww*!* Become subject to the laws relating to descents, freeholds. dower, and curtesy, which are, for the time being, applicable to lands held in free and common socage. Enfranchised Lands which have been enfranchised under the act come freehold. are ( 2 ) * become freehold, subject to the payment of the enfranchisement consideration; but nothing con-. Tenants not to tained in the act is to operate to deprive any tenant o'omm^nable ^ anv commonable rights to which he may be en- rights. titled in respect of such lands, and such right is to continue notwithstanding that the lands have become freehold. Copyhold Act The Copyhold Act 1841 was (a) supplemented by the Copyhold Act 1843, which is (6) to be taken and construed as a part of it. This act says that, in addi- tion to the provisions contained in the previous act, Consideration any enfranchisement made under the same may be chisement" made, either wholly or in part, for the consideration (x) SS. 7378. (y) S. 79. (;) S. 81. (a) 6 & 7 Viet. c. 23. (b) S. 16. OF COl'YHOLDS. 17'.' of an annual rent in fee charged on the lands enfran- chised; also that, in addition to the provisions of the previous act, any commutation or enfranchisement, made under the same, may be made either wholly, or in part, for the consideration of a conveyance of lands parcel of the same manor as the lands commuted or enfranchised, and subject to the same uses and trusts as the lands commuted or enfranchised shall be subject to at the time of such commutation or en- franchisement ; or any right to mines or minerals in, or under, such land, or any right to waste in lands belonging to such manor. The act (c) also dispenses Notice uu- with notice of an intended enfranchisement being cCTtatoca&es. given to any other persons, where the tenant has a limited interest, provided that such tenant pays the whole cost of the enfranchisement. Another act ((?) extends the means of obtaining Copyhold Act commutation or enfranchisement, by enacting (<) that, in addition to the provisions of the acts already re- t't'iTed to, any commutation or enfranchisement may Consideration be made wholly, or in part, for the consideration of a conveyance of lands, or of any rights to mines or minerals, although the said lands or the said rights to mines or minerals, so to bo conveyed, shall not be parcel of, or situate in, or under, the lands of the same manor as the lands so to be commuted or enfran- chised; provided the commissioners approve of the arrangement. These three statutes only contemplate commutation or enfranchisement taking place by the mutual agree- ment of the lord and his tenants, but the next act which we have to notice enables either party to compel the other to enter into such arrangement. (c) S. 13. (rf) 7 & 8 Viet. c. 55. (0 S. 6. 180 OF CORPOREAL HEREDITAMENTS. enfranchise- Copyhold Act This is the Copyhold Act 1852 (/), which enacts (g) that, a ^ any time after the next admittance to any lands which shall take place on or after the 1st of July 1853,. in consequence of any surrender, bargain and sale or assurance thereof (except upon a mortgage, in cases where the mortgagee is not in possession), or in con- sequence of any descent, gift, or devise, it shall be lawful for the tenant so admitted, or for the lord, to require and compel enfranchisement, in manner men- tioned in the act, of the lands to which there shall have been such admittance as aforesaid ; provided, however, that no such tenant shall be entitled to re- quire such enfranchisement, until after payment, or tender, of the fine or fines, and of the fees, consequent on such admittance. Notice to be franchisement. Consideration to be ascer- tained, and approved of by the commis- !j ers - . .Extinguish- mentof heriots. Tenants not to comnK>nable rights. The act then (/<) provides for notice being given by ^he party desiring enfranchisement, and the way in which the consideration payable to the lord is to be ascertain- ed d f th con fi rma tion of the proceedings by the r . commissioners (i). It also enacted (j) that, at any time a ^ er a heriot had become payable with respect to any freehold, or customary freehold lands h olden of manors, on or after the 1st of July 1853, it should be lawful for --ill the lord, or the tenant, to require, and compel the ex- tinguishment of all such claim to heriots, and the en- franchisement of the lands subject thereto, in the same way as. if such lands were copyhold. This section of the act is however repealed, and a more comprehensive rule introduced, by a subsequent act (&). Nothing in ^he act is to deprive any tenant of any commonable rights to which he shall be entitled in respect of any enfranchised lands (Z), and the act is not to extend to (/) 15 & 16 Viet. c. 51. (?) s. i. (h) SS. 28. (0 S. 9. (./) S. 27. (k) 21 & 22 Viet. c. 94, s. 7. (0 S. 45. OF COPYHOLDS. 181 any estate or rights of any lord or tenant in any mines Not to extend or minerals within or under the lands enfranchised, or j^ 1 ^ ^j th to any rights of way or other easement, or to any rights out express of the lord in respect of holding fairs, or his rights of ? reement - 5 s . . Or to case- sporting, unless with the express consent in writing of menu, or such lord or tenant (m) . ri s h f te of f ?. iri * or of sporting. This act was amended by the Copyhold Act 1858 ()> Copyhold Act which empowers any tenant or lord of any copyhold E ' , lands to which the last admittance shall have taken powers of com- place before the 1st of July 1853, or of any freehold or customary freehold lands in respect of which the last heriot shall have become due or payable before the same date, to require and compel enfranchisement, in the manner provided by the Copyhold Act 1852 (o). It also provides for the compulsory extinguishment of heriots in freehold, or customary freehold, lands hold- en of any manor (p), without reference to the time when the last heriot was payable. The effect of these acts has been to diminish, to a certain extent, the amount of land held by copyhold tenure, but the process is, as might be expected, very gradual, and, unless the legislature should pass some new enactment on the subject, copyhold tenure seems likely to endure for many years to come. (m) 8. 48. () 21 & 22 Viet. c. 94. (o) S. 6. (/>) S. 7. 182 CHAPTER VIII. OF THE STATUTE OP USES. THE estates to which our attention has hitherto been directed are those which give their owner a right to the present possession of land. There are, however, others, which, although existing as estates, and thus giving a present interest in land, do not confer a right to its present possession, and these also will require our consideration. But since much of the law relating to them has reference to the Statute of Uses (a), we will first of all devote a short chapter to an attempt at explaining this famous enactment. Introduction of In the earlier times of our legal history, the person who had the seisin of land was the only one known, or thought of, as having any immediate estate in it. The first persons to introduce a distinction between a right to the benefit of land and its legal ownership, appear to have been the foreign ecclesiastics who wished to elude the statutes against mortmain. These, as we know, prohibited the religious corpora- tions from holding land. They consequently en- deavoured to evade the law, by having conveyances of land made to some third person who was to hold it for their benefit or " use." This stratagem was very i5Ric.II.c. 5. soon frustrated by the 15 Ric. IL, c. 5, which en- acted, in effect, that all lands held by, or in trust for religious houses, without licence from the Crown, (a) 27 Hen. VIII. c. 10. OP THE STATUTE OP USES. should bo forfeited. But the idea of secret trusts had taken root, and the numerous forfeitures for treason occasioned by the Wars of the Koses caused it to flourish. So that, from the beginning of the 15th century, the plan of conveying land to uses was generally adopted. A use, as it existed before the Definition of a Statute of Dees, was a right to receive the profits of JjJJ^J 111 " land of which the legal ownership was vested in some Uses. other person. For example, if A had conveyed land to B, in order that the latter might hold it for the benefit of C, C had the use in the laud thus held in trust for him. The Common Law Courts refused to Uses not re- recognise uses, and consequently left a person who ojni had a use or, as he was called, a cestui que MX/-, entirely dependent upon the good faith of his trustee. But besides the Common Law Courts, there had ex- But enforced isted from an early period the Court of Chancery, j^7|^ which, professing especially to administer equity, was disposed to enforce rights which were clearly just, :ih hough they might not be legal. Thus there came to be two kinds of estates, the legal estate of which the ostensible owner was alone recognised by the law, and the equitable estate of the cent id que use, which was the peculiar favourite of equity. At first, the decisions of the Court of Chancery, in Uses not sub- respect of uses, were not free from the scruples of J ect *" I 1 " 1 the common law, and from the considerations arising from the laws and principles of tenure (b) ; but, by degrees, these gave way to more liberal views. One consequence was that land held to uses was allowed to be, indirectly, disposed of by will, although a devise of lands (except under some special custom) was not, at the time we are speaking of, permitted by law. For the use in it might be devised, and the Court of Chancery would then compel the legal owner to convey the land to the devisee. Uses were, rnore- (6) 1 Sand. Uses, 5. 184 OF CORPOREAL HEREDITAMENTS. over, freed from the restrictions by which legal estates were hampered, and allowed to be dealt with in many ways not countenanced by the law. The most important of these was the employment of " con- ditional limitations/' by means of which an estate of freehold might be made to come into existence, con- ditionally on the happening of some future event ; a form of limitation which, as we shall see hereafter, was not, at that time, possible in the case of legal estates. Resulting use. Besides this, the Court of Chancery not only recog- nised a use which had been expressly created, but would, in some cases, allow a use to be raised by implication. Thus, if a man had covenanted by deed that he would, in consideration of natural affection, stand seised of land in trust for some near r relative, named in the deed ; or if he had agreed to sell his estate, and had received the purchase-money, the court would hold that a use had been raised in favour of the relative or purchaser, as the case might be. Objections to This system of secret trusts was not only repugnant system of uses. ^ the policy of the lfty ^ wh ich favoured notorietyun the transfer of land, but also gave many opportunities to the owner of an equitable estate to avoid just claims Statutes of upon him. In order to prevent this, several statutes, known as the Statutes of Pernors (c), were passed in the reigns of Henry the Sixth and Henry the Seventh ; the object of which was to put the cestui que use in the same position as if seised of the actual possession at law (d) ; but since they did not suffice for the pur- pose, the legislature determined to strike a decisive blow, by abolishing trusts of land altogether. With Statute o** this view it passed the famous Statute of Uses, the Uses. * 27 Hen. VIIL, c. 10. (tf) From prendre, to take. (d) 3 Reeves, 364. OP THE STATUTE OP C8E8. 1 *" This act began by declaring that, by the common laws of the realm, lands, tenements, and hereditaments were not devisable by -will; nor ought to be trans- ferred from one to another, but by solemn livery of seisin, matter of record, or writing sufficient, made lait'l j'nln without covin or fraud ; yet that nevertheless divers and sundry imaginations, subtle inventions and practices, had been used, whereby the hereditaments of the realm had been conveyed from one to another by fraudulent feoffments, fines, recoveries, and other assurances, craftily made to secret uses, intents, and trusts. It then recited the various evils which this practice had introduced, and " to the extirping and ex- tinguishment " of it, enacted (?) that where any person, or persons, should stand or be seised, or at any time thereafter should happen to be seised, of and in any hereditaments, to the use, confidence, or trust of any other person, or persons, by reason of any of the modes of assurance mentioned in the act, or by any other manner of means, every such person that had, or should have, any such use, confidence, or trust, in fee simple, fee tail, for term of life, or for years or other- wise, or any use, confidence, or trust, in remainder or reversion, should from thenceforth stand, be seised, deemed, and adjudged, in lawful seisin, estate, and possession of and in the same hereditaments, to all intents, constructions, and purposes in the law, of and in such like estates as they had, or should have, in use, trust, or confidence, of or in the same; and that the estate, title,- right, and possession that was in such person that was, or should be, seised of any hereditaments to the use, confidence, or trust, of any person, should from thenceforth be deemed to be in him, or thoin, that had, or should have, such use, confidence, or trust, after such quality, manner, form, and condition as the person seised had before, in or to V the use, con6dence, or trust, that was in him. (<) S. 1. 186 OF CORPOREAL HEREDITAMENTS. The effect of this enactment was that, from thence- forth, the estate of the person who had the seisin was merged in that of the cestui que use, who now took an estate, both legal and equitable, commensurate with that which he formerly had in equity only. For example, if a fee simple were now granted to A to the use of B, this would operate as a two-fold con- veyance. For A would still take, momentarily, an estate in fee simple, because he would have a grant good under the common law, but immediately after- wards, the estate would, by virtue of the statute, pass on to, and remain with, B. In other words, uses were now turned into legal possession. It resulted that uses were henceforth recognised by the common law, and a direct conveyance to a purchaser for value would, therefore, even at law, raise a use in his favour. Various rules were also framed in respect to uses taking effect under the statute, these being founded on the wording of the act. Thus, the statute speaks of any person being seised of land to the use of another; consequently it was held that there could not be a use of an estate of which a person cannot be seised. Now we know that terms of years do not give a seisin. Hence, although a man may stand seised of a fee simple to the use of another for a term of years, there cannot be a use of a term which has been already created : so that if an existing term were assigned to A to the use of B, this would not have the effect of conferring any legal estate upon B. Nor does the statute apply to copyholds. For if uses were permitted to be limited of such estates, there would be a transmutation of possession by the sole operation of the law, which would be contrary to the nature of copyhold tenure ; it being a principle of jl that tenure that the lands cannot be aliened without the consent of the lord (/). 2nd Rule. A Again, the statute speaks of being seised to the mail cannot be (/) 1 Sand. Uses, 249-50 ; Itotcden v. Malster, Cro. Car. 42, 44. Uses now re- cognised by the law. Rules of law relating to uses. 1st Rule. No use of a term. Nor of copy- holds. OF THE STATUTE OF USES. I X 7 use of any oilier person. Therefore, the person seised seised to tin- to the use must not be also the cestui que use ; for *" in that case he does not take anything, except there be a direct impossibility for the use to take effect at common law (g). Consequently, if there were a grant to A and his heirs, to the use of A and his heirs, he would take the legal estate by force of the common law, without any need of the statute, and the use would not therefore be " executed/' or take effect, by the statute (/t). It is also necessary that the use be one in case, in 3rd Rule, possession, reversion, or remainder : thus, a man can- ^ must '" "' not covenant to stand seised to the use of another, of such land as he shall afterwards purchase (/). The use may, however, be either express or implied, for the Butmayi.. > \- statute speaks of a trust or confidence as well as of a p | use ; and the law will therefore imply a use, in many cases where equity would formerly have implied a trust. A simple instance of an implied use occurs if A has conveyed land to B, a stranger, without any consi- deration, and without any declaration of a use. In that case there will be implied a " resulting use " to A, and B will, in fact, take nothing. For although the conveyance to him will give him the legal estate momentarily, the resulting use will, by virtue of the statute, immediately take it back from him, and give it again to A. Lastly, the statute provides that the estate of the 4th itui. . person seised of any use is to be deemed to be in him Use cannot lit! f T i rt" trr "MM that had the use, ajtersuch quality as the person seised the K\*\\\. to his use previously had. It follows that the cast id que use cannot have an estate more extensive than that out of which the use is raised. Thus, if land be con- veyed to A for life, to the use of B for life, in tail, or (y) Bac. Uses, 54. (A) SammSt Car, 13 Rep. 65 ; Orme'n Cote, L. R. 8 C. P. 281. (0 Yelrerton \. Yrlrcrton, Cro. Eliz. 401 ; 1 Sand. Uses, 94. 188 OF CORPOREAL HEREDITAMENTS. in fee simple, the estate of B cannot, in any case, endure after the death of A (j). K< -establish- So far then the object of the framers of the statute ment of trusts. had been accomplished. Uses had been turned into possession, and brought within the jurisdic- tion of the common law ; and it seemed as if there were no room left for trusts. But the Court of Chancery soon contrived to re-establish trusts, and to bring them once more under its exclusive power. For the common law courts still adhered to their system of recognising the legal owner of an estate, but refusing to look beyond him. Thus, if land were now conveyed to A, to the use of B, to the use of C, the common law courts fixed upon B as the legal owner, and ignored the existence of C. For, they said, there cannot be a use (that is, a legal possession) upon (or after) a use (k) a construction which seems opposed to the words, as well as to the spirit, of the statute. Not so, however, the Court of Chancery. This court declared the second use to be valid in equity, and compelled B to act as trustee for C, whom they now called the cestui que trust, in order to dis- tinguish him from the cestui que use. Consequently, the only difference made in equitable estates was that trusts were substituted for uses, and the cestui que trust for the cestui que use. But as regards legal estates the statute effected far more important changes, since it led to the introduction of various new forms of limitations. These however we are to consider in subsequent chapters, and we will conclude the present with a few remarks on the subject of equitable estates. Equitable The rules relating to these do not materially differ from those which govern legal estates, for it is a (j) 1 Sand. Uses, 107. (k) TyrrelPa Case, Dyer, 155 a . OF THE STATCTE OP USES. I " ' maxim generally received, that equity adopts, with reference to equitable estates, the rules of law appli- cable to legal estates (/). Our task will, therefore, be limited to pointing out the principal instances in which this maxim does not hold good. The first which we have to notice, applies to the Their cr creation and transfer of equitable estates. We have M already seen that every legal estate of freehold, and most terms of years, must be created by deed. But this is not so with equitable estates, even of the high- est nature. Suppose, for instance, that A, the owner both at law and in. equity of an estate in fee simple, agrees to sell it to B, and afterwards refuses to per- form his agreement. At law, A will be considered as having entered into a contract, for the breach of which the law will punish him, by making him pay a sum of money to B by way of damages. But the law does not consider that the estate has become the property of B by the contract, and will not there- fore compel A to give him a deed formally evidenc- ing that fact. Equity, however, considers that, from' the moment when the agreement was made, the estate belonged to B, and the purchase-money to A. It will, therefore, (subject to the statutory provisions to be presently mentioned) if requested by B, and pro- vided that ho is prepared to pay the purchase-money, compel A to give him that legal title which is neces- sary to perfect his estate. A mere verbal agreement to buy and sell may therefore operate to create an equitable est:iU> in fee simple. And similarly, if the owner of a fee simple were verbally to declare himself a trustee for A, or to convey his estate to another, with verbal directions to hold in trust for A, A would have an equitable estate in fee simple created by parol. But the power of equity to act upon the assumption (0 1 Sand. Uses, 280. 1 ( .H) OF CORPOREAL HEREDITAMENTS. that an equitable estate has been created, has been statute of restricted by statute. For it has been enacted by the Friiuds - Statute of Frauds (m) that (n) no action (-tofm which includes a suit in equity) shall be brought to charge any person upon any contract or sale of lands, tenements, or hereditaments, or of any interest in or concerning them, unless the agreement upon which such action shall be brought, or some note or memor- andum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. And (o) that all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust (that is, by the beneficial owner of the property (p) ), or by his last will in writing, or else they shall be utterly void and of none effect. Nor is there anything in the doctrines of equity which forbids the owner of an equitable estate from transferring it to another person by mere word of mouth. But here again, the Statute of Frauds (q) has interposed, by enacting (r) that no grants and assign- ments of any trust or confidence shall have any effect, unless in writing, signed by the party granting or assigning the same. Since however, in all these cases, the writing only serves to prove the existence of the equitable estate, not to create it, the Court of Chancery may act upon a writing, although it pro- fesses to prove the existence of an equitable estate cre- ated some time previous to the date of the writing (s). (m) 29 Car. II. c. 3. (;/) S. 4. (o) S. 7. O) Tierney v. Wood, 19 Beav. 330. (q) 29 Car. II. c. 3. () S. 9. (*) Gardner v. Eoice, 2 S. & S. 346 ; 5 Russ. 258. OF THE STATUTE OP USES. And, notwithstanding the words of the Statute of I'Y;iuds, the court will, in many cases, enforce con- tracts not evidenced by writing, where one of the parties has substantially performed his part of the contract (t). It will be observed that a writing is all that is ne- cessary, in any case, to create and transfer equitable estates, but it is the practice to employ the same species of instrument in the passing of legal as of equitable estates (). K|iiity also requires, in general, that the words Form of used in creating or transferring an equitable estate W( should be the same as those necessary in the case of corresponding legal estates. But here again the rules of equity are more elastic than those of law. When there is a conveyance, or devise, of an estate to trus- tees upon trusts perfected and declared by the grantor or settlor, and said therefore to be " executed," the court will not interfere to give the grantee, or devisee, any other estate than that which the words of the instrument, read in their strict technical sense, pur- port to confer. If, however, ihe trust is " executory," that is, if the estate is given to a trustee with direc- tions to limit it in a cert :i in way, the court will pay regard to the plain meaning of the settlor or testator, although it may not have been expressed in the most appropriate words. Thus, in an early case (r), A (levied land to trustees upon trust on the marriage of his grand-daughter to convey the estate to her for life, with remainder to the issue of her body. Here, according to the rule in Sliel ley's Case (u?),.to which we have before adverted, the grand-daughter, having an estate for life, followed by an estate to the heirs of her (t) See Letter v. Foxeroft, and the notes to this case ; 1 L. C. 768. (M) Lcwin on Trusts, 69. (r) ) 1 Rep. 93. 102 OP CORPOREAL HEREDITAMENTS. body, would, if there had been a direct devise of the estate to her, have taken an estate tail, by barring which she might have deprived her issue of their chance of succession. But since the estate given to her by the will was only equitable, and the trust itself executory, the court decided to carry out the clear in- tention of the testator, and therefore only permitted the grand-daughter to take an estate for life, with remainder to her issue in tail. Incidents of an The incidents of an equitable estate are also, gener- equitable ,, . i i f T estate. a ^Y) the same as in a legal estate ot a corresponding nature. For instance, there may be an estate by curtesy (x), and now, under the Dower Act (?/), an estate in dower, in equitable estates of inheritance. An equitable estate tail may also be barred by the same means as a legal estate tail (z). But an equitable estate was never liable to escheat (a), a very consider- able advantage in the turbulent days of our earlier history. Alienation of equitable estates. Descent of equitable estates. An equitable estate may, as we have seen, be ajien- ated by writing during the owner's lifetime. It may also be disposed of by his will. And it is in the same position as a legal estate, as to liability to involuntary alienation under the statutes relating to judgments, bankruptcy, or the payment of the debts of a deceased person. Finally, it is to be mentioned that equitable estates are subject to the rules of descent which govern legal estates. (x) Sweetapple v. Jiindon, 2 Ver. 5J36. (./) 3 & 4 Wm. IV. c. W*. IDS (z) 3 & 4 Wm. IV. c. 74; 1 Hayes, Con. 155. (a) Burgess v. Wheate, 1 Eden, 177. 193 CHAPTER IX. OP A REVERSION AND OP A REMAINDER. WE come now to the discussion of those estates which confer a present interest in land, but with a deferred possession. There are two ways in which an estate of this description may arise. For if A, the owner of an Creation of a estate in fee simple, should part with a portion of it, as by giving out of it an estate to B for life ; or if he should part with all of it, dividing it amongst different persons, as by giving C the rest of the estate, subject to B's life estate ; then, in either case, A and C have no right to the possession of the land, so long as B's life estate continues to exist. But they have, each, an actual present estate, created at the same moment as that of B, and giving an immediate interest in the land, only with deferred possession. B has conse- quently a particular estate, whilst A and C have, Particular respectively, an estate in reversion and in remainder. * . Reversion and expectant on the determination of B s estate. A Remainder. reversion has therefore been defined as the returning Definition of u of land to the grantor or his heirs, after a grant of it reversion, is over (a) ; and a remainder as an estate limited to And of a re- take effect, and be enjoyed, after another estate is m determined (b). It is of reversions and remainders that wo propose to treat in this chapter. The first point which we will notice, is one implied by the above definitions of these estates. It is, that a Rcyenion reversion always arises by operation of law, whilst a ^operation tf remainder cannot arise by operation of law, but must law. R. (a) Co. Litt. 142*. (b) 2 131. Cum. 164. 104 OP CORPOREAL HEREDITAMENTS. mainder always always be the result of some direct act of parties, DV 3Ct 01 parties. which act may be repeated several times. Hence, there can be only one reversion, but almost any num- ber of remainders, in the same estate. Thus, if land be granted to A for twenty-one years, and after the expiration of that time, or (as it is more shortly put) " with remainder " to B for life, with remainder to C in tail, B and C will each have an estate of freehold in remainder. And the same person may have both a remainder and a reversion in the same estate. If, for instance, a tenant in fee simple carves out of it a life estate for himself, and a remainder to his son in tail, he will still have a reversion in fee simple, which may take effect after the determination of the estate tail. Remainder A remainder may be created in freeholds or copy- by deed or will, holds by either deed or will, but a remainder, properly But no re- so called, cannot be created in a term of years. For a term ofVears term f years is personal property, and personal pro- perty is essentially the subject of an ownership which is absolute, and has no relation to property in others. If, therefore, the owner of a long term of years were to create out of it a series of terms, each to take effect after the determination of that preceding it, these would become independent interests, complete in themselves, and not related to one another. And if he were to attempt to assign the term to one person for life, and limit remainders after the life interest, the assignee for life would get the whole term, how- ever long it might be, and the remainders over would be invalid. But, so far as regards limitations of terms of years by will, this doctrine has been modified in modern times; for a limitation in a term, although after a life interest in the same term can, at the pre- sent day, take effect if created by way of executory devise, the explanation of which will be attempted in the next chapter. OF A REVERSION AND OP A REMAINDER. 1'.'". The few remaining remarks which, wo have to make on the subject of a reversion apply equally to a remain- der, and, since we have already noticed the incidents of these estates, when considering the subject of es- tates in possession, it will be more convenient to pass on now to such points as are common to both of them, and then return to those which relate to remainders only. A reversion, or remainder, may be alienated by the Alienation of a tenant of such an estate, if in other respects competent, rcn^der?' by either deed or will. And if transferred to the ten- ant of the particular estate, it is said to be " released " to him. At one time, the transfer of a reversion or a remainder was not complete unless accompanied by the " attornment ", or formal consent, of the tenant in Attornment. possession of the land. Attornment had its origin in the feudal rule which prohibited the transfer of a fee without the consent of the tenant from whom military and other services were due to his feudal lord. This was afterwards extended to all cases where a tenant's rights might possibly be affected by a transfer of the fee, although in some, as for instance that of a tenant for life and remainder-man, there was never any feudal relation between the tenant of the estate to bo trans- ferred and the tenant whose consent was made requi- site. It was subsequently enacted by the 4 & 5 Anne, 4 & 5 Anne, c. 3 (c), that all grants or conveyances of any manors c ' 3 ' or rents, or of the reversion or remainder of any mes- suages or lands, should be as good and effectual, to all intents and purposes, without any attornment of the tenant of any such manors or of the land out of which such rents issued, or of the particular tenant upon whose particular estates any reversion or remainder might be expectant, as if their attornmont had been hail :nul made. Provided (d) that no such tenant should be prejudiced, or damaged, by payment of any rent to any (r) S. 9. (rf) 8. 10. 196 OF CORPOREAL HEREDITAMENTS. 11 Geo. II. c, 19. such grantor, or by breach of any condition for non- payment of rent, before notice should have been given to him of such grant by the grantee. This statute was followed by the 11 Geo. II., c. 19, which (e), in order to put a stop to the practice of tenants fraudulently attorning to strangers who claim- ed a title to the estates of the tenants' landlords, enacted that all and every such attornment of any tenant of lands or hereditaments should be absolutely null and void, and that the possession of their land- lords should not be deemed to be in any way affected thereby. Termination of A reversion or remainder may also cease to exist. For the particular estate on which it depends may be transferred, or " surrendered," to the reversioner or remainder-man, or it may come to an end. In such a case, the expectant estate will either become an estate in possession, and thus cease to be a reversion or a remainder ; or if, in the case of a remainder, it is not capable of coming into possession, it will, for reasons to be presently explained, be destroyed altogether. And we have already seen how a reversion or a re- mainder, limited after an estate tail, may be destroyed by virtue of the Act for the Abolition of Fines and Recoveries (/). a reversion or a remainder. Remainders divided into Vested and Contingent. Example of a vested re- mainder. Returning to the consideration of remainders, as apart from reversions, we have to point out that they may be divided into the two principal classes of Vested Remainders and Contingent Remainders. Supposing that an estate is given to A for life, with remainder to B, a living person, in fee simple ; then B's estate is always ready to become an estate in possession, whenever A's estate may come to an end. His estate (e) S. 11. (/) 3 & 4 Win. IV. c. 74. OF A REVERSION AND OP A REMAINDER. 107 is therefore said to be a " vested " remainder, being fixed, as Blackstone puts it, to come to some deter- minate person after the particular estate is spent, and there being nothing which can defeat it, or set it aside (g). But if the remainder be given, not to Example of a B, but to B's eldest son, and B were at that time a bachelor, then the case is different. For it is neces- sary, as we have said, that every estate limited by way of remainder should be capable of becoming an estate in possession at the moment when the particular estate which precedes it comes to an end ; otherwise it will fail of effect altogether. Now, in the case sup- posed, B may never have a son, or even if he has, that son may not be born until after the determination of A's life estate. It is evident, therefore, that until B's son is born, or until A dies (whichever event happens first), it is uncertain whether the estate in remainder will fail for want of compliance with the rule above stated. It is consequently said to be " con- tingent," as distinguished from that "vested" re- mainder which we have already defined. But if B's son is born in the lifetime of A, from that moment there is an ascertained owner of the remainder, which will thereupon cease to be contingent, and become vested. A remainder may also be contingent, when the person to whom it is limited is in existence, but the estate is only to vest on the happening of some vague and un- certain event. As where land is given to A for life, and in case B survives him, then with remainder to B in fee : there B is a certain person, but the remain- der to him is a contingent remainder, depending upon a dubious event, namely, the uncertainty of his sur- viving A. During the joint .lives of A and B, it is contingent ; and if B dies first, it never can vest, but if A dies first, the remainder to B becomes vested (h). (f) (*) 2 Rl. Com. 168. 2 Bl. Com. 170. 198 OF CORPOREAL HEREDITAMENTS. We see therefore that it is the present capacity of taking effect in possession, if the possession were to become vacant, which distinguishes a vested remainder from one which is contingent (i). Rules for the mafnders f " 1st Rule. Re- mainder must await deter- mination of estate^nd cannotbe fesimple ^ * We come next to the rules which relate to the crea- ^ rema i n ders, premising that remainders may be limited to take effect either with, or without, the instru- mentality of a use (thus a remainder may be limited to A and his heirs, or to B and his heirs to the use of A and his heirs), but that the same rules apply in either case. The first which we will notice is, that every remain- ^ mus ^ b e so limited as to wait for the determination of the particular estate, before it is to take effect in possession ; and not to take effect in prejudice or ex- elusion of the preceding estate (j). Also, that no remam der can ^ e limited after an estate in fee simple. These propositions are derived from the definition of a remainder. For, as to the first, we saw that a re- mainder is an estatewhich is to be enjoyed afteranother estate is determined. We pointed out also, in our chapter on estates for years, that no one but a rever- sioner could, at common law, take advantage of a condition ; a proviso, therefore, giving this advantage to a remainder-man would be void, as would also the estate dependent on the proviso. And as to the second, a fee simple is the greatest estate which can be enjoyed ; the tenant of it has consequently the whole of the estate, and a remainder therefore, which is only a portion, or residuary part, of an estate, cannot be reserved after the whole is disposed of (A 1 ). 2nd Rule. Re- With regard to the next rule, it has been already mainder must . j J.T j -11 L have precedent pointed out that a remainder will cease to exist, as (*') Fearne, C. R. 216 ; Boraston's Case, 3 Rep. 20 a . (j) Fearne, C. R. 261. (k) 2 Bl. Com. 164. OP A REVERSION AND OP A REMAINDER. such, by becoming an estate in possession. That is particular to say, the existence of a particular estate is necessary ** to the existence of a remainder, or, as the rule is usually stated, there must be some particular estate precedent to every estate in remainder (/). If the remainder is vested, any estate greater than 3rd Rule. an estate at will is sufficient for this purpose: but the *' rcehold c ""- 111 i tingent re- proposition does not always hold good as regards con- nuunder must tin-'ent remainders. For the feudal law attached J* 8U PP? rt i by particular great importance to the seisin, or feudal ownership, estate of free- of hind being a matter both of notoriety and of cer- *""" tainty. It, therefore, held that the seisin of land must never be in abeyance, and consequently forbad the transfer of any estate of freehold, unless accom- panied by feoffrnent and livery of seisin, that is, by the open and immediate transfer of the estate to son: ascertained person. It followed, that no estate of fr. hold could be granted unless it were to commence at tlif iimiii.'iit of the grant (since a man could not make present delivery of a future estate), but must take effect in possession, reversion, or remainder. This rule did not, however, apply to leases, which, being estates of an inferior nature, did not carry with them the seisin of the land, did not therefore require livery of seisin, and might consequently be granted to com- mence at some future time (/). Supposing then, that the owner of an estate in fee simple had (1) granted out of it an estate to A for life ; or (2) granted an fe tor years to B, with remainder to A for life; or (3) granted an estate to A for life, with remainder to B in fee simple. In the first case he would have had to make livery of seisin to A ; in the second case he would have had to make it to B, as the bailiff or agent of A, and to take effect for the benefit of A's estate ; and in the third case he would have had to (/) 2 Bl. Com. 165. (in) Baruick't C'tue, 5 Rq>. 93*>. 200 OF CORPOREAL HEREDITAMENTS. make it to A, and this would have taken effect for the . benefit of B's estate as well as for that of A. If the remainder-men in, the second and third of our cases, were ascertained, living, persons, or, in other words, if their remainders were vested, this would be simple enough. Nor would there be any difficulty in our third case, even if the remainder were contingent ; since, as we said, livery of seisin could be made to A. But it would be otherwise if the remainder limited in our second supposed case were contingent. For B could not receive livery of seisin as the agent of a non-existent person ; livery of seisin could not, there- fore, be made to any one, and consequently the con- tingent remainder would be invalid, because the rule which required delivery of the seisin on the creation of every estate of freehold had not been complied with. And though estates of freehold may now be transferred without livery of seisin, this rule of law as to contin- gent remainders continues unaltered. Hence we arrive at another rule, namely : That every freehold contingent remainder must be supported by a freehold particular estate. 4th Rule. No The next rule to be considered relates also exclu- Csue of unborn s e ty * contingent remainders. These remainders person follow- were not, at one time, permitted at all ; the law not life toTuch r a ll ow i n g an estate in land to be given to a person who person. might possibly never exist. Afterwards however they were recognised, subject to the rules which we have stated. But a trace of the old prejudice against them was to be found in a rule which was in force in Coke's time (n), and which prohibited any remainder which depended upon the coming into existence of two unborn people, or, as it was said, endeavoured to limit a possibility after a possibility. This rule was not, it would seem, applied from any fear of such a (n) See 2 Rep. 51 b . OF A REVERSION AND OF A REMAINDER. -'"I limitation acting as a restraint on alienation (o), and since the only cases to which it was likely to apply are those in which an endeavour is made to keep the same estate inalienable, in the same direct line of descent, it only survives (p) in a modified form de- rived from the general principle. The rule in its present shape may be stated as follows If an estate is limited to an unborn person for life, with remainder to the children of such unborn person, this remainder is absolutely void (q). Hence, if an estate be given to A, a bachelor, for life, with remainder to his son for life, with remainder to that son's son, this last re- mainder cannot take effect. The operation of the Cy prtt doc- above rule is however modified, in one particular case, trine * , by the application of what is known as the Cy pres doctrine. For it sometimes happens that, in a will, an estate is given by words which, although when read in their strictly technical sense confer an estate for life only on an unborn person with remainder to his issue in tail, yet are considered by the courts to show that the testator's primary object was that the land should continue in the issue of the first taker, and that the mode in which the issue should take it was a secondary object (r). In such a case, the courts will give effect to his intention, as nearly as possible (), by advancing the estate given by the will to the first taker, and holding that he has an estate tail, thus leaving his issue a chance of succeeding him as tenants in tail (/). But this indulgence is only shown where such limitations are endeavoured to be made by will (it), and is not extended to cases whore the testa- tor has shown an unraistakeable intention to infringe the rule of law, as where it is clearly intended that (o) See judgment of Ld. Brougham in Cole v. Srwtll, 2 H. L. C. 230. (p) See Colt T. Sea-ell, 4 Dru. & War. 1, 32. (q) Fearne, C. R. 602 ; Spencer v. Marlborougk, 3 Bro. P. C. 232 ; BrudentH v.'ftwes. 1 East, 442, 462 note (r), & 463. (r) Fearne, C. R. 204". (.) Oy prit. (t) See Doe T. Apli*, 4 T. R. 82 ; Doe T. Halify, 8 T. R. 5. (w) See Brudenell v. lwet, 7 Yes. 381, 389. 202 OF CORPOREAL HEREDITAMENTS. the first unborn person should take as tenant for life (v} } or that the second should take as tenant in fee simple (it;). Eule as to Besides the above rules relating to the creation of tin^enf re- COn ~ remam ders, there is another which applies to a con- mamders. tingent remainder after it has been created, and is a corollary to the rule that every remainder must have a particular estate to support it. Every vested re- mainder is, by its definition, ready to come into pos- session whenever the particular estate determines, and continues, therefore, to exist as an estate, though not as an estate in remainder, after the particular i estate has come to an end. But it is otherwise, in such a case, with a contingent remainder, which being unable either to become an estate in possession, or (having lost its particular estate) to exist any longer as a remainder, is destroyed altogether. Hence we arrive at the rule that ev<3ry contingent remainder must, in order to take effect in possession, be changed I into a vested remainder either before, or at the mo- ment when, the preceding particular estate comes to an end. Child en ventre In the construction of this rule, it is now well set- tled that a child begotten, but not born, or as the legal phrase is en venire sa mere, is to be considered as being already in existence. This was not the case formerly, and the way in which a change in the old law was brought about is somewhat curious. In a case (x) tried in the sixth year of William and Mary, a father had devised an estate to his son for life, with remainder to that son's sons in tail. The son died with- out having had a son born to him, but leaving his wife pregnant of a child, who was afterwards born and proved to be a son. The Courts of Common Pleas and (v) Seaward v. Willock, 5 East, 198.^. (w) Hale v. Pew, 25 Beav. 335. (x) Reeve v. Long, Salk. 227. OF A REVERSION AND OF A REMAINDER. 203 of Queen's Bench were unanimous in holding that the grandson, not having been born at the expiration of the estate for life, could not take the estate tail. This decision was, however, afterwards reversed by the House of Lords, contrary to the opinion of all the judges. But the House of Commons, in reproof of what they considered an assumption of legislative authority by the Lords, brought in a bill which was passed as the 10 & 11 Wm. & Mary, c.22, and which 10 & u w. , enacted that when any estate, by any marriage, or & M - CT ~** r / * other, settlement, should bo limited in remainder to the first or other son of the body, or to the daugh- ter, or daughters, of any person, with any remainders over ; any son or daughter of such person, born after the decease of his, or her, father, should take such estate so limited to the first or other sons, or to the daughter or daughters, in the same manner as if born in the lifetime of his, or her, father. And it is now laid down as a fixed principle, that when such consi- deration would be for his benefit every child en ventr< no, mere is to be considered as absolutely born () Rqe v. Jones, 1 H. Bl. 30. (c) 8 & 9 Viet. c. 106, s. 6. OF A REVERSION AND OF A REMAINDER. bility coupled with an interest, in any tenements or hereditaments, of any tenure, whether the limitation of such interest or possibility be or be not ascer- tained, may be disposed of by deed. And the Wills Wills A Act (d) provides that the power of disposition by will shall extend to all contingent interests in any real, or personal, estate, whether the testator may, or may not, be ascertained as the person, or one of the persons, in whom the same may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created, or under any dispositions thereof by deed or will. The fact that a contingent remainder is destroyed Destruction i if not capable of vesting at the moment when the ^ndf^'!' particular estate comes to an end, made it necessary formerly to take special precautions with reference to this point. For the particular estate might be de- stroyed by some act of the tenant ; as if he did any- thing which caused it to be forfeited, or if he sur- rendered it to the owner of the reversion, or obtained a ix'lease of the reversion to himself, by both of which means the particular estate was merged in the rever- sion. In the case, then, of an estate being limited to A, a bachelor, for life, with remainder to his issue in tail, with remainder to B in fee simple ; here A at any time before he had issue might, by any of the above-men- tioned ways, put an end to his own estate, and, as a consequence, to that of his issue. It was necessary Trust*, therefore to interpose another estate between those A and of his issue, and this was done by giving to trustees, " upon trust to preserve contingent remain- ders," an estate which was to take effect if A's estate came to an end during his lifetime, and, in that case, to endure so long as. A lived. By this means the con- (rf) 7 Wm. IV. & 1 Viet. c. 26, s. 3. 206 OP CORPOREAL HEREDITAMENTS. tin gent remainder was protected against anything which A could do, and as to the trustees the Court of Gj^icery would interfere to prohibit them from doing anything which would amount to a breach of their trust (>') Real Property But limitations to trustees, in order to preserve Amendment , . . -, , , -, , ^ ct contingent remainders, have now been rendered un- necessary by the Real Property Amendment Act (/), which enacts (g) that a contingent remainder, existing at any time after the 31st of December 1834, shall be, and if created before the passing of the act shall be deemed to have been, capable of taking effect not- withstanding the determination by forfeiture, sur- render, or merger, of any preceding estate of freehold , ^\. iETthlTsame manner in all respects as if such deter- tf mination had not happened. It must be remembered, however, that a contingent remainder still remains liable to destruction if not ready to take effect when the particular estate comes to a natural determination. () See Moody v. Walters, 16 Ves. 283 ; Siscoe v. Perkins, 1 Yes. & B. 485. (/) 8 & 9 Yict. c. 106. (?) S. 8. 207 CHAPTER X. OF AN EXECUTORY INTEREST. EXECUTORY interests, the explanation of which will be Executory in- attempted in this chapter, came into existence as a * r ^ of't"^ consequence of the passing of the Statute of Uses (a). Statute of Use*. They may be created by deed or by will. If by deed May take effect they can only take effect by virtue of the statute, but g^tute or by if by will they may, or may not, be limited so^to take *iU. effect by way of use (b). We will begin with the con- sideration of those executory interests which are created under the statute. It has been already shown how limitations of legal Executory in- estates, by way of remainder, are subject to various tn g statute \.r restrictive rules, amongst which we may specially mention that which forbids the limitation of ;uiy estate after a fee simple, and that which compels every re- mainder to a\v;iit the determination of its particular te, before it can take effect. Prior to the passing of the Statute of Uses (c), uses, being subject to the ruk-s of equity only, might be limited in ways not per- missible in the case of legal estates. Thus, if land Conditional were given to A and his heirs, to hold to the use of B fo'^ 011 " ' and his heirs until the happening of some future and statute. uncertain event, and then to the use of C and his heirs ; the Court of Chancery would compel A, on the happening of that event, to hold the land to the use of C and his" heirs (d). But it is plain that this (a) 27 II. n. VIII. c. 10. (b) Gilb. Use*, 350". (e) 27 Hen. VIII. c. 10. (d) Fearne, C. R. 384". 208 OF CORPOREAL HEREDITAMENTS. " conditional limitation " was one which, if made of a legal estate, would have been invalid as being ob- noxious to the rules to which we have just referred. Limitations by After the Statute of Uses (e) was passed, uses after the conferred legal, as well as equitable, estates ; limita- statute. tions of them became, therefore, subject to the juris- diction of law. But, nevertheless, they were still allowed to retain, in a great measure, the freedom which they had acquired when mere creatures of equity. For now, if land were limited by its owner to the use of himself and his heirs until the happening of some future event, and then to other uses, this would be perfectly good (/), although it would be a limitation of an estate after a fee simple. And an estate may also be well limited by means of uses, although it is to take effect by destroying a preceding estate, and is thus opposed to the rule governing remainders, which requires a subsequent estate to await the natural determination of that which precedes it. Thus, a limitation would be valid by which an estate was given to A, to hold to the use of B until C pays a sum of money (g), or until B acquires some other property (K) ; with a proviso that on the hap- pening of either of these events the estate is to be held to the use of C. It may be noticed that it is the power of limiting an estate after a fee simple that en- ables a landowner, about to be married, to effect a set- tlement for the benefit of himself alone until marriage, and then for that of himself, his wife, and children. Springing and The uses, by means of which executory interests can Shifting Uses. ^ e tnug crea t e( ^ are divided into Springing Uses, and Shifting Uses. Springing uses are those which are limited, as in the first of the examples just given, to (e) 27 Hen. VIII. c. 10. (/) Woodlif\. Drury, Cro. Eliz. 439. (g) Lloyd v. Carew, Prec. Ch. 72. (A) Nicolk v. Sheffield, 2 Bro. C. C. 214 ; Carr v. Erroll, 6 East, 58. OF AN EXECUTORY INTEREST. arise on the happening of a future event, where no preceding use is limited ; they do not, consequently, take effect in derogation of any interest other than that which results to the grantor, or remains in him in the mean time. Shifting uses are those which, as in our second example, do t^ko effect in deroga- tion of some other estate ; they are either expressly limited by the d^eed, or are authorized to bo created by some person named in the deed (i). In this latter case, the person so named acquires a Power of Appoint- ment, a subject which it will be more convenient to discuss by itself later on. An executory interest may also be created by a will, Executory De- without calling in the aid of the Statute of Uses (j), Vlie * and is, in that case, distinguished as an Executoiy Devise, the rules which govern it being nearly, if not entirely (k), the same as those to which such an interest is subject when created by way of use. We have seen that, before the passing of the statute, Origin M the use in land could be devised, whilst the legal cutor J ' estate in it, as a rule, could not ; but that there were some exceptions to this rule, arising out of special local customs. It is probable that where land could be devised under a custom, limitations of it, similar to those permitted in a devise of uses, were sometimes nipted, and, from the liberality which our courts have always adopted in the construction of wills, were often allowed (/). When the Statute of Uses (;) was passed, both the legal and equitable estate in land ceased, for u time, to bo devisable ; but that statute was shortly afterwards followed by another (>/), which permitted all land held in socage to be disposed of by (i) Gilb. Uses, 1. . (j) -27 II. n. VIII. f. 10. (A) Sec Fearne, C. II. 40 ; Gilb. Uses, 35. (/) Fearne, C. It. 3S1". () L'7 H,ii. VIII. c . 10. () 32 lieu. VI11. c. 1. 210 OF CORPOEEAL HEREDITAMENTS. will ; and when the greater part of the land in the kingdom became afterwards subject to this tenure (o), devises of land became general. Under these circum- stances, the courts of law permitted direct limitations of it by will, similar to those already allowed in the creation of an executory interest, taking effect under the Statute of Uses (p). But it is to be remembered that every gift of real estate by will confers a use. For since every devise imports a consideration, there is also an implied use, by the common law, to the de- visee, unless there is an express use to some other person, in which case the express use must prevail, and is executed by the statute (q). Blackstone (r) defines an executory devise of lands as such a disposition of them, by will, that thereby no estate vests on the death of the testator, but only on some future contingency. It differs (he goes on to say) from a remainder in three very material points 1st, That it needs not any particular estate to support it. 2nd, That by it a fee simple, or other less estate, may be limited after a fee simple. 3rd, That by this means a remainder may be limited of a term of years, after a particular estate for life created in the same. The two first points apply, as we have seen, equally, Executory de- to the case of an executory interest. As to the third, > a tenn - we have already said that such a limitation, if made by deed, would give the whole term to the person named as tenant for life. The same rule was formerly held to apply also if the limitation were made by will (s), and although, afterwards, the remainder-man was allowed to take the term, provided it had not been alienated by the first taker during his own lifetime, he had no remedy if it had been so disposed of (t). But (o) 12 Car. II. c. 24. (p) 27 Hen. VIII. c. 10. Gilh. Uses, 356, and note (2). r\ 2 Bl. Com. 172. (*) Love v. Windha (C) Anon., Dyer, 74 b . Love v. Windham, 1 Sid. 450. OF AN EXECUTORY INTEREST. '211 later on, after the passing of the Statute of Uses (), it was held that a limitation of the kind which we have been describing was to take effect as an executory devise, and not as a remainder, and could not be de- stroyed by any act of the first devisee (r). Such limitations were not, however, at first held to be good, unless all the persons named to take the term were in being and alive together (it?) ; " so that," as it was s:iiil, " nil the candles might be lighted and consumed together (#)." But this doctrine was subsequently overruled (//), and it is now settled that executory devises, of both real and leasehold estate, are subject, as to their creation, to the same rules. These, again, apply to the creation of all executory interests, whether under the Statute of Uses (z) or not, and we will next proceed to inquire what they are. It is evident that limitations by way of executory R U I<-* f (ir the interest allow much more freedom of action than is creatl " n of . ,1-1 . . T- executory in- attainable in the creation of remainders. r or an teresu. estate which is thus limited has no dependence upon any preceding particular estate, but, on the contrary, may take effect by destroying it, and cannot therefore be affected by any accident which may befall it. I 'ring thus indestructible they might, if not restrained by the law, be so created as to render land inalienable for a very long period, and thus cause what is known as a perpetuity. To prevent this from being done, two principal rules have been framed. The first of these is that when an estate can take it Uul< effect as a remainder, it shall never be construed to be t t( ^ 1 U (' an executory limitation (a). Thus in one case (L), by Hnmati (M) '27 Il.n. VIII. c . 10. () Mtimiiny'a Cn.if, H I!cp. 94 h ; T.ampet'i Cate, 10 Rep. 46 b . (u>) Vorinti v. ltifk;rta/e, 2 Free. 1G3. (f) 2 r-l. QML 173. (it) ll,ranl v. .\,.rf,.lk. 2 Free. 72, 80 ; 2 Jur. Arg. 47. M 27 H,n. YIIF.V. 10. (a) Gnodtitle v. HillimjtoH, 2 Don?. 753\ 767. (b) Cat-iffurdine v. CbnMnttNt Fearne, C. H. 388, & 1 EiLn, 27. 212 OF CORPOREAL HEREDITAMENTS. take effect as a settlement, made before marriage, land was con- aaindt>r - veyed to trustees to the use of A for life, with remainder to B, his intended wife, for life, with remainder to their issue in tail ; but with a proviso that if A should die leaving such issue, and not having made provision for any of them during his lifetime, then the trustees should stand seised of one moiety of the settled estate upon trusts for the benefit of such issue. It was held that this proviso only created a contingent remainder, and not an indestructible exe- cutory interest, in favour of such of the issue as were left unprovided for. For, being preceded by, and bound to await the determination of, a particular estate,it was capable of being construed as a remainder, and came, therefore, within the rule. And the result is the same where a limitation which was originally an executory devise becomes capable, by some change of circumstances, of being construed as a remainder. For instance (c), land was devised to A for life, with remainder to B in fee simple ; this being followed by a proviso that if B should happen to die before A, and A should have no child living at her death, she might devise the premises to whom she thought proper. B died in the lifetime of A. A had a child who survived her, but before her death she sold the property in question, having previously levied a fine with proclamations, a process which was at that time capable of destroying contingent remainders (J), but not executory interests. And it was held that, although at the death of the testator, and until the death of B, the power given to A to devise the land to such persons as she thought proper could only operate as an executory devise, yet upon the death of B the character of the limitation changed. For ifc had then a preceding particular estate whose deter- mination it must await, and was consequently a con- tingent remainder, and well barred by the fine. (c) Doe v. Hotcell, 10 B. & C. 191. (rf) Archer's Case, 1 Eep. 66 b , 67*. OP AN EXECUTORY INTEREST. 218 The other rule to which we have referred is that 2n-i generally known as the Rule against Perpetuities;,^/, the object of it is to prevent property becoming in- toukedfcet r ui u i. j T\ * within lit alienable beyond a certain period, by nxing a time jive* in t within which every executory limitation must take and tWl ' effect. The necessity for such a rule became apparent wards, as soon as executory limitations were permitted, but no definite period appears, at first, to have been fixed upon; the courts being content, for a while, with defeating various attempts at creating perpetuities (e), as where land was given in tail, with a proviso that the estate should be forfeited if any attempt were made to bar the entail (/) ; where it was given to a succession of unborn children for life (g) ; or where it was, indeed, given to an unborn person in tail, but with a proviso that, on his being born, his estate tail should be converted into one for life, with remainder (subject to similar conditions) to his issue in tail (A). But after a while a settled rule was laid down. This is founded on an analogy to the rule of law relating to remainders which forbids the gift of land to an un- born person for life, followed by any estate to the issue of such unborn person. Under this rule, there can be no greater restraint on alienation than that which may be effected by means of a settlement limiting one or more life estates to a person or persons in being, followed by one or more estates tail r\- pectant on the expiration of the preceding estate for life (i). And since the estate tail can be barred by the tenant in tail as soon as he has attained his majority, the utmost restraint on alienation possible by limitations of remainders, is for a life or lives in being and twenty-one years afterwards. The full extent of this period as that within which property (t) See 2 Jur. Arg. 7. {/) Corbet' Gate, 1 Rep. 83* ; Portinffton't CVw, 10 Rrj> (/) Hnmhrrtton v. Humberttoii, 1 1'. Wms. 333. (h) NpfHctr v. Mar/bt>rouyh, 3 Bro. 1'. C. '.'32. (0 Feurne, C. IL 362 9". 21 i OP CORPOREAL HEREDITAMENTS. might be rendered incapable of alienation, was, in the case of executory limitations, at first allowed only where the limitation was to take effect in favour of an infant (/). But this was afterwards extended to all cases, and it is now clearly settled that every executory limitation is well created, which must either take effect, or fail to take effect, within the period of a life or lives in being, with an extension of a few months in favour of a limitation to a person who is en venire sa mere at the expiration of the twenty-one years (7r). It is to be remembered, however, that the event, or events, on which the limitation depends must be such as will necessarily take effect, or fail, within the period fixed by the rule. Thus, in one case (I), leasehold estate was given by will to trustees upon trust for A for life, and after his death upon trust, in effect, for the first heir male of A who should attain the age of twenty- one. At the death of A, his heir male by descent had already attained that age, but, nevertheless, the House of Lords held that the limitation to him was void. For it was said that the fact of his being both heir male and having attained his majority at the time of A's death was merely an accident, and that the events on which the limitation depended (namely, that A should have an heir male, and that such heir should attain the age of twenty-one) might not have hap- pened in conjunction for many generations (m). Accumulation It was at one time possible for a settlor to direct that the income derived from land should be accumu- lated for a period of time equal to that within which alienation of land itself might be restrained (w). But ( ;') Taylor v. Siddall, 2 Mod. 289 ; Stephens v. Stephens, Ca. t. Talb. 228. (*) Heard v. Westcot, 5 Taunt. 393 ; Cadell v. Palmer, 1 Cl. & F. 372, 421, and, with notes, Tu. R. P. 360. (0 Dungannon v. Smith, 12 Cl. & F. 546, 622. (m) And see Gosling 7. Gosling, 1 N. R. 36 ; Harrington Y. Harring- ton, L. R. 5 H. L. 87. (w) T/iellusson v. JToodford, 4 Yes. 227. OP AN EXECUTORY INTEREST. 2 1 " it is now enacted by the 39 & 40 Geo. III., c. 98, 39 i 41- that (o) no person shall, after the passing of the act, I1! ' settle, or dispose of, any real or personal property, so that the rents or produce thereof shall be wholly, or partially, accumulated for any longer term than the life of such settlor; or for the term of twenty-one years from the death of such settlor; or during the minority, or respective minorities, of any person or persons, who shall be living, or m vrntre sa tn^re, at the death of such settlor ; or during the minority, or respective minorities only, of any person or persons, who, under the uses or trusts of the instrument direct- ing the accumulation, would, for the time being, if of full age, be entitled to the rents or produce so directed to be accumulated. And that in every case where such accumulations shall be directed otherwise than as aforesaid, such direction shall be null and void, and the rents of such property so directed to be accu- mulated shall, so long as the same shall be directed to be accumulated contrary to the provisions of the act, go to, and be received by, such person, or per- sons, as would have been entitled thereto had such accumulation not been directed. But (/>) nothing in the act is to extend to any provision for the payment of the debts of the settlor () Griffiths v. Vtre, 9 Ves. 127, and, with notes, Tu. R. P. 430. OP AN EXECUTOKY INTEREST. lateral, and Powers Not simply Collateral. Powers of tfrol. : tho fir.st kind are those given to a person who has no " interest in the property settled, as where an estate is limited to the use of A, with power to B to revoke that use, and limit the property to the use of C. Powers not simply collateral are those which are given to some person who has an interest in the property subject to the power. These powers may ^ be sub-divided into Powers Appendant and Powers Powers .\p- in Gross. A power appendant is OTIC which is strictly \"." dependent upon the estate limited to the person to whom the power is given, and the exercise of which will affect his interest; as where a power is given to a tenant for life to make leases in possession (). A power in gross is one which enables the donee to create such estates only as will not attach on t he- interest limited to him ; as where a power is given to a tenant for life to create a term of years which is to commence after his death (/). Powers may be created by any words which clearly fiv.ni..n f indicate an intention to that effect. Trustees of set- tlements and mortgagees have also had various powers of sale and exchange conferred on them by ute (it), but to these we shall refer more fully in a later part of this work. Wo pass on therefore to consider, 1st, How powers may be exercised. 2nd, How they may be destroyed, or alienated. It will be remembered that, for the purpose of tho EVT.-I- -i first question to be considered, powers are divided ' into those which are particular, and those which are general. The first point to bo noticed as to their Must not t. n.i exercise, is that it must not tend to create a per- j petuity. The application of this principle differs according to the class of the power. For as to par- !) Sug. Pow. 46. 8ug. J'w. 47. M) 23 & 24 Viet. c. 145. 218 OP CORPOREAL HEREDITAMENTS. ticular powers, the rule is that, when the power is exercised, the limitation thus created is to be read as if it had been inserted in the instrument creating the power, at the time when that instrument came into operation (v) ; and then the validity of the execu- tion of the power will turn upon the question whether the limitation, so read, sins against the rule against perpetuities (iv). It will be seen from this statement that the power is not bad because the exercise of it might have tended to a perpe- tuity. It is the actual, and not the hypothetical, exer- cise of the power, which alone will be considered (x). As to general powers, the rule is simply that the exercise of the power must not create a limitation which, at the time of such exercise, is obnoxious to the rule against perpetuities. In this case the validity of the limitation is totally irrespective of the instru- ment creating the power. For the freedom of alien- ation is no more interfered with by the gift of a general power than if an absolute interest had been vested in the donee, and, consequently, there is no tendency towards a perpetuity (?/). Power need The donee of a power may execute it without not be referred re f err j ng to j fc> prO vided the intention to execute appear (z) by his mentioning the property over which he has the power. Thus, it was held, in an early case (a.), that if a man, having a general power to appoint land by will, devise the land itself, as owner of it, without reference to his authority, the land will pass by the will; for his intention is clear (/>). But it is otherwise if the donee of a power refer neither (v) See Doe v. Cavendish, 4 T. P.. 741. (iv) Spencer v. Marlborottgh, 3 Bro. P. C. 232 ; Jones v. Wimcood, 3 Mee & "W. 653 ; Massey v. Barton, 7 Ir. Eq. Rep. 95. (x) Griffith v. Pownall, 13 Sim. 393 ; Attenborough v. Attenborough, 1 K. & J. 296. fy) Tu. R. P. 419. (z) Su- did not ink-ad to exercise his power (<). But an exception has been made in favour of a will made by a testator who has a general power of appointment over property. For it is enacted by the Wills Act ( e~&si.*i Destruction Coming now to the destruction and alienation of and alienation p Owers W e will first remind the reader that powers of powers. f .,,..,,. are for this purpose most conveniently divided into those which are, and those which are not, simply collateral. 7th August, 1862. (r) S. 2. () See Buckley v. Hotcell,29 Bcav. 546. OK AN EXECUTORY INTEREST. Powers simply collateral cannot be, in any way, Powers -.imply drstroyed or alienated (z). But it is otherwise with ^lJ M '' powers not simply collateral. For these may be, str.>\..i .. r under certain circumstances, (1) suspended (or parti- ""''"" ally destroyed) ; (2) extinguished (or wholly destroy- simply o.iia- ed) ; or (3) alienated. We will proceed to consider teral " ia >' bt '- these points separately. The suspension of powers can only occur in cases of Suspension of powers appendant, and will happen where the exercise P owers - of the power would be in derogation of some previous estate or interest, created under the power. This is wi'll illustrated by a leading case (?/), in which the facts were as follows Lord Boliugbroke was tenant for life of certain lands, with a power, if it should be desired to sell them, to revoke the uses to which they were held, and appoint new uses in favour of a pur- chaser. Lord Bolingbroke, in consideration of 3000, granted an annuity to last for his lifetime, and, in order to secure its payment, demised the lands to the annuitant for a term which was to expire on his (Lord Bolingbroke's) death. Afterwards, he purported to revoke the uses to which the lands were held, joined in a sale of them, and appointed them to new uses in favour of the purchaser. The latter claimed to hold them free from the lease to the annuitant, which he could, of course, do if Lord Bolingbroke's revocation of the use to himself for life was effectual. But the Court of Chancery held that the power of. revoca- tion was suspended, so far as regarded the estate of the tenant for life, since otherwise he would have been able, by the exercise of his power, to commit a gross fraud in taking away the security for the annuity (z). The extinguishment of powers not simply collateral Extinguish- (x) Digge'f Caf, 1 Rep. 173'. fy) Go'Hlriyht \. ('(,; '2 I ((ill?. 477. (r) And see Eringloe T. Govd*un t 4 lling. N. C. 726 ; Hunt T. Hunt, 16 Lciiv. 372. - - I OF CORPOREAL HEREDITAMENTS. ment of may occur in the case of either those which are ap- powers pendant, or those which are in gross. It occurs with powers of the first kind where the donee of the power parts with all his interest in the property subject to his power. For the very definition of an appendant power points to this. Suppose, for instance, that a tenant for life has power to make leases to take effect in possession. If he assigns the whole of his interest to another person, it is clear that any subsequent lease of that property made by him could not take effect out of his interest in the property, since he no longer has any. His power of making leases is, there- fore, extinguished. But the rule will not apply where he does not entirely part with his interest in the pro- perty ; as if he conveys it to trustees, but on trust to hold it for himself, subject to payments, out of the profits of it, to other people (a). Cases in which a power in gross is extinguished do not often happen. For since no estates created by the donee of such a power can affect his own interest, he cannot, by the exercise of the power, prejudice any person to whom he may have transferred his interest ; such a transfer cannot, therefore, extinguish his power. But the power is extinguished where he has, subse- quently to his acquisition of the power, done some act which would be defeated by any future exercise of the power. Thus, where a tenant for life who had a power of charging the land subject to the power with the payment of a sum of money to other persons, joined in revoking the settlement and making a new one, whereby he was made tenant for life of the pro- perty but without a power of charging it ; it was held that this power had been extinguished by his joining in the new settlement (6). () Pen v. Sulkeley, 1 Douf. 291 ; Long T. Eankin, Sug. Pow. 895. (A) Savile v. Blacket, 1 P. Wms. 777. OP AN EXECUTORY INTEREST. 22 Both powers appendant and those in gross may be Alienation t alienated. Where the power is one which the donee P wm - may exercise for his own benefit he has, in fact, some- thing reserved to him out of the property subject to his power, and this he may alienate at pleasure, by By release, "releasing" his power. If, for example, having a power of charging land with the payment of a sum of money to himself, he joins in a conveyance of the land clear of the charge, this will operate as a release of his power (c). And a power in gross may also be released, although the exercise of such a power can- not confer any benefit on the donee of the power (d). But this is subject to the rule that the release must not be made with the object of obtaining for the donee of the power some benefit which he could not get otherwise. For, in such a case, equity will refuse to give present effect to the release, so far as it would operate in favour of the donee (e). Lastly, a power, the exercise of which can confer Involuntary any benefit on the donee of the power, may be the * lie " atl subject of involuntary alienation; it being provided Act 18G9. by the Bankruptcy Act 1869 (/), that (), or in dower, or by curtesy, of the equity of redemption, are each entitled to redeem on the same terms as the mortgagor himself might have done. Other assignees of a mortgagor, such as sub- sequent mortgagees, or judgment creditors, may also redeem, but in their case the right of redemption is only ancillary to their right to payment out of their debtor's land; they cannot, therefore, enforce it so long as a prior incumbrancer is in possession of the estate. 'And a judgment creditor cannot obtain the aid of equity for this purpose, unless he has previously com- plied with the provisions of the Judgment Acts, so far as circumstances will permit, and then applied to (o) Cotterell v. Purchase, Ca. t. Talb. 61. (p) See Davis T. Thomas, 1 Buss. & My. 506; Ford v. Chesterfield, 19 Beav. 428. (q) Pearce v. Morris, L. R. 5 Ch. 227, 229. (r) May hew v. Crickitt, 2 Swan. 185, 191 ; TFadev. Coope, 2 Sim. 155, 160. (*) See Waugh v. Land, G. Coop, 129.' (0 See Wynne v. Sty an, 2 Ph. 303, 306. () Play ford \. Play f or d^ 4 Ha. 546. (v) Evans v. Jones, Say, 29. OP AN EQUITY OF REDEMPTION. - I ' tlie Court of Chancery to remove any further impedi- ments to his obtaining delivery of the land (w). The general creditors of a mortgagor may also, under special circumstances, acquire a right to redeem his estate (x). We come next to the consideration of the rights and liabilities of a mortgagor and of a mortgagee. These are, naturally, closely related to each other, but in dealing with them we will, as far as possible, treat of them separately, in the order in which they have' been mentioned. On the execution of a mortgage deed, the mortgagor Rights ami becomes the equitable owner, and the mortgagee the ^0,^ ,!,',', legal owner, of the mortgaged estate. If there is, as sometimes happens, an express stipulation between them that the mortgagor shall remain in possession of the estate until a specified date, subject to his punc- Mortjr;i^rr tual payment of interest ; that has the effect of a a t^rm t./t'i re-demise of the property by the mortgagee to the mortgagee. mortgagor, who becomes, therefore, a tormor dur- ing the term so agreed upon, and cannot be dispos- sessed of the property during that time, provided that he observes his part of the agreement. If, however, as more frequently happens, the mort- But is not gagor remains in possession, without any agreement w with his mortgagee, his exact position is not very Posit i.n in clear. The mere receipt of interest by the mortgagee 8ucl1 is not a recognition of the mortgagor as a tenant (>/), and the mortgagor is consequently spoken of sonif- times as a tenant at will, sometimes as a tenant by sufferance ; but neither of these definitions is quite accurate. He is, perhaps, more correctly described as one who, having parted with his estate, remains in (K) Re Cowbridge Ry. Co., L. R. 5 Eq. 413 ; Mildred v. Atutin, L. H. 8 Kq. 220 ; llatton v. Heywood, L. R. 9 Ch. 229 ; Beckrlt v. Buckley, L. H. 17 Kq. 436. (r) Fisher on Mortpnjfe*, 316. (y) Doe v. CadutuUuder, 2 B. & Ad. 473. 1 '"' 21-6 OP CORPOREAL HEREDITAMENTS. possession of it at the pleasure, and consistently with the rights, of the grantee ; exercising the ordinary privileges of property, yet liable, at the option of the mortgagee, to be treated either as a tenant or as a trespasser, and to be ejected without notice or de- mand of possession, and without any claim, whether treated as tenant or as trespasser, to rents in arrear, X<>t bound to or accruing, or to the growing crops (z). He is not rents or profits, bound to account for any rents or profits of the estate which he has received during his occupation (a), for he is not a receiver for the mortgagee (?>) ; and he is en- M:iy, in some titled (whether in possession or not) to exercise rights incident to the estate which are not, presumably, a source of profit. Thus he may nominate to a vacant advowson, notwithstanding any previous agreement with his mortgagee to the contrary (c), or vote, in respect of the property, at an election for Parliament. He may, moreover, commit waste, except in cases Avhere the security is thereby made insufficient (eZ), and is liable on account of the public burdens imposed on the property (e). But he cannot, on the other hand, deal with the legal estate in it, and cannot, therefore, make a good lease of the land without the consent of the mortgagee, for if he does, the mortgagee may eject his tenant, without any demand of possession or notice to quit (/). W "\Vhen mort- But whether in possession, or not, of the mortgaged ^:iiror entitled ,1 ,-,-, , -, . ., P to redeem. estate, the mortgagor still retains his equity of re- demption unless, and until, it is lost to him by some of the means to be presently noticed. He is not en- (r) Fisher on Mortgages, 464. (a) Colman v. St Albam, 3 Yes. 25. (b) Exparte Wilson, 2 Yes. & B. 252. (c) Mackensie v. Robinson, 3 Atk. 558. (d) King v. Smith, 4 Ha. 239 ; Humphreys v. Harrison, 1 Jac. & W. 581 ; Ackroydv. Mitchell, 3 L. T. (X.S.) 236. (e) R. v. Baker, L. R. 2 Q. B. 621. (/) Kcech v. Hail, 1 Doug. 21, and, with notes, 1 Smith, L. C. 523 ; Doe v. Maiscy, 8 B. & C. 767. OF AN EQUITY OP REDEMPTION. - I ' titled, however, to redeem the mortgaged estate before the day named for that purpose in the mortgage deed ; even though he tender to the mortgagee the principal sum due together with interest on it up to the day specified (g). On the named day ho may redeem without having given any previous notice of his in- tention to do so ; but after that day he is not entitled to redeem without giving six calendar months' pre- vious notice, or paying interest up to the day when the time fixed by such a notice would have expired (h) ; because a mortgagee, as a rule, advances his money by way of investment, and is therefore entitled to time to look out for a new security. If, from any reason, the mortgagor is unable to get Bill tor x- the mortgagee to receive the mortgage money and dcm P tl< reconvey the property (as, for instance, if the accounts are disputed, or it is doubtful who is the person en- titled to a reconveyance) he must file a bill in equity for redemption, and, on proof that he is the person entitled to redeem, he will obtain a decree, ordering that an account shall be taken (by the proper officer of the court) of what is due to the mortgagee for principal, for interest calculated up to six calendar months from the date of the order, and (usually) for" the costs of that suit; with a deduction, if necessary, of all the rents and profits which have been, or which ought to have been, received by the mortgagee ; and that on payment being made by the mortgagor, on that day six months, of all sums thus found duo to the mortgagee, the latter shall reconvey the property ; but that in default of such payment the mortgagor's bill is to be dismissed with costs a proceeding which has the effect of a decree that the equity of redemption shall be foreclosed (*). As has been mentioned, the (//) Brown T. Coif, 14 L. J. (Ch.) 167. (h) Kharpnell \. Bo. ('a. Ab. f>03. (/) Cholmley T. dj-f-r,/, "2 Atk. 2G7 ; U'iaeAetter \. faiiif, 11 Vcs. 194, 19U; Faulkner v. li'olton, 7 Sim. 319. 2i8 ' OF COEPOKEAL HEREDITAMENTS. costs of such a suit fall more usually upon the mort- gagor (/), the exception occurring when the suit has been rendered necessary by the fault of the mortgagee, as where he has refused to accept a sum tendered to him which has been found ultimately, in working out the decree, to have been sufficient to pay everything due to him (A-). Rights and Next, as to those points which relate more parti - liabilities of a -, , , -, 01 i mortgagee. cularly to the mortgagee. Such a person has, as a consequence of his position, various rights which he may exercise in order to enforce his security. Thus, / he may sue the mortgagor at law on the covenants for payment of the principal money lent and interest which are to be found in every properly drawn mort- v gage deed ;2he may enter into possession of the mort- l gaged property $ and he may take proceedings for it, the foreclosure of the equity of redemption^.or for the Mortgagee sale of the land. These rights, as well as any other his J ri-htTcon- reme( li es which he may happen to possess, he may currently. exercise concurrently, without any interference by the courts (I). For instance, he may enter into possession of the property, and then sue at law on the mortgagor's covenant, bringing at the same time a bill for fore- closure (?) ; or he may sue on a bond, given as a collateral security, although he has already commenced a suit for foreclosure (n) . Since, however, the exercise of any of these rights by the mortgagee involves cor- responding liabilities on his part, we will proceed to consider each of them separately. Action on the The mortgagee ought seldom to be obliged to have recourse to an action on the mortgagor's covenants covenants for in order to recover either his interest or his principal. (j) See Cotterell v. Stralton, L. R. 8 Ch. 295. (/,-) llarmer v. Priestley, 16 Beav. 569. (I) See Lockhart v. Hardy, 9 Beav. 349 ; Cockell v. Bacon, 16 Beav. 158, 159. (TO) Rees v. Parkinson, 2 Anstr. 497. () Burnett v. Martin, 2 Doug. 417. OF AN EQUITY OF REDEMPTION. 2 i'J This remedy may, however, be found useful where the, interest has been allowed to get very much in arrear, or where the mortgaged estate proves to be an insuffi- cient security for the amount due on it. For as tq T the first point, the mortgagee's power of recovering u interest, in the absence of such a covenant, is re- stricted by the 3 &4Wm.IV.,c. 2 7 (0), which enacts that 3 & 4 Wm. no arrears of interest, in respect of any sum of money c- 2l charged on laud, shall be recovered by any action or suit but within six years after the same shall have become due, or after an acknowledgment of the same, in writing, shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent ; whereas under the 3 & 4 Wm. IV., c. 42 (j)), an action of coven- 3 & 4 Wm. ant, or of debt, upon any bond or other specialty may ^ c ' be brought within twenty years (17) (or longer in the case of persons under disability (r) ) after the cause of such action or suit, or within twenty years after the time when the party liable by virtue of such specialty, or his agent, shall have given an acknowledgment of the debt either by writing, or by part payment, or part satisfaction of, or on account of, any principal, or interest, then due thereon. And since a mortgagee e.-innot recover, in a foreclosure suit, more than six years' arrears of interest (*), except when an express trust has been created in his favour (t) (an exception wliieh will cease to exist when the Real Property ^ 9 ,J Limitation Act 1874 (u) comes into operation (v) ), the ' action on the covenant may be resorted to when his claim extends beyond that term. M S. 42. (y) SS. 3, 6. (g) I'mjet v. Foley, 2 Bing. N. C. 679. (r)S.4. () Jtoundv. Bell, 30 Beav. 121. (t) 3 & 4 Wm. IV. c. 27, s. 25 ; Cox v. Dolman, 2 Du G. M. & G. 592 ; \. J,.hi,M,n, 1 D. & Sm. 412. u) 37 & 38 Viet. o. 57. s. 10. r) Ou the 1st of January, Ib79. 250 OP CORPOREAL HEREDITAMENTS. To recover principal. 3 & 4 Win. IV. c. -27. The power of bringing an action on the mortgagor's covenant for payment of principal is also limited by the 3 & 4 Wm. IV., c. 27, which, by another sec- tion (w} } enacts that no action shall be brought to recover any sum of money secured by any mortgage but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for, or release of, the same, unless in the mean time some part of the prin- cipal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent ; and in such case no such suit or action is to be brought but within twenty years after such payment or acknow- ledgment, or the last of such payments or acknow- ledgments, if more than one. And under the Real Property Limitation Act 1874 (x) (which will come into operation on the 1st of January 1879) the mort- gagee will have to bring his action within twelve years (instead of twenty) from the time when his right first accrued, or from the time of his last receipt of some t ii* ) (. [(^principal or interest, or of an acknowledgment of his Acknowledg- ' right thereto. It has been held, in questions arising under the acts of William the Fourth, that no formal acknowledgment need be given by either the party liable or his agent (y), the statutes speaking only of some acknowledgment. It has also been decided (z) that if a part payment, or an acknowledgment, made by one of several parties interested in moi-tgaged property, has the effect of preserving any right of action, that right will be saved, not only against the (w) S. 40. (x) 37 & 38 Viet. c. 57, s. 8. (y) Blair \. Nugent, 3 Jo. & L. 658, 677 ; St John v. Boughton, 9 Sim. 219. (z) Roddam v. Morley, 1 De G. & J. 1 ; Pears \. Lainy, L. K. 12 Eq. 41. OF AN EQUITY OP REDEMPTION. party making the payment, but against all other l>:irtu's liable on the specialty (<). The mortgagee's right to sue on the covenant may Mor also be lost to him in consequence of certain acts ^ his own. For he will not be allowed to proceed on his collateral securities when he has put it out of his power to re-convey the mortgaged property. Thus (1>), where a mortgagee, after foreclosure, sold the estate for less than was due to him, he was not allowed to sue on a bond given by way of -collateral security, although the sale had been perfectly fair. And the same principle applies to a mortgagee suing on the covenant for the balance of the sum due to him (c). Hence we see that the mortgagee's better course, if he thinks the mortgaged estate an insufficient security, is first to sue on the covenant, and then to proceed against the estate for any money still owing to him. Of course if ho has recovered in an action all that is due to him, on every account, he cannot take any further proceedings against the mortgagor, or against the estate, but must re-convey the mortgaged pro- p'M-ty. But, subject to this, the mere fact of his having sued on the covenant does not entail any responsibility upon him. The mortgagee may also enter into possession of Entn in- into the mortgaged property, and he has a right, in the po * absence of stipulation, to do this directly the mort- gage deed is executed (iiml t.. jn-rty such care, that is,as a prudent man would take $%,? of his own.; subject however to his right to recover; (a) But see Conpt v. Creuncell, L. R. 2 Ch. IT-'. 125. (b) Lirkhart \. llanly, 9 Ikav. 349 ; aud see Walker v. Jonct, L. R. 1 1\ C. 60. (f) Palmer v. Hfiirfrie, 27 Benv. 349. (d) Doe v. Liylitfoot, 8 Mir A: W. 053. 252 OP CORPOREAL HEREDITAMENTS. Rights if pro- perty is an in- sufficient security. Must receive the rents and account for them. May charge mortgagor \vith reason- able expenses. his money. Hence, if the property is a sufficient security for the debt, the mortgagee will be liable for any unnecessary destruction of it (e), or for allowing any part of it to be abstracted by other persons, so as to make it impossible for the mortgagor to get back in specie what has been thus abstracted (f), and in such case he will be charged with his receipts from the property, but disallowed his expenses relating to it ((/). And if he enters into possession of leasehold premises, he is bound to perform all the covenants in the lease, and is responsible to the mortgagor for a forfeiture occurring through his default in this re- spect (h). But, if the security is not sufficient, he may make the most of the mortgaged property for the purpose of realizing what is due to him. He may, therefore, on that ground, cut timber, or open a mine, but he does any speculative acts at his own peril, so that if he incurs a loss he cannot charge any of it against the mortgagor, whilst the whole of any profit which he may make must go in discharge of the mortgage debt (i). It is his duty to receive the rents, and he is bound to account, not only for the rents and profits which he has received, but also for those which he might have received but for his own wilful default (/), as, for instance, if he allows a tenant to remain for several years on the property, and does not receive or demand rent from him (A;). On the other hand, he is entitled to charge the mortgagor with all sums fairly expended on the property, in keeping it in due repair, or even in respect of costs properly incurred in suits relating to it (I). He may do any (e) Sandon v. Hooper, 14 I,. J. (Ch.) 120. (/) Hood v. Easton, 2 Giff. 692; Chisholm v. Sheldon, 1 Grant, 318. (g) Thorneycrnft v. Crockett, \ 6 Sim. 44o ; 2 H. L. C. 239. (h) Perry v. Walker, 1 Jur. (N. S.) 746. (*) MillM v. Davey, 31 Beav. 470, 476. (j) Parkinson v. Hanbury, L. R. 2 H. L. 1, 9. (it) Brandon v. Brandon, 10 \V. R. 287 ; and see Hughes v. Williams, 12 Ves. 493-4. (/) Parker v. Watkins, John. 133 ; Blackfordv. Davis, L. R. 4 Ch. 304. OP AN EQUITY OP REDEMPTION'. acts, such as pulling down ruinous houses and build- better, which may be necessary to prevent a for- fi'iture of the estate (in) ; and it would probably be his duty to do so, but he is not bound to do more than is required to keep the estate in necessary repair (n), or to speculate with the property on behalf of the mort- gagor (o). Neither should he do anything which will Must not un- unnecessarily increase the value of the estate, and ncceMaril >' m - T/V i / i crease tne thus make it more difficult for the mortgagor to value of the redeem. He is not allowed to charge anything for ^ state< . i i- A Cannot char 8 e his personal services in looking after the estate, or m f or personal collecting the rents (p), and any agreement to such 811 an effect between him and the mortgagor will be set aside, and he will not be allowed to receive more than his principal, interest, and costs (q). But he was But may ap- always entitled to appoint a receiver to collect the po . lnt a re ~ * . ceivcr. rent, and charge his expenses against the mort- gagor (r) ; and this privilege is now expressly con- ferred on him by statute, where default has been made by the mortgagor (.s). If he occupy any part of Occupation the property himself, he will be charged with a fair rt '" t - occupation rent for it (t). And he cannot, without the consent of the mortgagor, make any lease which will be binding upon the latter after he has redeemed, unless it has been necessary in order to avoid an- apparent loss, in which case the lessee cannot be disturbed (n). From the above remarks it will have been gathered Account, that a mortgagee who has entered into possession is (m) Hnrdy v. Reere, 4 Ves. 406, 479. to) Godfrey v. ll'ntsmi, 3 Atk. ,j\7. (o) Jtowe v. Wood, 2 Jac. & W. 553, 555. (p) OH it/ion v. Jlockmore, 1 Ver. 315; Langttaffe v. Femcick, 10 Ves. 401. (a) Fi-eiifh v. Hanoi. "2 Atk. 120. (/) llonitfioH v. /, \Yr.315; I.aiigtlaffe v. JVwicX-, 10 Ve. 404; Jlnrr.tt v. llartlry, 12 Jur. (X. S.) 426. () 23 & 24 Viet. c. 145, ss. 11, 1724. (t) Smart v. Hunt, 1 Ver. 418". (M) Hungerford v. Clay, 9 Mod. 1. -~> t OF CORPOREAL HEREDITAMENTS. bound, when the mortgage is redeemed, to account for his receipts. If his annual receipts have exceeded the amount of interest annually due to him, he will have been gradually repaying himself the principal debt. But, if some interest was due to him when he entered into possession, he will, ordinarily, be allowed, in his accounts, to charge interest every year on the whole of the original principal (v) ; since he was not Annual Rests, bound to receive his money piecemeal. If, how- ever, no interest was due to him at the time when he took possession, and there has been an excess of annual receipts over the annual interest due to him, the account will be taken against him with ' ' annual rests/' That is, the principal will be considered as having been, every year, diminished by the amount of such excess ; and he will only be allowed to charge an annual interest on the principal thus actually due (w). And the same rale will apply to his posses- sion during any part of a year. The account will be, also, taken with rests if he has entered into any agree- ment with the mortgagor by which the interest already due has been converted into principal (x). An exception is, however, sometimes made to the general rule. For the mere fact of interest not being due to the mortgagee when he takes possession is not decisive upon the question of rests ; every circum- stance of the case will be regarded; and if the mort- gagee has been driven to take possession, by the wrongful acts of parties interested in the estate, he will not be obliged to account with rests even though no interest was due to him at the time (//). This principle has also been applied to a case (z) where a mortgagee entered into possession in order to prevent a forfeiture for non-payment of rent and for non- (v) ScholeJUld \. Lockwood (Xo. 3), 32 Beav. 439. (w) Shepherd v. Elliott, 4 Madd. 254. te) Wilson v. duer, 3 Beav. 136. (y) Horlock v. Smith, 1 Coll. 287, 297. (:) Patch v. Wild, 30 Beav. 99. OF AN EQUITY OF REDEMPTION. ZOO assurance in accordance with a covenant (<). On the other hand, he may be held liable to account with a although interest was due to him when he entered. Thus (b), where a mortgagee had sold paH of the property, and there was a surplus out of the proceeds of the sale after payment of all interest then due and costs, it was held that this surplus must be deducted from the principal, and that from that time the account must bo taken, on the diminished prin- cipal, with annual rests against the mortgagee (<). The possession of the mortgagee may have the effect Mortal- of destroying the mortgagor's equity of redemption. Jj^J.^. 1 'i",," ! ' For, by an act already referred to (J), it is provided (>) |uit\ ..i r<- that when a mortgagee shall have obtained possession l l> "^ or receipt of the profits of any land, or the receipt of iv. i. -21. any rent, comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring a suit to redeem the mortgage but within twenty years next after the time at which the mortgagee obtained such possession or receipt, unless in the mean time an acknowledgment of the title of the mortgagor, or of his right of redemption, shall have been given to the mortgagor, or to some person claiming his estate, or to the agent of such mortgagor or person, in writing signed by the mortgagee or some person claiming through him ; and that in such case no such suit shall be brought but within twenty years next after the time at which such acknowledgment, or the last of suc-li acknowledgments, if more than one, was given ; and that when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, (a) And see Gordon v. Eakin*, 16 Grant. 363. (b) Thompton v. Hudson, L. 11. 10 Eq. 407. (c) For the mode of taking such an account see Linnington v. liar- wood, Turn. & Russ. 477, 481. (rf) 3 & 4 Wm. IV. c. 27. (< ) S. 28. OP CORPOREAL HEREDITAMENTS. shall be as effectual as if the same had. been given to all such mortgagors or persons ; but that when there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effect- ual only as against the party or parties signing as aforesaid, and the person or persons claiming through them, and shall not operate to give the mortgagor or mortgagors a right to redeem the mortgage, as against the person or persons entitled to any other undivided or divided part of the money, or land, or rent. And Real Property under the Real Property Limitation Act 1874 (/) m Act t k e time of twelve years will, in 'all the above cases, be substituted for that of twenty years. Before the3&4Wm. IV., c. 27, was passed, the Court of Chancery had looked upon a twenty years' posses- sion by the mortgagee, without any acknowledgment of the title of the mortgagor, as barring the latter* s right to redeem, unless he had been under disability (acting on an analogy to the old Statute of Limita- tion (fj) ), or unless thei*e had been some fraud, or unfair dealing, on the part of the mortgagee. But Former rule as very slight acts of the mortgagee were held to be an mi ; |jl knowled ~ acknowledgment by him of the mortgagor's right to redeem (/?,) ; such, for instance, as his having kept accounts of the sums due to him (/), or mentioning the estate in his will as " ray mortgage " (j) . This Clianee made tendency of the court has been considerably restricted by -the act, which requires, as we saw, an acknow- ledgment in writing; and this, it will be noticed, can only be given to the mortgagor or his agent, and not to any third person. But the acknowledg- (f) 37 & 38 Viet. c. 57, s. 7. (y) 21 Jac. I. c. 16 ; see Anon. 3 Atk. 313. (A) See Hodle v. Healey, 6 Macld. 181. (') Per Lord Longhborough, 2 VPS. Junr. 83. (j) Ord v. Smith, Eq. Ca. Ab. 600. OP AN EQUITY OF REDEMPTION. mcnt need not be formal. Thus (A-), where a mort- gagor's solicitor wrote, on the subject of the mortgage, to the mortgagee, who replied by letter " that he did not see the use of a meeting unless some one was ready to pay him off:" this was held a sufficient acknowledgment within the statute (/). Nor need the acknowledgment be given within twenty years from the time of taking possession, for in the case just referred to (HI) it was not made until after twenty- five year's' possession, And the mortgagee's posses- Mortgagee's sion will not destroy the equity of redemption, unless ^^"d. he has held by a title adverse to the mortgagor ; for verse, otherwise there would not be (as the statute supposes) a person to whom the acknowledgment may be made, ell as a person to make it. Hence, where (n) a mortgagee, who had taken a mortgage of property from the tenant for life and the remainder-man of it, entered into possession, as mortgagee, and then pur- chased the equity of redemption of the tenant for life, it was held that the time during which he was in possession under the latter title did not run against the remainder-man. And the rule is the same, if the mortgagee acquires a non-adverse interest before he takes possession (o). With reference to the acknowledgment being made Ackno\\ledg- by the " mortgagee," it has been held that where two ^^J or more mortgagees are trustees and joint-tenants, . , ,, e ?Tr . , . ^ c c ;nid the fact of their being so appears on the face of the mortgage deed, an acknowledgment made by one of them is not sufficient to let in the equity of re- demption, since they, all together, only make up one mortgagee (p). (*) Stan*/teU v. Hobton, 3 De G. M. & G. 620. (/) And see Pranee v. Sympson, Kay, 678. (m) Statufleld v. ffobion, 3 De G. Si. & G. 620; and see ffndttton r. Jtooth, I De'G. F. & J. 81. (M) Ifydo v. Dallatcay, 2 Ha. 628. (o) Safety v. King, \ Keen, 601. (jw) Richardton T. Younge, L. R. 6 Cb. 478. f. R -"iS OF CORPOREAL HEREDITAMENTS. Bill for fore- A mortgagee is not bound to trust only to his right of entering into possession, for the ultimate realization of his security. For when the Court of Chancery established the mortgagor's right to redeem, it also put a restriction on that right, by permitting the mortgagee to take proceedings to foreclose the equity of redemption. The consequence is that the mort- gagee is entitled, so soon as the day fixed for payment by the mortgage deed is over, and provided his claim is not satisfied, to exercise his right of obtaining foreclosure. This he does by filing a bill in the Court Decree. of Chancery, and getting under it a decree that an account shall be taken of what is due to him for his principal, for interest on it, including six months' prospective interest, and for the costs of that suit : and that if the mortgagor shall, on that day six (calendar) months, pay all sums so found due, the mortgagee shall reconvey the mortgaged estate ; but that, in default of such payment, the mortgagor shall, from thenceforth, stand absolutely debarred and fore- closed of and from all equity of redemption in and to the mortgaged premises (q). If default is not made, the mortgagee must, of course, re-convey the pre- mises ; but if default is made, he must next obtain a Final order, final order for absolute foreclosure in order to perfect his title (r). Extension o." Besides the indulgence thus shown to the mort- gagor, in compelling the mortgagee to get a final order, the court is very lenient in extending the time within which the mortgagor may redeem. In the first place, if he comes before the time fixed for pay- ment by the decree has arrived, he can generally, pro- vided he can assign some reason for his request (s), get an order extending the time for another six months, on condition of his at once paying all interest then (g) Seton, 364. (r) See Seton, 393. (*) Holford v. Yate, 1 K. & J. 677 ; Nanny v. Edwards, 4 Euss. 124. OP AN EQUITY OP REDEMFIloX. . and the costs of the suit. In one instance (/) as many as four such orders were made, but that was a very exceptional case, the mortgagor having already entered into an advantageous contract for the sale of the estate. And an order will not be readily made if tin- property is shown to be already an insufficient security (). Not only can the mortgagor, generally speaking, get an extension before the time comes for payment, but he may even get one after the order for making the foreclosure absolute has been obtained and inrolled ; this, however, has only been done under very peculiar circumstances, as, for instance, where it was clearly proved that the mortgagor's interest in the property was worth three or four times the amount of the debt (t). , Moreover, the court will often hold that the mort- Foreclosure gngee has, after obtaining foreclosure, re-opened it acts^nilr J ly his dealings with the property before the fore- closure is made absolute. Thus, he opens the fore- closure if he receives any rents of the property be- By receipt <>t' tween the time when a certificate has been made, rcnt ' showing the amount due to him, and the day fixed for payment by the mortgagor; even though default is afterwards made in such payment ; since by receiving rents he has altered the amount found due to him (). In that case a new day, not exceeding three months (x) from the time of his applying for an absolute order, must be fixed for payment (//). It was formerly thought that the foreclosure was not opened by the fact of the mortgagee receiving rents after the day fixed for payment, although he might not have obtained the final order (z) ; but it would seem from the decision in a recent case (a) that a receipt of rent (0 Mtcardt v. Cunlifff, 1 Mad.l. 287. (u) Eyre v. Ifansini, '2 Hcav. 478. (r) Fvrd v. WatUll, 2 Ph. 591 ; and see Ptatt v.Athbridge, 12 Grant, 105. (ir) Garlick v. Jackson, 4 IJmv. 1.~>I. (JT) Jliif/iaiian \. lirtniirnii, 12 Dear. 355. (y) Alden v. Fwter, 5 Keuv. 592 ; Ellit T. Gr(ffithi, 7 Beav. 83. (:) Constable v. Houick, 5 Jur. (X. S.) 331. (a) Preet v. Coke, L. R. 6 Ch. 645. 200 OF CORPOREAL HEREDITAMENTS. at any time before obtaining the final order, re-opens the foreclosure. By other acts. And although the court will not prevent a mort- gagee who has foreclosed from pursuing his other remedies, if the value of the estate foreclosed proves to be less than the amount due to him, it will consider the foreclosure as thereby opened (6). We have also seen, previously, that parting with any of the property after foreclosure, stops the moi*tgagee from taking any further proceedings against the mortgagor. The Court of Chancery would, under the old prac- tice, sometimes direct a sale of the mortgaged pro- perty, instead of foreclosure of the equity of redemp- tion, and now it is provided by the Chancery Improve- 1.5 & 16 Viet, ment Act (c), that it shall be lawful for the court, in any suit for the foreclosure of the equity of redemption in any mortgaged property, upon the request of the mortgagee, or of any subsequent incumbrancer, or of the mortgagor, or of any person claiming under them respectively, to direct a sale of such property instead of a foreclosure of such equity of redemption, on such terms as the court may think fit to direct. The court may therefore direct a sale at once, even Sale may be against the wish of the mortgagor (d), and it will in- immediate, dine to direct an immediate sale when the property is unproductive (e), or when such a sale is prima facie But time for the benefit of all parties (/), but in other cases it |'^ l <>|jy allowed will give a limited time, varying from six months (cj) to one month (h), within which the mortgagor may re- (i) DnsJnroodv..Jili/(hu-ay, 1 Eq. Ca. Ab. 317. (c) 15 & 16 Viet. c. 86, s. 48. (d) Newman v. Selfe, 33 Beav. 522. (e) Foster v. Harvey (No. 2), 11 AV. R. 899. ( f) Hewitt v. Namon, 28 L. J. (Ch.) 49. (ft) Bellamy v. Cockle, 18 Jur. 465 ; Darnell, C. P. 1152. (h) Staincs v. Rudlin, 16 Jur. 965; Smith v. Robinson, 1 Sm. & Giff. 140. OP AN EQUITY OP REDEMPTION. - ' 1 deem. The proceeds of such a sale, after satisfying the claims of the mortgagee, belong to the mortgagor. It has already been pointed out how the mortgagee Mortgagee may, under the Statutes of Limitation, lose his right ' to bring a personal action against the mortgagor, and in like manner he may be prevented from proceeding directly against the mortgaged property. For it is enacted by the 3 & 4 Wm. IV., c. 27 (t), that no per- 3 & 4 Wm. son is to make an entry, or bring an action to recover ** c> ' any land, but within twenty years next after the time at which the right to make such entry or to bring such action shall have first accrued to some person through whom he claims ; or, if such right shall not have accrued to any person through whom he claims, within twenty years next after the time at which the right to make such entry or to bring such action shall have accrued to the person making or bringing the same. And the third section of the act explains that the right to make such entry or bring such action shall if the grantee has been in possession be deemed to have first accrued from the time when such possession was discontinued, or if the grantee has not been in possession, and his claim is in respect of an estate or interest in land conveyed to him (by any instrument other than a will) by a person in possession of such estate or interest from the time when he became en- titled to take possession. But if such estate or in- terest was one in reversion or remainder, then the right is to be deemed to have accrued from the time when the estate or interest came into possession. A further proviso is made by another (the fourteenth) section, namely, that if any acknowledgment of the title of the person entitled to any land shall have been given to him, or his agent, in writing, signed by tin- person in possession, or in the receipt of the profits of such land, then the right to make such entry, or bring (0 S. 2. 262 OP CORPOREAL HEREDITAMENTS. such action, shall be deemed to have accrued at the time when such acknowledgment, or the last of such acknowledgments, if more than one, was given. A doubt was raised (j), on the wording of this sec- tion, whether payment of interest was equivalent to a written acknowledgment of the mortgagee's title, or whether a mortgagee's right to recover the land was gone if he, for twenty years, allowed the mortgagor to remain in possession, paying interest, but making no other acknowledgment of the mortgagee's title. In order to remove these doubts, it is enacted by the 7 Wm. IV. & 7 Wm. IV. & 1 Viet., c. 28, that it shall and may be c ' " ' lawful for any person entitled to, or claiming under, any mortgage of land, to make an entry, or bring an action, or suit in equity, to recover such land, at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years have elapsed since the time at which the right to make such entry, or bring such action or suit shall have Real Property accrued. The Real Property Limitation Act 1874 (A - ), Imitation Act already re f erre d to, substitutes (/) the term, of twelve years for that of twenty years as the time within which the mortgagee is to bring his action under the circum- stances mentioned in the 3 & 4 Wm. IV., c. 27, s. 2. It also (m) enacts that the provisions of the 7 Wm. IV. & I Viet., c. 28, are, after the 31st of December 1878 (w), to be construed as if the period of twelve years had been therein mentioned instead of the period of twenty years. It follows that the mortgagee's right to recover the land is, at present, lost if he per- mit the mortgagor to remain for twenty years in un- disturbed possession without payment of interest, or written acknowledgment of title, and that after the (j) Doe v. Williams, 5 A. & E. 291. (k) 37 & 38 Viet. c. 57. (0 S. 1. (m) S. 9. () S. 12. OP AN EQUITY OP KEDEMPTION. 31st of December 1878 such neglect on his part for a period of twelve years will bar his right to recover thr> mortgage security. Reference has already been made to cases as to the Acknow! acknowledgment required by other sections of the Statutes of Limitation, and those cases apply equally to acknowledgments under s. 14 of the 3 & 4 Wm. IV., c. 27. With regard to the possession necessary to bar the mortgagee's right to the land, it has been decided that if he is himself in possession of it, but under another title (as, for instance, where he is a tenant for life of the mortgaged estate), his possession in that capacity will not operate as a bar to his title as mortgagee (o). It has also been held (p) that a mortgagee of land may, at any time within twenty years after his last receipt of interest or of acknowledgment of his title, recover the mortgaged land from a tenant of the mortgagor, even though, as between such tenant and the mortgagor, the latter* s right to the land is barred, under the 3 & 4 Wm. IV., c. 27, in consequence of his not having received any rent, or any acknowledgment of his title, from the tenant for twenty years past. Moreover (oe v. Eyre, 17 Q. B. 366. (q) Doe v. Mataey, 17 Q. B. 373. 264 OF CORPOREAL HEREDITAMENTS. otherwise the mortgagee, or persons claiming under him, might be prejudiced by the neglect of the mort- gagor to receive rent, or an acknowledgment of title, from his own tenant a contingency undesirable in the interest of the mortgagor himself, as tending to di- minish the mortgagee's security, and thus make him less willing to allow the mortgagor time for repa}'- ment of the loan. 2G5 CHAPTER XIV. OP AN EQUITY OF REDEMPTION (continued). IN addition to those privileges of a mortgagee which have been mentioned in the previous chapter, there are two others, of a somewhat different nature, which will require a brief notice. The first of these arises from the fact of the mort- gagee's being the legal owner of the mortgaged estate. This is his right to " Tack ; " that is, to annex to his Tacking original security another which he holds for a subse- quent debt due in respect of the same property. If, for instance, A has an estate conveyed to him by way of mortgage in the usual form, and subsequently, without notice of the existence of any other incum- brance on it, advances a further sum of money to the mortgagor on the security of the same estate, he will have a right to " tack " this last advance to his first, and claim payment of both before he re-conveys the property, even as against an incumbrancer who lent his money on the security of the equity of redemption, before A made his further advance. It will be obvious that this right to tack is a great advantage where the mortgagor is insolvent, or, even if he is solvent, where the mortgaged estate is an in- sufficient security for all the money advanced on it by different persons. We will proceed, therefore, to consider the qualifications necessary to entitle a mortgagee to tack. But, before doing so, we must point out that the 266 OP CORPOREAL HEREDITAMENTS. right does not obtain against any estate or interest which came into existence after the 7th of August 1874. For the Vendor and Purchaser Act 1874 (a) ,JL$\ (which commenced on the date just mentioned) enacts (b) that after the commencement of the act no priority or protection shall be given or allowed to " any estate, right, or interest in land, by reason of such rate right or interest being protected by or tacked any legal or other estate or interest in such land. This, however, is followed by a proviso that the section containing this enactment shall not take away from any estate, right, title, or interest any priority or protection which but for the section would have been given or allowed thereto as against any estate or in- terest existing before the commencement of the act. It follows from the above that the right to tack may still be exercised, as against any equitable estate which was in existence before the commencement of the act, whether the protecting estate, or the estate sought to be tacked, was created before, or after, that date. And the reader will understand that the remarks about to be made on the subject of tacking apply to such cases only as are not affected by the act. vrhen -,\ mort- The first requisite for tacking is that the person g;i i r J ;itlv;m<-f <>n the therefore, provided he possesses the other necessary crt where A had advanced money on a leasehold estate, and B subsequently made an advance on the equity of re- demption of the same estate, and then died, leaving A his executor : it was held that A, although both the securities were thus vested in him, could not tack them against incumbrancers whose rights had accrued between the time when A and B respectively had made their advances. The mortgagee's right to tack will not, however, be affected by the fact that the deed securing his further advance provided for the payment of other incumbrancers besides himself (i). Must not have Moreover, the mortgagee cannot tack if, at the had notice of fcj me o f j^g f ur ther advance, he had notice of the exist - subsequent in- . . cumbrance. ence or any intervening mcumbrance; ior his equit- able right to tack is expressly founded on' the ab- sence of such notice (n). And the right is lost, not only by actual notice (which must amount to more (h) \ &2 Vietc. 110,8. 13. (t) Coleman v. Winch, 1 P. "W. 775; Rolfe v. Chester, 20 Beav. 610; Thomas \. Thomas, 22 Beav. 341 ; Carroll v. Robertson, 15 Grant, 173. (j) Archer v. Snatt, Str. 1106. (k) Jones v. Smith, 2 Ves. Junr. 372, 376 ; and see Lowthian \. Hasel, 3 Bro. C. 0. 161 ; Irby v. Irby, 22 Beav. 217. (I) Barnctt v. Weston, 12 Ves. 130. (m) Spencer v. Pearson, 24 Beav. 266. \n) Brace v. Marlbwough, 2 P. \V. 490, 494. OF AN EQUITY OP BEDEMPTIOff. than a vague rumour (o) ) given to himself, or his agent, by some person interested in the property (p) ; but also by constructive notice, such, for instance, as the knowledge obtained by his agent, counsel, or solicitor (q), provided such knowledge was acquired with reference to the same transaction (r), and that it was such as the agent or professional man might be expected to have communicated to him (s) ; includ- ing in this category knowledge of acts arising out of the gross negligence (/) of those whom he employed, but not acts of fraud on their part (M). Notice may also, in certain cases, be given by entries in the pub- lic registers ; and, however given, it is sufficient if it makes the mortgagee aware of the existenee of in- curabrances, although it may not be accurate as to the particulars or extent of such charges (r). So strictly is the rule as to notice enforced in equity, that even though a mortgage be made expressly to secure, not only a sum of money then lent, but also further advances on the same property, yet the mort- gagee cannot tack such further advances if, at the time of making them, he had become aware of the existence of an intermediate incumbrancer (w). For tho deed does not bind him to make further advances, and if he chooses to make them under such circum- stances, he must trust to the general solvency of his debtor. The result is the same, even where there is a mortgage deed to secure present and future advances, (tho latter being limited to a certain amount) and (o) Wildyoote v. Wayland, Gould. 147 ; Jutland v. Stainbridge, 3 Vc. 478, 485. (/>) liarnhart v. Gretnthield*, 9 Moo. P. C. 18, 36; and sec ^'atal Lat,,l, ,tr., Co. v. Goof. L. U. 'J 1'. C. T-'l, 129. ('/) Le Xrre v. Le Xece, Arab. 436, 438 ; Atterbury Y. Walfu, 8 Do G. M. & <;. I.'. I. (>) ll'arrick v. ll'.irrick, 3 Atk. 290, 294 ; Re Smallman, Ir. R. 2 Eq. 34. () W,,Uit t. Pollen, 32 L. J. (Ch.) 782. (0 JMl.,,,,1 v. Hurt, L. U. 6 Ch. 678. (H) Krnntdy v. Green, 3 My. >V K. 699. (r) GifmoH v. Inyn, (i Hn. I'l'J. I'.M ; /w v. ll'Miauis, 21 Boar. 47. ( for tnat is the ri g nt to ing securities, throw a series of debts on the same estate, this, the right to make separate estates liable for one consoli- dated debt; that is founded on legal possession, this, on a doctrine peculiar to equity ; that is lost by notice, this (as we shall see presently) is entirely unaffected by notice (b). It may also be mentioned that the (x) Menzies v. Lightfoot, L. R. 11 Eq. 459. (y) Calislier v. Forbes, L. R. 7 Ch. 109. ' (z) Fisher on Mortgages, 679. (a) Watts v. Symes, 1 De G. M. & G. 240 ; Neve v. Pennell, 2 H. & M. 170; Tweedale v. Tu-eedale, 23 Beav. 341. (li) And see Fisher on Mortgages, 679. OP AN EQUITY OF REDEMPTION. -71 lor and Purchaser Act 1874 docs not appear to thu author to have made any change in the law as to olidating securities. The rule as to consolidation extends to the case of Couolidation a foreclosure suit, as well as to that of one for redemp- "^ tion, and a mortgagee could, therefore, in the cases put above, foreclose the equity of redemption of any one estate, unless paid the whole amount due on the security of all (c). Moreover, the benefit of the mort- gagee's right to consolidate may remain, although one of his securities may have gone. If, for instance, two estates are mortgaged to the same person, and he can- not obtain, on selling one of them, the amount due on it, he may throw the balance owing to him on the- property which remains in his hands (<7). Nor docs the right apply only to the simple case of AMigme r ;i an original mortgagor and mortgagee. Hence, if A mortgages two estates to B, and a third to C, and C afterwards takes an assignment of B's mortgage, he can consolidate his three securities and hold them all until he is paid in full (c). Neither is it necessary that any of the sums consolidated should have been advanced by the person claiming to exercise this right : it is sufficient that they are, at the time for redemption, vested in the same person. Where, for instance (/), the- owner of two estates mortgaged them, one to A, the other to B, and afterwards mortgaged the equity of redemption of both estates to C, and subsequently A and B each transferred his mortgage to D : it was held that C could not redeem either estate without paying D all that was due to him on the security of both (w T. fentirll, 2 II. \- M. 170 ; Ticeedale v. TwtedaU, 23 Honv. 341. (riust to consolidate, thus given to a mortgagee or his mortgagor's assignee, can be exercised against an assignee of a mortgagor, as well as against a mortgagor himself; even though that assignee may have been himself a mortgagee or a purchaser for value. The justice of a rule which allows consolidating against such an assignee, by a person who has had previous notice of his rights, is not very apparent. The reason given for it is, that a mortgagee, or a purchaser, of an equity Qf redemption must be taken to have known of the rule which allows consolidation, and, consequently, of the risk which he was encountering (i) ; but this ar- gument would seem to be valid only as furnishing a reason for continuing the existing rule, and not one for originating it. The practice, however, is now firmly established. Thus (j), where the purchaser of an equity of redemption filed a bill in Chancery against the mortgagee, for the purpose of redeeming the mortgage, and the defendant, by his answer, stated a subsequent mortgage made to him of the same premises, but for a distinct debt, it was decided that the purchaser had no right to redeem the first mortgage without redeeming the second also. Again, in a recent case (k] where the mortgages on seven different properties, originally made to different sets (A) Vint v. Padgett, 2 De G. & J. 611. () Vint v. Padgett, 2 De G. & J. 611, 613. (/) Ireson v. Denn, 2 Cox, 42-5. (*) Beevor v. Luck, L. E. 4 Eq. 537. OP AN EQUITY OP REDEMPTION. of mortgagees, had become vested in the same per- son ; it was held that the purchaser of the equity of redemption of two of these estates could not redeem them without redeeming the other five also ; and that it made no difference that some of the mortgages had been acquired by the then holder after the date of the purchase : also, that it was immaterial whether, or not, the purchaser had notice of the existence of the /J^Vu* other mortgages, and that there is no difference in this respect between the position of a purchaser and that of a mortgagee of an equity of redemption. The rule, too, is the same where different mortgages are held by different trustees for the same person (Z). All of which cases point emphatically to the danger of purchasing, or lending money on, a mere equity of redemption. But the mortgagee's right to consolidate does not But no con- hold good against persons whose equities of redemp- 8oli ^ atl j! { tion have been, all along, distinct from that of the equities of re- / mortgagor against whom he seeks to enforce it. dem P tlon - Hence, where (m) A mortgaged his estate, and then B mortgaged his estate to the same person, and A at the same time gave a further charge on his estate in order to secure the loan to B ; it was held that B was en- titled to redeem his estate on payment of that sum only which had been advanced to him. On the same principle, if an estate, belonging partly to A and partly to B, be mortgaged to secure a joint advance to them ; and then property belonging to A, and partly com- prised in the first mortgage, be conveyed to the same person to secure a sum advanced to A alone ; B can redeem on payment of the sum first advanced, without reference to the subsequent loan to A (n). ([) Tattell v. Smith, 2 De O. & J. 713. (m) Aldicorth r Robinson, 2 Bear. 287. (M) Higgint v. Franicii, 15 L. J. (Chy.) 329 ; and see Jonet T. Grtftikt, ML 207. C. 8 274 OF CORPOREAL HEREDITAMENTS. Sub-mort- Hitherto we have considered only the case of a mort- gagee who has taken a conveyance of the legal estate in the property which forms his security, but a few re- marks are now necessary respecting those mortgagees who advance their money on land which is already in pledge, and who may therefore be distinguished as sub- mortgagees. Assuming that the mortgage of such an one is made by an ordinary mortgage deed, but sub- ject to a pre-existing mortgage, we see at once that Eights not the his rights are not identical with those of a legal mort- ' am ? f s (r a ! eg gagee. He can sue the mortgagor on his covenants May "sue on for payment, and the remarks previously made on this ovenants for p O i n t apply to all mortgagees equally. But he cannot But cannot take possession of the property, for the right to take enter into pos- possession of land is founded on legal ownership of session Foreclosure ** Again, if he wishes to realize his security by Sllit - the aid of the Court of Chancery, his position is different from that of the legal mortgagee. For although, if he only wishes to foreclose the mort- gagor or subsequent incumbrancers, he need not bring the first mortgagee before the court (o), yet, since this foreclosure will only extinguish the rights, in respect of the property, of the mortgagor and those claiming under him (including subsequent incum- brancers), he has still, if he wishes to satisfy his debt, to redeem the first mortgagee ; his suit, therefore, more usually presents the two-fold aspect of seeking for redemption against the first mortgagee, and fore- closure against the mortgagor and all subsequent incumbrancers ; in which case, or even where he only seeks to redeem the first mortgagee, all persons in- terested in the property must be made parties to the suit (p). Decree. He can thus obtain a decree, which will begin with a direction for taking an account of what is due to the (o) Richards v. Cooper, 3 Beav. 504 ; Audsley v. Horn, 26 Beav. 195. (p) Fdl T. Brown, 2 Bro. C. C. 275 ; Farmer v. Curtis, 2 Sim. 466. OP AN EQUITY OF REDEMPTION*. mortgagee, followed by an order that the plaintiff shall redeem him within six months, or have his bill dismissed with costs: but that, on his redeeming, an account shall be taken of what is due to him, with an option to be given to each incumbrancer in succession, and finally to the mortgagor, to redeem him, failing which their equities of redemption are to be fore- closed (*/), and the plaintiff will then be in a position to acquire possession of the mortgaged property. A sub-mortgagee's strict right is to a foreclosure Has not a right only, and does not extend to a sale ; but it will be remembered that the Court of Chancery has now (r) power to direct a sale instead of a foreclosure, and since the object of giving the court this power is to But sale may avoid the great delay and expense which is occasioned t^court; '' by foreclosure and redemption where an estate is sub- ject to a number of successive mortgages (#), a sale / L" will generally be ordered under such circumstances ; the proceeds being, ordinarily, applied in paying off the several incumbrancers, according to their respect- ive priorities, and the surplus, if any, belonging to the mortgagor. \Ve have already seen that a legal mortgagee has Position the right of tacking, subject to the provisions of the ^ ( " m t Vendor and Purchaser Act, and of consolidating his and consolidat- securities. This latter right, since it does not depend in upon the possession of the legal estate, may be exer- cised by a sub-mortgagee against all mortgagees sub- sequent in date to himself, as well as against the mortgagor (/). But it is otherwise as regards con- solidating against prior incumbrancers, and as regards tacking; for a sub-mortgagee cannot do either of these things, unless he can obtain priority in a way Seton, 477. 15 & 16 Viet. c. 86, s. 48. Hunt v. Hunt, 16 Bcav. 372, 374. irY. Symet, 16 Sim. 640; Xtce v. Pentul^ 2 II. & M. 170, 183. 276 OF COEPOEEAL HEEEDITAMENTS. which we will presently endeavour to explain. It must also be remembered that his power of tacking, even when he obtains priority, only prevails against estates which were in existence before the 7th of 's AM ^4. / l*Aj Obtaining Supposing that there is a legal mortgage to A, fol- pnonty. lowed by mortgages of the equity of redemption in the same property to B, C, and D, in succession. Then, so long as the legal estate remains in A, the right of B, C, and D to be paid ranks according to the priority, in date, of their mortgages. But if D has advanced his money in ignorance of the mortgages made to B and C respectively, he will be allowed, if he can get the legal estate in the property from A, and subject to the remarks just made as to the date of the other incum- brances, to stand as it were in A's place, as well as in his own. For he will then be entitled, not only to be paid the debt formerly due to A (supposing that he has bought it up) before any payment is made to B or to C, but also to tack his own advance to the sum due to him as claiming under A, and to be paid that also before B and C are paid at all. And even if nothing is due to him as claiming under A, he can still take advantage of his legal estate, and claim for his own Must not have mortgage priority over those of B and C (w). But since lce< he cannot, under any circumstances, avail himself of the legal estate, so acquired, against a prior mortgagee of whose charge he was aware when he took his own, the questions, whenever a sub-mortgagee claims priority (which, as we have seen, involves a partial right to tack, and to consolidate), are whether he has really got the legal estate in the property (v) ; and (M) Marshv. Lee, 2 Vent. 237, and, with notes, 1 L. C. 611 ; Edmunds T. Powy,TYer. 187 ; Brace v. Marlborongh, 2 P. W. 490, 491 ; and see Hooper v. Harrison, 2 KTSTTSSTlOB- (v) See Brace v. Marttorough, 2 P. W. 490, 495 ; Thorpe \. Holds- worth, L. B. 7 Eq. 139. OP AN EQUITY OP REDEMPTION. 277 especially whether ho had, at the time of making his advance, actual or constructive notice of those claims which he seeks to postpone to his own. The subject of the doctrines of equity with reference to notice, actual and constructive, is far too extensive for dis- cussion here, but we may mention three points bearing on it, of which the two latter have given rise to some difference of opinion. It has been, from an early period, clearly settled Notice to a that a sub-mortgagee's right to acquire the legal estate is not prejudiced by mere notice given to him, his advance after he has made his advance, of the existence of " equitable incumbrances created before his own, for tuck, where the equities of several parties are equal, prefer- ence will be given to him who is clothed with the legal estate (w). But it would seem to have been at Nor dot* notice one time thought that a third mortgagee, although j himself ignorant of the existence of a second, could not exclude him if the first mortgagee, when he con- veyed the legal estate to the third and assigned his mortgage debt, knew of the second mortgagee (.c). This opinion has, however, been overruled (y), and it may now bo taken as beyond doubt that such know- ledge on the part of the first mortgagee is immaterial, provided that he has still an unsatisfied claim against the property. But the case was more doubtful if the And, first mortgagee had been paid off, and had only a dry legal estate, for it was, until lately, doubted whether first m>rt -.>_:. in such a case he was not in the position of an ordinary J. trustee, and unable, therefore, to part with his estate to the detriment of equitable claims on the property, of which he had notice (z). This somewhat fine dis- tinction (a) has been swept away by a recent decision (to) Manh v. Let, 2 Vent. 237, and, with notes, 1 L. C. 611 ; Wortlty \. JlirkhraJ, 2 Yes. 571, 674. (x) Sec Mackreth v. Xymmont, 15 VPS. 329, 335. (//) rraeork v. Hurt, 4 L. J. N. S. (Ch.) 33 ; Hates v. Johnnon, John. 304. (r) Carter T. Carter, 3 K. & J. 617 ; frowr T. Rict, 28 Bcav. 08, 74. (a) See Dart, V. & P. 758-9. 278 OF CORPOREAL HEREDITAMENTS. claimant. But not if he knows legal owner to be a trustee. of the Court of Appeal in Chancery (I), and it follows that the fact of the first mortgagee's haying notice of the second does not, under any circumstances, pre- vent the third from obtaining priority by the means which we have been discussing. Rub-mortgagee The mortgagee of an equitable interest may, as a priority over rule, protect himself in like manner against the claims .my equitable of any person interested in the property, whether as mortgagee or otherwise, by obtaining a conveyance of the legal estate in the property from any one in whom it is vested. But this rule is subject to the qualification that if the mortgagee gets the legal estate from one whom he knows at the time to be a trustee, in the ordinary sense of the word, then the legal estate will not protect him against the equities of those cestuis que trust of whose existence he had been along aware (c). There is also the limitation on his right, imposed by the Vendor and Purchaser Act, to which reference has been already frequently made. And, as might be expected, the mortgagor cannot prejudice sub-mortgagees or other incum- brancers by acquiring the legal estate of the first mortgagee : hence, where (d) a mortgaged estate, sold by a mortgagee under a power of sale, was purchased by the mortgagor for its full value, which was less than the amount due to the first mortgagee ; it was held that the mortgagor could not thus obtain a title to the estate, free from the claims of subsequent incumbrancers. Mortgages by There remains one other class of mortgagees whom bed** 6 " we mus * notice those, namely, whose advances have been secured by a deposit of the title-deeds of land, with, or without, some written memorandum making (b) Pilcher v. Sawlins, L. R. 7 Ch. 259, 273. (c) Sounders \. Uehew, 2 Ver. 271 ; Allen v. Knight, 11 Jur. 527. (d) Otter v. Vaux, 25 L. J. (Chy.) 734. OP AN EQUITY OP REDEMPTION. the loan a charge on the land. A mere deposit of title-deeds does not give the depositee any estate at law, nor did it, formerly, give him any in equity (e), being regarded as contrary to the provisions of the Statute of Frauds, which (/) forbids any action being brought upon any contract or sale of any interest in land, unless the agreement upon which such action is brought be in writing, and signed by the party to be charged therewith, or his agent. But since such a transaction is now considered as a contract How \i. by the mortgagee that he will lend money, by the C() mortgagor that his interest in the property to which the title-deeds relate shall be liable for the debt so contracted, and that he will make such conveyance or assurance as may be necessary to vesc his interest in the mortgagee (. i C. 17'J; ami stc Satiuiiul Hank of Australasia v. Cherry, L. U. 3 P. C. 299. 280 OP CORPOREAL HEREDITAMENTS. Not necessary It is not necessary that all the title-deeds relating to the mortgaged estate should have been deposited. For it has been held that the mere deposit of a copy of court roll (k), or of so many of the title-deeds of freeholds as form material evidence of title (T), makes a good equitable mortgage, even though the deeds do not show that the depositor has any interest in the property (m). Equitable Sfto mortgage. An equitable mortgagee, being a person entitled, ^ vil>tue f his contract > to cal1 for tne le g al estate in the mortgaged property, may compel the mortgagor to execute a formal mortgage of it to him, and it is immaterial for that purpose that the deposit was un- accompanied by any written memorandum. Should the mortgagee do this, he becomes an ordinary legal mortgagee, with all the rights and liabilities attendant on that position. Equitable Or he may, without having obtained the legal estate in tne mortgaged property, take proceedings for ioreclosure. in equity to realize his security. If the deposit was accompanied by a written agreement to execute a legal mortgage, there can be no doubt that the mort- gagee's primary remedy, in default of payment by the mortgagor, is to obtain foreclosure of the latter's equity of redemption (n) ; since a right to a sale be- longs, strictly, to those persons only who have a mere equitable charge on the property (o), unaccom- panied by any estate in it, legal or equitable (|>). And it is now settled (g), after some little fluctuation of opinion (r), that foreclosure is also the proper (k) Whitbread v. Jordan, 1 Yo. & C. (Ex.) 303.. (I) Laeon v. Allen, 3 Drew. 579. () Roberts M. Croft, 2 De G. & J. 1. () Perry v. Keane, Coote on Mortgages, 582. (o) Tipping v. Power, 1 Ha. 405, 410 ; Fuotner T. Stvrgis, 5 De G. & Sm. 736. (p) Reward v. Futvoye, 2 Giff. 81, 89. (q) James v. James, L. R. 16 Eq. 153. (r) T>(cktey\. Thompson, 1 J. & H. 126; and see Ufatthcics v. Gooday, 10 W. li. lOtiO. Of AN EQUITY OP REDEMPTION. 281 remedy, although there has been no agreement to execute a mortgage. The suit of an equitable mort- gagee, and the proceedings under it, will therefore be the same as an ordinary foreclosure suit and its con- sequences () ; except that the decree will order the mortgagor, in default of payment, to execute a con- veyance of the property (/) to the mortgagee, who can, if the mortgagor fails to comply with the decree, obtain the legal estate in the property under what is known as a vesting order (u). If no interest has been agreed upon between the parties, it will bo int. i. -t allowed to the mortgagee at the rate of 4 per Mn \ Ht 4 * pel- cent. o /(/. (r). The position of an equitable mortgagee is not very secure, until he has obtained the legal estate in the ^;. property pledged to him ; since, until then, he is liable to be postponed to a person who has londjiJe taken a legal conveyance of the same estate for valuable con- sideration. But this must have been done without notice of the equitable mortgage, and, since the deeds of an estate should, as a rule, go with its legal pos- session, neglect on the part of a purchaser to inquire after the purchase deeds will cause him to be post- poned to an equitable mortgagee, even though he had been unaware of the latter^s existence (?). The re- sult will be the same if he has inquired after the deeds, and been satisfied with an answer which ought to have put him on further inquiry (x). But the fact of his not having got in the title-deeds will not postpone him, if he has made proper inquiries for them, and a reason- . able excuse has been given for their non-delivery (y). (*) See as to time for redemption by the mortgagor, Parker v. J/OMM- field. 2 My. & K. 419. (t) Sfton, 444. (M) Ltehmfi-e v. Clamp, 30 Bear. 218. (r) Re HerSt Policy, L. R. 8 Eq. 331 ; and see Carey T. Doyne, 6 Ir. Ch. Ren. 104. (U rendering it to the lord of the manor, who, in his turn, re-grants it to tho tenant's nominee ; and, since the various points relating to the subject of surrender have been discussed in our chapter on copyholds, laud of this tenure will not, except incidentally, come under our present notice. As to land of freehold tenure, wo saw that the E'at<* in l.m.i estates held in it may be either freehold or leasehold, (nan lirinbl* 281 OP CONVEYANCING. .into freeholds the former again being divisible into those in posses- 8 ^ on anc * tnose ^ n reversion or remainder, which may be placed, with reference to their mode of conveyance, f in a class bv themselves. We have, then, to consider the history of the assurances which relate to these divisions of freehold land. And since the principal changes introduced into conveyancing arose soon after, and in consequence of, the passing of the Statute of Uses (a), our three classes of property may, for this purpose, be conveniently treated of with reference to 1st, The manner of acquiring, and dealing with, them before the passing of the statute ; 2nd, The changes and modifications in conveyancing introduced after that date; and 3rd, The further alterations in this respect made since the passing of the statute down to the present day. Assurances he- The right of alienating the various kinds of pro- f 'fU th s Statute perty which have been mentioned had been a thing of slow growth, and was subject to several restrictions, derived chiefly from the rules of feudal tenure. A consequence of this was, that the earlier forms of assurance were few in number, and comparatively simple in operation. Ff-offmentwith The earliest, and most important, form of convey- livery of stisin. ance was a Feoffment, accompanied by Livery of Seisin. This was employed for the creation of all estates of freehold in possession, and for the transfer of such of them as were alienable ; namely, estates in fee simple, or for life. A Feoffment was a formal statement by the feoffor, or owner of the estate, that he gave it to the feoffee, and was completed by the feoffor*s publicly putting the feoffee into possession of the land which he was to hold. This public putting into possession, called Livery (a) 27 Hen. VIII. c. 10. OF THE HISTORY OP CONVEYANCING. 283 (delivery) of the Seisin*, or feudal possession of the land, was either " in deed " or " in law," according as it took place on, or in sight of, the land (6). It was essential that the feoffraent and livery of seisin should be made simultaneously ; and such a mode of assur- ance was, therefore, in general, applicable only to the creation of an estate which took effect in possession. It might, however, be employed for the creation of a remainder limited after a term of years, since the grant of a term did not transfer the feudal seisin to the term or. In such a case, livery could be made either to the lessee, to take effect for the benefit of the remainder- man (o) ; or to the latter himself, provided the lessee gave his consent (d). As early as the Conquest (e) it had become usual to embody the terms of a feoffment Feoffment in a deed, or charter; but for a long time afterwards companied by this was not essential, and a deed, if made, was only deed, evidence of the transfer, and did not, of itself, pass But this not any estate. It should here be mentioned that, after a essential - time, the name " Feoffment " was applied only to an instrument conferring a fee simple, that which gave an estate tail, or one for life, being called either a Gift, or Gift and De- a Demise or Lease, as the case might be (/) ; but since nuse - the form of words used was, as nearly as possible, the same, and livery of seisin was requisite in every case, it will be sufficient if we associate the word " feoff- ment " with the grant of an estate of freehold in pos- session ; remembering at the same time that an estate ^ tail could only be created, and not transferred, by it. So great was the importance attached to a feoff- Tortious ment and livery of seisin, that it might have the effect j ! e n n t of * of transferring an estate greater than that possessed by the transferor. Thus, if the tenant, in actual pos- Co. Liu. 48. 2 Bl. Com. 166. y ! perfect until the lessee had actually taken possession W1 of the land demised. For up to that time he had only an inieresse termini or right of entry. But after entry he was capable of taking a conveyance of the reversion or remainder by deed alone, without any livery of seisin. A lease, moreover, might always be granted to commence at some future time, since the grant of a term of years does not, as we have seen, affect the feudal seisin of the land. Closely connected with a lease is an Assignment, Assignment. which is the transfer of the entirety of a term of years, and has the effect of putting the assignee in the place of the former lessee, and making him at once liable to all the obligations of the lease, although he may not have entered on the land. Like a lease, it re- quired no ceremony, or writing, for its validity (/<). The next modes of transfer to be stated are an Exchan^- and Exchange and a Partition. An exchange was, as its ' 11:11110 implies, the gift of one estate or interest, in consideration of receiving another. It might be made of estates in possession, or of those in reversion or remainder; but it was essential that the property exchanged should be of the same kind, although not necessarily of the same value (*') : thus a fee simple could only bo exchanged for another fee simple, and not for an estate for life, or for years. No livery of seisin was necessary, even when th'e estates exchanged were freeholds in possession (J) ; for (/i) JWr v. Atrdrr, Cro. Eliz. 373, 437. (i) Co. Litt. 51. O) 2 Bl. Com. 323. 288 OP CONVEYANCING. since each owner simply changed places with the other, and each had, already, possession of his laud, the transaction was made notorious without liver}*, especially as an exchange of estates in possession was not complete until perfected by the actual entry of both parties on their new lands. If the property exchanged consisted of estates not in possession, then a deed was necessary to make the transaction valid. A Partition might be employed for the division be- tween coparceners, joint-tenants, ortenants in common, of the estates previously held by them in severalty, but for the first two purposes (that is, partition be- tween coparceners and joint-tenants) a release (to be presently noticed) was the more usual form of con- veyance. Livery of seisin was necessary in every case of a partition, and if the partition was made between joint-tenants, or tenants in common, a deed was also necessary (/,) . Release. Another form of conveyance was a Release. This I was used to convey a right in land to the owner of I some existing estate in possession, whereby his estate became enlarged; as by adding a reversion or remainder i to an estate for life, or for years ; or by passing an undivided share in land to a joint-tenant. In both these cases it was necessary that there should be privity of estate between the relessor and the relessee. By "privity of estate," is meant that their estates must be so related to the other as to make but one and the same estate in law (I). The estate of the relessee being already in possession, no livery of seisin was necessary, but a deed was required in every case of an express release by act of parties. A release, pre- ceded by a lease, was occasionally used to convey a fee simple, by first granting a lease for a short term (*) 2 Bl. Com. 324. (0 2 Bl. Com. 325. OP THE HISTORY OF CONVEYANCING. to an intending purchaser, and immediately afterwards releasing the reversion to him. But since it was necessary that the lessee should have actually entered on the land to be conveyed, as much notoriety was given to this mode of transfer as to a feoffment. A Surrender was the converse of a release, being Surrender, the yielding up of an estate in possession by its owner, with a view to its being merged in a greater (w). In this case, as in that of a release, it was essential that there should be privity of estate between the parties, but a surrender differed from a release in not requir- ing any deed or writing for its validity. Lastly we have to notice a Defeasance, which was a Defeasance, collateral deed made at the same time as a feoffment or other conveyance, and containing certain conditions, on the performance of which the estate then created might be defeated (n). It was in this manner that mortgages were usually made, but we may perhaps anticipate a little on this point by saying that after the passing of the Statute of Uses it became customary to insert the conveyance of an estate, and any condi- tions to which the conveyance was made subject, in the same deed ; and thus separate deeds of defeasance have long fallen into disuse (o). All the above-mentioned methods of dealing with Common in- land are called Common Law Conveyances, because they operate without reference to the Statute of Uses. They may also be divided into original or primary, Are original and derivative or secondary, conveyances: the latter or I )rinmr . v - , . , * J J A - Ordenvatire being those which presuppose some originating in- O r secoi strument, and only serve to transfer interests pre- viously created. Thus, a .feoffment, lease, exchange, and partition were original conveyances, an assign- () Co. Litt. 337 b . () 2 Bl. Com. 327. (o) See Cottertll v. Purchase, Ca. t Talb., 61, 61. c. OP CONVEYANCING. ment, a release, surrender, and defeasance were de- rivative ; whilst a grant was either original or second- ary, according to the nature of the property conveyed. Kxtraordinary Besides the above, which, together with those sub- sequently introduced in consequence of the Statute of Uses, are called ordinary assurances, there was the method used for converting an estate tail into a fee simple, and thus rendering it alienable. This, Fine and Re- which was called an extraordinary assurance, was a Fine and Recovery, of which we need not say more than to remind the reader that it was a pre-arranged suit be- tween the tenant in tail, as defendant, and a friendly plaintiff, in which the latter was declared owner in fee simple of the lands entailed ; and was enabled, in consequence, to deal with them in any way which the tenant in tail might desire. covery. Covenant to stand seised. Bargain and Sale. There were also two other forms of assurance which did not derive their force from the Common Law. We have already, in our chapter on the Statute of Uses, pointed out that before the passing of that act the Court of Chancery had recognised the custom of conveying land to some nominal owner, who was to hold it for the benefit of another person : and that the enforcement by equity of secret uses frustrated the policy of the law, by enabling land to be transferred without any notoriety. Such a transfer could be effected by the employment of one of two instru- ments, named respectively a Covenant to stand Seised and a Bargain and Sale ; the former being a deed by which a man covenanted to stand seised of land to the use of a wife, child, or kinsman ; the other, a contract whereby the bargainer, for some pecuniary consider- ation, undertook to convey land to the bargainee. For since the Court of Chancery would enforce the use raised by these means, the covenantee or bargainee acquired the practical ownership of the land. These OP THE HISTORY OF CONVEYANCING. 291 assurances were said to operate without transmutation of possession, as opposed to those which transferred a 1 estate, and were therefore said to operate by transmutation of possession. The distinction still remains in name, although the Statute of Uses has, to t he words of Coke, " married uses to the law." It was, as we know, in order to put a stop to these secret uses that the Statute of Uses (p) enacted that the ccstui que use should be deemed to be in lawful seisin, estate, and possession of the estate held to his In this object it failed, owing to the peculiar view which the. courts of law continued to take of trusts. But it made several important changes in the Changes in form of conveyancing instruments, and to these [heTtotutiTi changes we will next turn our .attention. The first Usts. and most general of them was the introduction into conveyances of an express declaration of the way in which the use was to be limited : thus, instead of making a feoffment simply " to " A and his heirs, it Declaration of would now be made " unto and to the use of" A and Use< his heirs, for by this means instruments were rendered Hi (?tual which might otherwise, from want of con- sideration, or from some omission or other imperfec- tion, have failed to pass the legal estate in the land conveyed (q). But a still more important novelty was the invention A now form of of a new form of conveyance, which almost totally superseded that notorious and public mode of trans- ferring property which the common law required, and the statute intended to restore (;). It will be recollected that, before the passing of the Statute of Uses, there were, besides the common law conveyances, two others, namely, the covenant to stand (p) 27 Hen. VIII. c. 10. (V) Samme't Case, 13 Itep. 64. (r) Co. Litt. 271", n. (1). OF CONVEYANCING. seised, and the bargain and sale, which served to raise a use although they did not, at that time, transmute the possession. But when the statute turned uses into possession, these assurances passed the legal, as well as the equitable, estate ; and that without any necessity for livery of seisin or attornment. < As re- gards the covenant to stand seised, this was not of much importance ; fpr since no uses could be limited by it except to a child or near relation, the limitations to trustees, then necessary to support contingent remainders, could not be inserted in it, and conse- quently covenants to stand seised soon fell into disuse, and may be dismissed from our further notice. Bargain and But a bargain and sale now obviously presented a ready means of making secret transfers of land from any one person to another. For a bargain and sale . still raised a use in favour of the purchaser, and now, under the Statute of Uses, the fact of land being held to his use gave him the legal estate in possession in it also. In order, therefore, to restore notoriety in the transfer of land, it was enacted by the 27 Hen. VIIL, Statute of In- c. 16, called the Statute of Inrolments, that no here- ditaments should pass from one to another, whereby any estate of inheritance or freehold should be made to take effect in any person, or any use thereof bo made, by reason only of any bargain and sale thereof, except the same be made by writing, sealed, and in- rolled within six months after execution. By this means, it was hoped, secret conveyances were made impossible ; but the astuteness of the lawyers soon defeated the purpose of the law. For it was observed that the statute made mention only of estates of in- heritance and of freeholds : a lease, therefore, for a term of years was exempt from its provisions. Now we have seen that if, before the statute, a lessee were in actual possession of the land demised, no livery of seisin was requisite to convey the remainder of the estate to him ; and also, that if a man, in consideration OF THE HISTORY OF CONVEYANCING. of money paid to him, bargained that he would grant land to another, this raised a use in the bargainee. Then came the statute which turned uses into actual possession. If, therefore, a bargain were now made, for a pecuniary consideration, that a man should have land granted to him for one year, this was deemed to make him a lessee for a year in actual possession, and, as such, capable of taking a release of the remainder of the grantor's estate, without any livery of seisin, or other public ceremony. From this sprung the conveyance known as a Lease Lease and Re- and Release, which almost entirely superseded the ease> ancient feoffment, and was, until lately, the ordinary way of conveying freehold estates of all kinds. The form of this assurance was, first, an instrument stating that the vendor, in consideration of some nominal sum, had bargained and sold the land to the purchaser for one year, to commence from the day previous to the date of the deed, to the intent that the purchaser might thereby, and by the statute for transmuting uses into possession, be in actual posses- sion of the premises, and enabled to accept a grant of the reversion of the same. This was followed by a second deed releasing the reversion to him, and thus putting him into possession of the whole estate in- tended to be conveyed. The Lease and Release, then, came to be the almost universal way of conveying freeholds, and was em- ployed for the purpose of making an exchange or par- tition, as well as for conveyances between ordinary vendors and purchasers. Incorporeal hereditaments, proper, continued to be created and transferred by Deed of Grant, whilst of the other assurances pre- viously enumerated the ordinary Release, the Surrender, Lease and Assignment, and Fine and Recovery re- mained unaffected by the Statute of Uses ; and Co- 21H OF CONVEYANCING. venants to stand Seised and Defeasances fell into general disuse. Changes after It remains to notice the changes which have taken tie Statuteof P^ ace > since the passing of the Statute of Uses, down Uses. to the present time. Wills. The first of these, in point of date, had reference to Wills. It will be recollected that, before the date of the Statute of Uses, personal property was freely transmissible, but that real property could only be disposed of by will, by devising a use in it. When the statute turned uses into legal estates, even this mode of devise was no longer practicable ; and so, for a short time, there existed no means by which real property could be disposed of by will. But some five years after the passing of the Statute of Uses, there came the first Statute of Wills, the Statute of 32 Hen. VIII., c. 1, which gave power to every person th ' EMuh^ ^ ^ ev * se > kv his last will or testament in writing, all lands and hereditaments which he held in socage, and two-thirds of those which he'held by knight service. 12 Car. II. c. This was followed up by the 12 Car. II., c. 24, which turned the tenure of all lands held by knight service into that of socage, and thus the fee simple of all hereditaments of freehold tenure became devisable. A will could moreover, since the Statute of Uses, operate as a settlement, as well as for the immediate passing of property. For it might contain, under the name of executory devises, those springing or shifting uses, and powers, which we have already considered. This Statute of Wills did not, however, apply to any hereditaments other than those belonging to the testator at the time of making his will; neither did it include copyholds (s). A will could, therefore, be only made to operate on copyholds, by first surrendering (*) Wainewright v. Elwett, 1 Madd. 627. OP THE HISTOET OF CONVEYANCING. them to the use of the testator's will, during his life- time, and then devising the use. The next statute which referred to wills was the S atn*- <>( Statute of Frauds (t), which, in addition to the writing ' required for a will of lands by the Statute of Wills of Henry the Eighth, prescribed its execution by the testator in the presence of three, or more, credible witnesses ; who were also to append their signatures, by way of attestation. This statute also, practically, made it necessary for all wills of personal property to be in writing and signed by the testator. Next, after a long interval, came the 55 Geo. III., c. 192, which 55 Ge>. 111. enacted that where, by the custom of a manor, a copy- a 192- hold tenant might devise tenements previously surren- dered to the use of his will, he might, thenceforth, de- vise them without any previous surrender. But this act did not enable a devisee (u), or purchaser of copy- holds, to devise them (v) unless he had himself been previously admitted a tenant of the manor. Now, however, it is enacted by the present Wills Act, the 7 Wm. IV. & 1 Viet., c. 26 (w), that every person Wills Act. may devise all real and personal estate to which he is entitled, either at law or in equity ; and this power is to extend to copyholds, notwithstanding that the testator, whether entitled as heir, devisee, or other- wise, has not been admitted thereto. The act also requires (x) that every will, whether of real or personal estate, shall be signed by the testator in the presence of, and be attested by, two witnesses. The Statute of Frauds made other desirable changes Trusts, besides $hose relating to wills'. Uses, as we know, had been upheld by tho Court of Chancery even (I) 29 Car. II. c. 3. (u) Doe v. Lawe*, 7 A. & R 10.5. (r) Matthews r. Otbonu, 13 C. L. 919. (") S. 3. (r) S. 9. 296 OF CONVEYANCING. Statute of Frauds. where there was no written evidence of their existence, and the same rule prevailed, at first, in regard to trusts. But the statute enacts (?/) that all declarations of trust, except (z) in the case of a resulting trust, shall be manifested and proved by some writing, signed by the party enabled by the law to declare such trust. Upon these sections it has been held, that writing is necessary only as a proof of the existence of a trust, and not for its creation (a), and that the person " en- abled by the law " to declare the trust is the settlor, and not the trustee (b). Fcoffments and Leases. Statute of Frauds. The Statute of Frauds also made writing necessary in other cases where, as we have seen, it was not formerly required. For it enacted (c) that all leases, estates, interests of freehold or terms of years, or any uncertain interest of and in any hereditaments, created by livery of seisin only, or by parol, and not put in writing, and signed by the parties making or creating the same, or their agents thereunto lawfully authorized, should have the force and effect of leases or estates at will only. An exception was however (d) made in favour of leases not exceeding a term of three years, whereupon the rent reserved during the term amounts to two-thirds of the full and improved value of the thing demised. The statute also provided (c) that no leases, estates or interests of freehold, or terms of years, or any uncertain interests, not being copyhold or customary interests in, to, or out of any heredita- ments, should be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party assigning, granting, or surrendering the same, Cv) S. 7. &1 S. 8. () Gardner v. Rowe, 2 S. & S. 346, 5 Kuss. 258. (b) Tierney v. Wood, 19 Beav. 330. M S. 1. (d) S. 2. (} S. 3. OF THE HISTORY OP CONVEYANCING. 207 or by his agent thereunto lawfully authorized, or by act and operation of law. These provisions of the Statute of Frauds were Rcal Property . Amendment supplemented by the Keal Property Amendment Act, Act. the 8 & 9 Viet., c. 106. which ( f) makes void all Cfv'ftfl'tW** feofftnents, partitionsyTJeaJses, assignments and sur- renders unless made by deed, except feoffments made under a custom by an infant, partitions and exchanges of copyholds, and leases not required by law to be in writing that is, those excepted by the Statute of Frauds. The next change effected in the transfer of land was Attornmcnt. by the 4 & 5 Anne, c.' This act (g) makes good alljj-./ ? grants of any manors or rents, or of the reversion or remainder of any messuages or lands, without any iittornment of the tenants of the manors or lands out of which such rent issues; or of the particular tenants upon whose particular estate any such reversions or remainders shall be expectant or depending. The next act to be mentioned is that for the Aboli- Finp * nn(1 f{ - tion of Fines and Recoveries (//), which substituted a tkn Act. deed, inrolled within six months after execution, for the ancient process of a fictitious suit. Coming next to the reign of the present Queen, we Lease and Re- find the 4 & 5 Viet., c. 21, which did away with the * """ necessity for two deeds in a conveyance by Lease and 4 &. o Viet., c. IJrK'use; for it enacted that every deed of release of 21 ' freehold estates, expressed to be made in pursuance of the act, should, thenceforth, be as effectual as if the releasor had also executed a deed or instrument of bargain and sale, or lease for a year, for giving effect to such release. (/) S. 3. 8.9. /<) 3 & 4 Win. IV. c. 74. \f : OP CONVEYANCING. Hoal Property Next to be noticed is the Real Property Amendment Amendma Acfc ^ a i ready re f e rred to, which, in addition to its other provisions, effected an important change in the mode of conveying freeholds. For it rendered un- necessary any conveyance of land by way of lease and release, by declaring (j) that from thenceforth all corporeal hereditaments should, as regards the im- mediate freehold thereof, lie in grant as well as in livery, thus enabling all hereditaments, whether cor- poreal or incorporeal, to be conveyed by a simple deed Tortious feoff- of grant. The act also () put an end to the tortious tan P era ^ on f feoffments, and thus caused a feoffment in fee simple by any tenant with a limited interest to operate as a conveyance of such interest only (I). Inclosure Acts. Lastly, we have to mention the Inclosure Acts (m), 8&9Viet, c. of which the 8 & 9 Viet., c. 118 (n), enabling ex- IIS changes to be made through the instrumentality of the Inclosure Commissioners (whose order permitting an exchange is good without any further conveyance or ii & 12 Viet, release), whilst the 11 & 12 Viet., c. 99 (o), extends the above provisions to cases of partition. We have thus traced the history of conveyancing down to the date of the Statute of Uses ; examined the great changes made by the statute, not only in the nature of legal estates, but in the modes also in which they could be settled and conveyed ; and observed the origin and growth of the power of disposition by will ; the safeguards against fraud provided by the Statute of Frauds and the Real Property Amendment Act ; the abolition of the ceremony of attornment, and of the cumbrous process of fines and recoveries ; the (t) 8 & 9 Viet c. 106. 0) S. 2. <*) S. 4. (0 Shelf. E. P. Statutes, 637, note (k). (m) 8 & 9 Viet. c. 118; 10 & 11 Viet. c. Ill ; 11 & 12 Viet. c. 99; 12 & 13 Viet. c. 83; 15 & 16 Viet. c. 79 ; 17 & 18 Viet. c. 97 ; 20 & 21 Viet. c. 31 ; 22 & 23 Viet. c. 43 ; 31 & 32 Viet. c. 89. () S. 147. (o) S. 13. OP THE HISTORY OP CONVEYANCING. enactments by which the lease and release gave way, first to the release alone, and then to the simple grant ; and linally the simplicity introduced by the Inclosure Acts into the exchange and partition of land. The result, from a conveyancing point of view, is that we have now the Grant and Assignment (comprehended under the general name of Purchase Deeds) for the sale of land ; the Mortgage Deed for its pledge ; the Lease to give its temporary possession; the Settlement whereby estates can, subject to due precautions, be preserved in families ; and the Will, which can either operate as a settlement, or effect a direct transmission of property from one person to another. The succeeding chapters will be devoted to the con- sideration of the assurances enumerated above, and we may take this opportunity of stating that our re- marks will, as a rule, extend only to the simplest forms of those instruments which convey the legal estates in the various kinds of property which have been con- / sidered in the first part of this work. x^f^"" 300 CHAPTER II. CONDITIONS OP SALE. HAVING thus traced the history of conveyancing down to our own times, we have next to consider, in detail, the various instruments at present used for the transfer of real property. Now, each of these instruments marks the carrying out of some pre-existing purpose, which may have been that of one person, or of several. In the latter case, it will usually be found that the terms of the assurance have been the subject of previous negotiations, which have resulted in an agreement, or contract, and this contract forms an important part of the transaction, being the foundation of the edifice of which the assurance is the completion. This remark applies particularly to the ordinary case of vendors and purchasers of land. Hence, it is proposed, before considering purchase deeds of real and leasehold estates, to turn our attention to the contracts by which they are preceded. Such a contract is, like all contracts, subject to various rules of law, non-compliance with which will render it 'invalid. There are also certain statutory requirements which are essential to the proof of its existence, though not to its creation. Under the former, a contract may be set aside on account of the incapacity of one, or more, of the parties to it; on account of there having been some fraud, or mistake, committed with reference to it ; and on several ofher grounds which need not be further particularized. With these we shall not occupy ourselves, for our aim is simply to ascertain how a contract of sale of land ought to be drawn up, supposing it to have been pro- CONDITIONS OF SALE. perly entered into. This, however, involves the con- sideration of the statutory requisites for such a con- tract, and of the judicial decisions upon the wording of Acts of Parliament relating to these requisites. And it may be as well here to remind the reader that an important change has been, very lately, made in our system of jurisprudence. For the Supreme Court of Judicature Act 1873 (a), which is to come into operation on the Jst of November 1875 (b), aims at doing away with the former distinction between law and equity. It therefore enacts (c), that except in matters therein particularly mentioned, (none of which relate to our subject) whenever there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail. Con- sequently, although reference will occasionally be made in this and the following chapters to rules of law which differ from those of equity, it will only be in order to mark out equitable doctrines with more distinctness. The reader will also understand that such differences will shortly cease to have any existence. Since, then, the preparation of a contract of sale of Division of the land is governed by the enactments and decisions to 8ub J ect> * which reference has been made above, we will, in this chapter, discuss separately, 1st, The statutory requi- sites for such a contract ; and 2nd, The proper form of the contract when embodied in an Agreement, or in Conditions of Sale. The principal statutory requisites for the contract Statut-.i * are to be found in the fourth section of the Statute ^! itr V" r lllc _ -, contract. of Frauds (d). This section enacts that, from thence- statuti .>t' Frun a ^ (a) 36 & 37 Viet. c. 66. *>( : (4) 3-4r0-VMti er83. v (r) 8. 25, subs. 11. (<>2 OP CONVEYANCING. forth, no action shall be brought to charge any per- son upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. statute applies The first point to be noticed is, that these provisions *" V^, 1 - v \ nter " of the statute apply to every agreement which is substantially one for the sale of an interest in land. Thus (e), where a lessee in possession had, verbally, agreed to give up his lease, in consideration that a third person (who had already obtained the promise of a lease from the lessor) should pay the lessee 150, and take certain fixtures at a valuation ; this was held to be an agreement for the sale of an interest in land, and void for want of writing (/). We have next to consider what things are required by the statute. "\Vhat is re- These are, (1) a written agreement, and (2) signature stonue 1>} thC b ? the P art y to be char g ed > or his a g ent lawfully authorized. Written agree- Since the agreement is to be in writing, it follows that the whole of it must be in writing, and the con- sequence is that an agreement is not binding upon either party unless it contains, in the body of it, or Whatmnstbe by necessary implication, (1) the names of the con- t'lirTrcemeut fcra cting parties as such, (2) the consideration, and (3) the subject-matter or object of the contract ( it by one party, equity will, as a rule, compel the other party to the contract to perform his part, not- withstanding the absence of any written agreement. For in all questions on the Statute of Frauds, the end and purport of making it has been considered, namely, to prevent frauds and perjuries; so that any agree- ment in which there is no chance of either, the court has considered as out of the statute (z). On this ground also, it seems that the statute never extended to sales under the order of the Court of Chancery ; nor to purchases under the order of the court, if the purchaser made no opposition to the confirmation of the report approving of tho purchase (a). (r) Woollam y. Hearn, 1 Ves. 21 l b , and, with notes, 2 L. C. 484. (u>) 11 it chin v. Groom, 5 C. B. 615. (x) 6 B. & C. 620- ; and sec Shore Y. JPtbm, 9 CL & F. 355, 555, &565. (y) Sec Jones Y. Newman, 1 W. BL 60. (z) Per Hardwieke C. Atty.-Oenl. v. Day, 1 Ves. 218, 220. See also Lester v. Foxcroft, 1 Colics. P. C. 108, and, with notes, 1 L. C. 768 ; and note to Pym v. Blackburn, 3 Ves. p. 38. (a) Dart. V. & P. 183. C. U 306 OP CONVEYANCING. si-nature. Next, as to the signature. It is clearly settled that the signature of the party to be charged is sufficient to bind him at law, and also to induce equity to de- cree specific performance of his contract by him, although there may not have been any signing by the other party to the contract (&). It has also been held, in a modern case, that a proposal in writing, if ac- cepted by parol, becomes thereupon a binding agree- What is a suf- ment upon the person making it (c). And it. seems tur^ that putting a man's initials to a document (d), or his printed signature, if ordinarily used (e), satisfies the requirements of the statute. Nor does it matter in what part of the agreement the signature is to be found ; unless the document is evidently incom- plete (/). Thus, a paper beginning " I, James Crock- ford, agree to sell," and written by James Crockford, was held to contain a sufficient signature (g). A corporation aggregate .which has a common seal must use that seal as its ordinary signature. It can- not, therefore, at common law, either enforce (h) or be bound by ordinary contracts not under its seal (/) ; but it will, in equity, be bound by contracts within its pro- vince, although not under seal, where there has been part performance by the other contracting party (j). The statute also makes a signature by a lawfully authorized agent binding on his principal. On this Auctioneer. point it may be mentioned that the auctioneer at a Signature by ;i<:eat. (b) See Williams v. Lake, 29 L. J. (Q. B.) 1, 3 ; Western v. Xustell, 3 Ves. & B. 187, 192. Fry on Specific Performance, 136-7. (c) Eenss v. Picksley, L. R. 1 Ex. 342 ; a case of a contract not to be performed within a year. (d) PhilUmore v. Barry, 1 Camp. 513. (e) Saunderson v. Jackton, 2 Bos. & P. 238. (/) Hubert v. Treherne, 3 Man. & Gr. 743. (g) Knight v. Crockford, 1 Esp. 190. (/<) Mayor of Kidderminster v. Hardicick, L. R. 9 Ex. 13. (i) Grant, Corp. 55. East London Water -works Co. v. Baiky, 4 Bing. 283 (j) Crook v. Corporation of Seaford, L. R. 6 Ch. 551. OP CONDITIONS OP SALE. 307 is the agent of both parties (A-), and that his sig- nature is binding upon either the vendor or the pur- chaser. The signature of his clerk is also sufficient Auctioneer's f*l ! to bind a party who has authorized the clerk to sign for him (/). But in the absence of such authority the clerk's signature has no binding effect (m). If the auctioneer be himself the vendor, his signature will not bind the purchaser, since the signature as agent must be made by some third person (n). It has also been held that Telegragh an acceptance of an offer, first signed on the ordinary telegraph form, and then correctly transmitted by telegraph, is binding on the sender, who has thus constituted the telegraph company his agent for the purpose of forwarding an exact copy of the written acceptance (o). It follows that the sender is not bound by an inaccurate copy (p). We have now arrived at the consideration of the The written manner in which a contract for the sale of land should co be prepared. If the sale* is to be by private contract, the particulars of the property to be sold and the terms mutually assented to by the parties are, in general, contained in numbered clauses of the same document, which is known as the Agreement. If it is to be by public auction, the particulars of the pro- perty are kept apart from those clauses in which the vendor states the terms on which he is prepared to sell, and which are consequently known as the Condi- tions of Sale. It is proposed first to offer a very few remarks on the preparation of the particulars, and then to go through the clauses of an ordinary precedent of conditions of sale of freeholds, or copyholds, in lots ; calling attention to the leading principles on which (*) Ktmty* v. Proctor, 3 Yog. & B. 57 ; Simon r. Motivot, Burr. 1922 ; Coin v. Trent hick, 9 Vos. 234. (/) Emmermn v. Htelis, 2 Taunt. 38 ; Birttv. Boulter, 1 Ncv. & M. 313. (m) fierce v. Corf, L. R. 9 Q. B. 210. (n) Wriqht v. Jianiiafi, 2 Cnnip. 20.". -ler v. Simmons, 5 B. & Aid. 333; S/iarman v. Brandt, L. R. G Q. H. 720. (o) Godwin v. I'ranri*, L. R. 5 C. P. 295, 301, 302. (;0 Henkel v. fape, L. R. 6 Ex. 7. 308 OF CONVEYANCING. they are prepared, and adverting when necessary to such modifications as would be needed in order to adapt them to a sale by private contract, or to the sale of leaseholds (q). The Particu- I n the preparation of the particulars, two points must be specially attended to. The first is, that they must comply with the rules before mentioned as founded on the Statute of Frauds, by stating, dis- tinctly or by necessary implication, that which is the subject matter of the contract (r). The second is, that they must not be so worded as to mislead a purchaser by any statement which describes the property in- accurately with regard to its advantages or value. Thus, in a well-known case(s), the particulars of an estate described it as being "about one mile from Horsham;" it being, in fact, between three and four miles from that place. Lord Ellenborough left it to the jury to say whether this misdescription was wil- fully introduced in order to make the estate appear more valuable ; and the jury finding in the affirmative, the contract was set aside (t). The same principle was acted upon in another case (u) . There, a large farm, on an estate to be sold, was described as "late in the occupation of A at the rent of 290. " In fact, A had occupied the farm for a year at the rent of 290, but for the previous quarter of a year he had only paid a rent of 1 ; and thus had paid only 291 for a tenancy of a year and a quarter. At the end of that time he had quitted the farm, and another person who had, subsequently, agreed to give 225 a year for it, had paid 20 to be off his bargain. The statement in the particulars was consequently held to be one calculated (q) The student is recommended, in reading this and similar chapters, to have by him a simple precedent of the instrument under discussion, (r) See Hooke v. McQueen, 2 Grant, 450. () Norfolk v. Worthy, 1 Camp. 337. (t) And see Stanton v. Tattersall, 1 Sm. & Giff. 529. (M) Limmoek v. Hallett, L. R. 2 Ch. 21. OP CONDITIONS OF SALE. to mislead the purchaser of the estate, who was there- fore allowed to rescind his contract. And a mis- statement as to the nature of the property, such as describing leaseholds, for however long a term, as free- holds, has had the same result (v). It may be added that maps, or plans, of the property, forming as they do a part of the particulars, are subject to the same rules (ir). Next, as to the preparation of the conditions of sale- Conditions of This is always a matter which requires care, for, as a has been said, it is " an undertaking to defend the title to the property against the whole world (x)." And since these conditions are inserted in order to General rules rict the ordinary rights of a purchaser, who has not had any voice in their preparation, it is essential that they should be clear and intelligible in stating to a man of ordinary understanding what he is not to require ; and that they should not be of such a nature as to mislead or deceive him (y). Care should also be taken that they are not too stringent. Where the vendor is selling his own property ho need, of course, only be guided by the consideration of the probability of depreciating the value of the property, added to the certainty of preventing a purchase of it by trus- tees ; but where the vendor is himself a trustee, ho must remember that the sale may be set aside by a 'ixfni f leaseholds (excepting when the lease has been granted g ^ by a corporation under a disabling statute (w) ) can- title. not, at present, enforce the contract unless ho can show that the original Jessor had a right to demise (iw) Fane v. Spencer, 2 Madd. 438; 1 Dav. Con. 478. 314 OF CONVEYANCING. the property in question (n). He must also, if the lease is less than sixty years old, show the lessor's title for such a period as is necessary, when added to the time for which the property has been held under the lease, to make up a sixty years' title to the pro- perty. It appears, however, to be doubtful whether a purchaser insisting on these points could compel the vendor to complete the purchase (0). But a vendor of leasehold property can scarcely ever produce his lessor's title, nor is it desirable that he should do so, even if he can. A stipulation has, therefore, always been inserted in every properly framed contract of sale of leaseholds, with a view to guard the vendor against liability in this respect. The condition should also, if necessary, limit the length of leasehold title which is to be shown, since, in the absence of agreement, the vendor of leasehold property must 'produce the lease under which he claims, however old it may be (p). If the property is held by a sub-lease the purchaser should also be precluded from inquiring into the title of the sub- lessor. Vendor and The Vendor and Purchaser Act 1874 (q) has pro- Purchaser Act yided that in the completion of contracts entered into after the 31st of December, 1874, and subject to any stipulation to the contrary in the contract, the intended assignee of a term of years shall not be entitled to call for the title to the freehold. The condition under discussion will, consequently, be unnecessary when the act comes into operation, so far as regards production of the freeholder's title by a vendor of leaseholds. But the act does not apply (w) Purvis v. Saver, 9 Pri. 488 ; Souter v. Drake, 5 B. & Ad. 992 ; Hall \. Betty, 4 Man. & Gr. 410. (o) 1 Platt on Leases, 618. (p) Frend \. Buckley, L. K. 5 Q. B. 213. (q) 37 & 38 Viet. c. 78, s. 2. OP CONDITIONS OP SALE. : il"> to an assignment of a sub-lease. In that case, there- fore, a stipulation against calling for the title of the sub-lessor will still bo necessary ; as may be also one limiting the length of leasehold title to be shown. Besides fixing a date from which the title is to Condition commence, and prohibiting a demand for any earlier ^ifhn title, the condition should also provide against the tion by tin purchaser's making any investigation at all as to any pur prior title, or founding any objection on such prior title, as appearing by recitals contained in any of the title-deeds or otherwise. For a mere condition as to the commencement of the title, or one prohibiting the purchaser from making any inquiry as to any earlier title, will be held to mean nothing more than that there shall bo no obligation upon the vendor to pro- duce any earlier title, and not to preclude the purchaser from making investigations on his own account (). And this part of the condition will, it is apprehended, continue to be necessary in every case, even in that of a sale of leaseholds. For the Ynidor and Purchaser Act only takes away the right of a purchaser of a term of years to " call for " the title to the freehold. It would appear, therefore, that he still remains entitled to make inquiries for himself, and to avail himself of any objections to completing the purchase which he may thus be enabled to raise. The 5th condition provides against inquiries about 5 ^ f'omliti.m. dower, which it may be difficult or impossible to answer, and which since the Dower Act () can seldom be of any value, by providing that it shall be assumed that every former owner of any part of the property, whose widow (if any) would have been entitled to dower, and is not mentioned in the abstract, did not (r) Shepherd v. Keatlty, I Cr. Mec & R. 117, 127; WaddtU T. Wolfe, W. X. (1874), 12-2. () 3 & 4 Wm. IV. c. 105. OP CONVEYANCING. leave a widow. If any of the property is copyhold the condition should extend to freebench. cth Condition. ^ purchaser is entitled, in the absence of stipula- tion, to have at the vendor's expense strict proof of every statement of fact appearing on the abstract; and also the verification of the abstract itself, by a comparison of it with the originals of all the deeds or documents abstracted or recited which are in the vendor's possession, and even of those which are not, unless they are more than sixty years old (t). It often happens that strict proof cannot, except at great expense, be given of matters as to which there can be little real doubt, as, for instance, the death of a former trustee, or the solemnization of a marriage. In order, therefore, to relieve a vendor from the heavy burden which might, otherwise, be imposed upon him by a captious or over-cautious purchaser, it is conditioned that every deed and (in the case 'of copy- holds) entry on, or copy of, court roll, and also every document which is more than a specified number of years old (generally twenty), shall be considered con- clusive evidence of everything recited, noticed, as- sumed, or implied therein. The Vendor and Purchaser Act 1874 (w) enacts (r) that in the completion of any contract of sale of land made after the 31st of December 1874, and subject to any stipulation to the contrary in the contract, recit- als, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of Par- liament, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions. This condition will, (0 Proxser v. Watts, 6 Madd. 59. (M) 37 & 38 Viet. s. 78. (r) S. 2. OP CONDITIONS OF SALE. '->l~ therefore, be unnecessary after the act takes effect, except in cases where it is desired to render unim- peachable recitals, &c., less than twenty years old. This condition is followed up by the 7th, which 7th Condition. throws upon the purchaser all expenses attendant f*^"^ c upon the production of any muniment of title not in the vendor's possession ; and of producing and ob- taining evidence, such as copies of registers, wills, and so on, required by the purchaser for the verifica- tion of the title. There can be little doubt that these stringent conditions do often prevent a willing purchaser from insisting upon being supplied with information which is really necessary to make a satis- factory title ; but they seem to have very little effect in deterring purchasers, who probably calculate on putting the same obstacle in the way of inquiries by subsequent purchasers. The 8th condition is necessary, when, from the 8th Condition, removal of landmarks such as hedges or walls, it is Identity ^of impossible accurately to identify the component parts, or " parcels," of the property sold with those men- tioned in older deeds (w). It provides that the purchaser shall be satisfied, on this point, by a com- parison of the description of the property in the particulars with that in the title-deeds, fortified, if necessary, by declarations of the pnrefeaeec or of other persons, evidencing long and undisputed pos- session of the property under those title-deeds. The 9th condition provides against the sale being 9th Condition, annulled on account of there being any error, mis- Compensation, take, or omission, in the particulars of the property sold. It is either to the effect thjit in such case compensation shall bo given or taken, as the case m ay bo, or else stipulates against any compensation (r) See as to this Flower v. Ilartopp, 6 Bear. 476. J 318 OP CONVEYANCING. being received, whether by the vendor or by the pur- chaser. The doctrine of the common law is, that mis- description of the property debars the vendor from obtaining any damages against a purchaser who refuses to complete the contract. But, on the other hand, the purchaser, if he wishes to fulfil the contract, can- not, at law, get any compensation in respect of that part of the property agreed to be sold which he could not obtain. Equity, however, holds that, under such circumstances, the contract ought not, in general, to be altogether set aside, but enforced so far as practic- able; compensation jtreing given, or taken, for that part of it which cannot be performed. This doctrine was carried to a great length in some of the older cases (x) ; but it is now settled that the court will not compel a purchaser specifically to perform his agree- ment, with an abatement in the price, unless he gets substantially what he bargained for. A purchaser, for instance, has been held (?/) not to be bound to carry out a contract to buy a wharf and jetty, when it turned out that the jetty was removable at the pleasure of a third person ; nor (z) one for the purchase of land described as containing 349 acres or thereabouts, the real number being about 100 acres less; and that, notwithstanding a condition that the property should be taken at the quantity stated, whether more or less (a). But where the purchaser can get that which it was his real object to obtain, he must carry out his con- tract, and take compensation for the deficiency in value (ft). The compensation will be fixed according (x) Howland v. Norris, 1 Cox, 59 ; Poole v. Shergold, 2 Bro. C. C. 117, and the case cited, ib. 118. (y) Peers v. Lambert, 1 Bear. 546. ft) Portman v. Mill, 2 Russ. 570. (a) And see Perkins v. Ede, 16 Beav. 193 ; and as to the purchase of more than one lot, Cassamajor v. Strode, 2 My. & K. 706, 725. (b) Ihjer \. Hargrave, 10 Ves. 505, 507 ; and see Dreice v. Hanson, 6 Yes. 675, 678 ; Halsey v. Grant, 13 Ves. 73, 78. OP CONDITIONS OP SALE. to the actual loss sustained by him, not rateubly according to the quantity of the property sold (c). A purchaser therefore has been compelled to perform his contract, with an abatement in the price, where a good title could be shown to the whole of a largo estate except six acres (d) ; and where a lot sold con- tained ten acres less than stated (e). And the same principle has been applied in a case where the property was not in as good a state of cultivation as represent- ed (/). Conversely, a vendor has been compelled to carry out a contract, making compensation, where he contracted to sell a fee simple in possession, and it turned out to be a fee simple in remainder (yir v. J In rif rave, 10 Vcs. 605; Canada Permanent Building Soc'ifty v. Yuung, 18 Grant, 566. (//) Nflthorpe v. Jloli/ate, 1 Coll. 203 ; and eee Hoy v. Smith ii, 22 Bear. 510. (/) Hill v. Buckley, 17 Vcs. 394. (i) H'/tittetnore v. ll'/iiltenntre, 1* R. 8 Eq. 603. ( And see Dyai v. Currie, 2 Jo. & L. 460. (k) Phillips v. Caldclcugh, L. K. 4 Q. B. 159. 319 320 OP CONVEYANCING. sold as "freehold/' without mentioning that it was subject to restrictive covenants ; where (/) it turned out that the mines and minerals under the property were reserved to a third person ; and, in a case (m) of the sale of leasehold property, where the conditions stated that no " offensive trade " could be carried on upon the premises, which were situate in Covent Garden, but concealed the fact that the business of a fruiterer was amongst the prohibited trades (ri). It has also been held (o) that a clause providing against any compensation being claimed by either party only covers small errors, and that a purchaser may, not- withstanding, claim compensation for a serious de- ficiency. But if the deficiency is great, and there is, besides the condition against compensation, another, entitling the vendor to rescind the contract, the pur- chaser cannot enforce specific performance of the con- tract unless he waives his claim to compensation (p). Since it is the vendor's duty to ascertain the nature and particulars of the property which he offers for sale, a condition against compensation would probably 'be construed more strictly against him, if the pro- perty should turn out to be larger or more valuable than stated (q). loth Condition. The 10th condition provides for the payment of the Payment of the remainder of the purchase-money on a specified day nion..y. (which should be such as will allow of a fair interval for investigating the title, and preparing the convey- ance (r)), and the execution by the vendor, on payment (Z) TTpperton v. Nickolson, L. R. 6 Ch. 436. (m) Flight v. Booth, 1 Bing. N. C. 370. () And see Price v. North, 2 Yo. & C. (Ex.) 620 ; Robinson T. Mws- grove, 2 Moo. & R. 92. (o) Whittemore v. Whittemwe, L. R. 8 Eq. 603. (p) Cordingley v. Cheeaeborough, 31 L. J. (Ch.) 617; Durham v. Legard, 11 Jur. (N. S.) 706; Mawson v. Fletcher, L. R. 6 Ch. 91. (q) Martin v. Cotter, 3 Jo. & L. 496, 512 ; and see a case of Walker v. Burnett, Dart, V. & P. 694. (r) 1 Dav. Con. 569, note (<). OP CONDITIONS OP SALE. 321 of the purchase-money, of a proper assurance of the property. It is the duty of the purchaser, in any case, and at his own expense, to prepare the convey- ance, and tender it to the vendor for execution. The condition, however, goes beyond that, for besides stipulating that the conveyance shall be left, at a fixed time beforehand (usually ten days or so), for perusal by the vendor's solicitors, it proceeds to throw upon the purchaser many expenses which would not, otherwise, fall upon him. Such are those attending the getting in of any outstanding estate or interest, or procuring the execution of the convey- ance by any parties other than the vendor. It will be observed that the vendor is not relieved by this condition from his ordinary duty of getting in such estates or procuring such execution (). For it only provides for the expenses attendant on his so doing. This condition also, when necessary, restricts the purchaser's rights to the usual covenants for title, but since we propose to go into this question when treating of purchase deeds, we will not, at present, do more than refer to it. The llth condition provides that the rents and nth Condi- possession shall be received and retained, and the R ' , out _ outgoings paid, by the vendor up to the day fixed for goings, completing the purchase, after which date both the benefit and the liabilities of the property are to de- volve upon the purchaser; the rents and outgoings being, if necessary, apportioned between the parties. If leasehold property is sold in lots, considerable difficulty is often felt as to the apportionment of the liability to pay the rent, and observe the covenants, of the original lease ; since the lessor is entitled to distrain upon any part of the property for the whole rent due from it. The best plan seems to be (t) to (*) 1 Dav. Con. 500. (0 1 Dav. Con. 476; Dart. V. 4 T. 120. C. OF CONVEYANCING. insert a condition providing for the assignment of the lease to the purchaser of the largest lot ; the other purchasers taking underleases from him of the term, wanting one day ; and, each of them, covenanting to indemnify the holder of the original lease against the acts of all the other sub-lessees. x The effect of the ] 1th condition, coupled with the previous one, is to raise implied covenants, by the vendor and purchaser respectively, that, on a specified day, the purchase shall be completed, by execution of the conveyance on the one side, and payment of the purchase-money on the other (w). But since the covenants are mutual, it follows that a purchaser cannot claim possession of the property unless he is ready to pay the purchase-money, nor can the vendor claim payment unless he has shown a good title to the property. At law, the party not ready, on the speci- fied day, to perform his part of the contract loses all his rights under the contract. But, if he be subse- quently ready to carry it out, equity will enforce specific performance of it, at his suit (v} ; unless there has been an express condition as to time (w) ; or unless the nature of the property (x), or the known object of one of the contracting parties for entering into the contract (y), made time " of the essence of the con- tract." Under the Judicature Act 1873 (z) the rules of the Courts of Equity as to time being of the essence of the contract are to obtain in all the courts. The condition goes on to provide that if " from any cause whatever " any purchase shall not be completed () Math New Gag Co. v. Gwyn, W. N. (1873), 200. (v) Seton Y. Slade, 7 Ves. 265, and, with notes, 2 L. C. 513 ; Boehm v. Wood, 1 Jac. & W. 419 ; Roberta v. Berry, 3 De G. M. & G. 284. (w) Hudson v. Temple, 30 L. J. (Ch.) 251. (*) Hudson v. Temple, 30 L. J. (Ch.) 251 ; Coslake v. Till, 1 Euss. 376. (y) Tittey v. Thomas, L. E. 3 Ch. 61. (=) 36 & 37 Viet. c. 66, s. 25, sub s. 7. 01 CONDITIONS OF SALE. on the specified day, the purchaser shall pay a fixed rate of interest on all money due from him, until completion; and shall not be entitled to any com- ation for the vendor's delay, or otherwise. In the absence of such a condition, a purchaser is liable to pay interest on his purchase-money from the time only when he has taken, or might safely have taken, possession of the property (a). And if there is a delay in completion, arising from the vendor's fault, the pur- chaser may elect whether he will pay interest on his purchase-money from the day fixed, charging the vend- or with the rents and profits of the estate, or whether he will waive his right to the rents and profits and pay no interest. In cases where the above condition is inserted, some little hesitation appears to have been felt at one time by the Court of Chancery as to en- forcing it, where the delay did not arise from any fault of the purchaser. In one case it was suggested that a purchaser paying interest under such circumstances was entitled, notwithstanding the condition, to receive from the vendor compensation for non-performance of the latter's part of the contract (6). But it is now settled that the mere existence of difficulties in the title, although justifying the purchaser in refusing to ^^j complete until they are r eneweii, does not exempt him = ^ / * /K from the condition respecting payment of interest (c). And he will only bo entitled to the clear rents and profits actually received, without any claim for com- pensation. But he may charge the vendor with an occupation rent, if the latter remains in actual occupa- tion of the property (d). The condition, however, will not be enforced by the Court where there has been gross misconduct, or () Binkt v. Eokeby, 2 Swan. 222; Jones T. Mudd, 4 RUM. 118. M J) Vitme v. Zte Fw/n^, 1 M. & 0. 336, 347. (c) Palmeraton v. r--^ OP CONVEYANCING. Memorandum Attached to the conditions of sale is the memoran- dum referred to in the first condition. The form of this often provides for the auctioneer signing as agent for "the vendor" without naming him, but having regard to the somewhat conflicting decisions as to whether this is a sufficient compliance with the Sta- tute of Frauds (t), it is at any rate safer for the name of the vendor to appear on the memorandum of sale (it) . Besides these ordinary conditions of sale, there will have to be inserted, in almost every case, special con- ditions rendered necessary by the nature of the title, or of the property to be sold. Into these we do not propose to enter. Their number is, practically, infin- ite ; and little advice can be given beforehand as to their preparation, since this varies with each case. But a careful study of the conditions ordinarily em- ployed, and of the principles on which they are con- strued by the courts, will form a solid foundation on which to construct these more complicated forms of drafting. (0 29 Car. II. c. 3. (it) See Williams v. Byrnes, 2 N. E. 47 ; 2 Dav. Con. 2 ; Dart. V. & P. 202 ; Hood v. Barrinyton, L. E. 6 Eq. 218 ; Bourdillon v. Collins, 24 L. T. (N. S.) 344 ; Sale v, Lambert. L. E. 18 Eq. 1 ; Potter v. Dvffwld, L. E. 18 Eq. 4. 329 CHAPTER III. OP PURCHASE DEEDS. AVu now come to the consideration of those Purchase Deeds which form the final step in carrying out con- tracts for the sale of land, and cause them to lose their character of executory, and to assume that of executed, contracts. And in doing this, we propose to notice, in turn, the various clauses of which such a deed is composed, pointing out, when necessary, the different ways in which they are framed, accord- ing as the estate dealt with is freehold, copyhold, or leasehold. An ordinary purchase deed may be conveniently Division <>f a divided into the following parts: 1st, the Premises, which include all that part of the deed which comes before the habeudum ; 2nd, the Habendum, which defines the estates to be held in the property dealt with ; 3rd, the Covenants ; and 4th, the Testatuni, or witnessing part. If the deed is more complex, it may contain, in addition to the above, Declarations of any trusts which may be fastened on the legal estate, followed by such Provisos or explanatory statements, as may be necessary. These parts, if inserted, come immediately after the habendum (a). The Premises are again subdivided into various The Premiers, clauses. Of these the first is the Introductory Part, which consists merely of the words " This Indenture 1>urt made on " such and such a date. It does not call therefore for further remark. (a) 1 Dar. Con. S3. 330 I'artirs. Recitals. Narrative re- citals. OP CONVEYANCING. Next come the Parties to the deed. These should, in general, comprise, besides the vendor and pur- chaser, every person from whom any legal or equitable estate or interest is transferred to the purchaser (&) ; and also all persons who enter into any of the coven- ants contained in the deed. The most convenient order of their arrangement is to place first the party or parties from whom the legal estate in the property is transferred ; next, any persons whose concurrence is requisite, or who enter into any covenants ; and last, the party or parties to whom the legal estate is to be given by the deed. The names and descrip- tions of all the parties should be set out in full, so as to prevent any difficulty in their subsequent identifi- cation, but a deed is not invalidated by a defect in this respect, so long as the name or description given to any party is that by which he, or she, is generally known (c). After the parties come such Kecitals as may be considered necessary. Recitals are of two kinds, namely, narrative recitals, which set out the facts and instruments necessary to show the title and the rela- tion of the parties to the subject-matter of the deed (d) ; and introductory recitals, which explain the motives for the preparation and execution of the deed. Narrative recitals, when used, should go back far enough to show a clear root of title (e), which can only be done by showing the creation of the estates and interests of the conveying parties; but they should not go beyond this, neither should they, as a rule, contain anything which is not logically connected with the particular matter in hand. It has, however, been pointed out by an eminent writer (/) that, in See Dart. V. & P. 469, as to an exception to this rule. Williams v. Bryant, 5 Mee. & W. 447. d) 1 Dfiv. Con. 43. M Dart V. & P. 476. (/) Ibid. OP PURCHASE DEEDS. 331 vk-w of the common condition of sale as to recitals being evidence, they may sometimes be used "as a statement of facts tending to validate the title, even where they do not strictly comply with the above rule ; and the effect of the Vendor and Purchaser Act 1874 (ftrt - clause which refers to the introductory recital of the agreement (where this recital has been used) and also to the consideration which is to be paid. The receipt Receipt clause of the purchase-money is acknowledged here paren- ^ n ent enc thetically, and a formal receipt for it is also indorsed on the back of the deed. The acknowledgment on the back of the deed does not estop the vendor, or those claiming under him, from showing that the con- sideration was never paid () ; but it has the advan- tage of relieving a* subsequent purchaser from the necessity of ascertaining that the consideration was, in fact, paid (o) ; and it is so universally employed that its absence would, probably, bind him to make further inquiries on the subject. The acknowledgment of the receipt in the body of the deed is of little practical value. It does not, it would seem, even at law, estop a vendor from disputing the fact of the receipt (p) unless it is followed by a formal release from all claims on account of the purchase-money () Nkaife v. Jackson, 3 B. & C. 421 ; Lt v. Lancashire Ky. Qo. L. R. 6 Ch. 527, 634. (n) liakrr v. Dticty, 1 B. & C. 704. (r) Winttr v. Anton, 3 Rusa. 488 ; Hawkint v. Gardiner, 2 Sm. & GUI'. 411. (/) Lninpo (o) 1 Dnv. 834 OF CONVEYANCING. Words of Con- The operative part includes also the words of con- veyance which transfer the property : these varying according to the nature of the estate. It will be remembered that all hereditaments now lie in grant. Hence the word ' ' grant," alone, is that proper to be used in an ordinary conveyance of freehold land to a person who has had no previous interest in it. Where the grantee has already some estate in the land, the words ' ' release " or " surrender," as the case may be, are more appropriate. If the vendor is acting under a power the word "appoint" is best, and if he has a mere power of sale (as in the case of an executor selling copyholds under a power in a will), the words "bargain and sell" are commonly employed (s). A party joining to transfer a beneficial interest should "confirm" the assurance of the property. But it will be understood that the various expressions given above are merely those which are considered most appropriate; and that a deed will not, necessarily, fail of effect from the mere use of an inappropriate word, provided that the intention of the conveying parties appears clearly. If the property is copyhold, it can only be legally transferred by a surrender and admittance recorded on the court rolls. The purchase deed, consequently, in this case, takes the form of a covenant by the vendor that he will make the neces- sary surrender, in order to enable the purchaser to obtain admittance. If the property is leasehold, the vendor "assigns" it to the purchaser. Care must, of course, be taken to define the purchaser's estate accurately. A conveyance in fee simple of freeholds or copyholds limits it to him, " his heirs, and assigns," whilst leaseholds, being personal property, are limited to him, "his executors, administrators, and assigns." The Parcel?. The operative part is followed by the description of the property. This is technically known as the (*) 1 Dav. Con. 70. OF PURCHASE DEEDS. Parcels, and should, when practicable, be the same ;is iu former title-deeds, so as to prevent any question as to the identity of the property conveyed with that comprised in such deeds. When this is not possible, there should bo a reference connecting the parcels with former descriptions, but without specifying the deeds in which they are so described. Except in Description i>y small purchases, it is preferable that the parcels should 2^ refer to, and be accompanied by, a map or plan of the property, drawn on the deed; but care must, in that case, be taken to have in the body of the deed, such a description of the property as will be sufficient to prevent any difficulties arising should the plan prove to be inaccurate. For an inaccurate plan, if not corrected by the wording of the deed, may over- ride the real intention of the parties. Thus, in a modern case (/), the parcels described the property as " bounded by a lino drawn from J. V.'s house to a certain bound stone," and stated that the premises were "particularly described by the map drawn on the back " of the deed. It was proved that the posi- tion of J. V.'s house was wrongly marked on the map ; but it was held that, since the map formed part of the deed, and was not contradicted by any other part of it, the boundary line must be accepted as drawn on the map (u). The above remarks apply also to a description of property by reference to its pre- sent or former occupants (v). When the parcels are Schedule, numerous, they may be conveniently set out in a schedule to the deed, the schedule and map being referred to in the words of conveyance. After the parcels come what are known as the General Woid. General Words ; those, namely, which purport to con- (/) Lyle v. Richards, L. R. 1 H. L. 222. (M) And see Lletcylln v. Jersey, 11 Mce. & W. 183 ; Davit T. Shtpherd, L. R. 1 Ch. 410. M Dyne T. Nutley, 14 C. B. 122 ; Fox v. Clarke, L. R. 7 Q. B. 748, W. N. (1874), 141. OP CONVEYANCING. vcy to the purchaser all rights and easements (w) appurtenant to the property, or at any time enjoyed with it, or reputed to form part of it. These are often contained in a long string of words, but the whole clause is of little use. For easements or ap- purtenances legally belonging to land pass with it, without any express words of grant (x) ; and a vend- or of land cannot, evidently, put his purchaser in a position better than that in which he himself is, so as to confer upon the property sold, as against a third person, any easements which do not already legally belong to it. The latter part of the clause, therefore (that which refers to reputed easements), has, alone, any value ; and this is limited to preserv- ing, as against the vendor of part of an estate, ease- ments which, though not existing legally, have been exercised for its benefit over the part retained by him. And even in this case, the value of the clause has been considerably lessened by recent decisions. For, in the first place, all continuous and apparent ease- ments, such as rights of drainage, which have been, and are at the time of the grant, used by the owner of the entirety for the benefit of the parcel granted, will pass, although not legally existing, by a convey- ance of that parcel (y). In the next place, a discon- tinuous easement, such as a right of way, if it has only been created whilst the entirety of a property has been held by the same owner, will not pass by a conveyance in the ordinary general form of words relating to easements now or heretofore enjoyed (z). The only advantage, therefore, of the clause is that it may serve to revive and transfer a previously exist- (w) An easement is a privilege which the owner of one neighbouring tenement has of another, existing in respect of their several tenements, by which that other is obliged to suffer, or not to do, something on his own land for the advantage of the possessor of the easement. Gale on Ease- ments, 1. eColegrave v. Dias Santos, 3 Dow. & R. 255. Suffield v. Brown, 3 N. R. 340, 343. Thomson \. Waterlow, L. R. 6 Eq. 36 ; Langley y. Hammond, L. R. 3 Ex. 161. OP PURCHASE DEKDS. ing easement which has become suspended or extin- guished by the fact of two properties having been united in the possession of one owner (a), and which would not otherwise pass by the deed (b). It would seem to be safer to word the clause generally, without specifying any particular rights or easements, since otherwise the accidental omission of any of them might prevent its passing by the conveyance (c). The parcels and general words are followed by what Eatale Clause, is known as the " Estate " Clause, which finishes this part of the deed by a general transfer of all the vend- or's estate and interest in the property. This clause is, as has been generally pointed out, simply useless (il) ; and its retention only shows the difficulty of alter- ing any long-established custom. Indeed, so firmly is its use established, that it is inserted even in one of the latest forms of statutory conveyances (c), which certainly does not, otherwise, sin in unnecessary length. It is, however, omitted in assurances made in pursuance of powers of appointment. This finishes the premises, and we come next to the Habcndum. Habendum, which, commencing with the words " To have and to hold," is intended to define the estate of the purchaser : it also refers generally to the premises which have been granted by the operative part. The proper office of the habendum is to limit, ex- plain, and qualify, the words in the premises, provided it be hot contradictory or repugnant to them. It can- not therefore give a man more than he would take under the words of conveyance, for that would be to contradict them ; but it may restrict those words, by the explanation which it affords of the intention of the 0, a) AMMTV. Plants* Ad. & E. 749. Barlow v. Rho3e, 1 Cr. & Mee. 439, 448. See Holliday T. ItrniwH, 4 Jur. N. S. 1002. rf) 1 Dav. Con. 88. e) See 36 & 37 Viet. c. 50. 838 OP CONVEYANCING. Covenants for title parties. These two rules are well illustrated by a de- cision of the Court of Queen's Bench. In that case (/) there was a demise " to H, her heirs and assigns, to have and to hold to the said H and her assigns during the life of G." The habendum, which showed a clear intention that H should take an estate pur autre vie only, was allowed to restrict the words of convey- ance which, taken alone, would have conferred on her an estate in fee simple ; whilst, on the other hand, it was not allowed to contradict them by limiting the estate to the assigns of H only, so as to prevent the heirs of H from taking, on her decease, as special occupants. Next come the Covenants, which, in the simplest form of conveyance, consist only of covenants for title entered into by the vendor. To these must be added, on a sale of leaseholds, some other covenants which will be particularized later on. The covenants for title are substantially the same in a sale of freeholds, copyholds, or leaseholds. The first is that the vendor has a right to convey the pro- perty according to the terms of the deed. If the vendor has acquired the property by any means other than by descent, the covenant is to the effect that no acts of his have affected his right to convey ; but if he has taken the property by descent, he should also co- For quiet en- venant against any acts of his ancestors. Then come covenants that the purchaser shall, from thenceforth, peaceably enjoy the premises without any molestation by the vendor or any person lawfully or equitably from in- claiming under him, and that the property is free from any incurnbrances, created by the vendor or any per- son claiming through, or in trust, for him : to which again must be added, if the vendor has acquired the property by descent, incumbrances created by his an- For right to convey. joyment. t-umbrances. (/) Doe T. Steele, 3 Ga. & D. 622. OP PURCHASE DEEDS. 339 cestors. And these covenants conclude by an under- For further taking on the part of the vendor, that he and all per- M sons claiming through him, or (under the circum- stances before mentioned) through his ancestors, will, at the purchaser's expense, do anything which may be reasonably required to perfect the assurance of the property to the purchaser. The covenant for quiet enjoyment is merely intended Effect of the to secure the purchaser's title and possession, and only guarantees to him that he may use it in any way in ment. which his vendor might have used it. Therefore, when (g) land had been conveyed in fee simple to B, who had covenanted with his vendor that he would not carry on, upon the premises, the trade of a seller of beer ; and B afterwards demised the land by a lease which contained no prohibition against carrying on such a trade : it was held that his lessee had no right of action against him on account of loss which the lessee had incurred from being restrained, at the suit of B's vendor, from fitting up the premises as a beer- shop (h). It will be noticed that the covenant against Wording of incumbrances does not say that the estate is free from ^^"incum- incumbrances, but merely that there shall not be any brances. disturbance by incumbraucers ; in which case the vendor would be bound to discharge their claims, or indemnify the purchaser against them. These covenants for title are entered into by the By whom, and vendor for himself, his heirs, executors, and adminis- wlth wnon i' covenants lor trators, with the purchaser, his heirs and assigns, title are en- The benefit of them runs with the land whether free- tered int0 ' hold, copyhold, or leasehold (t). Their object is to give the purchaser, or those claiming under him, a remedy, if necessary, against the vendor and his re- M (A) < Mi. Ticnnttt v. Atherton, L. R. 7 Q. B. 31G. See also, as to the effect of this covenant, Letch T. Schtccdrr, L. R. 9 < Mi. 463. (0 Riddell Y. Riddell, 1 Sim. 529 ; CampbtU v. Letcit, 3 B. & Aid. 392. 3 tO OP CONVEYANCING. Absolute owner. Trustee. Cestui que trust. preservatives, by means of an action on the express covenants which the latter has entered into, without being limited to such covenants as are implied on the sale of an estate. Every vendor who is the absolute owner of the property which he sells, is bound to enter into them (j), as is also a husband on the sale by him and his wife of the latter* s real estate not held to her separate use. If the vendor is only a trustee, or a mortgagee sell- ing under a power of sale, he is not compellable to enter into any covenant except that he himself has not incumbered the property. And the rule is the same on a sale by executors in pursuance of a con- tract 'entered into by their testator during his lifetime (fc) . Where there is a sale by a trustee, it is the set- tled practice of conveyancers, in the absence of any special condition, to make all the beneficiaries who take a substantial interest in the proceeds of the sale enter into covenants for title to the extent of that interest (I). It is, however, doubtful how far this practice can be enforced ; and it has been decided that it cannot, where the trustee is selling under the order of the Court of Chancery (m). On the other hand, it has been held that where a sale is made by a trustee under a power which only authorizes the sale at the direction of a tenant for life, the latter must enter into the usual covenants for title (n). It would seem, however, that any limited owner who sells under a statutory power need not enter into covenants for title extending beyond his own interest (o), and that owners of land whose estates are altogether taken compulsorily, as, for instance, by a railway company, (j) Church v. Brown, 15 Yes. 258, 263, & 263". (/t) Worley v. Frampton, 5 Ha. 560. (0 Dart. V. & P. 500. () Cottrell v. CottreU, L. R. 2 Eq. 330. (n) Poulett v. Hood, L. E. 5 Eq. 115. (o) Dart. V. & P. 503. OP PURCHASE DEEDS. ''> I 1 need not enter into any covenants at all ( p). It may The Crown. . be added that the Crown, if selling land, never enters into covenants for title. The time for bringing an action on covenants for Limitation of title is limited by the 3 & 4 Win. IV., c. 42, to twenty years from the date when the cause of such action ante, arose. The time for bringing actions on the covenant 3 & * Wm. that a vendor has a good right to convey, and also on that against incumbrances, when entered into by trus- tees, begins to run from the date of the conveyance ; but that for bringing actions on any of the other co- venants for title, entered into by an ordinary vendor, does not begin to run until some actual breach of the covenant in question. It was mentioned previously that there are ad- Covenant onji ditional covenants to be inserted on a sale of leaseholds. lease " These are, covenants by the vendor that the lease which he assigns is valid and subsisting, and that the rents and covenants of the lease have been, respect- ively, paid and observed, so far as he is concerned, up to the date of the conveyance. There is, also, a covenant by the purchaser that he will, from thence- forth, pay that rent and observe those covenants, and indemnify the vendor against any further liability in this respect. The covenant by the vendor that the lease is valid is implied by the covenants for title, and may, therefore, be safely omitted. The covenant by the purchaser that ho will indemnify the vendor against any further liability in respect of the rent and coven- ants of the lease is one which he cannot refuse to give (q). On this point it may be remarked that when a vendor is himself an assignee of a lease, a purchaser from him is liable to indemnify the original lessee against breaches of covenant in the lease, com- (p) Dart. V. & P. 502. (?) Staiutt v. Morris, 1 Yc. & B. 9. 342 OF CONVEYANCING. mitted during his own tenancy, without reference to the covenants which such a purchaser may have entered into with his vendor (?). Testatum. Having thus gone through the essential parts of a purchase deed, it only remains to mention that the whole is concluded by a Testatum, which sets forth that the several parties to the deed have duly affixed thereto their respective hands and seals ; and to point out that the fact of their having done so should be attested by at least one witness, whose attestation is usually to be found indorsed on the deed along with the receipt clause. (r) Moule v. Garrett, L. K. 7 Ex. 101. 343 CHAPTER IV. OP LEASES. HAVING thus considered the instruments which relate to the sale of land, we come next to those which are employed when it is to be let. These, as we know, are called leases, and will form the subject of discus- sion in this chapter. The simplest form perhaps of a lease is that of a dwelling-house and grounds for a short term of years which is to commence on, or very shortly after, the execution of the instrument of de- mise. And since our object is to deal only with the more ordinary and simple forms of conveyancing, we will confine our remarks to leases of this description. And, in so doing, wo will follow the plan adopted in the case of purchase deeds, and divide our present subject into, 1st, Agreements for Leases, and 2nd, Leases. Agreements for leases, again, may be classified Aproom. nt- f..r under two headings ; namely, those instruments which Leasw - have been expressly entered into by the parties as agreements for leases, and those instruments which operate as agreements by construction of law, although not expressly entered into as such. Before, however, considering agreements for leases with reference to this classification, we have to say a few words on the statutory requisites relating to all such agreements generally. Prior to the passing of the Statute of Frauds (<;), (a) 29 Car. II. c. 3. :U1 OP CONVEYANCING. any lease, and also any agreement for a lease, of land, might be made by parol. But by this statute it is Statute of enacted (b) that no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in, or concerning, them, unless the agreement upon which such action shall be brought, or some memo- randum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. It follows, therefore, that no person is liable on a mere contract to grant, or take, a lease, unless he has signed some written document which, either in itself, or in conjunction with other writings, contains the Part Perform- substantial parts of the contract. But if something more has been done than simply entering into a non- binding agreement, the contract may come within the class of cases which are considered as taken out of the Statute of Frauds by part-performance. Thus, it has been held that possession taken by a lessee, and payment of rent by him, when these acts are distinctly referable to a parol or unsigned agreement, were sufficient to induce a court of equity to decree specific performance of the agreement, against either the lessor (c) or the lessee (d). And this rule ex- tends also to the representatives of a lessor or of a lessee. Thus, where there had been a verbal agree- ment for a lease, and the lessee had entered into possession of the property, paid rent, and made im- provements on the property, and afterwards died : it was held that his representatives were entitled to have, from the representative of the lessor, a formal lease, in terms corresponding to those of a draft lease found amongst the papers of the lessor, who was also dead (e). (b) S. 4. (c) Pain v. Coombs, 1 De G. & J. 34. (d) Kine v. Halfe, 2 Ba. & B. 343. (e) McFarlane v. Dickson, 13 Grant, 263. OF LEASES. \\'c now come to agreements for leases, expressly Express ugreo cutcred into as such. We shall not, however, dwell long on this point, since, as a rule, preliminary agree- \.,t in ments are neither usual, nor desirable, in the case of deslrnl) those ordinary leases with which alone we are con- cerned. Where the lease is to take effect at once, and is not to contain any but the ordinary covenants, there can be no object in having a formal preliminary agreement (which can only bo safely prepared by inserting in it all the covenants and clauses literally as they are to stand in the lease (/) ), this agreement being immediately followed by a formal lease. Still less is it desirable to have, as is sometimes done, a formal agreement not followed by a lease. For iii this case, besides the risk of raising questions, where the term is less than three years, as to whether the instrument is an agreement or an actual lease (a point to which we shall advert presently), both parties are, under an agreement, in a much less favourable position than under a lease. For the lessee, having no legal interest, is ^rl ma fade liable to ejectment at the will of the lessor, and can only remedy this in- jury by establishing an equitable defence; whilst the lessor, until some rent has been paid, cannot distrain for unpaid rent,. but is driven to bring an action for use and occupation of the premises (|li OP CONVEYANCING. proof of, or investigate, his lessor's title. It is now set- tled (It), notwithstanding former doubts to the con- trary (?"), that a lessor is bound, in the absence of any stipulation to the contrary, to make out his title to the property which he purports to demise ; and although a court of equity will not compel one party specifically to perform his contract to grant a lease, unless the right to see his title is waived, neither will it compel the other to carry out his contract to take a lease, unless the title is produced (/). The necessity for one part of this stipulation will, however, shortly come to an end. For the Vendor and Purchaser Act 1874 (k) enacts (I) that in the completion of any con- tract entered into after the 31st of December, 1874, and subject to any stipulation to the contrary con- tained in the contract, an intended lessee shall not be entitled to call for the title to the freehold. But the remarks made in a former chapter as to the necessity of precluding a purchaser from investigating, as well as from inquiring for, his vendor's title, will still apply equally to the case of lessor and lessee, and a stipu- lation to that effect will, therefore, continue to be necessary. The agreement should also, whatever may be the length of the term to be granted, contain a statement that the instrument is intended only as an agreement, and does not pass any legal interest to the lessee. We will enter into the reasons for this when speaking of the second of the head- ings under which agreements have been classified. It may be added that, unless otherwise provided, all the expenses attending the preparation of the agreement, and of the lease, fall upon the lessee (m), whilst the expense of preparing the copy of the lease retained by the lessor, and known as the " counter- (A) Strank? v. St John, L. E. 2 C. P. 376. (t) Fildet v. Hooker, 2 Mer. 424, 427. 0') Fildet v. Hooker, 2 Mer. 424; 1 Platt on Leases, 618. fit) 37 & 38 Viet. c. 78. (/) S. 2. (m) Griuell v. Robinson, 3 Bing. N. C. 10. OP LEASES. : ' I ~ p:u-t," must be borne by him (n). Hence if some (litl'iTi-nt plan is contemplated it should be so stated in the agreement. It was remarked just now that no agreement for a Usual and lease could be drawn safely unless it set out, literally, P r F r C(jvt> - tlio covenants to be contained in the lease. But it may not be out of place to point out here how agree- ments will be construed which are either silent on the question of covenants or (which comes to the same tiling) merely provide that the lease to be prepared shall contain the " usual " or " proper " covenants. Whenever an open agreement of this kind is executed, the law will imply a further agreement by both parties to enter into certain covenants which are applicable to all leases, and no covenants can, generally speaking, be inserted in a lease made in pursuance of an open agreement other than those which are implied by the law as being strictly incidental to the subject-matter of the contract. It seems to be pretty well settled that these are covenants by the lessee (1) to pay rent, (2) to pay taxes, except such as are expressly payable by the lessor, (3) to keep and deliver up the premises in repair, and (4) to allow the lessor to enter and view the state of repair; and a covenant by the lessor that the lessee shall quietly enjoy the pre- mises (o). It follows that, in the absence of precise stipulation, a lessee is not bound to enter into a coven- ant not to assign the lease without licence from the lessor (j>) ; or not to carry on trade on the premises (q), even where there is a covenant not to keep a school (r) ; or into a covenant to pay such taxes as land tax or tit ho rent charge. But where there is some special local or trade custom, under which certain covenants () Jenninyt T. Major, 8 C. & P. 61. (o) 5 Da?. Con. 49. (p) Church v. Brown, 15 Ves. 2-59. (0) Propert v. Parker, 3 My. & K. 280. (r) J'an T. Corpe, 3 My. & K. 269. 318 OF CONVEYANCING. are always contained in leases, these will be held, with reference to the particular case, to be " usual " covenants, and therefore implied by law. Thus, a covenant not to assign without licence appears to be " usual " in London (s) ; as may be also covenants in restriction of trade in particular cases (), so that there is still plenty of room for litigation under an open or informal agreement. Other questions sometimes arise on such agree- ments, as to the construction to be put upon concise statements of the covenants which are to be inserted in the lease. As to these, we may mention that it has been decided that a covenant to pay a " net rent " binds a lessee to pay every kind of tax (u), as does also a covenant to pay rent "free from all out- goings (v)." Agreements for We have next to consider those instruments which operation of amount to agreements for leases by operation of law, lw- and in order to explain this point we must go back to the law as it stood after the passing of the Statute of Frauds (ic), but before the year 1845. Statute of Frauds. The Statute of Frauds enacted (x) that all leases, except those not exceeding the term of three years- whereupon the rent reserved during the term amounted to two-thirds at least of the full value of the thing demised, should have the force and effect of leases at will only, unless they were put in writing, and signed by the parties making or creating the same, or their agents thereunto lawfully authorized in writing. And it will be remembered that, by another section (?/) of () Strangways v. Bishop, 29 L. T. 120. (0 See Bennett v. Womaek, 7 B. & C. 627. (w) Ibid. (>) Parish T. Sleeman, 1 De G. F. & J. 326; Amfield v. White, Ey. & Moo. 246. (w) 29 Car. II. c. 3. (x) SS. 1, 2. (y) s. 4. OF LEASES. this act, all agreements for leases must also be in writing. Supposing then that a man were found in possession of land under a written instrument, it might be a question, upon the wording of the instru- ment, whether he held under a lease, or only under an agreement for a lease, or, in other words, whether he had, or had not, a legal interest in the land. In deciding these questions, the courts inclined to hold- ing such instruments to be leases. For the general rule was, that where there was an instrument by which it appeared that one party was to give possession and the other to take it, that was a lease, unless it could be collected, from the instrument itself, that it was only an agreement for a lease to bo afterwards made (2). And on this principle, instruments not containing words of express present demise might be, and often were, held to be leases ; provided they contained with sufficient certainty all the terms of the lease (a) ; still more if they were followed by some act, such as possession of the premises by the lessee, which showed an intention to pass an immediate interest (6). It being, evidently, undesirable that doubts should be possible as to whether a written document passed a legal interest or not, two acts were passed in the present reign, each of which sought to put such questions beyond doubt. Of these the 7 & 8 Viet., 7 & a Viet. c. c. 7o, enacted (c) that no lease in writing should be 76> valid, as a lease, unless made by deed, but that every agreement in writing to lot land should take effect as an agreement to execute a lease. This act took no notice of the exception in favour of short leases made by the Statute of Frauds (cf), and was repealed in the Real Property next year by the Real Property Amendment Act (e), (:) Morgan v. Biwll, 3 Taunt. 65, 72. (a) Dunk T. Hunter, 5 B. & Aid. 322 ; Clayton T. Xurtenshatr, 7 Dow. & Ry. 800. (4) Doe v. .KiM, 8 Bing. 178. (c) 8. 4. ( held to be an agreement for a lease, and probably will, reversing the former rule of construction, be so held in all cases where its wording makes it possible for the court to do so. Thus, in a case in equity (g), there was an instrument relating to a term of more than three years, made after the 1st of October 1845, and not under seal, which, although it would formerly have been construed as a lease, was so worded as to admit of its being considered an agreement. The lessee entered into possession under it, but disputes arising between him and the lessor, the latter brought an action of ejectment against him, and he thereupon filed a bill in Chancery to restrain the action, and to compel the grant of a proper lease. It was argued on behalf of the lessor (A) that the instrument, being void as a lease, was void altogether, but the court held that it was admissible as an agreement for a lease : pointing out that the statute only made it "void at law as a lease/' and not t: void to all intents and purposes." This decision was soon followed by one at law (r), in which it was held that an action for breach of contract to take a lease might be founded on such an instrument, for it was said that the words of the statute meant no more than that the instrument, not (/) S. 3. (g] Parker \. Taswell, 2 De G. & J. 559, 570. (h) Relying on Stratton v. Pettit, 16 C. B. 420, now overruled. () Bond v. Rosling, 1 B. & S. 371, 374. OP LEASES. being under seal, should pass no legal interest (/). From these cases ft will be seen that the courts in- cline, now, to consider as agreements for leases writ- ings which, from their ambiguous wording, would formerly have been treated as leases; and the fact that the parties have executed an instrument which, as they may be presumed to know, cannot take effect as a lease, will be looked upon as an additional reason for holding it to be an agreement only. It is in order to assist the courts in arriving at such a conclusion that it is still desirable to state in an agreement for a lease that it is not intended to pass any legal interest. Moreover, the 8 & 9 Viet., c. 106, still leaves open questions upon instruments dealing with terms which need not be granted by writing, and upon those under seal; consequently, the precaution above mentioned should be specially observed when these instruments are intended to be agreements only. Not only may an instrument, void as a lease for a Intended lease term over three years, be treated as an agreement for o^^te r a lease, but it may, in some cases, operate to create a create a yrarly tenancy from year to year. For the effect of the te statutes which we have been considering is to give to such a lease the effect of a lease at will ; and since, ordinarily speaking, payment of rent converts a ten- ancy at will into a tenancy from year to year, such a lease may, if rent is paid under it, operate to create a tenancy from year to year (A-), in which case all the covenants and conditions of the lease will apply to the yearly tenancy (/). In treating of the second part of our subject, namely, Lea**. Leases, wo will first remind the reader that, under the (J) And see Tidcy v. UolUU, 33 L. J. (C. P.) 235 ; Martin r. Smith, L. 11. 9 Ex. 60. (k] Doe v. Sell, 6 T. R. 471, and, with notes, 2 Smith, L. C. 98; Clayton v. lilakty, 8 T. R, 3, and, with notes, 2 Smith, L. C. 103. (/) Rirhardwn v. Giffbrd, 1 A. & . 62 ; lieale r. Sander*. 3 Ding. N. C. 850. 352 OP CONVEYANCING. ' Statute of Frauds (ra), a lease (unlike an agreement for a lease) cannot be made by an agent unless the latter be authorized in writing, and that wherever the lease is made by deed the agent must be authorized by deed (ri). We will next, following our former system in the case of purchase deeds, go through the clauses of a simple lease in its ordinary form. Ordinary form The component parts of such an instrument are 1st, The Premises; 2nd, The Habendum ; 3rd, The Eeddendum ; 4th, The Covenants ; and 5th, The Tes- tatum. The Premises. The Premises begin with the Introductory part which is in the usual form, and this is followed by the names Parties. o th e Parties, who should be fully described, as in purchase deeds. It was formerly a matter of great importance that every person intended to take an immediate estate or benefit in a lease should be made a party to it, since otherwise he could not sue on the covenants contained in the lease. This, however, is Real Property now remedied by the Real Property Amendment Act (o), which enacts (p] that under an indenture executed after the 1st of October 1845, an immediate estate or interest in any tenement or hereditament, and the benefit of a condition, or covenant, respecting any tenement or hereditament, may be taken, although the taker thereof be not named a party to the said inden- ture. Ordinary convenience, however, still makes desirable the insertion of the names of all such persons as parties to the lease. Recitals are, A simple form of lease does not require any Recitals. necessary! """ Sometimes when the lease is made under a power the power is recited, but this does not appear to be usual(g-), (m) 29 Car. II. c. 3, s. 1. () Berkeley v. Hardy, 5 B. & C. 3-55. (o) 8 & 9 Viet. c. 106. (p) S. 5. (3) 5 Dav. Con. 113". OF LEASES. 33 although recommended by some conveyancers (r). If the power is recited, care should be taken to set it out literally, and whether it is recited or not, the operative part must correspond with the wording of the power. If there are no recitals, the parties are immediately followed by the Operative Part, which begins by set- ting out the consideration for the lease. The con- sideration consists usually in the rent to be paid, and the covenants to be observed, by the lessee. But it may be raised by any benefit conferred on the lessor by the lessee, or by any one on his behalf; and it often consists, besides the rent and covenants, in the pay- ment of a premium, or the execution of repairs or improvements on the property demised. Next come Words of the words of demise by which the term is created. demise< The word " demise " is the best for expressing the fact that the lessor leases the property, and is the only word which need be employed for that purpose. But any words showing a clear intention to lease will have the same effect. The demise is. to the lessee, his executors, administrators, and assigns; for, as we know, a term of years is personal, and not real, pro- perty. Next come the Parcels. The general rules to be Parcels, observed in framing parcels were referred to in our last chapter, and need not therefore be repeated, fur- ther than to remind the student of the importance of this clause being accurate, and not containing more, either expressly or by implication, than is intended to S whether as part of the property itself or as sub- sidiary to its enjoyment. These ]>ivc;mtions will be especially necessary in drawing leases of property which has never been demised before. Thus, in a recent case (s), the demised property was (r) 2 Hat t on Leases, 17. (*) Etpley r. JttYfo, L. E. 7 Ex. 293. C. Z 354 General Words. The Haben- dum. OP CONVEYANCING. described as "bounded on the east and north by newly-made streets/' The piece of ground by which it was bounded on the east was, at the time of the demise, and remained 'for some years afterwards, a piece of rough waste ground, but it was held that its description in the lease, and on a plan attached, as a " street," gave the lessee a right of way over it to the demised premises, and so debarred the lessor from letting it to a third person as building ground (). Moreover, since leases sometimes contain penalties for altering the nature of the property demised, care should be taken that no mistake is made in this re- spect, since the description given in the lease is pre- sumed to be correct unless proved to be otherwise (u). After the parcels come the General Words, which are followed by any exception or reservation which may be agreed upon. These vary with the circum- stances of each particular case, but it may be pointed out that the two words have entirely distinct meanings, although they are sometimes used indiscriminately. For the word " exception" is properly applied to some already existing part of the property which, by force of the exception, does not pass by the demise, and the absolute ownership in which remains, therefore, with the lessor; whilst the word " reservation " should be used to express some new right or easement over the property, created by the reservation, but taking effect by way of re-grant by the lessee to the lessor, who can therefore only use it for the express purpose for which it was reserved (v). The Estate clause is not inserted in leases : so we are now at the end of the premises, and come next to the Habendum. TheHabendum states the term during (<) And see Roberts v. Earr, 1 Taunt. 495. () Birch v. Stephenson, 3 Taunt. 469. () See Hamilton v. Graham, L. R. 2 H. L. (Sc.) 166, 168; Wick- ham v. Hawker, 7 Mee. & W. 63 ; Proud v. Sates, 34 L. J. (Ch.) 406. OF LEASES. the lessee, his executors, administrators, and ^ns are to hold the property, and the day on which the term is to begin. This day should be named pre- ci>fly, not, for instance, as the 1st day of March " next," or as " Lady Day " in such a year. For this wording may give rise to difficulties if there is any mistake in the date of the lease, or delay in its execu- tion, or if any question can arise as to whether old or new style was referred to. Then follows the Reddendum, which takes up the The Redden- story at the point where it was left by the habendunij um * and states the rent which the lessee is (to use the common form) to " yield and pay," and the days on which it is to be paid. Quarterly payments are the most usual, and the reddendum should fix them with reference to precisely named days of certain months ; the day on which the first payment is to be made being also expressly stated. If the property is let at a yearly rent, without specifying any particular mode of payment, the lessor is only entitled to rent at the end of each year (10). It is a good plan to make the last payment payable in advance, before the expiration of the term, so as to give the lessor the opportunity of exercising his power of distress, in case this pay- ment should not be made. The reddendum should not state to whom the rent is to be paid, for if rent is reserved generally the law will always carry it to the owner of the reversion, whoever he may be, after the lessor's death (x) ; whilst an incomplete or mistaken reservation may give rise to difficulties ; although it will as a rule be regarded as a mere slip of the pen by the courts, who will, notwithstanding such a reserva- tion, hold the rent to bo incident to the reversion (?/). The lease should contain also a stipulation, in the event of the term being put an end to by the lessor's Coomber v. Hou-ard, 1 C. B. 440. 2 Platt on Leases, 18. Saehneral v. Frogat, 2 Lev. 13. 366 OP CONVEYANCING. re-entry, for payment by the lessee of a proportion- ate part of the rent for the fraction of the current quarter up to the day of such re-entry. Without this stipulation the lessor, if he re-enters for a breach of covenant before the next day of payment, loses the current instalment of rent, whilst, on the other hand, he cannot enter after a receipt of rent, for the receipt will have been a waiver of his right of re-entry (z). With reference to the first point, it has been decided that the Apportionment Act, 4 & 5 Wm. IV., c. 22, does not confer any right to an apportionment of rent upon a lessor who puts an end to a lease by his own act : the statute only applying to cases of apportion- ment between the individual who was entitled to it when it began to accrue, and another who has come in as a remainder-man or reversioner, or otherwise (a). And the Apportionment Act, 33 & 34 Viet., c. 35, does seem to have made any change in this respect. 3 The Covenants. We next come to the Covenants, beginning with those entered into by the lessee for himself, his heirs, executors, administrators, and assigns, with the lessor, his heirs and assigns ; or, in the case of a sub-lease, with the lessor, his executors, administrators, and assigns. lessee's coven- These covenants are (1) to pay rent; (2) to pay taxes ; (3) to repair ; (4) to permit the lessor to enter and inspect the state of repair; (5) to repair upon notice being given of want of repair ; (6) to insure ; (7) not to use the premises otherwise than as a private dwelling-house, without licence; (8) not to assign the premises, without licence ; and (9) to deliver up the premises in good repair at the end of the term. Covenant to J^ covenant to pay a fair rent is implied on everv pay rent. (z) 5 Dav. Con. 100, note (c). (a) Oldcrshaw T. Holt, 12 A. & E. 690, 596. OF LEASES. demise, and the reservation of rent in the reddendum raises an implied covenant to pay the particular rent reserved, but an additional express covenant to pay the rent, on the days and in the manner previously mentioned in the lease, is always inserted in order to enable the lessor to maintain an action of covenant for non-payment. Tho rent is sometimes covenanted to be paid without any deduction except income tax, but these last words are entirely superfluous, as the legislature has already made absolutely void any con- tract for payment of rent without such deduc- tion (6). The object of the covenant for payment of taxes is Covenant to to throw upon the lessee certain burdens which Would, pay ta in the absence of agreement, have to be borne by the lessor. These are the payment of land tax, sewers' rates, and tithe rent charge, and also of all assessments made in respect of permanent improvements done by order of a local authority, and which assessments are primarily payable, under the various acts authorizing the improvements, by the owners of the adjoining premises. The ordinary wording of this covenant is, that the lessee shall pay all future as well as existing taxes, rates, assessments, and outgoings, payable either by landlord or tenant in respect of the pre- mises. The proper wording of the covenant is a matter of importance, since it will be construed strictly against tho lessor. It should include future taxes, &c., because although a general covenant to pay taxes will probably include all future taxes of the same kind as covenanted to be paid, it will not embrace any of a different nature. It is also necessary to specify "assessments and outgoings," for although a covenant to pay taxes generally will include all parliamentary taxes (r), it will not embrace any other (A) 5 & 6 Viet. c. 35, s. 73. f (c) Drcvita- r. Kidgilt, 12 Mod. 167; Aa^Uld T. Moort, Bj. A Moo. 358 OP CONVEYANCING. impositions, although they may be ordinarily spoken of as taxes, such for instance as a sewer's rate (d) ; and for these the word " assessments " is required. The covenant must also extend to "outgoings/' for it has been held (e) that a covenant to pay " all taxes and assessments whatsoever/' does not include tithe rent charge. The form. above mentioned will proba- bly include every kind of tax or charge imposed on the lessor or lessee in respect of the premises, although made on account of a permanent improvement, such as paving a street on which the premises abut, by order of a local authority (/). But it will not pre- clude the lessee from recovering from the lessor money paid by the lessee to a local authority, when an act of parliament has imposed a duty in respect of the premises on the lessor personally, with power to the local authority, if the lessor neglect his duty, to per- form it for him, and, f< by way of additional remedy," to recover the sums thus expended from the lessee () See as to this Dot v. .Bin/, 2 A. & E. 161 ; Jonet T. Thome, 1 B. & C. 715 ; Gutteridge v. Munyard, 7 C. & P. 129; Harrison v. Good, L. R. 11 Eq. 338. g) Macher T. Foundling Honpital, 1 Yes. & B. 186. Doe T. Keeling, 1 Man. & 8el. 05, 100. Cnuoe T. Bugby, 3 Wil. 234 ; Kinnernley v. Orpe, 1 Doug. 56. Eeardman v. il'ihon, L. R. 4 C. P. 67. Doe v. Hogg, 4 Dow. & Ry. 226 ; Ex part* Cockt, 2 Deac. 14. Doe v. Carter, 8 T. R. 67. (r) Croft v. Liimley, 6 H. L. C. 672. (*) J'arlfy v. Coppard, L. R. 7 C. P. 505, 507. ''>''<- OF CONVEYANCING. (l* liv, r up in taking on his part that he will, at the end of the term, deliver up the premises in good repair, and in such a condition as shall be consistent with the due performance of his covenants. Proviso for Re- These covenants are followed by a very important clause, which is known as the Proviso for Ee-entry. This is to the effect that whenever any part of the rent shall have been in arrear for (generally) three weeks, whether the same shall have been legally demanded or not, or whenever the lessee shall commit a breach of any of his covenants, the lessor may re-enter upon the premises, and that thereupon the term granted shall absolutely determine. The proviso should particularly state that the re- entry may be made whether the rent has been legally demanded or not, for this wording enables the lessor to re-enter for non-payment of rent without any de- mand for rent (y], and it also avoids the common law niceties which were formerly requisite in making a re- entry for non-payment, and which still apply (z), in the absence of such a stipulation, unless there is a half- year's rent due, and no sufficient distress can be found upon the premises (a). The grounds on which a lessor will be held to have lost his right to enforce a forfeiture have been already discussed in our chapter on estates for years. We will, therefore, only add here, with reference to another clause in the lease, that a notice requiring a lessee to repair within a certain (named) time, prevents the lessor from re-entering until after the expiration of (y) Doe v. Masters, 2 B. & C. 490. (z) 1 Platt on Leases, 341. () See 4 Geo. II. c. 28, s. 2 ; 15 & 16 Viet. c. 76, s. 210 ; and Doe v. Alexander, 2 Mau. & Sel. 525 ; Doe v. Wilson, 5 B. & Aid. 363 ; Phi- lipps v. Bridge, L. K. 9 C. P. 48, 49 note (2). OF LEASES. that time (I) ; although the case is otherwise when the notice requires him to repair "forthwith" (c). The proviso for re-entry is followed by a covenant on Ltor'8 the part of the lessor, that the lessee and his repre- forget en- sentzitives shall, provided that they pay the rent and joymtnt. observe the covenants mentioned in the lease, peace- ably enjoy the premises without any interruption by the lessor, his heirs, or assigns, or any person lawfully claiming through him or them. It will be noticed that this is not an absolute covenant for quiet enjoy- ment, and it should always be inserted in the lessor's interest ; for, in the absence of any covenant, the lessor will be presumed to have given an absolute covenant for quiet enjoyment (d), and will thus be liable for the acts of persons claiming adversely to him (c), whereas the qualified covenant saves him from any risk of this kind (/). It is to be observed that the covenant for quiet enjoyment, whether in a purchase deed or in a lease, does not enlarge or increase the rights granted by the previous part of the deed. Its only effect is that an additional remedy, namely, an action for damages, is given if the lessee cannot get, or is de- prived of, anything which has been previously pro- fessed to be granted or demised (> L. J. (Ex.) 285; Hall T. City of London Sreu-ery Co. 31 L. J. (& B.) 2-57. (/) Line v. SUpheiuon, 4 Bing. N. C. 678; Stanley v. Ifaycj, 3 Q. B. 10-i. (y) Leech v. Schtctder, L. R. 9 Ch. 463, 474. 36 1 OP CONVEYANCING. if made of land belonging to a married woman, but not settled to her separate use, must be duly acknow- ledged by her. Statutory pro- We may conclude these remarks by calling atten- tion to an Act of Parliament, passed with the object of shortening the ordinary form of leases, but remark- able chiefly on account of its utter failure to carry out 8 & 9 Viet., c. that object. This act is the 8 & 9 Viet., c. 124, en- titled " An Act to Facilitate the Granting of Certain Leases." It contains in the schedule two parallel columns, in one of which are the ordinary clauses of a lease as drawn by conveyancers, whilst in the other are as many marginal notes, each relating to a separate clause. The act gives to each marginal note the effect of its corresponding clause, but these notes are too concise to give sufficient information to an ordinary person looking at a lease so drawn, in order to ascer- tain his rights or obligations under it (h), and the act appears to be very seldom made use of. (A) See also Dart. V. & P. 463. 305 CHAPTER V. OF MORTGAGE DEEDS. WE come next to the consideration of the ordinary form of a mortgage deed of land. This, as we have noticed already, consists essentially of a conveyance of the mortgaged property to the mortgagee, with a proviso for its reconveyance when the debt secured by it is paid off. It contains, in addition, various other clauses which are necessary to give complete- ness to the transaction. Where the subject of the Form of mort- mortgage is a freehold estate in land, the conveyance, f^hoWg ordinarily, takes the form of an absolute grant of it, subject to the proviso for redemption. On a mort- gage of leaseholds, it is open to the mortgagee to Leasehold*, take either an assignment of the whole term for which the property is held by the mortgagor or else a lease for a period a few days short of the whole term. A question as to which plan is the better can only bo answered by reference to the circumstances of each case. Generally speaking, if the covenants of the lease are not onerous, the mortgagee had better take an assignment of the whole term, as he thus obviates any risk of the lease being forfeited by the mortgagor's dealings with the reversion, and has also the certainty of any fixtures which maybe on the pro- perty forming a part of his security : a point which will be presently referred to. On the other hand, the mort- gagee, if he takes the whole term, and even though he never enters into possession of the property, be- comes liable to all the rents and covenants of the lease ; since ho who takes an estate must, without reference to his object in taking it, bear all burdens : >'>' OF CONVEYANCING. incident thereto (a). And since the mortgagee escapes this liability by taking a sub-lease only (I), this latter plan is preferable where the rent of the mortgaged pre- mises is more than nominal, or where the covenants are stringent or burdensome. It may also be remarked that, in the case of mortgages of leaseholds made after the 28th August I860, the mortgagee can, if he sells the property under a power of sale, convey to a purchaser the reversion which had been left in the mortgagor (c), and is, therefore, in that respect, in as good a position as if he had taken the whole of the term. Copyholds. Since copyholds do not pass by deed, a mortgage of them takes, in the first place, the form of a coven- ant by the mortgagor that he will, immediately after the execution of the mortgage deed, surrender them to the lord of the manor to the use of the mortgagee. This is followed by the formal surrender, which is duly entered on the manor rolls, but expressed to be subject to a condition that on payment by the mort- gagor, on a specified date, of all sums secured by his covenants in the mortgage deed (and to which we will refer presently) the surrender shall be void and of no effect (d): The mortgagee has not a legal title to the copyholds unless they are thus surrendered to him ; and cannot, therefore, safely part with his money until the surrender is made, since, up to that time, he is liable to be postponed to any subsequent pur- chaser for value who has obtained a surrender without notice of the earlier mortgage (c). This conditional surrender, as it is called, leaves the mortgagor tenant of the manor (/), but prevents him from dealing with the property to the prejudice of the mortgagee, whilst (a) Williams v. Bosanquet, 1 Brod. & B. 238 ; overruling Eaton v. Jag ties, 2 Doug. 455. (A) H afford v. Hatch, 1 Doug. 183. (c) 23 & 24 Viet. c. 146, s. 15 ; Hiatt v. Hillman, 19 W. E. 694. (S"n>nt of , . . the whole of a they will pass without being specifically mentioned on limited in- an assignment of the whole of a limited interest (I), terest ' because the person who has annexed them has, by the assignment, parted with his right of removal, which will therefore be assumed to have been passed to the transferee; the case is different where the limited But it is othi-r- interest is not entirely parted with, as, for instance, F I8 Jd- er t e r th s e where there is a mortgage by sub-lease : for here the is not entin ly fixtures do not pass unless specifically mentioned (m), P 1 " 1 ^ Wlth and the right to remove them will remain, therefore, in the mortgagor. We see then that, as against the mortgagor, the mortgagee acquires a right to the fixtures, although not named, if the mortgage is by (*) Exparte Jttynal, 2 M. D. & De G. 443. (/) Logsto/\. Meagoe, 2 A. & . 167. (i) Hawtrty T. JBuilim, L. R. 8 Q. B. 290, 293. C. 2 A '!70 OP CONVEYANCING. way of grant of a fee simple or assignment of the .o whole of a limited interest, but that they must be /y^^^l^^^definitely mentioned in order to pass, on a mortgage V yfoYurthn 8tc P by demise. But, except in the case of a grant in fee niorto-sUe'of a 8 i m ple, something more than the operative part, how- limited in- ever framed, is necessary to give the mortgagee a perfectly good title to the fixtures. Kills of Sale .For by the Bills of Sale Act, 1 854 (n), it is enacted (o) Begutnbon ^ a ^ ever y bjji o f sa ] e o f personal chattels, made after the passing of the act, shall be registered, in manner provided by the act, within twenty-one days after the making or giving thereof : otherwise such bill of sale is, as against the trustee in bankruptcy, or the execu- tion creditors of the giver of it, to be null and void to all intents and purposes whatever, so far as regards the property in, or right to the possession of, any per- sonal chattels comprised in such bill of sale, which at or after the time of the giver's bankruptcy, or of his goods being taken in execution, and after the expira- tion of the said period of twenty-one days, shall be in his possession, or apparent possession. And under another section of this act (p), the term " bill of sale " is to include every assurance of personal chattels, and this latter term again, is to include fixtures. It is evident, therefore, that a mortgage of fixtures, unac- companied by any mortgage of the land to which they are attached, requires, in every case, registration under the act, in order to be good against the mort- gagor's trustee in bankruptcy, or his execution credit- or (q). If the mortgage comprises both the fixtures and the land, the rule is somewhat different. For if the mortgaged estate is a fee simple, registration is un- necessary because, in fact, no fixtures as such have () 17 & 18 Viet. 36. S. 1. S. 7. j Waterfall v. Penistone, 6 E. & B. 876. OF MORTGAGE DEEDS. 371 <(! (r), and a mortgage of land docs not require registration under this act. But where there is a mortgage of a limited interest, there are really two separate interests parted with, and one of these being the absolute ownership of the fix- tures, as distinct and apart from the ownership of the land, the mortgage deed requires registration under the Bills of Sale Act, in order to give the mortgagee a perfect title to the fixtures, just as much as if they had been assigned by a separate deed altogether (x)- The importance of attending to this point will prob- ;il)ly be fully appreciated when it is considered that on a mortgage of (say) manufacturing premises, the ma- chinery on them, which comes within the definition of fixtures (t), forms by far the most important part of the mortgagee's security. We now arrive at the Proviso for Redemption which, Proviso for in modern practice, takes the form of an agreement that if the mortgagor or those claiming under him shall, on the day already fixed by his covenant for pay- ment of the principal and current interest, pay those sums to the mortgagee, his executors, administrators, or assigns, then the mortgagee will re-convey the property to the mortgagor, his heirs, or assigns. 'I'h is covenant, it will be noticed, provides for repay- ment of the mortgage money to the mortgagee or his personal representatives, whilst the mortgaged estate is, when re-conveyed, to go to those persons to whom (r) Culltn'ek v. Swindell, L. R. 3 Eq. 249 ; Climie v. Wood, L. R. 3 Ex. 257 ; Holland v. Hodffion, L. R. 7 C. P. 328. (*) Beylie v. Femcick, 24 L. T. (N. S.) 68 ; Jfawtrey T. Baffin, L. R. 8 Q. B. 290 ; Ex parte English, L. R. 8 Ch. 1072 ; Meux v. Alien, W. N. (1874) 16, overrulinir ltm/,1 \. Shi>rrncl;. I.. II. .'. F.|. 7-'. (/) Longbotham v. Kerry, L. R. 5 Q. B. 123 ; Holland v. Hodgton, L. R. 7 C. P. 328. 372 OP CONVEYANCING. it would have belonged had there been no mortgage, that is, to the mortgagor and his heirs. Mortgage The personal representatives of the mortgagee money made , , , , , , -. ., , . , payable to per- should be designated as those who are to receive the sonal repre- mortgage money, since a mortgage even in fee is al- the mortgagee, ways considered personal assets, and it is therefore inconsistent to introduce any words which seem to give the mortgagee's real representatives any right to the mortgage money. But it does not appear that any mistake of this kind wOuld be of essential importance. For it has been decided (u) where the mortgagee has died before the day fixed for payment that if no per- son besides himself has been named as the recipient of the mortgage money, his personal representatives alone are entitled to take it ; and that if the proviso is for re-payment to the mortgagee's heirs or his personal representatives, the mortgagor, if he redeems after the day fixed for that purpose, can pay his money to the personal representatives only ; although if he comes on the precise day he may pay it either to them or to the heir, who will, however, in that case, be considered a trustee for them (v) ; as he will be, also, if the mort- gagee and his heirs have alone been named as the persons to whom payment is to be made. Re-conveyance A question of more importance may arise if the of the mort- . /. /. ,-, n gaged estate: proviso for re-conveyance ot the mortgaged premises would, if literally carried out, alter the devolution of the equity of redemption. If it is intended to transfer the beneficial owner- ship of the equity of redemption from the person en- titled to the beneficial ownership of the estate at the time of the mortgage, or to vary his rights in any Thomlorough v. Baker, 3 Swan. 628, and, with notes, 2 L. C. 1030. Kendall v. J/Yc/fe,2Barnard. 46, 50. OF MORTGAGE DEEDS. way, a full recital of this intention should bo inserted in the deed (w), for a mere change in the ordinary wording will not be sufficient for this purpose (x). But of course, if no change in this respect is intended, care should be taken to avoid, as far as possible, any language which may scein to indicate an intention of change. And this precaution is the more necessary since it is now settled (y), contrary to the opinion for- merly prevalent, that the absence of a recital is not, of itself, sufficient to preclude the person in whose favour such a change would appear to have been made from relying on the wording of the deed, in support of his claim (z). The proviso for redemption is followed by a cove- Covenant for nant by the mortgagor that if the principal sum lent, p a y ment of . l . , interest. or any part of it, shall remain unpaid after the day fixed for payment he will, so long as it remains un- paid, pay interest on it at a specified rate. The cove- nant should also name the days on which such interest is to be paid ; these being usually arranged so as to secure half-yearly payments. Here, too, should be inserted any proviso which may have been agreed upon for reduction of the rate of interest, on punctual payment of the sums secured by the last-mentioned covenant. The covenant for payment of interest at a ' higher rate, followed by a proviso for reducing that rate, is a circuitous method of imposing a penalty on the mortgagor if he does not pay his interest regularly. This object cannot be effected directly, owing to the somewhat unsatisfactory doctrine of equity which treats a proviso that the rate of interest shall be increased (w) Co. Litt. 208, note (1). (JT) Stan*Jield\. Jfaltam, 2'J L. J. (Ch.) 173; Uattingi \. Attlty, 30 Beuv. 260. (y) Jackson V. Innes, \ I'.li. lot. (:) See RMfaton T. C'ollim, 3 De G. M. & G. 1 ; Atkituon Y. Smith, 3 De G. & J. 186. 374 OF CONVEYANCING. in default of punctual payment as a penalty to be re- lieved against. Thus, in an early case (a), a proviso raising the rate of interest from 5 per cent, to 5 10s. per cent, per annum, if the interest were not paid within two months from the time fixed for payment, was set aside, although the interest was greatly in arrear. And the court decreed payment at the lower rate without allowing the mortgagee anything on account of the delay in payment, notwithstanding that the decision was founded upon the principle that such a proviso was a penalty to be relieved against, and that such relief is, ordinarily, given only to a person making full recompense in respect of the act, or neglect, for which the penalty was imposed. But both in that and in other cases (6) the court has approved of covenants for payment of interest at a certain rate which is to be reduced if the interest be paid punctually, although, as observed by the editor of Vernon's Reports (<:}, the agreement of the parties seems to be the same in either case, and whether interest is to be reduced on compliance with the times of payment, or advanced in default thereof, seems to be only a difference in ex- pressing one and the same thing. In one case (d) it was attempted to enforce regular payment of interest by inserting a proviso that all interest not paid within six months from the time when it was due should be accounted principal and carry interest. This, however, was set aside, the Lord Chancellor (Lord Cowper) remarking that no agreement entered into at the time of the mortgage could turn future interest into principal, but that to make interest into principal it is necessary that in- terest be first due, and then an agreement concerning (a) Strode v. Parker, 2 Ver. 316 ; and see Hoiks T. Wise, 2 Ver. 289 ; Nicholls v. Maynard, 3 Atk. 519. (b) Stanhope v. Manners, 2 Eden. 196 ; Wayne v. Lewis, 25 L. T. 264 ; and see Herbert v. Salisbury My. Co., L. E. 2 Eq. 221, 224. (c) 2 Ver. 317. Ossulton T. Yarmouth, Salk. 448. OF MOBTGAGE DEEDS. '*> it may turn it into principal. But in a case decided iu Upper Canada (where the .law relating to mortgages is much the same as in this country), a stipulation in a mortgage deed that the interest should be at the rate lit. per annum, up to a certain day ; and that if the principal was not paid on that day the rate of interest should be raised to 12 per cent, per annum, was held to be not a penalty but a valid agree- ment (<'). By the custom of bankers, compound interest is charged on overdrawn accounts, and this custom holds good although a banker may have taken a mortgage of land as a collateral security for the balance of an account, for in that case the mutual relation of the parties is still that of banker and cus- tomer (/). Where, however, a mortgage is given by a customer to his banker for a fixed sum, and not by way of collateral security for the running balance of his account, the banker cannot include that sum in the banking account, and charge compound interest upon it () Jt'td.Ml v. MeColl, 14 Grant, 211. '/) Rii/urd v. llixhop, 5 RUBS. 346. ') J/ww v. Hull, 32 Beav. 269. 376 OP CONVEYANCING. they took a joint security, each means to lend his own money, and to take back his own (7t). It is not desirable to state in the mortgage deed that the money lent is trust money, for that would have the disadvantage of affecting every person deal- ing with the property with notice of the trust, whilst the advantage arising from the rule that an acknow- ledgment of title by one of several mortgagees who appear 'on the face of the mortgage deed to be both joint-tenants and trustees, does not keep alive the mortgagor's right of redemption (i), is too remote to be of much value. Covenants by If the property consists of buildings, the mortgagor should next enter into covenants to repair, and to allow the mortgagee to enter and view the state of repair, similar to those contained in leases. He should also covenant to insure all buildings and fixtures on the property ; to keep them, so long as the mortgage lasts, insured for an amount equal at least to that of the sum lent ; and to apply all moneys which may be received under such insurance in repairing any part of the premises, or fixtures, which may be destroyed by fire. The mortgagee has, even without this proviso, a right to insist upon money received under the insur- ance being laid out in repairing the mortgaged houses or buildings damaged or destroyed by fire (j), but he cannot, in the absence of agreement, compel the appli- cation of such money to the repair of fixtures remov- able by a tenant (Ar), except, perhaps, where the mortgagor has received money under an insurance which existed before the mortgage, and which he has kept up in pursuance of a covenant to that effect (I). (A) Per Sir R. Arden, M. R. 3 Yes. 631. (') Richardson v. Younge, L. R. 6 Ch. 4 78. (j) 14 Geo. II. c. 78, s. 83 ; Ex parte Goreley, 13 W. R. 60. (Xr) Ex parte Goreley, 13 "W. R. 60 ; Lees v. Whiteley, L. R. 2 Eq. 143. (/) Garden Y. Ingram, 23 L. J. (Uh.^478. OF MORTGAGE DEEDS. The mortgagor's covenant to insure should, in any case, be followed by a proviso that, in default of his keeping the premises insured, the mortgagee may do so, and add all money thus expended to the principal sum lent. If any part of the mortgaged property consists of leaseholds which the mortgagor has a right to have renewed, he should next covenant that he will exer- cise this right, if necessary ; for otherwise the mort- gagee cannot compel him to renew, but must himself pay the expenses of any renewal, and may then reim- burse* himself by adding the sums thus expended to his principal (in which case they will carry interest), and may also hold the renewed lease as a security both for the sum originally advanced by him and for that expended in obtaining the renewal (m). We have already seen that foreclosure, which is Power of Sale the primary right of a mortgagee, is a slow and ex- pensive process, especially where there are several incumbrances on the mortgaged estate. Hence, it has been, for some time, the almost universal custom to insert in mortgage deeds a power for the mortga- gee, his executors, administrators, or assigns, at any time after the day fixed for payment of the principal sum duo, and without any further consent on the part of the mortgagor, to sell the mortgaged property in such manner as they think fit, and to do all things necessary for effectuating and completing such sale. If there are two or more mortgagees, the power should be extended to them, or the survivors or survivor of tlu'iu, or the executors or administrators of such survivor, or their or his assigns. Provision should also bo made for the concurrence, if necessary, of any (m) Lacon v. Merlin*, 3 Atk. 1, 4. 378 OF CONVEYANCING. other person in whom the legal estate in the property- may have become vested. It will be observed that the power of sale is limited to the mortgagee and his personal representatives, or his or their assigns : since, as will be remembered, a mortgage debt is personal assets, and it is desirable that the sale, if it takes place, should be made by the persons entitled to receive the purchase-money under it. Care should be taken to include the mortgagee's assigns amongst the persons who may exercise the power, for it has been held (n), that a power of sale vested in A "and his heirs" cannot be exercised by an " assign " of A, even though the deed empowers the " assigns " of A (amongst others) to give a receipt for the purchase-moneys obtained by such a sale ; and since the same reasoning would apply to a power given to A " his executors and administrators " only, the word " assigns " is necessary to allow of the power of sale being exercised by any person who has taken a transfer of the mortgage. A purchaser is not entitled, in the event of a sale, to require the concurrence of the mortgagor, even if the mortgage deed contains a covenant that, on a sale being made, the mortgagor shall concur therein (o); for such a covenant is a mere contract between the mortgagor and the mortgagee, to the benefit of which a purchaser is not entitled. Events on This absolute power to sell is followed by provisoes SjSrS?' vvhich ^strict its operation, by declaring that the pends. power is not to be exercised unless the mortgagor has made default in payment, at the specified time, of the principal and interest secured by the deed, and () Bradford v. Betyeld, 2 Sim. 264; and see Townsend v. Wilson,' 1 B. & Aid. 608. () Clay v. Sharps, 18 Yes. 346"; Carder v. Morgan, 18 Yes. 344. OF MORTGAGE DEEDS. has also failed for a period of (generally) six months to comply with a notice requiring him to pay off all sums then due from him ; or unless some payment of interest has been in arrear for (generally) three months, in which latter case no notice is requisite. It is provided that the notice referred to may be given to the mortgagor, his heirs, executors, adminis- trators, or assigns, or left at his or their usual or last known residence, or on some part of the mortgaged premises, and shall be sufficient notwithstanding any clerical error therein, and notwithstanding the dis- ability of any person to whom it is addressed. In order to prevent any question being raised, on a sale, of the sufficiency or otherwise of any notice, it JJ is further provided that no purchaser shall be bound whether ;m\ t to see whether there has been any default in payment of either principal or interest j or whether any. notice, proper or otherwise, has been given of the mortgagee's intention to sell ; or whether there has been any im- propriety, or irregularity, in the sale ; and that the mortgagor's only remedy in these events shall be in damages against the mortgagee. But if the purchaser knows that the sale is irregular, it cannot be main- tained, even though the deed contains a proviso that notwithstanding any irregularity or impropriety in the sale, the same shall be deemed, as regards a purchaser, to be within the power of sale, and be valid accordingly (p). The purchaser is further secured by a declaration Morta- that a receipt for the purchase-money, {riven by the "^'V 1 '" '"' , r * . r i i 11 ""ft'i-i'-nt ) 5 Dav. Con. 629. (10) Wright v. Jtote, 2 S. & S. 323 ; Ee Clarkt, 22 L. J. (Ch.) 230 ; Hardey v. fVfton, 14 L. T. 346. (x) Hampton T. Fellowt, L. K. 6 Eq. 575. 382 OP CONVEYANCING. enforcing payment of the interest, or instalments, due from the mortgagor. The reservation of rent would, if standing alone, create a yearly tenancy between the mortgagor and the mortgagee, which could not be put an end to without six months' notice. In order to obviate this, the attornment clause should be followed by a proviso enabling the mortgagee to enter upon the premises at any time, without notice, and thus to determine the tenancy created by the attornment. The efficiency of such a clause as enabling the mortgagee, whatever may be the meaning of the clause of attornment, to enter at any time without notice has been decisively established (y). And it would seem that the same result may be obtained even without it, by expressly stating the tenancy to be one at will ; and that dis- training for rent in such a case is not a recognition of a yearly tenancy (z) . Mortgagor's Then come the mortgagor's covenants for title. title. These are that he has good right to convey; that if the principal sum lent and interest are not paid on the day fixed for that purpose, the mortgagee may enter upon, and peaceably enjoy, the mortgaged pro- perty, without disturbance from any person, and that free from all incumbrances ; and for further assurance, which is to be made, until foreclosure or sale, at the cost of the mortgagor, and after that time, at the cost of any person requiring the same. These covenants closely resemble the covenants for title in ordinary purchase deeds, but differ from them in being abso- lute instead of qualified. They are not of much use to the mortgagee, as such, since by bringing an action upon them he could only recover his mortgage money (/) Doe v. Olky, 12 A. & E. 481 ; Doe v. Tom, 4 Q. B. 615 ; Morton v. Woods, L. R. 3 Q. B. 658. (z) Doe\. Cox, 11 Q. B. 122. OF MORTGAGE DEEDS. 383 which ho could more easily obtain by suing on the covenant for its payment (a). If, however, he fore- closes or sells the property, he, or a purchaser from him, has the advantage of absolute, instead of quali- fied, covenants for title ; and it has, therefore, been pointed out (b), that there is no good reason why such covenants should not be as restricted in mortgage, as in purchase, deeds ; but the general custom to the contrary would seem to be too firmly established to be easily altered. The deed is concluded by the ordinary Testatum, Testatum. and should have the mortgagor's receipt for the money paid to him indorsed on the back. It may be men- tioned that the mortgagee appears to be bound at all times to produce this deed to the mortgagor (c), al- though he cannot be compelled to show any other of the title-deeds of the mortgaged property which have been handed over to him to any person what- ever (d), unless he is first paid his principal, interest, and costs. A few words are necessary, in concluding this sub- Statutory j.r .- ,, J . . . . ' , visions as to ject, as to the statutory provisions relating to mort- mortgage gage deeds. These are to bo found in what is deeds, generally known as Lord Cranworth's Act, the 23 & *orth'i Aet. '2 [ \ r ict., c. 145, ss. 11 23, both inclusive, and have reference to selling, insuring, and appointing a receiver over, mortgaged property. The act, which, it is to be remembered, applies only to mortgage deeds executed after the date of its commencement (e), recites in the preamble that it is expedient that certain powers and provisions, which it is now usual to insert in mort- !) 2 Dar. Con. 659. b) 1 Dav. Con. 115. r) 1'nu-h v. U'anl, L. R. 1 Eq. 436; but aw BU T. CkamhrlatK, 3 Cham. Rep. 429. (**** ~~\ ^J have enumerated, to the first and other sons success- ht^w^' ively of the marriage in tail male, with a final limita- \ ' tion in default of such issue, to the husband, his heirs and assigns, for ever. The settlement next proceeds to declare the trusts Trusu of OK> (m) See L. R. 9 C. P. 49 note (2). (M) Champernoon \. Uubbt, 2 Ver. 382. OP CONVEYANCING. tir>t term. of the several terms previously created. The first loney. - g t kat W ] 1 j c i 1 secureg the wife's income during the coverture. The trustees of it are empowered, during the joint lives of the husband and wife, out of the rents and profits of the property, or by the sale of timber or minerals, or by mortgage of the property for the whole or part of the term, to raise an annual sum, of a specified amount, and to pay the income so obtained, quarterly, to the wife for her separate use, by way of pin money, but without her having any power to deprive herself of it by way of anticipation, and, subject thereto and to the payment of their .expenses, to allow the rents to be received by the % ^Thusband or his assigns. Pin money is, as its name / applies, money applicable to the personal expenses of the wife, for her dress and for her pocket-money (o). It is not like other money given to her for her separ- ate use, for she cannot claim more than one year's arrears of it (p) ; nor can she even claim this if her husband, instead of paying her pin money, has furn- ished her, at his own expense, with clothes and other necessaries (q). Neither have her personal represent- atives any claim for arrears of it, under any circum- stances, after her death (r) ; it being given in order that she may be enabled to dress so as to keep up the dignity of her husband, and she being under an implied obligation to spend it for that purpose, and not accumulate it (s). Trusts of the Next in order comes the declaration of the trusts second term. o f flje 8econ d term which further secures the wife's I <> secure ... jointure. jointure. These are, that, if any part of her jointure shall remain unpaid for sixty days after any of the (o) See on this subject Sog. Law of Property, 165. (p) Townshend v. JFindham, 2 Ves. 1, 6. (q) Thomas T. Beimet, 2 P. W. 339 ; Fowler v. Fowler, 3 P. "W. 353, 354. (r) Howard T. Digbu, 2 Cl. & F. 634. (*) JodreU v. Jodrell, 9 Beav. 45. OF SETTLEMENTS. 393 days appointed for payment of it, the trustees shall, but of the rents and profits of the estate, or by the sale of its timber or minerals, or by mortgage or demise of it, during the whole, or part, of the term, raise a sufficient sum to pay the wife all that is then due to her on account of jointure, and pay also all expenses attending the execution of their trust. The powers already given to the wife for the same pur- pose are so extensive that this term may be safely omitted, especially as her right to enter and take the " rents and profits " will include a power of charging the corpus of the estate with all arrears of jointure, if an intention that it shall have that effect can be collected from the various parts of the instrument (t). The third term is created in order to secure tho Trusts of tLe portions for the younger children. With this object, third tertn - T * i 11 secure jM>r- it is limited to the fourth set of trustees upon trust, tions. after the death of the husband, by mortgage of the whole or any part of the premises, or by the sale of the minerals or timber thereof, or out of the rents and profits of the estate, to raise a sum of money for the portions of such of the children (other than the first or only son, or than any son who before attaining the ago of twenty-one shall become entitled to the pro- perty as first tenant in tail male) who, being a son, shall attain the age of twenty-one years, or who, being a daughter, shall attain that age or marry under that age. Tho sum thus raiseable generally varies in amount, being gradually increased according to the number of such children, but with a fixed maximum which is not to be exceeded in any case. The result of this form of trust is, that no child can acquire a vested interest in a portion except on attaining major- ority, or (in the case of a daughter) on attaining majority or being married : and this plan seems pre- (0 Rt Tyndall, 7 Ir. Ch. Rep. 181. 394 OP CONVEYANCING. ferable to making the number of portions raiseable depend merely on the number of children born, for under such an arrangement a younger child who happens to be the only survivor amongst several others may get a portion very much larger than that raiseable under the settlement in the event of there Who may take being only one younger child born (u). It will be observed that the firstborn son of the marriage is entirely precluded from having any share of the por- tions fund, but that a younger son who happens to succeed to the estate will not necessarily lose his por- tion, except when he has become tenant in tail before attaining his majority. But if it is intended that he should be so favoured, there must be an express state- ment to that effect in the settlement, for the general rule is, that, unless there is a strong presumption to the contrary, as where the words used are the same as, or similar (v) to, those employed here, a son who at any time before his father's death becomes entitled to the estate (w) shall not have any share in the portions fund, even though an appointment of part of it has been already made in his favour (x). The clause next goes on to point out when, and how, children enabled to take a portion shall be entitled to Time for pay- payment of it. It says, therefore, that if there is only f P r " one suca child, and he, or she, shall not attain twenty- one, or (if a daughter) attain that age, or marry, until after the death of the husband, such child's portion is to be paid at once, at majority or marriage as the case may be. If, however, the husband is alive at that time, then the payment of the portion is to be postponed until after his death. When there are two or more younger children in a position to take por- (u) See Hemming v. Griffith, 2 Giff. 403 ; Knapp v. Knapp, L. R. 12 Eq. 238. (v) Windhamv. Graham, 1 Russ. 331, 344. (w) Ellison v. Thomas, 1 De G. J. & S. 18, 27 ; Collingwood v. Stan- hope, L. R. 4 H. L. 43. (f) Chadwick v. Doleman, 2 Ver. 527; Teynham v. Webb, 2 Yes. 197. OP SETTLEMENTS. tions, tho portions fund is either to be divided amongst such of them, and in such shares, and at such age or time (not earlier than their majority, if sons, or major- ity or marriage, if daughters), and in such manner, as their father shall appoint ; or, in default of his making any appointment, each such child is to receive an equal portion, which is to be paid under conditions similar to those already stated in the event of there being one such younger child only. It follows that, subject to any appointment by the husband, the time for payment of the portions does not arise until after his death, although the time when they become vested may be earlier in date. It is necessary to state in the settlement that the payment of the portions is not to take place during the husband's lifetime, for the gen- eral rule is that if there is nothing more than a limit- ation to the parent for life, with a term to raise por- tions at the age of twenty-one or at marriage, the portions must be raised as soon as they are vested, by mortgaging the term created for raising them, although the term itself has not yet come into exist- ence (y). In order to prevent any one child from getting an undue share of the portions fund, there comes next a " hotch-pot " clause, providing that no Hotchpot child in whose favour any appointment has been Claube made shall have any share in the unappointed part of tho fund, unless he throws into it the share which he has received already, and thus, as it is technically expressed, brings tho latter into hotch-pot. Of the other trusts of this term, tho first provides Trust for for the case of the husband's dying before all tho maint * nancc - youngerchildren have become entitled to their respect- ive portions. It is to the effect that the trustees shall, after the death of the husband, raise a sum out of the rents and profits of the estate, and apply it for (y) Greaves v. Matt if on, T. JOIHM, 201 ; Codrington r. Folty, 6 Ves. 364, 379; Smyth v. Folty, 3 Yo. & C. (Ex.) 142; Mtuty T. Lloyd, 10 H. L. C. 248. 396 OF CONVEYANCING. Advancement Clause. Proviso for the maintenance of such children. The amount of this sum is not to exceed, in the case of any child, what the interest of his or her expectant portion would come to at SA per cent, per annum, and, subject to this condition, is to be fixed in accordance with the husband's appointment, if he has made any ; if he has made none, its amount is left to the discretion of the trustees. This is followed by a clause which empowers- the trustees, after the death of the husband, or on his written request during his lifetime, to raise a sum not exceeding one-half of the then- expectant or presump- tive portion of any son, (daughters not being usually included) and apply the same for the advancement of the son, as the husband, during his lifetime, or the trustees, after his death, shall think fit. The advance- ment clause ends with a proviso that no advancement shall be deemed to be part of the amount raiseable for portions, unless the child in whose favour it is made becomes afterwards competent to take a portion ; or unless the sums advanced would, together with those still to be raised, exceed the maximum, amount allowed by the settlement for portions, in which latter case the sums still raiseable are to be reduced by the amount of such excess. The object of this proviso is to throw any advance made to a son who afterwards dies before attaining twenty-one upon the estate, and not upon the portions fund, so long as the limit fixed for por- tions is not in any case exceeded : thus enlarging, to a certain extent, the scope of the clause which charges the estate only in favour of children who may attain their majority, or marry, as the case may be. A further proviso permits the husband to require e ^ rus * ;ee8 to raise, in his lifetime, the whole or part husband's life- of the portion in which any child has acquired a vested interest : but the trustees may in such a case, at their option, instead of actually raising any portion, mort- gage a sufficient part of the property to the child by way of security for it, and pay him, or her, interest on OP SETTLEMENTS. 397 such mortgage, so as to provide an income in lieu of that which would otherwise be derived from the severed portion. They may also, if they think fit, include in such mortgage the husband's life interest in the estate, in which case he will be bound to keep down the interest on the sum so raised ; receiving the surplus income only, after providing for all the ex- penses incurred by the trustees in the execution of their trust. The next clause provides for the death of the hus- Power* of the band during the minority of any tenant in tail. Should ^ this happen, the general trustees are empowered to enter upon the property, with ample powers of manage- ment, to receive the rents and profits of it, and, after paying all expenses, keeping down any interest charge- able on the estate, and providing a suitable sum for the maintenance or benefit of the minor, to invent the surplus, and accumulate all sums invested until the minor either dies under age or attains his majority. On the happening of the first-named event they are to invest the fund thus formed in the purchase of new land to be settled to the same uses, whilst if the child lives they are to hand over the fund to him on his attaining his full age. After these clauses come others, whereby the hus- Power to hu- K A f " * band is enabled to appoint, in favour of any future t e f u "^' n wife, a rent charge of a specified amount by way of wife. jointure, with or without its being in bar of dower, and to confer upon her the usual powers of distress and entry in order to enforce its payment. He is also And to charge empowered, in the event of his marrying again, to "" charge the estate with portions for the children of any future mar- such marriage, under conditions similar to those already n stated in the case of his having younger children by his first marriage ; and with the usual maintenance and advancement clauses. 398 OP CONVEYANCING. Powers of These are followed by powers given to the husband during his life, and, after his death, to the general trustees during the minority of any tenant in tail of the settled estate, to appoint the property, by way of occupation or agricultural leases, for terms not exceed- ing twenty-one years, each lease to take effect in possession, or within six months after the date of the appointment, and to reserve the best rent obtainable. The husband, or the trustees, may also make building leases for ninety-nine years, under conditions similar to the above, but with a proviso enabling a nominal rent to be accepted for the first five years of every such term. They are also empowered to make mining leases for sixty years ; if any part of the property consists of copyholds, to grant licences to the tenants to build on, or let, any part of their lands ; and to enfranchise copyholds. These powers should, gener- ally speaking, be inserted in every strict settlement of real estate, being far larger, and more easily carried out, than those given by the Settled Estates Act (z), or by the Settled Estates Amendment Act (a) . But the particular nature of each estate will, of course, be taken into consideration before inserting any, or either, of them. Powers of sale The powers of leasing are sometimes supplemented and exchange, ^y. o t ne rs, given to the same persons, and author- izing them to sell, or exchange, any part of the settled estate, with or without the minerals belonging to it, and to settle the lands bought or taken in exchange to such uses as are already subsisting by virtue of the settlement. They have also power to renew leases, and to raise, by mortgage of the property, any money which may be required for any of the above purposes. They may, moreover, if they think fit, apply the money produced by any sale, exchange, or enfranchise- (z) 19 & 20 Yict. c. 120. (a) 21 & 22 Viet. c. 77. OP SETTLEMENTS. "''' ment of copyholds, in paying off incnmbrances on the estate, instead of in the purchase of land ; investing surplus moneys in the public funds until an oppor- tunity arises for their use. But this series of clauses is, in most cases, rendered unnecessary by the provi- sions relating to settlements which are contained in Lord Cranworth's Act (6), and may ordinarily be safely dispensed with if the deed contains a declaration that the general trustees shall have a power of sale and exchange over all the settled estate, exercisable during the life of the husband, with his consent in writing, and after his death, and during the minority of any tenant in tail, at their own discretion. Finally, the deed concludes with covenants for title, Covenants for entered into by the husband with the general trustees. l These are the same as in ordinary purchase deeds made by way of appointment, and are for the benefit, not only of the trustees and others claiming under the settlement, but also for that of any person purchasing any part of the estate under the powers of sale con- tained in the settlement. (b) 23 & 24 Viet. c. 145, sa. 110, both inclusive. 400 CHAPTER VII. OF WILLS. THE subject for our consideration in this, our final chapter, is a Will of Land. In the previous chapters of this part of our work we have gone through the clauses of a simple form of the particular instrument under discussion, in order to show how the practical work of conveyancing is made to comply with the rules of law. But when we come to the subject of wills it is not possible for us to adopt our usual plan. All the other instruments to which our attention has hitherto been directed, however much they may vary in detail, have some parts common to the class to which they belong. The covenants for title in a pur- chase deed, the lessee's covenants in a lease, the limitations in a strict settlement, vary only within moderate limits; and the observation, therefore, of any one set of them serves as a guide in framing all other assurances of a like nature. But with wills the case is different. There may be, and often is, a similarity between one will and another. The con- veyancer may be able to lay his finger upon this and that form, and say that they ought, respectively, to be made use of in certain cases, but he cannot say of any of the important parts of any one will that they are matters of common form. We will, therefore, after a few words on the quali- fications necessary to enable a person to make a will, arrange our subject under three headings, namely : Proposed 1st, the execution and attestation of wills ; 2nd, the subject e estates and interests in land which can be disposed of OP WILLS. i"l by will ; and, 3rd, the revocation of wills ; the first and third of these divisions applying to all wills equally. The principal rules which govern the making of wills at the present day are to be found in the 7 Wm. IV., and 1 Viet., c. 26 (generally known as the Wills The Wilb Act. Act), which applies to all wills made in England and Wales, or Ireland, since the 31st of December 1837. The act first says that it shall be lawful for every Who may person (a) to make a will, and subsequently excepts makc a W1 " two classes from this general rule. These are, persons Infants may under the age of twenty-one years (b), and married J? '^JJ J_ wl1 women, except in so far as they might have made a F rt . v will before the passing of the act (c). To the in- capacity of an infant to make a will of real property (.-in exception to his general incapacity being made, Exception ^ , by another section (d) of the act, with regard to a will JJJJJ * 1 pr " of personalty by a soldier or sailor who is an in- fant (?) ) wo may add that of persons who cannot make a will on account of natural or temporal in- capacity, such as idiots, lunatics, those who from old age or other causes have outlived their understanding, or who are subject to undue influence, and of persons who are disabled by statute (/) on account of their being sentenced to death, or undergoing penal servi- tude, for any crime. Married women, it will be noticed, are under the Wills of same disability as before the act () S. 14. r, 2c 402 OP CONVEYANCING. any lands, manors, or other hereditaments, by any married woman, should be effectual. A married woman is, therefore, unable to make a will of free- holds or copyholds, not settled to her separate use, except in execution of a power of appointment ; which must, moreover, in the case of copyholds, have been created by a surrender in her favour (&). But if the power exists, it is no objection to her exercise of it that she has thereby a dominion over land, and is not merely an agent carrying out the wishes of the person who created the power (I). She may dispose by will of her equitable estate or interest in any land which has been settled to her separate use (m), or to which she has become entitled for her separate use under the provisions of the Divorce Acts (ri), or of the Married Women's Property Act (o) ; since in respect of these she is considered a feme sole, the statute of Henry the Eighth being held not to apply to land set- tled to a married woman's separate use, inasmuch as this form of property did not exist at the time when the statute was passed. She may also dispose by will of leaseholds, although not held to her separate use, provided her husband gives his consent to her doing so by some specified will (p), does not die during the coverture, (for this operates as a revocation of his assent (q) ) and, if he survives her, either expressly repeats his assent (r), or does not revoke it before her will is proved (s). Execution and "We next come to the execution and attestation of Before the P assin g of the Wills Act > a wil1 of (k) Doe v. Bartle, 5 B. & Aid. 492, Sug. Wills, 9. (/) Sug. Pow. 153. (HI) Taylor v. Meads, 13 "W. R. 394. (M) 20 & 21 Viet. c. 85, ss. 21, 25; 21 & 22 Viet. c. 108; re Elliott, L. R. 2 P. & M. 274. (o) 33 & 34 Viet. c. 93. (p) S. v. Bettesworth, Str. 891. (g) Noble v. Willock, L. R. 8 Ch. 778. (r) Mans v. Sheffield, 1 Rob. 364. (*) 1 Wms. Exors, 54. OP WILLS. 1" ' personal estate might, under certain circumstances, be made by parol, and if in writing did not require any attestation. A will of real estate, on the other hand, was invalid unless attested by three witnesses. The present act has established a uniform rule for the execution of every kind of will. It enacts that no will (a term which includes a codicil to a will) shall be valid unless it shall bo in writing and executed in the manner thereinafter mentioned ; (that is to say) it shall be signed at the foot or end thereof, by the to tator, or by some other person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two, or more, witnesses, present at the same time j and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. It is further enacted (t) that no appointment made by will, in exercise of any power, shall be valid, unless the same be executed in the manner required by the act for the execution of wills : and that every will so executed shall, so far as regards the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required th.-it a will made in exercise of such power should be executed with some additional or other form of i-ution or solemnity. The writing of a will need not, necessarily, be in Will need not, ink: pencil writing will be sufficient, although ob- jcrtionable both on account of its liability to oblitera- tion, and because where a will is partly in ink and partly in pencil the words in pencil may be rejected if the will is sensible without them (n). The will may consist also, in part, of a printed form filled up in writing, or may even be in numbers and letters (v) (i) 8. 10. (M) Re Adam*, L. R. 2 P. & M. 367. (r) Edit v. Twyford, 4 II. L. C. 617. OF CONVEYANCING. explained by a key, but the first-mentioned form of will may give rise to difficulties in probate (w), whilst the disadvantages of the second are obvious. If the will is in writing nothing inserted in it by the testator before its execution can be altered after his death. In a recent case (x), the residuary clause of a will was in the following terms : " the trustees to stand possessed of all the residue of my real estate in trust, &c." It was proved, conclusively, that the testator had intended to include his personal estate in this clause, and the Court of Probate was asked to carry out his wishes by striking out the word " real/' buD the judge (Sir J. Hannen) refused to do so, hold- ing that, in the absence of fraud or mistake made without the knowledge of the testator, the court has no jurisdiction to correct any error which may have crept into a will. With respect to changes made in a will after its execution the case is different, for the act says (y) that no obliteration, interlineation, or other alteration, made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed and attested in the same manner as a will. But it is provided that such alteration shall be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin of the will near such alteration, or near a memorandum referring to such alteration, and written in some part of the will. If, therefore, there is an unattested alteration in a will, and the will is intel- ligible without such alteration, the latter will be struck out of the will unless it can be proved to have been made before the will was executed. It has been said that there is no presumption of law that an alteration (t) See 2 Rob. 115 ; Re Dilke*, W. N. (1874) 76. (x) Harter v. Sorter, L. fi. 3 P. & M. 11. (!/) S. 21. OP WILLS. was made at any particular time, but that the onm of proving that it was made before execution lies, gen- erally speaking, upon the person who would derive advantage from it (2). In a more recent case (a), however, a distinction was made between interlinea- tions and any other alterations; it being held that the court is not precluded, by the absence of direct evidence, from considering the nature of an inter- lineation and the internal evidence, if any, furnished by the document itself; but may admit the interline- ation to probate, although there is no evidence that it was made before the will (ft). However, it is always better to attest every alteration in a will, although it may have been made before the will was executed ; since, unless the signature (c), or the initials (d), of the testator, and of the witnesses, are placed in the margin near the alteration, or unless there is some attested memorandum referring to the alteration, the Court of Probate will require evidence that it was made before the execution of the will. The next point to be noticed is, that the will must signutur. . be signed at the foot or end thereof. Non-compliance Position >f ih- with this apparently simple direction formerly made si & naturt many wills invalid (e), and consequently there was Wills Act passed the Wills Act Amendment Act (/), which Amendment applies to every will which had not, prior to the 17th of June, 1852, been pronounced to be defectively exe- cuted. This net provides (g) that a will shall bo valid if the testator's signature shall be so placed at, or after, or following, or under, or beside, or opposite to, the end of the will, that it shall be apparent on (z) Per V.-C. Wood, Williams T. Athlon, 1 J. & H. 115, 118. (a) Re Cadge, L. R. 1 1>. & M. 643. (b) And ee Be llindmarch, L. R. 1 P. & M. 307. (c) Re H'ingrorr, 15 Jur. 91. (/) Re Uinds, 16 Jur. 1161. (<) See the caeca collected in Deane on Wills, pp. 75. it ttg. (/) 15 & 16 Viet. c. 24. (9) S. 1. 406 OF CONVEYANCING. Signature by the testator. Signature on behalf of the testator. the face of the will that the testator intended to give effect by such his signature to the writing signed as his will : and that no such will shall be affected by the circumstance that a blank space shall intervene between the concluding word of the will and the signature ; or by the circumstance that the signature shall be placed amongst the words of the testimonium clause, or of the clause of attestation ; or shall follow, or be after, or under, or beside, the names, or one of the names, of the subscribing witnesses ; or by the circumstance that the signature shall be on a side, or page, or other portion of the paper or papers contain- ing the will, whereon no clause, or paragraph, or disposing part, of the will shall be written above the signature j or by the circumstance that there shall appear to be sufficient space on, or at, the bottom of, the preceding side, or page, or other portion of the same paper on which the will is written, to contain the signature. Under this act, a will has been held to be well executed where the testator's signature and the attestation of the witnesses were alone written across a side of a sheet of paper of which two other sheets were filled up by the words of the will (A) ; and where they were written alone on one of several sheets of paper, although there was room for them at the end of the previous sheet (i). The will may be signed either by the testator or by some other person in his presence and by his direction ; but such signature must be made or ac- knowledged by him in the presence of two or more witnesses, present at the same time. If the testator cannot write, or is too ill to write, he may either make his mark (/), or direct his signature to be made for (A) Re Wright, 4 Sw. & Tr. 35 ; Re Coombs, L. R. 1 P. & M. 302 ; Re Jones, 13 -W. R. 414 ; Re Archer, L. R. 2 P. & M. 252. (t) Re Williams, L. R. 1 P. & M. 4 ; Hunt v. Hunt, L. R. 1 P. &M. 209 ; Bee also Re Ainxworth, L. R. 2 P. & M. 151 ; Re Arthur, L. R. 2 P. & M. 273 ; Re Wotton, L. R. 3 P. & M. 159. (j) See 1 Jar. Wills, 104. OP WILLS. him. This may bo done by one of the attesting wit- nesses (A*) ; and it will be a good execution if the witness signs his own name, stating in the will that he does so on behalf of the testator, in his presence, and by his direction (/). But it is essential that the testator should know, and approve of, the contents of the will at the time of its execution (m). Both the witnesses must be present when the will Acknowledg- ment liy ' testator. is signed or when it is acknowledged (n) ; but no m particular form of acknowledgment is necessary, nor need the testator say in so many words that the sig- nature to the will is his (o) ; and very slight acts on his part will be held to amount to an acknowledgment of his signature (p). Although the act requires the Presence of the signature to be made in the presence of two witnesses, WItr it does not make it requisite that they should actually see the testator write. It is sufficient if they see him in the act of writing what is presumably his signa- ture (q) ; or even if they are in such a position that they may, if they please, see him in the act of writ- ing ( r )- But it is essential that there should be a possibility of the witnesses seeing the testator write (), and that his signature should be made or acknowledged before those of the witnesses are affixed to the will (t). Similar rules apply to the signature of the witnesses, Signature by for a witness may sign by means of a mark, which w will be a good signature although a wrong surname is written opposite to it, if it is clear that the will was (*) Re Jtailty, 1 Curt. 914; Smith v. Harrit, 1 Rob. 262. (/) lie Clark, 2 Curt. 329. (>) Jtintilou- \. Xtobif, L. R. I P. & M. 64 ; aeo CUare T. Chart, L. 11. 1 P. 4 M. 655 ; Atter T. Atkinton, L. R. 1 P. & M. 665. () Re AyliNff, 1 Curt 913 ; Rt MuntfieM, 1 No. CM. 362. (o) Kfiiiwin r. Ktiijicin, 3 Curt. 607, 611. (p) See Re Jl'anltn, 2 Curt. 334 ; Gaze T. Gaze, 3 Curt. 451 ; Btrkttt v. //.,*, L. R. 2 P. &. M. 1 : M,.n-itt v. Donyfa, L. R. 3 P. & M. 1. (q) Smith-*. Smith, L. R. 1 P. & M. 143. (r) Norton T. Clarke, 2 Curt. 320 ; and tee Cotton r. Dadf, 1 Bro. C. C. 98. () Re Caiman, 3 Curt. 118. (t) JU Oldiug, 2 Curt 865; Rt Syrd, 3 Curt 117. 408 OF CONVEYANCING. otherwise properly attested (u) and a witness may make a mark even though he can write (v). His signature, also, must be made so that the testator can see him write (u;), but^ it is not necessary that one witness should sign in the presence of the other. Attestation of The witnesses must not only subscribe the will : they must also attest it. Now to " attest " a will means to put one's name to it as bearing witness to the fact of its having been signed by the testator. A signature, therefore, appended without the inten- tion of attesting the will does not constitute the per- son signing a witness. Where, for instance (a;), a will was signed at the end of the first page by the testator and by one other person as a witness, and at the top of the next page there was a memorandum referring to the testator's property, followed by the signatures of three other persons, it was held that these last had not signed as witnesses, and that the will was, therefore, invalid. But the fact of a witness signing also in another capacity, as where a man witnessed a will, and wrote opposite his name " executor," instead of " witness," will make no dif- ference (y}. Form of at- The act says that" no form of attestation shall be legation. necessary ; and it has been decided that this obviates the necessity of any form at all, not merely of any particular form (z). But it is always desirable to add an attestation clause to a will, since, without it, pro- bate will not be granted unless evidence is given, if Re Ashmore, 3 Curt. 756. (v) He Amiss, 2 Rob. 116. (w) Newton v. Clarke, 2 Curt. 320 ; Norton v. Bazett, 3 Jur. (N. S.) 1084. (x) He Wilson, L. R. 1 P. & M. 269. ' (y) Griffiths \. Griffiths, L. R. 2 P. & M. 300. (z) Re Thomas, 1 W. R. 270 ; Bryan v. White, 2 Rob. 315. OP WILLS. * obtainable, that all the formalities required by the Act have been complied with (a). In selecting witnesses for a will, care should be Selection -r taken not to include any persons on whom any bene6t W1 is conferred by the will. For the Wills Act enacts (b) that if any person shall attest the execution of any will to whom, or to whose wife or husband, any beneficial devise, estate, interest, or appointment, of, or affect- ing, any real or personal estate (other than charges and directions for the payment of debts) shall be thereby given, such devise, estate, interest, or appoint- ment, shall, so far as regards such person, or the wife or husband of such person, be utterly null and void : but such person may still be admitted as a witness to prove the execution of the will. It is also provided that a creditor who attests a will providing for pay- ment of debts (c), of a person attesting a will of which he is appointed executor (d), shall be competent to prove its due execution. The fact of a witness being a trustee does not invalidate a gift made to him on trust, even when the particular way in which the gift is to be applied for the benefit of the object designated is left to his discretion (c). If a will has been inadvert- ently attested by two persons, one of whom takes some benefit under it, it is not necessary to make a new will : for a codicil witnessed by two indifferent persons, and confirming the will, makes the gift valid (/). When a will has been signed by the testator and attested by two witnesses, and afterwards a third person adds his name, the Court of Probate will not, without cogent evidence, come to the conclusion that that third person signed as a witness, and will there- Kt Diaptr, 3 N. R. 215. 8.1.5. 8. 16. (rf) s. 17. it) Cretttcell T. Crestwtll, L. R. 6 Eq. 69. (/) Anderton r. Anderson, L. R. 13 Eq. 381. 410 OF CONVEYANCING. Ly what law a will is governed. fore incline to strike out his name (g). But if he has signed as a witness, although after the other two, and the will has been admitted to probate with the names of the three as witnesses, he cannot take any benefit under the will (h). It would seem to be clear that the subsequent marriage of a witness to a person entitled to the benefit of a devise or bequest would not invalidate that devise or bequest (i). #T It may be mentioned here that a will of land is governed by the law of the country in which the land is, not by that of the country where the testator is domiciled. Hence, a will devising real estate situate in England must, in order to be effectual, be made in compliance with the law of this country; if written in a foreign language must contain expressions which would, if translated into English, comprise and des- tine the land in question (j) ; and must not contain any provisions contrary to the law of this country respecting real estate. And although a will of per- sonal property is, generally speaking, governed by the law of the testator's domicile, an exception obtains to this rule in the case of leaseholds; since leasehold property is part of the territory of the country in which it is situate, and a will disposing of leasehold estate in England must, therefore, conform to the requirements of the English law (). What property The Wills Act also defines the estates and interests posed of by * n land which may be disposed of by will. These wilj - include (/) all real, and all personal, estate to which a testator is entitled, either at law or in equity, at the time of his death ; and which, if not so devised, (ff) Re Sharman, L. R. 1 P. & M. 6C1, 663 ; Re Purssglove, 26 L. T. (N. S.) 405. (h) Cozens v. Grout, W. N. (1873) 144. (t) Hay. & Jar. Wills, 29 n . 0) 1 Jar. Wills, 1. (k) Frekev. Carbery, L. E. 16 Eq. 461. (I) S. 3. OF WILLS. HI '' bequeathed, or disposed of, would descend upon the heir at law or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator. It is also provided that the power of disposition by will shall extend to copy- holds, notwithstanding that the testator may not have surrendered the same to the use of his will, or not- withstanding that, being entitled as heir, devisee, or otherwise, to be admitted thereto, he shall not have been admitted thereto, or that tho same, but for the act, could not have been disposed of by will. The power of disposition extends, moreover, to estates autre vie ; to all contingent, and future, interests in real or personal estate; and to rights of entry, including also such of the above-mentioned estates and interests .as the testator may be entitled to at the time of his death, notwithstanding that he may have become entitled to the same subsequently to the exe- cution of his will. The act, therefore, enables a testator to devise and bequeath all estates in land except those held in joint-tenancy, or for an estate tail, or an estate in quasi tail (that is, an estate pur autre vie given to a man and the heirs of his body), all of which do not descend to a man's heir, executor, or administrator, and consequently do not come within the act. This statute enlarges the former rule of law, by enabling a Change mado man to devise all freeholds to which he is entitled at b ? tht< " ct the time of his death, although he may have acquired them subsequently to the date of his will ; whereas, previously to tho act, a devise of freeholds could only include those belonging to the testator at the time when he made his will; even though tho will pur- ported to devise all lands which he should have at tho time of his decease (in). The act also increases the Copyhold*. power of devising copyholds, for a former act () (m) Hunter v. Coke, Salk. 237. () 55 Geo. III. c. 192. 412 OF CONVEYANCING. . which partially did away with the necessity of a sur- render of such estates before they could be disposed of by will, did not extend to the case of a devise by a devisee (o), or by a purchaser (p], who had not himself been admitted. But, notwithstanding the expression, "which if not so devised would devolve upon his customary heir," the act has not done away with the old rule that a devise of copyholds conveys no title to the property until the devisee has been admitted : and the legal estate therefore, in such a case, still remains in the heir of the copyholder until the admittance of the devisee (q). "Wills to be construed as speaking im- mediately be- fore the death of the testator. Residuary devise to in- clude lapsed and void de- vises. General devise to include copyholds and leaseholds. General power of appointment executed by general devise. Devise without words of limitation to pass fee simple. In -order still more effectually to guard against a testator's dying intestate as to any part of his pro- perty, the act provides that, unless a contrary inten- tion shall appear by the will, every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator (7-) ; that a residuary devise shall include estates comprised in lapsed and void devises (s} ; that a general devise of the land of the testator, or of his land in any place, or in the occupation of any person, or otherwise described in a general manner, shall include copyhold and leasehold as well as freehold land () ; that a general devise or bequest of the real or personal estate of a testator shall include any real or personal estate which he may have power to appoint in any manner he may think proper (u) ; and that a devise of real estate without any words of limitation shall pass the whole of the estate or interest (0) Doe v. laws, 7 A. & E. 195. (p) Matthew v. Osborne, 13 C. B. 919. (q) Glass v. Richardson, 2 De G. M. & G. 658 ; Garland v. Mead, L. R. 6 0. B. 441, 449. (r) S. 24. (*) S. 25. (1) S. 26. () S. 27. OF WILLS. I 1 ; 5 therein which the testator had power to dispose of by will (r). In considering whether property passes under any How contrary of these sections, the test is whether the will shows a contrary intention when read as if it had been exe- cuted immediately before the death of the testator. If it does, of course, the sections do not apply. Thus, in a case (ic) where a testator devised " all the real estate of which I am now seised," bequeathed his personal estate without any such form of expression, and, in other parts of his will, when using the word " now, " clearly alluded to the timewhen he was making his will : it was held that this devise did not pass real estate which he had acquired after the date of his will. Again, where (.r) a testator devised " all my freehold estate which I purchased from B," it was held that this particular description of the property as "freehold" prevented the will from passing a piece of leasehold land, mixed up with the freehold, which the testator had purchased from B, and the freehold reversion in which he had acquired after the date of his will. But the mere use of words which might refer to the date of the will does not prevent after acquired property from passing, when such words are only used in order to describe property included in the will. Hence, a devise of "the house in which A now resides" has i held to pass a garden purchased by the testator after the date of his will, and attached to the house (y). On the same principle, a devise of "real estate of which I am seised," has been held to include after acquired property (z) : and a gift of " my mansion called C. Court," to comprehend lands afterwards (r) S. 28. (u>) Colt v. Scott, 1 M. & O. 618. (x) Kmuu Y. Smith, 2 De G. & Sin. 722. (y) He Midland Ry. Co. 34 Bear. 625. (;) Lilford Y. Ponyiktek, 30 Bear. 300 ; LanyJale Y. Briggt, 8 D 0. M. & G. 391 ; and see Ooodlad r. Jiunictt, 1 K. & J. 341, 348; ffTooU Y. Browne, 3 . & B. 672. 414 OP CONVEYANCING. purchased, and thrown into the grounds attached to the mansion (a). As regards a contrary intention appearing in the will by a reference to the tenure of property, it was decided, in one case, that the mere description of land as " leasehold " did not prevent the whole of the testator's estate in it from passing by the will, although he had, after the date of his will, pur- chased the fee simple reversion in the land and thus put an end to its character of leasehold (b} . Change made In making a general devise of the testator's land ILl of lease- ^ nc ^ U( ^ e leaseholds, unless the will shows a contrary hold?. intention, the act has made another change in the law of wills. Formerly a devise of " lands," or of " lands and tenements," did not include leaseholds unless, at the time of the devise, the testator had no freehold ^ lands which could pass by his will (c). Since the pass- ing of the act, the presumption is that such words do include leaseholds (d). And not only the word " lands", standing alone, but even additional expressions, which would seem to apply particularly to freeholds, may now, when used in a general devise, pass the testator's leaseholds. Thus, in one case (e), leaseholds were held to be included in a devise of " all my lands and all other my real estate ; " and the same effect was given to a devise of " all my freehold land/' when the leasehold property, sought to be included in this devise, was one of which the testator had the rever- sion in fee simple at the expiration of three years from the end of his term (/). As to land of A general devise of real and leasehold estate would, (a) Castle v. Fox, L. E. 11 Eq. 642. (?) Cox v. Bennett, L. E. 6 Eq. 422 ; and see Miles v. Miles, L. E. 1 Eq. 462. (c) Rose v. Bartlett, Cro. Car. 292 ; Thompson v. Lawley, 2 Bos. & Pill. 303. (d) See Prescott v. Barker, L. E. 9 Ch. 174, 186. M Wilson v. Eden, 21 L. J. (Q. B.) 385. ( f) Matthews v. Matthews, L. E. 4 Eq. 278 ; and see Gully v. Davis, L. E. 10 Eq. 562. OP WILLS. 1 1 "' before the Wills Act, have passed all land of which which tectator the testator was, at the time of making his will, seised mor tgge. or possessed as a trustee, or as a mortgagee (n-ii v. Mattheici, L. R. 2 Eq. 177. (k) Martin v. Larerln, L. 11. 9 Eq. 663. (0 Clere't Cuf, 6 IU-p. 17 b ; Andrncs r. Emmott, 2 Bro. C. C. 297, 300. (m) Lake v. Carrie, 2 De G. M. & 0. 636, 660. 410 OF CONVEYANCING. appointment over estate B, with a remainder, in de- fault of his appointment, in favour of other persons, in his will referred to, and confirmed, the deeds by which both estates had been settled, and then made a general devise of his real estate ; it was held that the reference to the settlement applied only to estate A, and that the general devise operated as an execution of his power to appoint estate B, especially as he had no real estate besides A and B (n). It is to be noticed that the act only speaks of a power to appoint in any manner the testator may think proper. A general de- vise cannot, therefore, operate under the act as the execution of a power to appoint in such manner as the testator may think fit, but amongst specified ob- jects only (o). As to devise Before the passing of the Wills Act, a devise, by an without words . ,, . , - , -, ~ , ' of limitation, owner in fee simple, of lands, or even or lands, tenements, and hereditaments" (p), conferred on the devisee an estate for life only, unless the devise contain- ed words of limitation. Now, as we have seen, such a devise will, in the absence of apparent intention to the contrary, give an estate in fee simple. It has been decided (q) that a general devise to A, followed by an expression of intention that B should enjoy all the testator's estate, which was to be absolutely at his free will and disposal, gave A an estate for life only ; the fact that the gift to B could have no effect if A took an estate in fee simple, being considered a sufficient indication of an intention that the latter should not take more than a limited estate. But a gift to a per- son of " the house she now lives in," although with- out words of limitation, was held not to show any intention to give her a life estate only ; she therefore took the whole of the testator's estate in the property (n) And see Hutching v. Osborne, 3 De G. & J. 142. (o) Clove v. Awdry, 12 Beav. 604. (p) Hopewett v. Ackland, Salk. 238. (?) Gravenor v. Watkins, L. E. 6 C. P. 500. OP WILLS. 417 in question (r). And an intention to confer a limited estate will not be implied from the fact that proper words of inheritance have been employed in confer- ring estates in fee in other parts of the will (). The next branch of our subject is the Revocation of Revocation of Wills. Before the passing of the Wills Act, a man's B mar riagp. will was presumed to be revoked by the fact of his subsequently marrying and having a child born to him. But this presumption might be rebutted by the surrounding circumstances, as when the testator had,! by such a will, provided for a future wife or for future/ children (t) ; or where the children of the marriage could obtain no benefit by the revocation of the will (w). A woman's will was absolutely revoked by her mar- riage alone, although she might happen to survive her husband. The law relating to the will of a woman remains almost unaltered, but a change is made by the present act with regard to the will of a man. For it is enacted (v) that every will made by a man, or woman, shall bo revoked by his, or her, marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his, or her, heir, customary heir, executor, or administrator, or the person entitled as his, or her, next of kin under the Statute of Distributions (w). A will is revoked under this section if made on the same day as, but previously to, the testator's marriage ; even though it appears from the terms of the will tlmt In- did not intend it to take effect until after the marriage (JT). Nothing, therefore, can keep alive any will made before mar- riage, except the fact that its revocation cannot give (r) Rray v. I{airHtion, 29 Beav. 88. () J/YW,,, v. 11'iMirn, 2 Sm. & Giff. 396, 405. (t) Sug. Wills, 68. (M) See Sheath v. York, 1 Yea. & B. 390. (r) S. 18. (to) See Sug. "Wills, 5560. (j-) Ottcay T. Sadleir, 33 L. T. 46. C. 2 D OF CONVEYANCING. the property in question to any of the persons men- tioned in the act. And the rule is not affected by the circumstance that the revocation of the will cannot possibly benefit any future husband, wife, or children. Thus (y), a woman who had a general power of ap- pointment over freeholds, with remainder, in default of such appointment, to her heirs and assigns, exer- cised the power in favour of her two children by a first marriage, and then married again : it was held that her will was revoked, although the only result of this was to give the whole property to one of those two children, as her heir-at-law, without conferring any benefit on the children of the second marriage. But a will made in exercise of a power of appointment is not revoked when its revocation could only give the appointed property to the same persons as would take under the settlement in default of appointment, although they would take in that case as next of kin I of the deceased (z). By presump- The act goes on to say that no will shall be revoked tion of inteu- i , , , .1 a> tion. "J a:n y presumption of an intention to that effect, founded 011 an alteration in the circumstances of the testator (a) ; and that no conveyance, or other act, made or done subsequently to the execution of a will of, or relating to, any real or personal estate therein comprised (except any act declared by the statute to amount to a revocation), shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death (?>). This enactment puts an end to the former unsatisfactory rule that a devise should not take effect unless the estate to which the testator was entitled when he made his will remained unaltered until the time of his (y) Vauqhan v. Vanderstfgeii, 2 Drew. 165, 168. (z) Re Fenwick, L. R. 1 P. & M. 319 ; Ee McVicar, L. 'R. 1 P. & M. 671 ; Re Worthinyton, 20 W. R. 260. (a) S. 19. (b) S. 23. OP WILLS. II' 1 death. The result of this rule was that a fine or re- covery, made expressly in order to give effect to a will, operated, instead, as a revocation of it ; and, in like manner, that a devise of an estate was revoked if the testator mortgaged it after making his will, even though it was re-conveyed to him during his lifetime. The act does not, however, apply to cases where the thing meant to be given is altogether gone. If, for in- stance, a man by his will gives an estate in land, and afterwards sells that estate, the devisee has no claim to the purchase- money, even though the purchase is not completed until after the testator's death (c). But if the contract is not carried out, the devisee is, of course, una fleeted by it, and it would seem that a devise of an estate stated in the will to be already contracted to be sold would give the devisee the purchase-money of the estate (3. (-/) Sup V. & P. 191. (r) S. 20. (/) Uen/rey v. Htnfrey, 2 Curt 468. 420 OP CONVEYANCING. wills disposes of property which does not pass under the second, then the first is not revoked, so far as that disposition is concerned, by the fact that the second will begins with the words " this is my will " (g), or even with the words " this is my last will " (h). Simi- larly, a codicil to a will confirms snch parts of it as it does not revoke (i). - If, however, the second will, or the codicil, expressly revokes all former wills, no pre- vious will can, in general, be admitted to probate, even though it may be referred to by the subsequent revoking will (/), or though such revoking will cannot be found (&). But if the clause of revocation in the second will can be clearly proved to have been intro- duced by mistake, without the knowledge of the testa- tor, probate will be granted of the will without the clause (I). By writing A will may also be revoked by a writing not in any ^jll ut a way dealing with the testator's property, provided it be executed like a will and declare an intention to make a revocation. Consequently in a recent case, where a testator in a letter, signed by him in the pre- sence of two witnesses, directed his brother to obtain his will from a third person and burn it without reading it ; this was held to be a writing declaring an intention to revoke the will, which was consequently pronounced invalid (m). By destruction The other ways in which a will can be revoked are E the will. ^ e | )uni i n g > tearing, or otherwise destroying it, by the testator, or by some person in his presence and by his direction, with the intention of revoking the (g) Stoddart v. Grant, 19 L. T. 305. (K) Freeman v. Freeman, 5 De G. M. & G. 704 ; Lemage v. Goodbav, L R. 1 P. & M. 57 ; Re Petchell, L. R. 3 P. & M. 153. '() Ee Howard, L. R 1 P. & M. 636. m Re Sinclair, 3 Curt. 746. (k) Wood v. Wood, L. R. 1 P. & M. 309. (A Re Oswald, W. N. (1874) 52. () Re Durance, L. R. 2 P. & M. 406. OF WILLS. same. Before the Wills Act any part of a will can- Cancellation celled by a testator became thereby revoked, but can- "* r collation does not now revoke a will unless it is after- wards re-executed (n) ; for the words " otherwise destroying " only include acts of a nature similar to those just before enumerated. This rule must often have disappointed the intention of testators who had imagined that they had sufficiently revoked the whole, or part, of their wills. For instance, a will was held valid in one case(o), notwithstanding that the whole body of the will was struck through with a pen, the name of the testator crossed out, and the attestation clause and the names of the witnesses likewise run through with a pen ; and in another case (p), notwith- standing that the testator had written the word " cancelled " across his signature, and added a written declaration that the will in question was revoked, and that he intended to make another will. But, of course, a complete obliteration of any part of an executed will revokes that part ; such a case coming within those provisions of the act (q) which give effect to alterations so made that words contained in the will before such alteration are no longer apparent (r). As to the various modes of destroying a will which How Ustn>. - are mentioned in the act, it is lo be observed tliat there J." ,",j"ij!h. ",<. are two things requisite to make them effectual revoca- tions. The first is that the -destruction, if not the act of the testator himself, must be in his presence as well as by his direction. Thus, where a person who had made a will afterwards expressed a wish, in the presence of two witnesses, to revoke it, and desired them to take it into another room and burn it, which was done, it was held that this did not amount to a revocation, and probate was accordingly granted of a n) Bug. Wills, 47. ) Stephen* v. Taprell, 2 Curt 468. >) Bt Hrewtter, 6 Jur. N. 8. 66. (y) 8. 21. (r) Tvw*ley ?. Jl'aUo*, 3 Curt 761. 422 OP CONVEYANCING. draft copy of the will (. MJ It may be added here that whereas, formerly, a codicil was revoked whenever the will to which it be- longed was revoked, a codicil now takes effect, inde- pendently of a will, unless revoked by one of the modes indicated by the Wills Act. Thus, in one case, a (.) He Dadds, 29 L. T. 99 ; and see Rooke v. Langdon, 2 L. T, 495. (t) StocJcwell v. Eitherdon, 1 Rob. 661, 667. (u) Giks v. Warren, L. R. 2 P. & M. 401. (r) Brunt v. Brunt, L. R. 3 V. & M. 37. (te) And see Powell v. Powell, L. R. 1 P. & M. 209, 212. (*) Be Weston, L. R. 1 P. & M. 633. (y) Finch v. Finch, L. R. 1 P. & M. 371. (z) Eckersleyi. Platt, L. R. 1 P. & M. 281, 284. OF WILLS. testator had executed a will and a codicil to that will, and after his death, his will, not being forth- corning, was presumed to have been revoked : it was held, nevertheless, that the codicil, having been duly executed, must be admitted to probate as a will (a)". Neither does a codicil revoking a will necessarily re- voke a prior codicil to that will. Where a testator had made a will and two codicils, and afterwards by a third codicil revoked the will except as to a bequest stated to have been made by it, the two codicils re- mained valid notwithstanding the revocation of the will (6). The sections of the Act which have been referred RevJYal of a to on the subject of revocation are completed by another (<-), which provides that no will or codicil, or any part thereof, which shall be in any manner re- voked, shall be revived otherwise than by the re-exe- cution thereof; or by a codicil executed in the man- ner required by the Act, and showing an intention to revive the same; and that when any will or codicil which shall be partly revoked and afterwards wholly revoked shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. Under the old law, if Former rule ** a man made a will, and then a second will revoking to vm the first, and afterwards revoked the second, it would be presumed, if the first remained in existence, that the testator had intended to give it the same effect as if it had never been revoked (d). The Wills Act re- Change made quires either that the will should be re-executed, by the " ct * which is tantamount to making a new will in the same terms, or, where the will is revived by a codicil, (a) Black v. Jobling, L. R. 1 P. 4 M. 685 ; and sec Re Savage, L. R. 2 P. & M. 78 ; Re Turner, L. R. 2 P. & M. 403. (*) farrer v. 67 Catharine* College Cambridge, L. R. 16 Eq. 19. (c) S. 22. (if) Ooodwright v. Glazier, Burr. 2512. 424 OP CONVEYANCING. that the intention of which it speaks should appear on the face of the codicil, either by express words refer- ing to the will as revoked and importing an intention to revive it, or by a disposition of the testator's pro- perty inconsistent with any other intention, or by some other expressions conveying with reasonable certainty the existence of the intention in question. In other words, it was designed by the statute to do away with the revival of wills by mere implication (e) . Therefore the fact that a codicil refers to a previous revoked will is not a sufficient indication of an inten- tion to revive that will, when it appears from the codi- cil itself that the reference to the will was made by mistake (/). Neither can a codicil revive a will which has been destroyed with the intention of revoking it, for in that case the will has ceased to exist both in law and in fact, and a will or codicil cannot incorpor- ate, or revive, a document which has no existence at the time when the will or codicil is executed (. When made, dates back to surrender, 161. Lord cannot compel, of a purchaser of copyholds, 162. Of heir of copyholder, may be compulsory, 104. Fine payable on, to several copyhold tenement*, ib. 426 INDEX. ADMITTANCE (continued.) Fine payable on, of more than one tenant, to copyholds, 164. Fine payable on, of tenant for life and reinainder-inan to copyholds, ib. Fine payable on, of joint tenants to copyholds, 165. Fine payable on, of heir or devisee of an unadmitted copyholder, ib. ADVANCEMENT Power of, in a marriage settlement, 396. AGREEMENT For sale of any interest in land, must be in writing, 302. For sale of land, what must be contained in an, ib. For sale, need not be contained in one document, 304. For sale, parol evidence when admissible to prove terms of an, ib. For sale, when enforced on the ground of part performance, 305. For sale, signature to an, 306. Difference between an, and Conditions of Sale, 307. For a lease, two kinds of, 343. For a lease, must, as a rule, be in writing, 344. For a lease, may be enforced on the ground of part performance, ib. Express, for leases not usually desirable, 345. Stipulations to be inserted in, for leases, ib. For a lease, should be stated to be such, 346. For a lease, should contain all the covenants to be inserted in the lease, 347. For a lease, may arise by operation of law, 348. AIDS Definition of, 15. At first voluntary but afterwards regular incidents of tenure, ib. Abolished, 21. ALIEN May now acquire and hold land like a natural-born British subject, 129. ALIENATION Of land, restrictions formerly imposed on, 23. Of land, permitted by statute of Quia Emptores, 24. Of land, by will formerly unknown, 27. Of a term of years, 6366. Of an estate for life, 105, 106. Of an estate in fee simple, 131 138. Of copyholds, 173175. Of equitable estates, 192. Of a reversion or a remainder, 195. Of a possibility coupled with an interest, 204. Of powers, 222. Of a tenancy in common, 230. ANCIENT DEMESNE What are lands of, 14. Villein Socage called also tenure by, ib. Probable origin of, id. INDEX. 1 - , APPORTIONMENT- NO, formerly, on death of tenant for life, 107. Statutes relating to, 107, 108, 109. Act 1870, applies to all instruments whether coming into operation before, or not until after, it* passing, 109. Of rent on lease made by a tenant in tail, 1 _'.'{. Of rent reserved by tenant in fee simple, 144. ASSETS Estate pur outre vie in hands of heir chargeable as, by descent, 91. ASSIGNEE Of a reversion, was unable to take advantage of corenants or condi- tions in a lease on which the reversion WHS expectant, 60. Of part of a reversion on a lease, now entitled to the benefit of all conditions contained in the lease, 61. Of a term, is liable on the covenants of the lease, 63. Of a term must indemnify his assignor, 64. Mcsne, of a term must indemnify original lessee, ib. Of a term, protected against previous breach of covenant to insure, ib. Of a mortgagee, may consolidate securities, 271. ASSIGNMENT Of a term of years, 63. " Of a lease, must be by deed, 65. Restriction against, not effectual as against a lessee's trustee in bankruptcy, ib. Of an estate for life, must be by deed, 105. ASSIGNOR Of a lease, must take back lease if disclaimed by lessee's trustee in bankruptcy, 66. ATTENDANT TERM How term became an, 76. Satisfied term formerly presumed to be an, ib. Satisfied tenn is not now an, 79. \\ Urn term considered an, 80. ATTESTATION A will requires, 408. Of a will, need not be formal, ib. Of a will, advantages of a formal, ib. ATTORNMENT IMinition of, 195. Formerly necessary on transfer of a fee, 16. Transfer of a fee now complete without, ib. By mortgagor, to mortgagee, 381. AUCTION Salo by, conduct of, 310. Sale by, subject to reserved price must be M> stated, A. Sale by, is within the Statute of"Fraud, 312. 428 INDEX. BANKRUPT Trustee of, may lease land belonging to, 41. Trustee of, may disclaim lease, 66. BANKRUPTCY Effect of, when bankrupt has an estate in land, 137. Effect of, on powers, 225. BARGAIN AND SALE Conveyance by, before the Statute of Uses, 290. Conveyance by, after the Statute of Uses, 292. BLACKSTONE His canons of descent, 145 153. BOROUGH ENGLISH Custom of, 14. BURGAGE TENURE Definition of, 14. CESSER Proviso for, 76. CESTUI QUE TRUST Who is a, 33. In actual occupation is tenant at will, ib. Substituted for cestui que use, 188. Covenants for title to be entered into by a, 343. CESTUI QUE USE Meaning of term, 188. CESTUI QUE VIE Definition of, 90. Production of, may be ordered, 92. CHARGE Tenant for life in possession is bound to keep down the interest on, affecting the estate, 97. Tenant for life paying off, may keep it alive for his own benefit, 98. Tenant in tail is not bound to keep down the interest on, 113. Tenant in tail paying off, is presumed to have done so for the benefit of the inheritance, ib. CHATTELS What, are exempted from distress, 51. Of a lodger, protected from distress, ib. CHILD En venire sa mere, considered in existence, 202. What, entitled to a portion, under a marriage settlement, 394. Time for payment of portion given to a, ib. Trust in a marriage settlement for maintenance of children, 395. Trust in a marriage settlement for advancement of children, 396. Proviso in a marriage settlement for raising the expectant portion of a, ib. 429 CITY OF LONDON Custom of the, 14. CODICIL Must be executed and attested like a will, 403. Revocation of a will by a, 419. Revival of a will by a, 423. Revival of a, by another codicil, 424. COMMON Different kinds of, 170. Copyholder's right to, is founded on prescription, ib. Copyholder's prescription to rights of, must be reasonable, 171. COMPENSATION Conditions of sale as to, 317320. Doctrine of the common law as to, on sales, 318. Doctrine of equity as to, on sales, ib. Purchaser when bound to fulfil contract and take, ib. Condition of sale as to, cannot cover wilful mis-statements, 319. Condition of sale as to, only applies to small errors, 320. CONDITION Stranger to a, could not formerly take advantage of it, 59. Watt held to be indivisible, 60. Present law as to conditions in leases, 61. CONDITIONAL Fee, meaning of, 26. Estate tail in a manor is a conditional fee, except under a custom, 156. Limitations, before the Statute of Uses, 207. CONDITIONS OF SALE Difference between, and an agreement, 307. General rules for preparation of, 309. As to conduct of sale by auction, 310. As to payment of a deposit, 311. As to valuation of fixtures and timber, 312. As to title to be shown by a vendor, ib. As to dower, 315. As to recitals, 316. As to expenses of searches, 317. As to identity of property, i>. As to compensation, >>>. As to payment of purchase-money, 320. As to rente and out going*, and payment of interest by the purcba*er, As to title-deeds, 324. As to objections and requisitions, and reaciaion of the contract of sal*, 325. As to forfeiture of the purchaser's deposit, CONSOLIDATING SECURITIES Definition of, 270. Distinction between, and tacking, tf>. 430 INDEX. / CONSOLIDATING SECURITIES (continued.) Right of, extends to foreclosure suit, 271. Assignee of a mortgagee has right of, ib. Right of, not affected by notice, 272. Right of, may be exercised against mortgagor's assignee, id. No right of, against distinct equities of redemption, 273. When sub-mortgagee may have right of, 275 278. CONVICT Administrator of, may lease land belonging to, 41. CO-PARCENARY Estate in, 230. Always arises by operation of law, ib. Alienation of an estate in, 231. Partition of estates in, 231234. COPYHOLD Tenure, origin of, 21. Tenure, still considered base, ib. Tenure, cannot be created at the present day, 153. Estates, incidents of, 161 173. Land, may be extended under the Judgment Acts, 173. Land, may be forfeited to the lord, ib. Land, may be devised without previous surrender, 174. Land, devise of, on trust for sale, ib. Land, descent of, 175. Laud, enfranchisement of, ib. Land, statutes relating to enfranchisement of, 175 182. Land, form of mortgage of, 366. Devise of a, does not pass the legal estate to the devisee until admit- tance, 411. A general devise, includes devise of a, 412. COPYHOLDER Derivation of the word, 21. Fine is due to lord, on death of a, 162. May be liable to a fine on change of lord, and for licence to demise, 165. Cannot cut timber or dig for minerals, except by custom, 169. Right of, to common is founded on prescription, 170. Prescription of, for rights of common must be reasonable, 171. Alienation of estate of a, 173 175. Estate of a, may be seized under a judgment, 173. Estate of a, may be subject to forfeiture, ib. CORPORATION Ecclesiastical, leases by, 42. Municipal, leases by, 43. Religious and charitable, restrictions on acquiring land, ib. Power of a, to hold land, 127. Charitable, Mortmain Act relating to, ib. Not charitable, has a limited power of holding land, 129. CORPOREAL HEREDITAMENTS Definition of, 2. INDEX. COUNTERPART Of a lease, what is the, 346. Of a lease, ezpenw of preparing, must be borne by the lessor, J47. iiT I5AKOX Ineident to every manor, 12. Object of holding, ib. Fell into disuse, ib. ' OVI.NANT Contained in a lease, formerly put an end to by merger or surrender of the reversion, 49. Now preserved, notwithstanding merger or surrender of the rerer- hi' in, ib. As to fixtures, effect of, 68. stringer to a, could not formerly take advantage of it, 59. Statute of Henry the Eighth relating to covenants in leaner, ib. In a lease, when runs with the land, 62. In a lease, running with the land, run with the reversion, 63. To insure, in a lease, relief against forfeiture for breach of, 70. To stand seised, 290. In a purchase deed, for right to convey, 338. In a purchase deed, for quiet enjoyment, 338, 339. In a purchase deed, for freedom from incumbrances, ib. In it purchase deed, for further assurance, 339. Covenants for title, who must enter into, ib. Covenants on a sale of leaseholds, 341. What are usual and proper covenants in leases, 347. In a lease, to pay rent, 356. In a lease, to pay taxes, 357. In a lease, to repair, 358, 359. In * lease, to permit lessor to enter and view the state of repair, 359. In a lease, to insure, 360. In a lease, not to use premises for purposes of trade, 360, 361. In a lease, not to assign or underlet, ib. In a lease, to deliver up the premises in good repair, 362. In a lease, lessor's, for quiet enjoyment, :16.'{. In a mortgage deed, for repayment i.f MUM lent, 368. In a niortL'ii^.' . May, jointly with husband, alienate her real or copyhold estate, ib. Right of husband to property of a, may be excluded, ib. May hold property to her separate use, ib. Power of disposition of a, over her separate estate, 237. Separate property of a, liable for fulfilment of her contracts, 238. May be liable to support her husband and children, ib. An estate given to a, and her husband is held by entireties, i*. 448 INDEX. MARRIED WOMAN (continued.) Term to secure the income of a, 388, 392. Jointure of a, meaning of term, 389. Power of distress, to secure the jointure of a, 390. Power of entry to secure the jointure of a, 391. Term to secure the jointure of a, 392. Has limited power of making a will, 401. May dispose hy will of personal property if husband gives his con- sent, 402. MESNE LORD Meaning of term, 11. MILITARY SERVICE Liability to, was at one time an incident of the possession of land, 6. A characteristic of tenure by Knight Service, 8. MINERALS Rights as to, ofa lord and tenant of copyholds, 168 In the absence of custom neither lord nor copyholder can take, 169. Trustee may sell, apart from the land, 221. MINES Tenant for life may work, if they have been opened by a preceding tenant, 93. MORTGAGE Equity of redemption is inseparable from a, 242. Distinction between a, and a sale with proviso for re-purchase, 243. By deposit of title-deeds, how viewed in equity, 279. By deposit of title-deeds, may secure future advances, ib. Equitable mortgagee is entitled to a legal, 280. Form of, of freeholds, 36-5. Form of, of leaseholds, ib. Form of, of copyholds, 366. Of fixtures, when requires registration, 370. MORTGAGE DEED Introductory part in a, 367. Recitals in a, ib. Covenant in a, for re-payment of sum lent, 368. Operative part in a, 368371. Effect of operative part in a, as to passing fixtures, 368. Parcels in a, ib. General words, and estate clause in a, ib. Habendum in a, ib. Covenant in a, for payment of interest, 373. Declaration in a, on loan by trustees, 375. Covenants by the mortgagor in a, 376, 382. Power of sale in a, 377. Testatum in a, 383. Statutory provisions relating to mortgage deeds, ib. INDEX. 449 MORTGAGEE- Mortgagor may be tenant to his, 245. May exercise his rights concurrently, 248. Action by, on mortgagor's covenants for payment, ib. May lose right of suing mortgagor, 251. In possession, is bound to take due care of the property, ib. Rights of, if mortgaged estate is an insufficient security, 252. In possession, must account for rents, ib. In possession, may charge mortgagor with reasonable expenses, ib. In possession, must not unnecessarily increase the value of the estate, 253. Cannot charge for personal expenses, ib. May appoint a receiver, ib. In occupation of mortgaged premises, must pay an occupation rent, it, In possession, must account, i*. In possession, when to account with rests, 254. Possession of a, may destroy the equity of redemption, 255. Possession of a, to bar equity of redemption must be adverse, 257. Acknowledgment of mortgagor's title by a, when one of several trus- tees, ib. When may file bill for foreclosure, 258. May re-open foreclosure by receipt of rent, 259. May lose his security, under the Statutes of Limitation, 261. Right of a, to recover land is not barred by his own possession in another capacity, 263. Rights of a, against tenant of mortgagor, ib. When entitled to tack, 266270. When entitled to consolidate his securities, 271274. Assignee of a, may consolidate, 271. May consolidate against mortgagor's assignee, 272. Equitable, is entitled to a legal mortgage, 280. Equitable, may obtain a decree for foreclosure, ib. Equitable, entitled to interest at 4 per cent., 281. May be postponed, ib. Covenant for title to be entered into by a, 340. Attornment to, by mortgagor, 381. Statutory powers of a, 383. A general devise may include land of which the testator is a, 415. MORTGAGOR May be tenant for a term to his mortgagee, 245. Position of a, when not a tenant, ib. In occupation, not bound to account for rents and profits, 246. May act in some cases as owner, ib. When entitled to redeem, ib. Covenants by a, in a mortgage deed, 376. Attornment by a, to mortgagee, 381. MORTMAIN Meaning of term, 126. Acts relating to, 127. 2r 450 INDEX. NOTICE- TO quit need not be given when a term has come to an end by effluxion of time, 70. To quit demised premises, when may be given by parol, 71. To quit demised premises must be half a year's notice, ib. To quit demised premises, when must be served personally on tenant, ib. To quit given by lessor how waived, ib. To quit, lessor claiming double value must give in writing, although term has come to end by effluxion of time, 72. OCCUPANT General, of an estate pur autre vie, 90. Special, of an estate pur autre vie, 91. General, could not be of an estate pur autre vie in an incorporeal hereditament, ib. Cannot be a general, now, ib. OPERATIVE PART Of a purchase deed, what is the, 333. Receipt clause in the, of a purchase deed, ib. In a mortgage deed, 368 371. In a mortgage deed, effect of, as to passing fixtures, 368. PARCELS- Meaning of term, 334. Should, when practicable, be the same as in former title-deeds, 335. Description of, by reference to a plan, ib. May be set out in a schedule, ib. In a lease, importance of accuracy in framing, 353. In a mortgage deed, 368. PARTICULARS Of property to be sold, rules for framing, 308. Maps and plans are subject to same rules as, 309. PARTIES To a deed, who should be, 330. Order of arrangement of, in a deed, ib. How to be described in a deed, ib. In a lease, 352. To a marriage settlement, 387. PARTITION Of what estates might be made, 288. Livery of seisin was necessary for, ib. May be made under the Inclosure Acts, 298. PERPETUITY Object of rule against a, 213. Necessity for guarding against the creation of a, ib. Present rule against the creation of a, ib. Limitation is void which may create a, 214. INDEX. 451 PERSONAL PROPERTY Derivation of term, 1. A term of years is, 2. PIN MONEY Meaning of term, 392. Wife cannot claim more than one year's arrears of, ib. Wife's representatives have no claim to arrears of, ib. PORTIONS Term to secure, 393. Who entitled to, 394. Time for payment of, ib. Proviso for raising, during the father's life-time, 396. Husband's power to charge, for children of a future marriage, 397. POSSIBILITY Coupled with an interest, alienation of a, 204. POWERS Of appointment, 216. May be particular or general, ib. Collateral, and not simply collateral, 217. Appendant, and in gross, ib. Creation of, ib. Exercise of, ib. May be exercised without being referred to, 218. Observance of formalities in exercise of, 219. Defective execution of, aided, 220. Non-execution of, not aided, 221. Trustee having, to sell land, may dispose of minerals separately, ib. Destruction and alienation of, 222 225. Not simply collateral, cannot be destroyed or alienated, 223. Simply collateral, may bo destroyed or alienated, ib. Suspension of, ib. Release of, 225. Involuntary alternation of, ib. Of sale, in a mortgage deed, 377. Statutory, conferred on mortgagees, 383. Wife's, of distress and entry to secure jointure, 390, 391. Of advancement, in a marriage settlement, 396. Of general trustees of a marriage settlement, 397. Of husband, in a marriage settlement, to jointure future wife, ib. Of husband, in a marriage settlement, to charge portions for children of a future marriage, ib. Of leasing, in a marriage settlement, 398. Of sale and exchange, in a marriage settlement, it. Statutory, of trustees, 399. Of appointment may be executed by a general devise, 412. PREMISES In a purchase deed, what included in the, 329. In a lease, 352. 452 INDEX. PRESCRIPTION Definition of, 170. Copyholder's right to common is founded on, ib. For common must be reasonable, 171. PRESENTMENT Of surrender of copyholds formerly necessary, 160. Of surrender of copyholds not now required, ib. PRIMER SEISIN Meaning of term, 17. Abolished, 21. PRIORITY "Where obtainable by a sub-mortgagee, 276 278. PROCLAMATION For person entitled to copyholds to come in and be admitted, 163. PROTECTOR Of a settlement creating an estate tail, 119. Who to be, of a,settlement, ib. Settlor may appoint a, 120. Vacancy in offic'e of, may be filled up, ib. Surviving, may execute office, ib. Powers of a, ib. Not to be subject to any control, 121. Cannot revoke consent formally given, ib. Deed containing, consent of a, to barring an estate tail, must be in- rolled, 122. PROVISO For re-entry, in a lease, 362. For redemption, in a mortgage 'deed, 371. In a marriage settlement, for raising portions during the husband's lifetime, 396. PURCHASE DEED Division of an ordinary, 329. Parties to a, 330. Recitals in a, 330333. When recitals should be inserted in a, 331. Operative part of a, 333. Words of conveyance to be employed in a, 334. Parcels in a, ib. General words in a, 335. Estate clause in a, 337. Habendum in a, ib. Covenant in a, for right to convey, 338. Covenant in a, for quiet enjoyment, 338, 339. Covenant in a, for freedom from incumbrances, 338, 339. Covenant in a, for further assurance, 339. Covenants for title in a, who must enter into, ib. Covenants for title in a, time for suing on, 341. Testatum in a, 342. INDEX. 453 PURCHASER Definition of a, in tho Inheritance Act, 147. Length of title which a, may require, 312. Should be precluded from investigating title other than as shown by the vendor, 315. When bound to fulfil contract and take compensation, 318. When bound to pay interest on his purchase-money, 321. Condition of sale as to requisitions by a, 325. May make further requisitions arising out of answers to his first, ib. Is not bound by condition of sale as to requisitions, when vendor has no title, ib. QUIA EMPTORES, STATUTE OF- Permitted alienation of fees, 24. Forbad subinfeudation, 25. QUIT-RENT Origin of, 167. When lord of a manor can claim, ib. REAL PROPERTY- IS a name given to land, 1. Derivation of the term, /'/. Payment of debts out of, 138, 139. RECITALS Conditions of sale as to, 316. Made evidence by statute, ib. Narrative, object of, 330. Narrative, how far should go back, ib. Introductory, object of, 331. When, should be inserted in a purchase deed, ib. Should, as a rule, be in general terms, 332. Operation of, by estoppel, 333. Are not generally used in leases, 352. In a mortgage deed, 367. RECOVERY Suffering a, 114. With double voucher, 115. Effect of suffering a, 116. Right to suffer a, was inseparable from every estate tail, ib. Fine and, abolished, 118. REDDENDUM- In a lease, 355, 356. In a lease should not state to whom rent is to be paid, 355. REDEMPTION Bill for, when necewiary, 247. Decree under a bill for, ib. Proviso for, in a mortgage deed, 371. 454 INDEX. RELEASE Form of conveyance by, 288. What estates conveyed by, ib. RELIEF When payable, 16. Derivation of word, note (*) r ib. Became an incident of villein tenure, 19. Against forfeiture of lease for non-payment of rent, 68, 69. Against forfeiture of lease for breach of covenant to insure, 73. REMAINDER Definition of a, 36, 193. Creation of a, 193. Is always created by act of parties, ib. May be created by deed or will, 194. None, in a term of years, ib. Alienation of a, 195. Attornment formerly necessary for the transfer of a, ib. Determination of a, 196. May be vested or contingent, ib. Vested, example of, ib. Contingent, example of, 197. Rules for the creation of a, 198204. Contingent, rule as to vesting, 202. Contingent, destruction of, 205. Contingent, trustee to preserve formerly required, ib. Contingent, not now destroyed by forfeiture, merger, or surrender of the preceding estate, 206. REMAINDER-MAN Definition of a, 36. Not formerly bound by lease made by tenant in tail, ib. Is now bound by lease made in pursuance of the Fines and Re- coveries Abolition Act, 37. RENT OR RENT SERVICE Definition of, 48. How may be paid, ib. Is incident to the reversion, ib. Presumed to be equivalent to annual value of the premises demised, ib. Formerly lost by destruction of the reversion, ib. Due to lessee from an under-tenant, formerly lost by surrender of the lease, 49. Now preserved, notwithstanding merger or surrender of the reversion, ib. Must be reserved out of corporeal hereditaments, 50. Must be reserved to the lessor, ib. Must be certain, ib. Distress for, ib. Time for bringing action to recover, 62. Six years' arrears of, recoverable, ib. Right to, not barred so long as there is a subsisting tenancy, ib. Lessee's liability to pay, ib. Acceptance of, may waive lessor's right to a forfeiture, 67. INDEX. 455 KENT OR RENT SERVICE-(w">, p. 412. B. 26, p. 412. B. 28, p. 413. 7 WU1. IV. & 1 Viet., c. 28, pp. 262, 263. 1 & 2 Viet., c. 106, 8. 28, p. 43. c. 110, pp. 123,267. . 11, pp. 133, 173. B. 13, pp. 134, 268. B. 19, p. 134. 2 & 3 Viet., c. 11, pp. 123, 267. .-. 5, p. 134. s. 8, p. 137. 3&4 Viet, c. 65, p. 98. c. 82, p. 135. 4 & 5 VicL, c. 21, p. 297. c. 35, * 1, p. 176. B. 2, p. 176. B. 13, p. 176. B. 14, pp. 176, 177. 8.16, p. 177. . 23, p. 177. 462 INDEX. STATUTES CITED OR REFERRED TO (continued.) 4 & 5 Viet. c. 35, s. 52, p. 177. s. 56, p. 177. as. 7378, p. 178. s. 79, p. 178. s. 81, p. 178. s. 86, p. 155. s. 87, p. 160. s. 88, p. 160. B. 89, p. 160. s. 90. p. 161. 5 & 6 Viet., c. 27, p. 42. c. 35, s. 73, pp. 53, 357. c. 108, p. 182. s. 1, p. 42. 8. 4, p. 42. s. 20, p. 42. 6 & 7 Viet., c. 23, s. 13, p. 179. s. 16, p. 178. 7 & 8 Viet., c. 55, s. 5, p. 179. c. 76, p. 349. 8 & 9 Viet., c. 18, s. 7, p. 103. s. 69, p. 103. s. 74, p. 103. c. 56, 8. 3, p. 98. s. 4, p. 99. s. 5, p. 99. s. 6, p. 99. s. 8, p. 99. s. 9, p. 99. s. 10, p. 100. s. 11, p. 101. c. 106, pp. 46, 49, 231. s. 2, p. 298. s. 3, pp. 46, 73, 89, 105, 297, 3oO. s. 4, pp. 106, 298. s. 5, p. 352. s. 6, p. 204. s. 8, p. 206. c. 112, p. 76. s. 1, p. 79. s. 2, p. 79. c. 118, s. 147, p. 298. 9 & 10 Viet.; c. 101, s. 34, p. 103. B. 38, p. 103. B. 45, p. 103. 10 & 11 Viet., c. 11, p. 103. c. Ill, p. 298. 11 & 12 Viet., c. 99, s. 13, pp. 232, 298. c. 119, p. 103. 12 & 13 Viet., c. 83, p. 298. c. 100, p. 100. c. 106, s. 145, p. 66. 13 & 14 Viet., c. 31, p. 103. INDEX. STATUTES CITED OR REFERRED 10-(eontinud.) 14 & 15 Viet., c. 25, s. 1, p. 33. B. 3, p. 67. 15 & 16 Viet, c. 24, s. 1, p. 405. c. 51, B. 1, p. 180. 8>. 2-8, p. 180. B. 9, p. 180. B. 27, p. 180. .-. 45, p. 180. s. 48, p. 181. c. 76, 8. 210, pp. 69, 363. a. 211, p. 69. B. 212, p. 69. c. 79, p. 298. o. 86, s. 48, pp. 260, 275. 16 & 17 Viet., c. 70, p. 74. *. 129, p. 40. 8. 130, p. 40. 8. 131, p. 40. s. 133, p. 40. . 137, p. 128. 17 & 18 Viet., c. 36, B. 1, p. 371. s. 7, p. 371. c. 97, p. 298. c. 125, s. 79, p. 55. s. 82, p. 55. 18 & 19 Viet., c. 43, s. 1, pp. 82, 111. B. 2, pp. 82, 111. B. 4, p. 82. c. 124, p. 129. 19 & 20 Viet., c. 9, p. 103. c. 97, 8. 1, p. 135. c. 108, 88. 6376, p. 50. c. 120, pp. 38, 398. 8. 2, p. 39. B. 6, p. 74. 8. 11, p. 98. a. 13, p. 98. 8. 14, p. 98. B. 32, pp. 37, 38, 39. a. 33, p. 38. B. 35. p. 37. s. 36, p. 41. B. 44, p. 37. s. 46, p. 37/ 20 4 21 Viet., c. 31, p. 298. B. 7, p. 232. c. 85, 8. 21, p. 402. a. 25, p. 402. 21 & 22 Viet., c. 44, p. 42. c. 67, B. 1, p. 42. c. 77, pp. 38, 398. B. 2, p. 39. B. 4, p. 39. 464 INDEX. STATUTES CITED OR REFERRED TO (continued.) 21 & 22 Viet., c. 77, s. 5, p. 74. s. 8, p. 38. c. 94, s. 6, p. 180. s. 7, pp. 180, 181. c. 108, p. 402. 22 & 23 Viet., c. 35, p. 123. s. 1, p. 61. s. 2, p. 61. s. 3, p. 61. s. 8, p. 64. s. 12, p. 220. s. 13, pp. 96, 221. 6. 19, p. 147. s. 22, p. 137. s. 27, p. 65. c. 43, p. 298. 23 & 24 Viet., c. 38, p. 267. s. 1, p. 135. c. 59, p. 42. c. 126, s. 1, p. 69. B. 2, pp. 69, 70. c. 145, p. 217. as. 110, p. 399. s. 11, pp. 253,344. s. 12, p. 344. s. 13, p. 344. s. 14, p. 344. s. 15, pp. 366, 385. s. 16, p. 385. ss. 1724, p. 253. ss. 1823, p. 344. 24 Viet., c. 9, p. 128. s. 1, p. 44. 24 & 25 Viet., c. 134, s. 131, p. 66. 25 & 26 Viet., c. 17, p. 128. c. 61, s. 9, p. 129. c. 89, s. 1, p. 129. c. 108, s. 1, p. 221. s. 2, p. 222. 27 & 28 Viet., c. 13, p. 128. c. 112, pp. 123, 267. s. 1, p. 136. s. 2, p. 136. s. 4, p. 136. c. 114, s. 8, p. 100. s. 9, p. 100. s. 25, p. 100. s. 49, p. 101. s. 51, p. 101. s. 66, p. 101. s. 72, p. 102. s. 76, p. 102. ss. 7889, p. 102. INDEX. 465 STATUTES CITED OR REFEERED TO (continutd.) 28 & 29 Viet., o. 104, p. 123. a. 48, p. 137. 29 & 30 Viet., c. 57, s. 1, p. 128. 30 & 31 Viet., c. 48, s. 4, p. 310. s. 6, p. 310. s. 6, p. 311. 31 ft 32 Viet., c. 40, s. 3, p. 232. s. 4, p. 232. o. 44, pp. 43, 44, 128. c. 89, p. 298. 32 ft 33 Viet., c. 46, p. 139. c. 71, B. 6, p. 137. B. 14, p. 137. B. 15, pp. 41, 225. B. 17, pp. 41, 106. B. 23, p. 66. B. 24, p. 66. s. 25, pp. 106, 122. B. 45, p. 138. 33 Viet, c. 14,8. 2, p. 129.. 33 ft 34 Viet, c. 23, p. 401. B. 1, p. 131. B. 12, p. 41. o. 34, s. 1, p. 129. B. 3, p. 129. c. 35, pp. 123, 144. B. 2, p. 109. B. 5, p. 109. c. 56, s. 2, p. 102. B. 3, p. 102. 8. 4, p. 102. c. 93, p. 402. B. 7, p. 237. B. 8. p. 237. B. 13, p. 238. B. 14, p. 238. 34 & 35 Viet., o. 79, p. 61. o. 84, B. 4, p. 102. 36 ft 37 Vict./c. 50, p. 337. c. 66, p. 74. B. 25, sub 8. 7, p. 322. B. 25, Bub g. 11, p. 301. 37 & 38 Viet., c. 57, p. 144. B. 1, p. 262. 8. 7. p. 256. n. 8, p. 250. B. 9, p. 262. B. 10, p. 249. B. 12, p. 262. jo. 78, pp. 271, 301. B. 1, p. 312. B. 2, pp. 314, 316, 324, 326. B. 7. p. 266. o. 83, p. 301. C. 2 Q 466 INDEX. STEWARD Of the manor kept the manor roll, 15. "Was judge of the Customary Court, 20. Entered on the manor roll matters presented at the Customary Court, ib. Of a manor may hold a Customary Court although no tenant be present, 155. Fitness of, to make grants in copyholds is immaterial, 157. Of a manor may admit a new tenant within or without the manor and without holding any court, 160. Of a manor, when entitled to fees. from tenants, 166. Of a manor, amount of fee to, must be reasonable, ib. SUBINFEUDATION Definition of, 24. Forbidden by the statute of Quia Emptores, 25. SUB-MORTGAGEE Definition of a, 274. Rights of a, different from those of a legal mortgagee, ib. Bill for foreclosure by a, ib. f Has not a right to a sale, 275. Court of Chancery may allow sale by a, instead of foreclosure, 275. ' Right of a, to tack and consolidate, 275 278. . How a, may obtain priority, 276 278. SURRENDER Of a lease, when must be by deed, 73. Of a lease, when implied, ib. Of leases belonging to persons under disability, 73, 74. Of a lease by a married woman, 74. Of leases made under the Leases and Sales'of Settled Estates Acts, ib. Of an estate for life must be by deed, 105. Required, when copyholder sells his estate, 158. And admittance, theory of, ib. And admittance, enactments relating to, 158 161. To use of a will, no longer necessary, 158. May be made within or without the manor, and without holding any court for the purpose, 160. ' V - - . Of copyholds, to be immediately inrolled, ib. Of copyholds, is, practically, a mode of conveyance, 161. Former mode of conveyance by, 289. SUSPENSION Of powers, 223. TACKING Definition of, 265. Advantages of right of, ib. Recent change in the law relating to, 266. Mortgagee claiming right of, must have a legal estate, ib. Mortgagee claiming right of, must have made his advance on the credit of the mortgaged estate, 267. INDEX. 467 TACKING (continual.) Mortgagee claiming right of, must hold securities in the same right, 268. Mortgagee claiming right of, moat not have had notice of subsequent incumbrance, ib. When sub-mortgagee may have right of, 275 278. TAXES What, are payable by lessee in absence of agreement, 53. Not properly payable by lessee may be deducted from rent, ib. Lessee paying, when not bound cannot recover amount if he has paid rent without deduction, ib. Covenant in a lease to pay, 357. TENANCY AFTER POSSIBILITY OF ISSUE EXTINCT Is a legal estate for life, 82. Definition of a, 88. Tenant who has a, may commit waste, ib. Assignee of, is not unimpeachable of waste, 105. TENANCY FROM YEAR TO YEAR Is dcterminable at end of any year, 71. What notice requisite to determine a, ib. May be created by an instrument intended as a lease for a term, 351. TENANCY IN COMMON When a, occurs, 229. Creation of a, ib. Form of words for creating a, ib. Incidents of a, 229, 230. Alienation of a, 230. Does not survive, ib. Partition of estates in, 231234. TENANT In capite, meaning of term, 11. Free tenants bound to attend the court baron, 12. Tenants at the court baron acted as judges, ib. Customary tenants bound to attend the customary court, 20. Customary tenants did not act as judges, ib. By copy of court roll called copyholder, 21. In capita allowed to alienate his land on payment of a fine to the king, 24. New, of a manor must be admitted, 158. Of a manor, selling his estate, must surrender it, ib. Of a manor, may bo admitted within or without the manor and without holding any court, 160. Of a mortgagor, mortgagee's rights against, 263. TENANT AT WILL Cettui que trust in actual occupation is a, 33. Not liable for permissive waste, ib. When entitled to emblemenU, ib. 468 INDEX. TENANT FOR LIFE Can make binding leases under the Leases and Sales of Settled Estates Acts, 37. Remaining in possession after determination of an estate pur autre vie is a trespasser, 92. Is entitled to estovers, 93. May take stone for repairs, ib. May cut underwood, ib. May work mines opened by a preceding tenant, ib, May fell timber for repairs, ib. May not, ordinarily, commit waste, ib. Cannot charge the expense of improvements on the inheritance, 94. May be restrained from committing waste, ib. ~1 Is liable at law, though not in equity, for permissive waste, ib. Has special property in timber of buildings which are blown down, 94. Not allowed to benefit by sale of timber which he has wrongfully severed, ib. Receives income derived from sale of timber cut by order of the Court of Chancery, 96. May be made unimpeachable of waste, ib. Can have no property in timber until it is actually severed, ib. Must keep down charges carrying interest, 97. Not bound to pay^arrears of interest due from a former tenant, ib. Faying off a charge on the estate is entitled to keep it alive ior his own benefit, 98. Statutory powers of, to make improvements, 98, 99, 100, 101, 102, 103. May sell the property, under the Lands Clauses Consolidation Act, 103. Is entitled to custody of title-deeds, 104. When entitled to remove fixtures, ib. Representatives of a, may remove fixtures within a reasonable time, 105. Rent is now apportionable on death of a, 107, 108, 109. Executors or administrators of a, are entitled to emblements, 109. Covenants for title to be entered into by a, 340. TENANT IN COMMON Is nearly in the same position as an independent tenant, 229. In fee simple has been restrained from committing waste, 230. TENANT IN FEE SIMPLE Has absolute power over his estate, 130. May deal at will with fixtures during his lifetime, ib. Right of executor or administrator of a, to fixtures, ib. TENANT IN TAIL Lease by a, did not at one time bind his issue, 36. Provisions of the 32 Hen. VIII., c. 28, as to leases by a, ib. Can make binding leases under the Fines and Recoveries Abolition Act, 37. May commit any kind of waste, 112. Cannot be bound by covenant not to commit waste, ib. Is not bound to keep down interest on charges affecting the estate, 113. Paying off charges, presumed to have done so for the benefit of the inheritance, ib. Is entitled to custody of title-deeds, ib.' INDEX. 4 ''>!' TENANT IN TAIL (continued.) May, whilst in possession, remove fixtures pat up by himself or by a previous tenant, 113. Executor or administrator of a, has a right to remove fixtures, ib. Can bar the estate tail, 118. Restrictions on power of a, to bar estate tail, 119. Mode of barring an estate tail by a, when married woman, 121. Apportionment Acts apply to leases made by a, 123. Executor or administrator of a, is entitled to emblementa, 124. TENURE By the family, 4. By Knight Service, 8. Socage, 10. Villein, 12. Villein socage, 13. By ancient demesne, 14. Burgage, ib. In frankalmoign, ib. 3y Knight Service, abolished, 21. TERM Of years is personal property, 2. Any tenancy of definite duration is a, 35. Grant of a, is called a demise, 36. Is a chattel real, ib. Not put an end to by disclaimer of assignee's trustee in bankruptcy, 66. Determination of a, ib. Long terms, advantages of, 74. Satisfied, when, 76. Satisfied, presumed to be attendant on the inheritance, ib. Satisfied, advantages and disadvantages of, 77, 78. Satisfied terms abolished, 79. Satisfied when considered as subsisting, 80. Of years, no remainder in, 194. In a marriage settlement, to secure wife's income, 388, 392. In a marriage settlement, to secure jointure, 391, 392. In a marriage settlement, to secure portions, 391, 393. TESTATOR Who may be a, 401. Signature by a, 406. Signature on behalf of a, 407. Acknowledgment by a, ib. Witnesses to a will must be present at the signature or acknowledg- ment of the, ib. Witnesses to a will must be able to see the, affix hi* rig-nature, ib. Must be able to see witnesses affix their signatures, 408. Will to be construed as speaking from moment of death of the, 412. General devise may include land of which the, is trustee or mort- gagee, 415. 470 INDEX. TESTATUM In a purchase deed, 342. In a lease, 363. In a mortgage deed, 383. TIMBER- Tenant for life may fell, for repairs, 93. Tenant for life not entitled, as a rule, to cut, ib. If blown down during a tenancy for life should be sold and proceeds invested, 94. If wrongfully severed, course to be pursued, ib. Application of fund formed by sale of, under order of the Court of Chancery, 95. Tenant for life can have no property in, until severance, ib. Mistaken appropriation of proceeds of sale of, may be rectified by the Court of Chancery, 96. Tenant for life cannot cut ornamental, ib. Rights as to, of a lord and tenant of copyholds, 168. In the absence of custom, neither lord nor copyholder can cut, 169. Condition of sale as to valuation of, 312. TITLE- TO be shown, conditions of sale as to, 312 315. Length of, which a purchaser may require, 312. Selection of a root of, 313. Lessor's, law as to showing, ib. Purchaser should be precluded from investigating, other than as shown by the vendor, 315. Covenants for, in purchase deeds, 338 341. Covenants for, by husband on sale of wife's real estate, 340. Covenant for, by trustee, ib. Covenant for, by mortgagee, ib. Covenant for, by executors, ib. Covenants for, by cestui que trust, ib. Covenants for, by tenant for life, ib. Crown does not enter into covenants for, 341. Covenants for, limitation of time for suing on, ib. Lessee should be precluded from investigating lessor's, 346. Lessor's covenant for, 363. Covenants for, in a marriage settlement, 399. TITLE-DEEDS Tenant for life is entitled to the custody of, 104. Tenant in tail is entitled to the custody of, 1 13. Mortgage by deposit of, how viewed in equity, 279. Mortgage by deposit of, may secure future advances, ib. All the, of an estate need not be deposited to make a mortgage, 280. Condition of sale as to, 324. Recent enactment as to retention of, by a vendor, ib. \ TRUSTEE Of a bankrupt may disclaim lease, 66. Of a bankrupt who is tenant in tail, powers of, 122. To preserve contingent remainders, 204, 205. . INDEX. 471 TRUSTEE (continued.) Having power to sell land may dispose of minerals separately, 221. Acknowledgment of mortgagor's title by one, of several who are mortgagees, 257. Covenant for title to be entered into by a, 340. Declaration in a mortgage deed, on loan by trustee*, 375. Powers of the general trustees, in a marriage settlement, 397. Powers conferred on trustees by statute, 399. A general devise may include land of which the testator is a, 415. TRUSTS Uses before the Statute of Uses were, 183. Re-establishment of, after the Statute of Uses, 188. Executed and executory, distinction between, 191. Executory, how given effect to, ib. Changes in the law relating to, 295. USE8- Introduction of, 182. Definition of, before the Statute of Uses, 183. At one time not recognized by the Common Law, but always enforced by the Court of Chancery, ib. Not subject to the rules of law, ib. Resulting, 184. Objections to system of, ib. ; Statute of Uses, 185. How recognized by the law, 186. Rules of law relating to, 186 188. Limitations by way of, after the Statute of Uses, 208. Springiag, definition of, ib. Shifting, definition of, 209. Shifting, employment of, in marriage settlements, 388. VASSAL Meaning of the word, 5. Originally held his land at the pleasure of his lord, ib. Afterwards allowed an estate for life, ib. Subsequently received a fee descendible to his issue, 6. VENDOR Must deliver a perfect abstract, 325. When entitled to rescind the contract of sale, 326. Unwillingness of, to answer requisitions, temblt must bo reasonable, ib. VILLEIN Meaning of term, 12. Was at first the property of his lord, 13. Gradual improvement in the condition of a, 19. Most villeins free by time of Edward VI., ib. 472 INDEX. VILLEIN SOCAGE Bracton's account of, 13. Partook of nature of both free and base tenures, 14. Only found in lands of ancient demesne, ib. Called also tenure by ancient demesne, ib. VILLEIN TENURE Origin of, 12. Was base, ib. Tenant by, could not quit without his lord's permission, 13. Gradual improvement in, 19. Change in form of grant of land held by, ib. Incidents of, ib. Lands granted in, came to be held by the custom of the manor, 20. Privileges of tenants by, ib. WAIVER- Of forfeiture of a lease, when presumed, 67. Of forfeiture of a lease, lessor's acts which are not, ib. By lessor, of notice to quit, when presumed, 71. WARDSHIP Origin of, 16. Lord had, of infant tenant by Knight Service, ib. Duration of, ib. Abolished, 21. WARRANTY Vouching to, 115. By tenant in tail, after the 31st of December 1833, is void against issue in tail and remainder-men, 118. WASTE Permissive, what is, 33. Tenant at will is not liable for permissive, ib. Tenant for years is liable for permissive, 54. Definition of, 55. Lessee may not commit, ib. Writ of, under old law, ib. How restrained, ib. Tenant for life may not, ordinarily, commit, 93. Tenant for life liable at law, though not in equity, for permissive, 91. Tenant for life may be made unimpeachable of, 95. Equitable, definition of, 96. Tenant for life cannot, in any case, commit equitable, ib. Principle of Court of Chancery as to equitable, 97. Tenant in tail may commit any kind of, 112. Tenant in common in fee simple has been restrained from commit - ting, 230. IM.KX. WIDOW- Cannut claim more than six yean* arrears of dower, 84. Right of a, to dower may be barred by husband, 86. Married since the Dower Act w not barred of dower by old form of conveyance to bar dower, 87. WIFE. See MARBIBU WOMAN. WILL- Alienation of land by, formerly unknown, 27. Permitted by statute of Henry VIII., ib. Extended by statute of Victoria, 28. Surrender of copyholds to use of a, no longer necessary, 158. Changes in the law relating to wills, 294. Who may make a, 401. Infant cannot make a, of real property, /'<. Of a married woman, ib. Execution and attestation of a, 40*2. Need not necessarily be in ink, 403. Alterations in a, 404. Interlineation in a, 405. Signature to a, ib. Signature to a, on behalf of the testator, 406. Acknowledgment of a, by the testator, 407. Witnesses must be present at signature or acknowledgment of a, it>. Signature by witnesses to a, ib. Attestation of a, 408. Selection of witnesses to a, 409. Of land, is governed by the law of the country where it is situated, 410. Of English leaseholds, must be made in conformity with the law of England, ilt. What property may be disposed of by, ib. Of copyholds does not pass the legal estate until the devioce is ad- min. -,1. 412. To be construed as speaking from moment of testator's death, ib. Residuary devise in a, to include lapsed and void devises, ib. General devise in a, to include copyholds and leaseholds, ib. Power of appointment may be exercised by a general devise in a, ib. Devise in a, without words of limitation may pass a fee simple, ib. General devise in a, may include land of which the testator i- n u-i,-- or mortgagee, 415. Revocation of a, by marriage, 417. Revocation of a, by will or codicil, 419. Revocation of a, by a writing executed like will, 420. Revocation of a, by destruction, 420, TJ1. Cancellation of a, is not revocation, 421. Revival of a, 423. Destroyed, cannot bo revived, J J I . WILLIAM THE CONQUEROR Grants of lands by, aft. r tin ('oii<|iu-t. 7. Probably founded villein wcage tenure. 1 1. 2 ii 474 INDEX. WITNESS- TO a will may sign it on behalf of the testator, 407. To a will must be present when it is signed or acknowledged by the testator, ib. To a will must be able to see the testator sign it, ib. To a will, signature of a, ib. To a will must attest it, 408. Selection of witnesses to a will, 409. To a will cannot take any benefit under it, ib. WORDS OF CONVEYANCE Office of the, in a deed, 334. Appropriate, in a purchase deed, ib. THE END. JOHN CHILDS AND SON, PRINTERS. LAW LIBRARY UNIVE1 :NIA