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The Author, as Referee of Titles under the Act for Quieting Titles, and as Reader on the Law of Real Property to the Law Society, had fre({uent occasion to consider and annotate the various Statutes relating to that branch of the Law, and they formed the subject of many Lectures delivered by him at Osgoode Hall. He conceived the idea of publishing the result of his labors in a shape, which, he hoped, with but little further labor to himself, might perhaps be of service to the Profession. He has been compelled however to abandon the original design of treat- ing ot all the important Real Property Statutes at one time, from the difficulty in keeping pace with the Legisla- ture, and the necessity for constant alterations of the text arising from ever recuri'ing change in the Laws. It has been remarked, with expression of regret, by Mr. Chancellor Kent, that frequent change of the laws is prevalent in the United States, and is, he says, character- istic of the restless disposition of his fellow citizens. The reverse is the case in England. Mr. Wood in the preface to his valuable treatise on the Registry Laws has said that whilst in England " the Statutes of \.ni\e, and that of 8 George II. relating to Yorkshire remain yet in force, and have not even been added to or amended in any important particular, the statute book of Upper Canada has been prolific in amending, explaining, consolidating, and repealing enactments relating to that branch of the Law." Legislation here since as well as before those remarks fully justify 88766 IV. PREFACE. them. Probably the mutability of our Laws is to be ascribed rather to their being often framed with no suf- ficient appreciation of the existing law, or its mischief, or of the remedy requisite, than to that cause to which the learned Chancellor alludes. Complaints on the character of legislation with us both from the Bench and the Profession have been frequent and of long continuance. The Author may therefore be excused, if occasionally, in treating of an obscure clause in a Statute which has received no light from judical decision.s, he has hazarded no opinion, or done no more than call attention to difficulties, which might possibly have escaped observation. The Chapter on Descent and part of the Chapter on Dower are taken, with many alterations, from the work of the Author on the Commentaries of Blackstone adapted to the Law of Upper Canada ; a course justified by the alterations made, and the probability that that work will shortly be out of print. The Author has to express his thanks to his friend Mr. Joseph for the preparation of the Index, and his assistance in carrying the Work through the Press. Toronto, April 1, 18fi9. CONTENTS. See also, Index, Statutes Treated of. PAQE 29 Vic. c. 28, An Act to amend the Law of Property and Trusts in Upper Canada I Con. Stat. c. 90, An Act respecting the Transfer of Real Property, and tlie liability of certain interests therein to execution 48 " c. 91, An Act res]jecting Short Forms of Con- veyances 93 " c. 92, An Act respecting Short Forms of Leases. 106 Descent at Common Law 115 " under the Statute of William (Con. Stat. c. 82) ... 141 " " " Victoria " " ... 166 " of EstatesTail 209 Con. Stat. c. 82, s. 7, As to Attainder and Corruption of Blood 162 " c. 116, As to Attainder and Corruption of Blood. 163 " c. 82, ss. 42 43, 44, 45, Advancement 191 The Stat, of Distributions, Advancement 194 " ** Right of succession to Pei-sonalty, and comparison thereof with present right of inheritance to Realty 204-206 Con. Stat. c. 85, As to Conveyances by married Women 255 " c. 82, .s. 10, As to taking in Tenancy in common. 165 " c. 82, ss. 11, 12, 13, As to Wills 287 32 Vic. c. 8, As to Wills 293 Con. Stat. c. 73, As to Wills of married Women 281 " c. 78, As to separate i-ights of property of mar- ried Women 271 Of Memorials as Evidence 427 Of the Law of Dower generally, and the various Statutes relating thereto (see Index, Statutes cited) ... 212 vi CONTENTS. 24 Vic. 27 (I (I 29 PAQB Of Execution generally, and tlio following Statutes relating thereto 300 13 Ed. 1, c. IS, St. Westminster — Fieri Facias and Elegit. 3.3 Hen. 8, c. 3'J— Crown debls. 13 Eliz. c. 4 — Crown accountunts. 29 C. 2, c. 3, ss. 14, 15 — Signing judgment— Purchasera. 4 & 5 W. & M. 0. 20— Docketing Judgments — Purchasers. 6 Geo. 2, c. 7, a. A— Fieri Facias against lands. 2 & 3 Vic. c. 11, s. 8, Imp. — Registry of Crown debtors and accountants. c. 41 — Repeal of registry of judgment — Judgments no lien on land, c. 13, 8. 1 — Sale of equity of redemption. See chap- ter on mortgages. c. 13, s. 2 — Renewal of executions, c. 15 — Sales of land on Jieri facias against execu- tors. c. 28, 8. 28— Crown debts. 29 & 30 Vic. c. 42, ss. .'), C — Issuing of^en/ona« lands — Return of writs against goods in order of priority. " " e. 43 — Abolition of binding effect of Crown bonds. 31 Vic. c. 20, S3. 58, 69— Registry of Sheriffs' deeds. " c. 25 — Writs against lands and goods may issue to- gether — Return, &c. Con. Stat. c. 5 — Registry of Crown bonds, c. 22, 8. 249 — Renewal of writs, c. 22, s. 252 — Lands and goods not to be in one writ — Sale, &c. <' c. 22, ss. 257, 258, 259— Sale of equity of re- demption. See chapter on mortgages. " c. 22, s. 2G1— Seizure of mortgage. See chap- ter on mortgages. " c. 22, S3. 267, 268— Advertizing— Seizure, &c. " c. 22, 3. 269— Sheriff vacating office. " c. 89, ss. 48, 49 — Registry of judgments. " c. 90, ss. 5, 11 — Sale of contingent interests. See chapter on that Act. Of Mortgages generally, and the following Statutes relating thereto 336 Con. Stat. c. 18, s. 10, and the English Bankruptcy Acts as to reputed ownership. CONTENTS. Vll. Con. Stat. c. 22, bs. 257, 258, 259, 200— As to salo under execution of the equity of redemption. •' c. 22, s. 20 1 — Suizuro of mortyago under ckccu- tion. •' c. 73 — Right of married woman to redemption moneys on mortgage to her " c. 8.3, s. 10 — Mortgage by tenani in tail. " c. 87 — Iloleaso by executors — Merger — Purchase by mortgagee of the equity of redemption. " c. 88, s, 19— As to arrears of interest. 24 Vic. c. 41, s. 7 — Amending Consolidated Statute chap-' ter 87. 27 " c- 13— Extending Con. Stat. c. 22 to heirs, execu- tors and administrators of mortgagor. " " c. 15 — Sale of lands on execution against executors and administrators. 27 & 28 Vic. c. 31 — The act as to short forms of mortgages. 31 Vic. c. 20, ss. 60, 61, 62 — Release of mortgage under the Registry Act. '• " c. 20, 88. 67, 68 — Notice — Priority of registry as against equitable interests — Tacking— Con- solidating. 32 " c. 9 — Release of mortgage by married women. " " c. 10 — Release by executors of mortgagee and power to assign redemption moneys and land. Imp. Stat. 14 Geo. 3., c. 78, s. 83— As to insurance moneys being laid out on the property. I'Aua vin. AUUENDA. ADDENDA. ri*. i, 5, 6. — On tlio cuvonanl aKuiiiHt a..,iiKUiiiorit willioul leave, that asHJRnevH in I'lw aro not Ixinnd tlji)ii){li a.ssi^'nK arc naniuil, iiml tli:it tlicir aHHi;;nH are bound, il'aHMigns are naiuuil ; huo Wiiilcr v. Dunieiiiiie, I'J J. N. H. 7-*!, Kx. Chamber. P. 68.- Am to an inNtniniont o|ii'ratinf,' a.s a Icahcor as a iiicro ;i(;iuemcnt fur a leaHc, SCO UavulHun iJonvoy. vol. 5, p, (J, and caws thorn cited. rr. !», 72.— That a proviHo l"iirro-cntry in a lease in caso the Ioshco bIiouIi! be convicted of an oIVcucl' a^^ainsti tiju f^anio laws, docs not run witli tiio rever- sion, SCO Stevens v. Uopp, L. 11. l Kx. 20, lint sei! [icr Kelly, t!. 11. As to covenaniH with a vendor of portioiiH of lands a^iainst building thereon riin- niuK with the land retained in favor of tlic grantees thereof, Weiitern v. Macdcruiot, L. U. 1 Ki|. HU. See further .'is to covenants not runiung with the land at Law, and yet bein^' binding' in Kiiuity if notice had of the covenant; Wilson v. Hart, L. 11. I Clia. Apji. H'lo. P. lit]. — It is conceived that in eaxe of death of;: uiortgaKco, he would not, at Law at least, be so far re;,'arded as a trustee a.s to [irevenl the ai)|)lication of the Statute of Victoria, and descent by iiriuiogeniture, and t,hat in tliiii respect Equity would follow the Law. P. 325.— The present practice of the Court of Chiinccry, under tlie Act for Quieting Titles, is to reciuire that the cxi.stence of an execution in the Sheriff's hands should be iieg.itived for a period of thirty days Ibefore the pet'Uon, from which it may be inferred that a delay to redeliver for that period would be an abandonment. P. 377.— That a second mortgagee, though his mortgage be on trust to sell, may purchase irredeemably on a sale by a prior mortgagee, see Kirk wood v. Thompson 13 W. R. 195, iYo'l, 11 Jur. N. S. 385, S. C. PP. 401, 402, 403. — That possession is constructive notice ; Gray v. Coucher, 15 Grant, 419. That however constructive notice by possession will not pre- vail against a registered instrument under the Registry Act of 31 Vic, see Sherboneau v. Jeffs, 15 Grant, 574. P, 278. — A marrietl woman, who was i esiduary legatee to her sepai-ate use under Con. Stat. ch. 73, held bound by her authority to the executors, with her husband's assent, to take land in payment of a debt due the testator ; and semble even without the husband's assent ; llcCargar v. McKinnon, 15 Grant, 361. PP. 223, 224. — That a wife having joined with her husband in a mortgage, is not entitled in case of deficiency of assets on his death, to have the estate exonerated as against simple contract creditors to let in dower ; White v. Bastedo, 15 Grant, 64!), overruling Sheppard v. Sheppard, 14 Grant, 174 ; see also Thorpe v, Richards, 15 Grant, 408. P. 324. — That a purchaser under execution will not be affected by mere want of non-compliance with the Statute as to advertising the sale by the Sheriflf &c ; Connor v. Douglas, in Appeal, 15 Grant, 456, and cases there refeired to. ( ix. ) LIST OF CASES CITED. PACIR. Aokrody y. Sniithson 878 Acre V. LivingHtone 51, 100 Ager V. Fuirfiix 54 AiiiBlie V. Medli-ycott 232 Alilwell V. Unnimlh 110 Alexiindcr V. Wellington 71 Alford V. Vickery 384 Allan V. Lcvt'sconte 2til, 265, 273 Allen, Jnte 403 Alien's Estate, In re .,.App. 16 Allison V. llednor 238, 2G2, 204 Ancftster, Uukeofv. Mayer 46 AndeiBon v. Fitzgerald 308 V. Midland Railway Co. 384 Anon, (Moore 21) 6 Ansloy v. Breo 429 Archer's case 53 Ashford v. McNaughten 389 Asliwell's will 37 Attorney General v. Cox 04 Auster V. Powell 19^ Austin V. Story 3C7, 423 Aveliue V. Wliisson 52, CO B. Baby gut (um v. Watson 74 Badliain V. Shields r..... 148 Bailey V. Collett 27 Bailey v. Richardson, App. 5, 8 Baker v. Baker 235 V. Hammond 236 Baldwin T. Duigan App. 14 V. Henderson 74 Ball V. Dunsterville 02 V.Young 124 Bally V. Wells 6 Bank B. N. America t. Matthews 318 Bank of Montreal v. Baker... A pp. 13 V. Munro 320, 331 V. Taylor. 320. 325 V. Thompson... 312, 319, 348, 350, 361 B. PAOK. Bank of Upper Canada t. Brough '80, [280, 884, 367 V. Miller. 330 V. Shickiuna [359 Bannon v. Frank 106 Barker, In re 866 V. Keate 124 Barlow V. Rhodes 110 Barnctt v. Earl of Quilford 124 Barrett V. Rolph 02 Barrington's Settlement, In re. 39, 40 Barry v. Harding App. Beasley v. Cahill 74 Beattie V. Mutton 206 Beatty T. Beatty 214 V. Qooderham 350, 351 Btibf e Tokai Sherob t. Belgar 330, 358 Beemer w. Anchor Assurance Co. 308, [308 Beevor T. Luck 404,405 Begley et ux v. St. Patrick's Ass'u 230 Belcher V. Bellamy 371 Benham v. Keane App. 10 BennetT. Davis 273 Bennett V. Herring 72 V. Lytton 84 Benns qui tarn v. Eddie 74 Betiiune v. Corbett 330, 363 Biggs v. Sadlier 430 Billiter v. Young 4 Birch, /« re 370 Biscoe V. VanBeavle 220 Bishoprick V. Pearce 247 Blake v. Bci.lty 351 BlisH V. Collins 10 Bond V. Rosling 00 Booth V. Aliugton I'lO Bostook v. Floyer 43 Bourne v. Bourne 378 Bowes V. Bowes 288 Bowles's case 220, 273 X. List of Cases Cited. B. PAGE. Biadfield v. Hopkins 64, 65 niailfordv. Belfield 373 Bruiser V. Hudson 369 Braybroke v. Inskip 373 Biatt V. Lee 429 Braythwayte v. Hitchcock., 59 Breakenridge v. King 285 Brett V. Cnrmichael 33, 34 Brice V. Stokes 42 BriggB V. Chamberlain _ 276 Biookv. Brook 164, 216 Brooke V. Stone 386 Brougham v. Poulett 38 Brown v, Woodliouse 377 drowning V. Wright 103 Brownson V. Lawrence 46 Brumridge V. Brumridge 42 Bruvers v. Knox 328 Buck V. McCrtllum 247 Buckell V. ;Blenkhorn 280 Buckler v. Bowman 404, 406 Buckley V. Lanauze App. 12 Buckingham v. Drury... 229, 230, 232 Bullen V. Michel 437 Bullock V. Bi-nneti 295 V. Down«s 37, 38 Bunlett V. Spilsbury ]5 Burgess v. Howell ,.App. 13 Burk V. Smyth App. 16 Burke v. Aniiis 290 Burmester, /« re App. ]4 Buriiliam v. Duly 827, 328 Burns V. McAdaui 256 Burton V. Barclay 81 V. Powers 290 Bushel V. Bushel App. 14 C. Caldwell Estate, In re 40 Cauiden v. Batterbury 384 Cameron v. Gunn... 61, 99, 100, 101 Cameron v. Todd 399 Campbell V. Anderson 27 V. Clench 326, 327 V. Uelihanty 323 V.Smith. 3:^0 Carleton v. Leighton 71 Carpenter V. Hall (54 V. Parker 394, 395 Carroll v. Robertson 376, G86 Carruthers v. Carruthers 230 Carter v. Boehni 369 Casey V. Jordan 329 Cathrow V. Kade 431, 432 Chadwick v. Turner 402 C. Chalmers V. Piggott 330 Chamberlain t. McDonald 276 [277, 278, 280 Champlin ▼. Baldwin 177, 190 Chapman T. Beecham ... 382 V.Emery 240 Cherry v. Heming 52. 60, 61 V. Morton App. 13 Chisholmv. Sheldon 226, 227 V. Tiffany 219,223 Christ Church, Dean of, v. Buck- [ingham, 396 Christian v. Devereus 37 Clark v. Armstrong App. 14 V. Clark 294 V. Stevenson 61 i V. Moore App. 16 j Clayton V. Blakey 69 jCleggv. Rowland 28,34,33 j Clun's case 10, J3 I Cockerell v, Cholmeley 16 Coppv. Holmes 389 Coldwellv Hall 385 iColev. Batley 178, 190 Coleby v. Coleby 46 CoUingwood V. Page 104 Commercial Bank v. Lett 276, 278 Conger V. Piatt 1121 Coimor V. Douglas Aduenda. Conolly V. Woolrich 214 Coiimee v. Tnaffe 106 Converse V. Micliie .313 Cooke V. Crawford 373 Cooper, Ex parte 371 Cooper V. Cartwright,...349. App. 5, 8 Copelund, Ex parte 305 Corbet V. Corbet 229, 231, 232 Cottee V. Richardson 62 Craig V. Terapleton 224 Croft V. Croft 293 V. Luraley 4 Crofton V. Ornisby .\pp. 10 Crusoe V. Bugby 7 Crawford v. Armour 347 V. Curragh 291, 292 Culley V. Doe 74 Cununing V. Alguiro 218 Curren V. Taylor 170 D. Dalby v. India and London Ass. Co 302, 308 Daniels v. Davidson 354 Davenport V. Davenpo''i 210 V. Station' 38 Davies V. Nicholson 33 List of Cases Cited. xii D. PAGK. Dean ol ('liristcliurch v. Bucking- ham 306 Dearie V. Hall 370 DeHoghton V. Money ....m 75 Delaney V. Fox 395 Delisle V. Dewit 324 Dennett V. Pass 13 DenDis's Will, In re 39 Dicken V. Ilanier 220 Dickinson v. Burrell 75 V.Lee 193 Dillon V. Coppin 197, 198 DinHdale v. Dudding 38 Dix V. Burford 38 Dobson V. Land 365, 386 Dodd V. Ackloin 64 Dodson V. Saminell 29 Doe d. Ahdy v. Stevens 4 Audjo V. Ilollister ... 312 Ausinan v. Mintborne 315 Baker v.Cliirk 287 Bnstow V. (lox 379 Blackburn v. Blackburn 140. 169 Biddulph V. Poole 05 Borwell V. Abey 160 Boulton T. Fergusson 324 Bradt v. Ilodgins. 238, 256 Brennan v. O'Neill 328 Burr V. Denison 63, 64 Calkin v. Tomkinson... 06, 68, 71 CameroH V. Robinson 316 Campbell v. Hamilton.. 320, 327 V. Thompson 314 Cheer V. Smith ... 5 Ciiristmas v. Oliver 04 Outhhertson v. McGillis 124 Dehipaine v. Jones 189 Dempsey v. Boulton.... 312, 319 Dibble V. Ten Eyck 204 Dougall V. Fanning 319 Elmsley V. McKenzie 325 Fitzgerald V. Finn 73 Gerrod V. OUey 379 Ooodbehere v. Bevan 4, 5 — — GroenshieUls v. Garrew 326 Grejrory v. Whichelo 209 Oriilith V. Pritcbard 8 llagerman v. Strong ... 318, 324 Henderson V. Burtch... 302, 312 Iligginbothara V. Barton 388,, 395 V. Langridge .. 393 Holland v. Worsley 7 Hughes V. Jones... 304, 327, 328 Hull V. GreenhiU 316 Jarvis V. Gumming 316 Jukes V. Sumner 116 D. PAOK. Doo d. Laurnson v. Canada Co. ... 3!7 Losiombe v Clifford 432, 437, 446 Louckes V, Fisher 91 Lyster V. Goldwin 391 Maclem V. Turnbull 445 McDonald V. Cleveland 217 Mcintosh V. McDonell... .... 312 Meyers v. Meyers ...- 324 Miller V. Tiflfany 22o Mitchinson V. Carter 4,5 MoflFatt V. Scratch 73 Mowat V. Smith 388 Padwick v. Wittcomb 429 Palk V. Marchetti 4. 82 Parker V. Thomas 125 Parry v. James 240 P.irsley v. Day 390 Phillips V. Evans 315 E'itt V. Hogg 7 V. Laming 7 Prince V. Girty 440 Richardson v. Dickson 300 Riddell v. Gwinnell 247 — ^ Roby V. Mnisey 384 Rogers V. Cadwollader 394 Roylance v. Lightfoot 389,392,421 Sams V. Garlick 290 Simpson V. Molloy 73 V. Privat 315 Souter V. Hull 74 Spafford v. Brown 324 Stevens v. Snelling 290 Tiffany v. Miller 304 [323, 320, 327 Whitaker v. Hales 394 Wigan v. Jones 234, 317 Wicht V. Cundall 29(1 Wilkinson v. Goodicr 3S2 Williams v. Evans 74 Donovan v. Bacoa ... 3')7 Doraii v. Reid 205, 200, 27« Dougall V. Turnbull ;;i t Douglass V. Bradford '524, 320 Dougluss V. Ward 2!0 Dowell V. Dew 8 Dowties' case 1(11 Drake, ^xpar/e 7 Drakeley's Estate, In re 106 Driscoll's Estate, In re App. 12 Drummond v. Tracy 24 Drury v. Drury 230, 231 Duberley V. Day 273 Dumpors' case 2, 4, 8, 113 Duncan V, Geary 308 Dunnv. O'Reilly 164 Dykev. Kendall •:29 xu. List of Cases Cited. E. PAOE. Earl'8 Trust, In re 288 Edwards v, Freeman 195, 1U7 V. Scott 371 Emmons 7. Crooks 349, 351, App. 8 Edmunds V. Wangh 386 Eitolifield V. Ready 388 Elliott V. (Jollier 199 T. Jayno . 349, 350. 351 Emrich v. Sullivan 7 1 , 277, 278, 280, 286 Engcrson v. Smith 398 Eno V. Tatham 47 Evanei, In re 39 V. Elliot 388, 393. 394 Evelyn V. Evcyln 185 Ewart V. Gordon 38 V. Drydeu 38 V. Snyder 38,84 Eyre v. Dolphin '^PP- ^''^ Faiibftirn V. Ililliard 396 Fairwenthcrv. Archibald 235 FiirquharsoD V. Morrow 2C3 Farriir V. Earl of Wiuterton • 297 FaiTcll V. Farrell 289 Faulkner V. Case 371 V. Equitable Society 375 Ferguson v. Uuggan 358 Fernie v Maguire 85 V.Kelly 317 Ferrass v. McDonald App. 13, 14 Ferricr v. Peacock 22 Field V. Moore 232 Fields V. Livingston 324, 439 Fiiilnyson V. ^lills App. 1 V. Mills 348, 349, 351 Fisher v. Jameson 230, 232 Fitzgibbon v. Duggan 330, 358 Fitzroy, Sir diaries, In re 290 Flack V. Longmate 221 Fletcher V. Ashurner 378 Forbes V. MoflFatt 348,349 Ford's Case 124 Ford V. Allen 386 V. De Pontes 297 V. Jones 380, 389, 392 V. Olden 377 V. White......403. App. 14. 15, 16 Foster v. Boiill 2o(;. 402 V. Huell App. 16 V. iloggart 373 V.Smith 331 Fraserv. Fralick 63 V Eraser 63 Freeman v. Edwards 379 FrogmortODT. Holyday 290 Q. PAGK. Gaibraith v. Morrison 398 Gale T. Lewis 371 V. Gale 297 Garden V. Ingram 306 Gardiner v. Gardiner 305,309 Gardner V. Collins 176,190 V. Juson 312, 325 Garnott v. Armstrong App. 4 Qathercole V. Miall 429 German V. Grooms 235 Germain v. Shuert 235 Gibson V. Gibson 235, 289, 293 V. Overbury 371 Gilbert V. Jarvis 318 V. Wetherell 199 .lilkison V. Elliott,-. 229 Gillespie v. Alexander 33 V. Grover 204, 265, 273 Glcason v. Gleason 321 Godsall v. DoldiMo 3C8 Gondillv. Hrighain 234 Goodright v. Moses 240 Goodtitlov. Meredith 288 Gore V. Bowser 378 V. Wright 04 Gorman v. Byrne 234 Gough V. McUride 434 Growland v. Garbctt 340 Graham V. Buker 105 V. Chalmers App. 14 V. Law 214,216 V. Nelson 307 Grant V. Ellis 230 Gray V. Cowcher. ...App. 11, Addcmia. V. Willcocks 309 Green, /« r« 29. 40 Greenaway v. Adams 7 Greig V. Somerville 33 Gresley V. Mouseley 75 Grimman V. Legge 64 Guthrie V. Shields 346 H. Haddelsey v. Adams 166 Haigh V. Jaggar 52 HbUv. Goslee 320 V. Morley 359 V. Waterhouae 280 llara V.Ham 221, 222 Hamilton V. Beardmore 319 H'lnson V. Graham 66,67 Hnrcoiiit v. Whito 38 liiirniur V. Beiiii 397 Harrison v. Armour 402. App. 13 Harvey v. A-*!.!-:- 230, 2o2 Harwood v. Tooko 71 List of Cases Cited. xui II. PAOB. Haskill V. Fraaer 2li2 Hatton V. Finch 1«6 Hawlcv V. Jitincs 103 Hayhall v. Slu'pliord 432 lliiyne V. Ouminiii^s 58 Ilazlett V. Hall 32r> Hearle V. Ross 309 Ileathcotp, Ex parte 371 Heelis V. Hiiiiii 121, 122, 123 Hi'lm V. Crossiii 325 lleiidcr V. Rose 198 Ileney V. Ldw 220 Ilenrihan V. Gallagher 304, 314 Henry v. Burncas 353 llensiiian v. Fryer 294 Ht'Tiworili V. tlill 40 llewani v. Scott 237 V. Wolfenden 348, 3,57 Ilcyward's case 52 Hill V. Oowdcry 4 V. Bishop of Exeter 240 IJiiie V. Dodd App. II, 16 llitchmaii v. Walton 3^4 Hnhby V. Allen 270 Hohson V. Bull 375 V. Middleton 104 Hodgina V. llodfcins 105 V. McNeil 214, 215, 216, 295 Il(i<;an V Beiry 68 V. Morrissy 307, 308 Holland v. Cole 4j Holmes V. Penny App. 11,12, 13, Holt V. Frederick 195 llolton V. Macdouald 307 Hoiidv. Hood 45 Hooper's estate, In re 39 371 378 27 239 371 72 72 345 14 318, Horn V. Buker llor.-ley v. Cox Houstoun V Kohertson Howard v. Wilsdu 287, Hughe.", In ie Hiiut V. Bishop — - V. Iii'iiinant Hunter v. Farr V. Hunt, Huntiiigiloij, Earl of, v. Countess of Huntingdon 338 Hutchin^r^t V. Rnttan 331 Hyatt V. I'ujrsley 170 Hyde V. Woodnianseu ... . •... 215 Hyman v. Roots 404, 405 1 Ingftlls V. Arnold 290 Irwin T. McBride 216 J- l".\nE. Jackson V. Inncs 338 V. HobertBon 23S, 202 James V. Dean 288 V. McGibnoy 393 V.Salter 236 Jameson V. Fisher 230,231 Jefferson V. Morton 315 Jenkins V. Jones 376 Jenner V. Clegg 384 Johnson v. Jones 395 Johnstone v. Huddlestone 04 Johnson v. Streete , 303 JoUand v. Stainbridge App. 14 Jones V. Smith App. 10 Jonen, In re 27 V. Gibbon 370 V, Jones 330, 358, 371 V. Provincial Assurance Co. 304 V. Smith 402 V.Todd 399,431,410 K. Kceoh V. Hall 379, 388, 380, 394 Keene v. Johnston 275 Kelly V. Miicklem 377 Kerhy V. Kerby 3i^5 Kerrv. Anisden 319 V. Bain 330 V. Kins('y 331 Kershaw V. Kalow 375 Keyworth V. Thompson 374 Kiddill V. Farnell 27 King V. Miilcott 33,34 Kircu(lbrif;lit V. Kircudbright 190, 197, [198 KirUwood v. Thompson Aihlemla. Knnpp V. Windsor 182 Kimkie V. Maybee 389 Kvaeraer V. Glass 278 L. Laiug V. Avery „. 236 V. Matthews 330 Lnmpleigli V. Braithwait 395 Laufiley V. llanimonl 110 Lntch V. Fuilong 37'i. 370 Liiur V White f53, 81 Lawrence V. Judge 220, 227 Leach v. Shaw 236 Lechmere v. Brotheridgo .... 275. 280 Lee V. Ilowlett 371 Lee V. Morrow 341 — V. Rook App. 7 — V. Smith CO LeNevev. LeNeve App. 15, 16 Leuchan V. McCabe App. 15 XIV. List of Cases Cited. L. rAOE. Loyisconte v. Dorland... 307, 313, 367 Lov'if, Ex parte 44 V. Urooks 63 Line V. Jiickson ApP' ^^ V. Stephenson 83 Litchfield V. Ready 124 Lloyd V. Crispe 58 V. Lloyd 22') Lorenz's Settlement, In re 39, 40 Lowell V. Bnnk of Upper Canada. 357 Lundy V. Maloney , 315 Lutwich V. Mittoii 124 Lydc V. Mynn 71 Lvnch V. Dalzell 303 — V. O'llara 440 Lyon V. Heed 04 Lyster V. Kirkpatrick 234 Mc. McAlpine V. Young 376 McAiiniiny v. Turnbull 69, 70, 74, 238 McCabo V. Thomson 358 McCammonv. Beauprc 238,202 McCargar V. McKinnon Addenda McCrum v. Crawford App. 13 ,14 McDonald V. Cameron 330,358 V. McDonald 401, 403 V. Mcintosh 235 V. McMillan 218 V. Reynolds... 348, 351, 357 Macdonald v. Walker 373 V. Macdonald App. 11 Macdonell, Ex parte ' 27 McDonell v. McDonell 324 V. Murphy 442 McDonough v. Dougherty 398 McOill V. McGlasham... 329, 330, 353 V. Squire 237 McGillis V. McDonald 330 Mctiregor V. Gauliu 387 Mclnnes v. Stinson 59 McKa;^v. Mitchell 378 McKeiinoii V. McDonald 353 Melican V. Fisher 315 McLellan v. Maggatt 222 V. Griuit 235 McMahon V. McFaul 389 McMaster V. Phipps '^VV- 13 McNally V. Church ... 238 Mcl'hadden V. Bacon 345 Mcl'herson V. Dougan 397 McQuestien v. Campbell App. 13 M. Mocher v. The Foundling Hospital. 3 Mahar V. Fraser 124,360 M. PAflR. Major V.Ward 374 Malloch V. Plunkett 330 Mant T. Leith 44 March v. RusseU 33 Marshall v. Smith 236 Marvin v. Curtis 429 V. Hales ... 427, 429, 431, 446 Mason v. Babington .... 307, 308, 309 V. Broadbent 386 V. Corder 3 Mathie v. Edwards 375 Maxwell V. Hyslop 47 Mayor of Poole v. Whitt 395 Mein V. Short 307, 308 MelHng v. Leak 393 Mellish V. Vallins 47 Meneilly v. McKenzie 326, 331 Mette V. Mette 295 Metropolitan Society v. Brown... 379 Michie V. City of Toronto 110 Mill V. Hill 442 Miller v. The Beaver Association [325, 357 V.Green 52 V. Stitt 327 V. Wiley 09, 70,74 [237, 239. 240, 268 Mingaye V. Corbett 327 Mitchell V. Greenwood 324, 325 Mockett's Will, fare 39 Moffattv. Orover 70,71. 2tJ6, 285 y. March 319 V. Thomson 224 Mohawk Bank v. Atwater 353 Mollett V. Brayne 64 Monk V. Farlinger 238,250, 261 Moiiypenny V. Bristow 288 Montgomery V. Spence 29 Moore v. Bank B. N. America 401, 402 [App. 9 V. Boyd 62 V.Clark 313,318, 319 V. Culverhouse.. 402. App. 12 V. Hynes 110 V.Moore 47 V. Raisbeck 297 More, Sir W.'.s case 6 Morgan V. Sabourin 203 Moriarty v. Grey 427, 432 Mori and V. Isaac 308 Morley V. Bird 105, 100 Morrison v. Chadwick 64 Morton v. Woods 380, 392, 393 Moss v. Gallimore 394 Moultonv. Edmonds 432 Muchall V. Banks 75 List of Cases Cited. XV. M. PAQE. Muggeridge's Trusts, In re 39, 40 Muggleton T. Barnett 147 Murdiff V. Ware 395 Myers V. Gibson 292 V.Harrison App. 8 N. '^atal, Bishop of, In re 215 Nente v. Duke of Marlborough... 318 Nesbittv. Rice 372 Neve V. Pennell App. 11, 12 Nichols V. Hawkes 290 Nicholson v. Dillabough 99, 101 Nickall V. Crawford 323 Norton v. Norton 198 V. Smith 218, 220, 247 0. V. O'Connor v. Stephens App Ontario Bank v. Kirby [320, 321, 323, 324 v. Muirhead 320 [321, 323 Orford v. Churchill 193 Orser V. Vernon 124, 238, 201 Osborne v. Kerr 304 Owen V. Owen 240 P. Page V. Bennett Palmer's case Park V. Riley Parker v. Sowerby V. Taswell... Parkinson v. Ilanbury 275, Partington V. Woodcock Partridge v. Bere Paterson v. Todd Paton V. Ontario Bank 320, Paul V. Johnson V. Nurse 5, Pearmain v. Gwiss V. Ilyland Pearson v. Archdeakeu Peck v. Duck Pegg V. Metcalf Pember v. Mathers Penibrooke v. Friend Penliiy v. Beacon Assurance Co. ... Perry v. Bowes V.Dayton V. Piquott Perssev. Persse Peyton V. McUermott Pheysey V. Vicary Phillips V. (Julhciulgc A| Ap 11 330 314 235 CiO 377 394 384 324 321 385 113 294 359 28 313 358 p. 7 40 3(i4 124 193 324 240 435 110 p. Philips V. Munnings 88 V. Phillips 221 Phiney v. Phiney 197 Pim V. Municipal Co. of Ontario.. 364 Pinhorn v. Souster 393 Piper V. Piper 4G Pistor V. Cater 60 Pitman V. Woodbury 292 Pollitt V. Forrest 382 Pollock V. Stacy 62 Poole, Mayor of, v. Whitt 396 Pope V. Whitcombe 71 Porcher v. AVilson 47 Potts V. Meyers 220 Power V. Power 40 Pratt V. Pratt 197 Pridev. Fooks 193 Prikett V. Parker 176, 18S Prior V. Ilorniblow 37 Prosser V. Edmonds 75 Proud V. Turner 195 Pryce v. Bury 78 Pulkerv. Evans 218, 235 Pusey v. Desbouverie 198, 199 R. RadcliU'e V. Buckley 193 Ralston v. Ilughson 324 Ranelagh v. Hayes App. 7 Ratclitt's case 209 Ray v. Pung 234 Reay v. Rawlinson 290 Reed v. Fenn 38 Rees, in the goods of 292 Rogina V. Chadwick 214 V. The Inhabitants of Ken- ihvorth 429 V. Hinckley 430 V. Roblin 214, 216 V. Whelan 80 R-iid V. Miller 305,307, 308, 313 Re.\ V. Deane .304 V.Denis 429 V. Loxdale 365 V. Miller 220 Rice V. O'Connor App. 12, 14 llicimrds v. Ricliard.s App. 5 Richardson v. Langiidge 59, 60, 389 [393 Richmond v. Evans 375, 376 Ridgway V. Ilurten App. 16 Ridout, hire 341 V. Hdwiand 373 Robinson V. Byers 238, 261, 345 V. Robinson ', 44 Robsonv. Carpenter App. 13 XVI. List of Cases Cited. :! hi 1 I i iii R. PAGE. Robinet T. Lewis 247 Roed. V. McNeil , 324, 325 V. Tranmarr 52 Berkeley Earl of v. Arch- bishop of York C4 Dingley v. Sales 7 Gregson v, Harrison 5, 7 Rogers V. Barnum....' 91 Rolfev. Perry 46 RoUacon V. Leon 58 Roae, £x parte 371 V. Simmerman 70 Row T. Dawson 75 Rowev. Jarvis 319, 326 Rowley V. Adams 400 Royal Canadian Bank v. Kelley [379, 381, 388, 889, 893, 425 Royal Canadian Bank v. Mitchell [277, 280 Roylev. Hamilton 193 Ruding V. Smith 214 Russell V. Cashel 403 V. Fraser 429, 482 Ruttan V. Levisconte 323 Ryall V. Rowles 75,370, 371 Ryan v. Devereux 283, 291, 292 Rymal v. Ashberry 302, 312 S. Saddlier V. Briggs 447 Sadler's Coy. v. Badcock 363 Sampler v. Cooper App. 12. If Sampson v. McArthur 304 Sandon v. Hooper 386 Sauiiderson V. Caston 223 Scholfield V. Dickinson 377 V. Lockwood 880 Scott V. Scholey 316, 857 Scrafton V. Quincey App. 12 Scully V. Scully 434, 488, 447 Seers V. Hind 6 Selby V. Pomfret 404, 405 Sharp V. Milligan App. 10 Shaw V. Burny 377 Sheldon V. Cox App. 14 Sheppard V. Duke 38 V. Slieppnrd...224, Addenda. Shcrboneau v. Jeffs Addenda. Sickles V. Asselstine 307, 808 Sidey V. Ilardcastle 341, .'87 Simpson v. Ilartman ... 201, 264, 892 V.Smyth 315 Simson, In re. 40 V. Jone.s 281, 232 Simmons V. Norton 227 Sinclair V. Jackson 360 S. PAGE. Smart v. Cottle 877 Smith V. Bernie 359 V. Day 38 V.Nevilles 429,431 V. Smith 29, 88, 47, 196, 197 [224, 230 V. Trust and Loan Co 378 Snellv. Finch 396 Snider V. Snider 105 Sober V. Kemp ; 404 Solomon v. Solomon 46 Sopwith V. Maughaii 235 Spencer's case 29, 399 Stafford v. Trueman 56. 222 Stamper v. Barker 231 Stayner v. Applegate 288, 262 Steadman V. Palling 273 Stevens v. Austen 373 V. Copp Addenda. Stinson v. I'ennock 12, 365 Stocks V. Dobson 370 Stouphtun V. Leigh 220 Strafford V. Twynam 353 Strank.s V. St. John 58 Stratton V. Pettit 58 Street v. Coramerciiil Bank 349 Stump V Gaby 75 Sumpter v. Cooper App. 12, 13 Swatnian v. Ambler 392 Sweet V. Seager 110 Swift V.Swift 419 T. Tassil V. Smith 404, 405 i Taylor v. Meads 279, 280, 281 V. Tabrum 44 V. Taylor 226 Thibndo V. Collar '. 228 Thirkell V. Patterson 320 328 Thomas v. Packer 60 Thompson V. Carmichael 193 V. .Vli'Uikin 432,447 Thompson V. Wilkes 351 Thorn V. WooUcombe 81 Thornhill V. Adams Tliorpe V. Richards Addenda. Tidey v. Molleit 68 Tid,swell V. Wliitworth 110, 112 Tiffany V. McCumber 202 Tolev V. Slater 260 Tdllctv. Toilet 15 Toms V. Peek 318 Toovey v. Basset 290 Topping V. Yardington 307 Toronto, Bishop of, v. Canlwell... 74 Totteu V. Douglas 397 List of Cases Cited. XVll. I'AOE. Toulmin t. Stecro App. 7, 8 Townley v. Shorborno 4'2 TowBley V. Smith 56, 222 Tress V. Savage CO Trencbard v. Iloskins 103 Trent V. Hunt 39fi Treson V. Denic 405 Trust & Loan Co. v. Cutbbort 331,348 Tuer V. Turner 27(5 Tunstall v. Trappes 234. App. 15 Tuppcrv. Foulkea 52, 60 Turner V. Barnes 379 V. Cameron's Coy 124 V. Doe (I.Bennett 384 Twisflen V. Twisden 196 Twyne'sCaso 240 Tyson v. Jackson 38 U. Upton V. Townend 82, 85 V. Vaobell V. Jeffreys 195 Vernon V. Smitb 366 Vincent v. Bishop of Sodar and Man 15 Vinnicomhe V. Butler 292 Vintv. Padget 405 Von Lindenau V. Desborough 368 W. Waddell V. McColl '. 387 Waddilove V. Barnett 396 Wadham v. Marlowe 4 Wallace v. Marquis of Done- gal App. 14 Wallis V. Burton 265,273 Wttlrasley V. Walmsley 235 Walton V.Hill 235 V.Walton 195 Ward /nr« 40 V. Lant 196 V. Luiuley 63 Waters v. Shade 328. App. 13 Watkins v. McKellar ... 348. 353, 377 Watson V. King 27 Wattv. Feader 62 Watts V. Symes... 349, 351, App. 5, 8 Weatherall V. Geering 5 Webb V. Hewitt 65 V. Borke 377 V. Russell 81 W PAGK. Wellcr V. Uurnham 226, 227 West V. Fritche 393 Western v. Macdermott, 399. Addenda Wethered v. Wethered 71 Weyland v. Weyland 198 Whateley v. Whatelcy 289 Wheeler v. Montetioro 391 White v. Biistedo ... Addenda. Whitel-sad v. Buffalo & L. H. R. Co 364 Whitebreadv. Smith 338 White v. Bastedo Addenda V. Tike 431 Wigle V. Merrick. 120, 124, 148, 149 Wilkinson v... Hall 380, 884, 389, 392 Wilmott V. Jenkins 38 Wilmot V.Pike 371 Williams V. Chitty 231 V. Earle 5 V. Stiven 384 Willie V. Lang 404 Wilson V. Bennett 373 V. Hart 399, Addenda. V. Proudfoot 318 V. Shier 240,330 Wilton V. Dunn 396 Winter v. Dumerque Addenda. Wishart v. Cook 428, 441 Withamv. Smith 304,327 WooUaston v. Hakowill 437 Woolstencroft v. Woolstencroft ... 46 Woodruff v. Mills 351, 358 App. 9 Wood V. Campbell 309 V. Monell 353 Woodward V. Douse.., 216 Wootley V. Gregory 81 Wormald V. Maitland 403 Wormold v. Maitland App. 15 Wright V. Gardner 278 V. Rose 378 V. Stanfield 402 V. Wakeford 15 Wright V. Stnnfield App. 12 Wyatt V. BandoU 403, V. Barwell 442, App. 14 Wyth V. Blackman 193 Y. Yale V. Totterton 318 Yates V. Aston. 360 Yea V. Field 427 III! 29 VIC. Ch. 28. An AcUto amend the law of Property and Trusts in Upper Canada. [Assented to ISth September, 18G5.] This Act is taken from the Imperial Acts of 22 and 23 Vic. ch. 35, and 23 and 24 Vic. ch. 38. SECTIONS 1 & 2. 1. Where any license to do any act, which, without such li- Restriction cense, would create a forfeiture, or give a right to re-enter, under "." ^"^^^ ° ' . . . , hcense con- a condition or power reserved in any lease heretofore granted, tained in lease, or to be hereafter granted, shall at any time after the i)assing of &c., Imp. Act this Act, be given to any lessee or his assigns, every such license „''35"jj j ' shall, unless otherwise expressed, extend only to the permission actually given, or to any specific breach of any proviso or cove- nant made or to be made, or to the actual assignment, under- lease, or other matter thereby specifically authorized to be done, but not so as to j)revent any proceeding for any subsequent breach (unless otherwise specified in such license) ; and all rights under covenants and powers of forfeiture and re-entry in the lease con- tained, shall remain in full force and virtue, and shall be avail- able &s against any subsequent breach of covenant or condition, assignment, under-lease, or other matter not specifically authorized or made dispunishable by such license, in the same manner as if no such license had been given, and the condition or right of re-entry shall be and remain in all respects as if such license had not been given, except in respect of the particular matter author- ized to be done. 2. Where in any lease heretofore granted or to be hereafter Restricted granted, there is or shall be a power or condition of re-entry on operation of assigning or imder-letting or doing any other specified act with- ^^^ ' ^^"22 out license, and a license at any time after the passing of this 23 V., c. 35, Act shall be given to one of several lessees or co-ownei-s to assign ^• or underlet his share or interest, or to do any other act jirohib- ited to be done without license, or shall be given to any lessee or owner, or any one of several lessees or owners, to assign or 2. 2 Law of Property and Trusts, any underlet part only of the property, or to do any other such act as aforesaid in respect of part only of such property, such license shall not operate to destroy or extinguish the right of re-entry in case of any breach of the covenant or condition by the co-lessoe or co-lessees or owner or owners of the other shares orinterests in the property, or by the lessee or owner of the rest of the properly, ((lit the case may be), over or in respect of such shares or interests or remaining jn'operty, but such right of re-entry shall remain in full force over or in respect of the shares or interests or property ' not the subject of such license. Dumpor's It was to I'emedy the law as laid down in Dumpor's case truction oTen- (^) *"^^^ ^'^^ decisions thereon that these enactments wei'c tire condition made. The result of that case wjis to establish, that when on license ot |j^ .^ lease a right of re-entry was reserved to the lessor any breach. ° , . , -^ . on the lessee assigning without license, and the lessor granted a license to assign in any one particular case, such license satisfied or dispensed with the condition raiirely, so tluit afterwards an assignment might be made without license, and no forfeiture be incurved. And this would be so, even though the license wore to assign to a particular individual with an express stipulation therein that it should extend no further, and should not v -arrant future or other assignments. It was supposed also tnat, if there were other covenants besides that not to assign without leave, and the condition gave power to re-enter on breach of any one of them, the license not to observe any one co- venant dispensed with the condition not only on breach of that one, but as to all. So also, if the rever.sionor li- censed one of several lessees to fissign his interest in the whole, this dispensed with the condition as to all : and as the condition cannot be divided or apportioned by act of the parties, an alienation of pait of the land with the as- sent of the lessor determined the condition as to that i)art, and therefore as to all the lands. Further, where the lessor severed his reversion by conveyance, the assignees of part could not enter for breach of the condition, for by sever- (a) 4 Coke 119 ; 1 Smith Lg. Ca. 29 Vic. Ch. 28— Secs. 1 & 2. 8 ance of part of the rovorsion, tho condition was destroyed in all (a). The jn-inciplo throughout the ahovc^ was that the condition as originally created was entin; mid in;ain8t alicn- nant or condition than that against alienation (/>) ; but it '*'''""• would seem to be equally applicable on principle to cove- nants and conditions restrictive of c;arrying on jKirticular trades, or converting land from pasture to arable, and to all covenants and conditions by which the license or con- sent of the lessor is made requisite for doing any particular act." No form of words contained in the license, as that it Course adopt- should only extend to that particiilar person or occasion,?,^" 'dV^^ and should not operate as a total waiver of the condition, on license. but that the same shoxild be in force on future breach, would prevent the condition from being destroyed (c). As terms of years may be made voidable by a defeasance made at any time after their creation, the coui-se adopted when it was desired to give the license and yet have the benefit of the condition on future breaches, w^as to execute a collat- eral deed of defeasance reviving the condition and making it applicable to future breaches. This however requires the consent of all those who were pai'ties to the creation of the estate, or in whom tlic respective estates and inte- rests of such parties are vested at the time of execution of the defeasance (d). It may be necessary still to adopt this course on license to omit to do an act, the non-performance of wdiich would create a forfeiture, because the act does not appear to extend to such a case, as will now be ex- plained. (a) Sugd. Stats. 2 ed. 310. See further, the remarks post under sec. 4. (h) See, however, this subject adverted to by Lord Eldon in Macher ' , V. The Foundling Hospital, 1 V. & B, I'Jl. (c) Mason v. Corder, 7 Taunt 9, per Gibbs, C. J. (d) Watkins Conv. 9 ed. 4i, note j Shepp. Touch, 396 ; 3 Byth. & Jar. Conv. by Sweet, 683. 4 Law of Property and Trusts, The act only It, iHappiohontledthattheprinciplo in Dunipor's cawo would cenHlTto (1?) nil "^PP'y ' '^ ^^"^'^ to a licenso not to do an act the doing of act, not to which is enjoined under penalty of forfoituro, a.s to the uiTdono" '^^ doing an act which if done without license is a forfoituro. The act extends however only to the latter (a), and there is eijual necessity that it should apply to the former, if within Dunipor's case. There are fretjuently covenants under which the lessee agrees to do various acts, the non- performance of which gives right of re-entry, and it may bo unsafe to dispense with the performance of any such covenant. Does the act The Act does not expressly extend to executors and Ucens'e ^civen n^f^>»i'i'Mtrators, though generally they are named, as well to executors ? as assigns, when intended to be included. The Act speaks * only of a licenso given to a " lessee and his assigns." It would seem, however, that for the purpo.ses and on the A construction of this Act at least, the word " assigns " will include personal representiitivos as assignees in law (l>). If the Act does not extend to personal representatives, then, where they are named in, and so bound by the condi- tion, a license to them to assign would operate as at com- mon law, JUS above mentioned, to destroy the whole right of re-entry. Assignment As a general rule, an assignment by operation of law by act of law works no forfeiture, though without license, as to personal frHure. representatives (o), and to a.ssigns in bankruptcy (d); but if the lessee became bankrupt voluntarily on his own peti- tion, it might be different (e) : nor does an assignment by a sheritf under execution (/) ; but where a tenant gave (a) As to the distinction between positive and negative covenants, see Doe V. Marchetti, 1 B. & Ad. 715 ; Doe v. Stevens, 3 B. & Ad. 29!>. (b) Post p. 6, note a. (c) 2 Wms. Exrs. 6ed, 879. id) Doe V. Bevan, 3 M. & S. 363 ; Wadham v. Marlowe, 2 Chitty, 600. (e) Hill V. Cowdery, 1 H. & N. 360: Billiter v, Youn,-^, 6 E. & B. 1 ; Holland v. Cole, 1 H. & C. 67 ; Cole Eject. 436, 437 ; Wooodfall Ld. & Ten. 554, 9th ed. ; and Davidson Conv. 2 ed. vol. 3, pp. 88, 89, 90. (/) Doe Mitchinson v. Carter, 8 T. K. 300 : see also Croft v. Lumley, 6 H. L. Ca. 672. B- 2!> Vif. Cli. 28— Secs. 1 & 2. law )nal V)ut leti- tneiit irave ,600. B. 1; Ld.& mley, a warrant of attorney to a creditor for the oxpross piirposo ^ of oniiltUnj^ HUi'li (:rc(litor to inka tlio least* In execution, this was held to l)o in fraud of, and a breach of the cove- jiant not to a.s.ign (a). Atupiisitlon of tin; term by a man by virtue of his marital right on mai-riagc wltli a female lessee, Is no foi'felturo (/>). From all this, therefore, It aj)- pears that assignment by act of law will not work a for- feitun; ; such, however, may bo so by use of proper hmguage in the lease. The (piestlon now has to be considered, how far assignees IIow far us- in law are bound by the restraint against alienation, wlien ^'I'j^Z/^lu'ir Is'- onco the estate has l»y net of law vested in them ; and also signs bound, liow far their assignees, or assignees in deed, are so bound. Assignees in deed are or are not bound, according astliey are or jtre not named In the covenant (c). Assignees in bankru[>tcy are not bound, and may alien without leave, tliough tlie covenant extend to assigns (d) ; and if the cove- nant does so extend, the purchaser from the assignee in liank- ruptey, it seems, would be bound («). The same ol)serva- tions apply where the term is sold under execution. As regards executors or administi'ators, if the covenant extend merely to restrain the lessee, they can assign without leave (/), but if named, they (ianiiot (g). If the covenant extends only to restrain the " lessee and his assigns," it would seem the pei"sonal representatives arc within the (6) Anon, Moore, 21. - (a) Doe V. Carter, supra. (r;) Doe v. Smith. 5 Taunt, 79.5 ; Paul v. Nurse, 8 B. & C. 489, per Hiiiiov J. ; Bally v. Wells, 3 Wils. 33 ; Williams v. Earle, L. R. 3 Q. B.'739. (rf) Doe V. Bevan supra, but see the remarks in I Smith Lg. Ca. 6 «!. p. U. (e) This may be inferred from Doe v. Smith, 5 Taunt, 795; Paul v. Nurse, 8 B. & C. 48G, per Bailey, J. ; Williams v. Erie, supra ; sec also Lloyd V. Crispe, 5 Taunt, 249 ; Weatherall v. Geering, 12 Ves. J. 511 ; but see the third report of Real Property Commissioners, given in 1 Davidson Conv. .'{ ed. 132, 133 ; and see vol. 5, ed. 2, p. 178, note. {/") Lloyd V. Crispe, 5 Taunt. 249; Anon, Moore, 21 ; Seers v. Hind, 1 Ves. Jun. 295 ; but see 2 Wms. Exrs. 6 ed. 880. {g) Lloyd V. Crispe, supra ; Roe d. Gregson v. Harrison, 2 T. R. 425. 6 Law of Property and Trusts, Hi! The condition ugainst as- assignment without leave should always extend to exe- cutors, ad tnrs, and assigns. What is a breach of cov cnant not to assign or sub' let. word assigns, and cannot alienate without leave (a), but the point is not very clearly decided. It has been said that it does not appear to have been expressly decided whether assigns of assignees in law are bound (fc). It will be seen from what has been said that the word "assigns" and the words "executors and administrators" shouhl never be omitted in the covenant or condition against alienation ; it has been usual to omit it both before and since this Act, and in this respect the act respecting short forms of leases is faulty, as it extends only" to the lessee (c). The omission of the word assigns has arisen from the supposition that under the law in Dumi)or's case, assigns never could be bound after license to alienate was once given to the lessee and others, thus destroying entirely, as above explained, the whole condition. No doubt this was so, but what was lost sight of was, that alienation might take place without license, by act of law, and that in such cases the parties so taking would be bound in their turn, if the condition, by use of proper words, extended to them, an has been shown before. Moreover the lessee might have underlet without license, and the reversioner have ivaived the condition, and whatever might have been the case on an assignment (d), it would seem that the waiver of an underletting did not come within the doctrine in Bum- per's f^ase, but the condition remained applicable to the assignee if named therein (e). As to what will amount to breach of covenant or con- dition not to assign or sublet, the following cases collected in Smith's Leading Cases, will be of service. When the condition was " not to assign, transfer, set- over, or otherwise do and put away the indenture of de- (a) Thornhill v. Adams, Cro. Eliz. 757, per Walmsley, J. ; Shepp. Touch, 145; 1 Dyer 6; Sir W. More's Case, Cro. Eliz. 26 ; Moore, 44, pi. 136 ; see also 1 Smith, Lg. Ca. p. 44, 6 ed. ; Wms. Exrs. 6 ed. 879, vol. 2. (6) Davidson Conv. vol. 6, 2nd ed. p. 178, note. See ante p. 5, note e, and 3rd report of Real Property Commissioners. (c) See the observations in treating of that Act. (d) See p. 8, note a. (e) See p. 8. 29 Vic, Ch. 28— Sec. 3. raise, or the premises thereby demised, or any part thereof," an under-lease was held no breach of it (a) : so, of an equitable mortgage (b) : but a condition not to " sub-let, or assign over the demised premises or any part thereof, comprehends under-leases (c) : and a covenant not to " let, sell, or demise for all or any part of the term," assignments. (cZ). Letting lodgings was held by Lord EUenborough not to be a breach of condition not to underlet any part of the premises without the Ucense of the lessor (e). The cases are said to be conflicting on the question whether a bequest of the^term to another than the executor is a breach of the condition (/). SECTION 3. 3. Where any actual waiver of the benefit of any covenant or condition in any lease, on the part of any lessor, or his heirs, ex- ecutors, administrators, or assigns, shall be proved to have taken place after the passing of this Act, in any one particular instance, such actual waiver shall not be assumed or deemed to extend to any instance or any breach of covenant or condition other than that to which such waiver shall specially relaie, nor to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear. Actual waiver not to extend- further than to the particu- lar instance mentioned, and not to be deemed a gen- eral waiver. Imp. Act 23, 24 v., c. 38. s. C. This section pre-supposes that theretofore, if the rever- Waiver, effect sioner waived a bi'efioh of covenant or condition, giving a °*^ restramed • 1 i r« , •, , 1 • , . ? to the parti- right or re-entry, it was not merely a waiver 2)V0 hue vice, cular matter but that the whole was gone, and that if there were a right waived, of forfeiture on breach of any one of sevei'al matters or covenants, a Avaiver of a breach of any one would "ex- tend to any instance or any breach of covenant or condi- tion other than that to which such waiver specially relates," (rt) Crusoe v. Bugby, 3 Wils. 234. (6) Exp. Drake. 1 M. D. & De G. 539 ; Doe v. Hogg, 4 D. & R. 220. (C) Roe V. Harrison, 2 T. R. 425 ; Roe v. Sales, 1 M. & S. 297; Doe d. Holland v. Worsley 1 Camp. 20. (d) Greenaway v^ Adams, 12 Ves. 395. ' (e) Doe V. Laming, 4 Camp. 73. (/) See Cole Eject 437 ; see also 1 Smith Lg. Ca. C ed, p, 43, 8 Law op Property and Trusts, This section framed in misconcep- tion of the law. The act ap- plies only to actual, not to implied waiv- ers. SO as to preclude a forfeiture on breach of any other mat- ter or condition : it presupposes also that a waiver of a breach of a covenant or condition was " a general waiver of the benefit " of it, so as to preclude the reversioner from right to forfeit on any future breach. If this were so, then a waiver and a license would not differ in their conse- quences ; there is, however, much authority to shew that this is not so, and that the Act was framed in misconcep- tion of the law. All the text wi'iters agree as to the law not being as the Act assumes, except as regards an assign- ment without leave, as to which they vary (a). The question whether the law is as the Act assumes it to be, is one of considerable practical importance in regard to those cases to which the Act does not relate ; and as it only applies to cases of actual or express waiver, it would seem that those of implied or constructive waiver (by far the most common), arising out of conduct or acts inconsistent with the right to insist on a prior forfeiture, such as receipt, with notice of the right to forfeit, of after accrued due rent, are not provided for by the Act. Where the reversioner sues for or receives such rent, qud rent, with knowledge of the breach committed, this is not an actual or express wai- ver, as would be the case if he in writing or by parol aban- doned his right to forfeit ; but it is construed as a waiver of such right by implication, arising out of the fact tliat he has treated the lease as subsisting, and is estopped by this matter in pais from asserting tlie contrary, and treating the tenant as a trespasser. The language of tlie Imp. Act 7 Geo. IV. ch. 29, sec. 4, is much as tliis section, and it seems clear that in that section, the words " actual Avaiver " exclude implied waiver ; for sec. 1 gives instances of actual (a) Jarman Conv. by Sweet, vol. 4, p. 377, and see p. 379, where when a lessor is willing to allow an assigment pro hac Dice only provided it do not extend to destroy the condition restraining it as to the future, it is recommended that h'j agree to waive the forfeiture. Smith lieal Prop. 3ed. 72 ; Cole Eject. 409 ; Burton 853 ; Piatt Covenants, 428 ; Dumpor's case, 1 Smith Lg. Ca. 6th ed. 42 ; 1 Wms. Saund. 288 ; Davidson Conv. vol. 5, 2 ed. 179 ; Doe v. Pritchard 6 B. & Ad., 781, per Patterson J. ; Dowell v. Dew, 1 Y, & C C. C, 360 ; IjJoyd v, Crispe 5 Taunt, 257. 29 Vic. Ch. 28— Sec. 4. 9 I where lovided Juture, |i Ileal 428; 288 ; I. 781. jCrispe waiver in writing ; sec. 3 alludes to actual waiver by parol and also to constructive waiver. The section of the Imp. Act from which ours is copied was taken from this Act of Geo. IV. If the act does not apply to implied waivers, and if the law is as the act assumes it to be, then a landlord must insist on the forfeiture, under the penalty, if he receives subsequent rent, of loss of right of re-entry on any subse- quent breach of the same or any other contract giving right of forfeiture. • SECTION 4. 4. Where the reversion upon a lease is severed, and the rent or other reservation is legally apportioned, the assignee of each part Apportion- of the reversion shall, in respect of the apportioned rent or jj^jqjj ^f ^g. other reservation allotted or belonging to him, have and be enti- entry in cer- tled to the benefit of all conditions or powers of re-entry for non- 1*^'" ^^^^'„^ . . , , . . ,., Imp. Act 22, payment oi the ongnial rent or other reservation, m like manner 23 y. c. .35 as if such conditions or powers had been reserved to him as inci- s. 3. dent to his part of the reservation (a) in respect of the apportioned rent or other reservation allotted or belonging to him. This section, is taken from the Imp. Act 22 & 23 Vic. c. 35, and the principle on which it proceeds is recognized in the Imp. Acts 12 & 13 Vic. c. 49, and 17 & 18 Vic. c. 32, and the Lands Clauses Act, sec. 119. What is meant by severance of the reversion, is the case of conveyance by the reversioner of part of the lands ; as on does not ap- a lease of two acres and a conveyance of one. The case of P'y *^° convey- a conveyance of the whole lands for part of the reversion, whole land as where a reversioner in fee should convey all the lands to ^o*" P^^* ot the one for life, is not within this act. Such a case is provided for by 32 H. VIII. c. 34, under which grantees of rever- sions are entitled to the same benefit of a condition as their grantors would have had, provided it relate to payment of rent, restriction from waste, or other object tending to the benefit of the reversionary estate. Con. Stat. U. C. c. 90, au- thorizing conveyance of rights of entry, does not apply to (a) Thus in the Statate, should be reversion. reversion. PffW 10 Com. Law rules, indivisi- bility of con- ditions. Course adopt- ed on destruc- tion of a con- dition was to revive it by executing a deed of de- feasance. As the act only extends to preserve remedies as to rent, a deed of de- feasance still requisite to preserve other reme- dies. The rent must be ap- portioned. Mode of ap- portionment. Law of Property and^Trusts, rights of entry for condition broken, as is explained in treating of that Act. It was before explained (a) that at Common Law a con- dition is indivisible, and the party claiming the benefit of a condition giving right of entry, must not have precluded himself from right to re-enter on the ^vhole property. If he have released part of the property from the condition, or conveyed the reversion of part to a stranger, the con- dition is destroyed in toto ; otherwise a lessee might be subjected to several rights of entry by several owners on several parts of the property. The consequence of the Common Law rule was very inconvenient, and this section relieves, so far at least as regards remedy for " rent or other reservation." The mode adopted to give right of re-entry, on non-pay- ment of rent or non-performance of covenants, when the condition of re-entry was destroyed by severance of the reversion, or by license given to commit the breach, was by execution, at the time, of a collateral deed of defeazance re- viving the condition, as before explained (6). As the Act (on ample grounds) preserves the benefit only of conditions quoad " rent or other reservation," and would not extend to conditions of re-entry for breaches of covenants which did not so relate, as for instance to repair, it will still be recjuisite, if the conditions are to continue in regard to such breaches, that a deed of defeazance should be resorted to. The rent or other reservation must be legally apportion- ed. The apportionment may be by act of law or act of the l)arties. Apportionment by act of law takes place where the amount of rent has been settled by a jury in a suit be- tween the parties concerned in the rent ; that by act of the parties, is on consent of all interested in the term and the reversion (c). (a) Ante. pp. 2 & 3. See also Shelford Statutes 7 ed. p. 685. (6) Ante p, 3 remarks on ss. 1 & 2. (c) Bliss V. Collins, 5 B & Aid. 876. See also as to apportionment, uotes to Clun's Case,;Tudor's Lg. Cases, Rl. Prop. 2 ed. 240. 29 Vic. Ch. 28— Secs. 5, 6, & 7. 11 the nere be- the the Relief against forfeiture for l)reach of cov- enant to in- sure in certain cases. Imp. Act 22, 23 v., c. 35, S.4. When relief is granted, the same to be recorded. Imp. Act 22, 23 v., c. .35, SECTIONS 5 & 6. 5. The Court of Chancery shall have power to relieve against a forfeiture for breach of a covenant or condition to insure against loss or damage by tire, where no loss or damage by fire has happened, and the breach has, in the opinion of the Court, been committed through accident or mi.stake, or otherwise with- out 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. 6. The Court, where relief shall be granted, shall direct a re- cord of such relief having been granted to be made by endorse- ment on the lease or otherwise. The Imperial Act 22 & 23 Vic. c. 35, from Avhich these sections are ttiken, ha,s a clause restraining power to relieve the same person more than once, or where a former waiver has taken place out of Court of a prior brcacli of the cove- nant or condition as to which relief is sought. The Court can relieve for a breach, committed after the passing of the act of a covenant in a lease granted before the Act (a). In England, the power to relieve is not confined to the Court of Chancery, but may be exercised by the Common Law Courts (b), SECTION 7. 7. The person entitled to the benefit of a covenant on the piirt Lessor to of a lessee or mortgagor to insiire against loss or damage by fire, have benefit shall, on loss or damtlge by fire happening, have the same advan- pi<'>'" informal , . . . , • insurance. . tage from any then subsisting insurance relative to the building imp. Act or other property covenanted to be insured, effected by the lessee & 23 V., or mortgagor in respect of his interest under the lease or in the "'> ' ' property, or by any person claiming under him, but not effected in conformity with the covenant, as he would have from an insur- ance effected in conformity with the covenant. Retrospective 22, c. (a) Page v Bennett, 2 Giff. 117 ; G J^^. N. S, 419. (b) 23 & 24 Vic. c. 126, s. 2. 12 Law op Property and Trusts, The practical benefit of this section is diminished by de- cision in Stinson v. Pennock, hereafter referred to, (a) that the Imperial Act, 14 Geo. 3, c. 78, s. 83, is in force in Ontario. SECTION 8. 8. Wliere on a bond fide purchase, after the passing of this 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 entitled to receive the rent, O)- his agent, for the last payment of tlie 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 conformity with the covenant, the purchaser or any person claiming imder him, shall not be subject to any liability by way of forfeiture or damage or otherwise, iu respect of any breach of the covenant committed at any time before the com- pletion of the purchase, of which the purchaser had not notice before tlie completion of the purchase ; but this provision is not to take away any remedy which the lessor or his legal representa- tives may have against the lessee or his legal representatives for breach of covenant. Does not ap- This section would not seem to apply to moi-tgages. ply to mort- rpj^^ purchaser should preserve evidence that he was, on the gages. I * purchase, furnished with the receipt. Benefit of thia section diminished by application of 14 Geo. III. c. 78, 8. 83. Protection of purchaser against for- feiture under covenant for insurance against fire in certain ca-ies. Imp. Act 22 & 23 V. c. 35, 8.8. To what leas- es the preced- ing provisions shall apply. Imp. Act 22 &23V. c. 35, s. 9. Release of part of land charged not to be an extin- guishment of the charge on the rest, &c. Imp. Act 22 & 23 V. c. 36, s. 10. SECTION 9. 9. The preceding provisions shall be applicable to leases for a term of years absolute, or determinable on a life or lives, or otherwise, and also to a lease for the life of the lessee or the life or lives of any other person or persons. SECTION 10. 10. The release from a rent-charge of part of the hereditaments charged therewith shall not extinguish the whole rent-charge, but shall operate only to bar the right to recover any part of the rent- charge out of the hereditaments released, without prejudice, never- theless, to the rights of all persons interested in the heredita- ments remaining unreleased, and not concurring in or confirming the releases. (a) 14 Qraut, 604« Se^ chapter on Mortgages, po^t. 29 Vic. Ch. 28— Sec. 10. 13 ished by de- iTed to, (a) J in force in assing of this ij a covenant image by fire, of the peraon it payment of purchase, and e purchase, an chaser or any any liability •espect of any ifore the com- id not notice rovision is not ;al representa- ssentatives for ) moi"tgages. ! was, on the to leases for a or lives, or lee or the life lereditaments it-charge, but t of the rent- judice, never- the heredita- or confirming poEit, This section is taken from the Imj). Act 22 & 2.*i Vic. c. 35. If the owner of the rent released part of the land from the charge, the whole rent was discharged, for the charge is entire, and issues out of and is charged on every part of the land, and is also against common right (a). So also, if the owner of the rent purchased, or took by devise {h), part of the lands charged, the whole charge was released by operation of law ; and it would seem, as hereafter explained, that the act will not prevent a release when it takes place by operation of law. Biit if part of the lands bo accjuired by descent, or by title paramount (c), no release would take I)lace under the old law ; and the owner of the rent could always release part of it to an owner of the land. It may well bo contended that the Act does not ap])ly to prevent a release where it takes place by operation of law, as on purchase or taking by devise of part of the lands. The ex]iression, that the release " shall operate only to bar the right to recover any part of the rent-charge out t)f the hereditjiments released," implies the existence of some one owning the })art released, other than the releasor, against whom the releasor was to be barred of right to recover ; such expression would not be applicable where the lands released became tlie property of the owner of the charge, wlio cannot be supposed to have required legislation to bar his right to recover out of his own lands. Moreover, the act contemplates a concurrence in, or confirmation of the release, and it may be said this would not apj)ly when the release is the mere result, by operation of law, of acquiring the lands, and is not a I'elease in deed. Before the Act, if there were several owners of the land, and tlie owner of the rent chai'ge enforced payment of all from one of such owners, the latter had his remedy in equity for contribution against the other owners ; it would A release, pui'chnso, 01- taking by devise of part of the land charfied, re- lea.sed the whole rent; i)Ut no ri^lea.se took ])la('0 when the land was not au- (inired by act of the l>ai'ty, or on re- lease o^ part of tiie rent. Docs the act np|)ly to a re- lease by oper- ation of law, as on pur- chase of part of the land ? Right of con- tribution of any one of se- veral owners paying the whole charge. (a) Co. Litt. 148 ; see also generally, notes to Cluns case, Tud. Lg. Ca, 2ed, 240 ; 2 Jar. & By. Conv. by Sweet, 60. (I)) Dennett v. Pass, 1 B. N. C. 388. (c) Co. Litt. 148 /;. 14 Law of Property and Trusts, seem he had no remedy at hiw («). The right for contri- bution of the owners of so nnicli of the lands as may be unreloased is preserved by tlie Act, on any of the lands being exempted by a release from payment. Difficulty of There must necessarily bo sometimes great difficulty in oontribufion ^^^ attempt of one of several owners of the land, who has paid all the rent, to enforce his jiersonal remedy against the other owners. Such a remedy arises by reason of privity of estate, and in case the land chai'ged with the rent has passed into the hands of various persons, through several chains of title, it may l)e almost impossible to prove that ownei-ship which alone creates the liability. It is presumed also, as the rent would have to be apportioned as to the several owners according to value, and as in e(juity the various portions of the land are as sureties for each other, that all the co-owners must be parties to the suit. These difficulties are not the result of the Act, for they existed before ; they arise necessarily where there is one rent- charge paid by one of several ownei-s of the land charged. Sometimes on sale of lands subject to an entire rent- charge to different persons, the rent is apportioned on the several parcels, and the purchasers take and give cross pow- ers of entry and distress for the a})portioned rent (6), Mode of exe- cuting powers Proviso: not to defeat cer- tain direc- tions. Imp. Act 22 & 23 v., c. 35, s. 12. SECTION 11. 11. A deed hereafter executed in tlie presence of, and attested by two or more witnesses in the manner in which deeds are ordi- narily executed and attested, shall, so far as respects the execu- tion and attestation thereof, be a valid execution of a power of appointment by deed or by any instrument in writing, not testa- mentary, notwithstanding it shall have been especially i-equircd that a deed or instrument in writing, made in exercise" of such power, should be executed or attested with some additional or other form of execution or attestation or solemnity ; Provided always, that this provision shall not operate to defeat any direc- tion in the instrument creating the power, that the consent of (a) Hunter v. Hunt, 1 C. B. 300. (6) See 1 Davidson Conv. 2 ed. p. 468. 29 Vic. Ch. 28— Secs. 11 & 12. 15 any particular person shall be necessary to a valid execution, or that any act shall be performed in order to give validity to any appointment, having no relation to the mode of executing and atte.sting the instrument ; and nothing herein contained shall prevent the donor (a) of a power from executing it confoi-mably to the power, by writing or otherwise than by an instrument executed and attested as an ordinary deed, and to any such execu- tion of a power this provision shall not extend. The Imperial Acts on tliis subject are those of 22 & 23 Vic. ch. 35, sec. 12, and 54. Geo. III. ch. 1G8. As powers require to be strictly executed, especially when not coupled Avith an interest, it had been held that in the common case of a power given to be exercised under hand and seal and attested by witnesses, that the exercise of the power was invalid if the witnesses did not attest the fact of signing as well as of sealing, and consequently that a deed executed with the attestation in the form usually followed (in England at least), viz., " sealed and delivered in presence of," would not suffice (6), nor would an attestation clause thus, " witness A. B." It would seem that the Act will not extend to consent to execution of a power, which is frequently enjoined, and required also to be given under certain formalities. The defective execution of a power may often be reme- died and aided in equity (c) in favor of a purchaser from a person exercising the power, or of a creditor, wife or child, or charitable purpose. The word "donor" in this section is a misprint for "donee." Defective ex- ecution of powers. Act does not extend to con- sents to exe- cution of a power. Defective ex- ecution aided by equity. Word 'donor' a misprint. ,468. SECTION 12. 1 2. Where, under a power of .sale, a bond fide sale shall be Sale under made of an estate, with the timber thereon, or any other articles power not to be avoided by (a) Donee? (6) Wright v. Wakeford, 4 Taunt. 213; but see Vincent v. Bishop of Sodorand Man, 5 Ex. 683, 693 ; Burdettv. Spilsbury, 10 C. &F. 340 ; see further, Sugden on Powers. (c) See Sugden on Powers, and notes to Toilet v. Toilet, 1 W. & T. Lg. Ca. Eq. 16 Law op Property and Trusts, ant for life Imp. Act 22 & 23 v., c. 36, 8. 13. reason of mis- uttacbod thereto, and tlie tenant for life, or any other party to en pay- ^j^^ transaction, ahall by mistake, bo allowed to receive for liis ment to ten- . own benefit a poi-tion of the purchase money or A'aluo of the timber or other articles, it shall be lawful for the Court of Chan- cery, upon any bill or claim or application in a summary way, as the case may require or permit, to declare that upon payment by the purchiiser or the claimant under him, of the full value of the timber and articles at the time of sale, with such interest thereon as the Court shall dii'ect, and the settlement of the said princi- pal moneys and interest under the direction of the Court, u|)oii such pai'ties as in the opinion of the Court shall bo entitled thereto, the said sale ought to be established ; and upon such payment and settlement being made accordingly, the Court may declare that the said sale is valid, and thereupon the legal estate shall vest and go in like manner as if the power had been duly executed, and the costs of the said application, as between solici- tor and client, shall be paid by the purchaser or the claimant under him. In a case where a man was tenant for life, without im- peachment for waste, of a settled estate, with a power of sale in trustees, to which his consent was necessary, the estate with the standing timber was sold, and the trustees received the value set upon the estate, and the tenant for life received the value of the timber, all parties supposing that as he might have cut and sold the timber, he was entitled to the value of it although standing ; yet the sale was sot aside, and the decree was affirmed in the House of Lords (a). The mistake having been discovered, the ten- ant for life, before the litigation, invested the like amount in the funds in the names of the trustees upon the trusts of the settlement, but this circumstance was held not to vary the case. Devisee in trust may raise money by sale, not- withstandinnr SECTIONS 13, U, U, 16, & 17. 1 3. Where, by any will which shall come into operation after the passing of this Act, the testator shall have charged his real estate or any specific portion thereof, with the payment of his debts, or with the payment of any legacy or other specific sum (a) Cockerell v. Cholmeley, 1 Rusa. and Myl. 418 ; 1 CI. and F. 60. ns I after real his I sum |6o7 29 Vif. Ch. 28— Secs. 13. 14, lo ^' 10. of money, and shall have deviaed the estate so charged to any trustee or trustecH for the whole of his estate or interest therein, ajid shall not have made any express jn'ovision for the raising of such d(fl)t, legacy, or sum ()f money out of sucli estate, it shall be lawful for the said devisee or devisees in trust, notwithstanding any trusts actually declared by the testator, to raise such debt, legacy or money as aforesaid by a sale and absolute disposition, by puV)lic auction or jjrivate contract, of the said liereditaments or any part tliereof, or by a mortgage of the sanu>, or partly in one mode and i)artly in the (rtlier, and any deed or deeds of mort- gage so executed, may reserve such rate of interest, and fix such period or periods of repaymant as the person or pereons execut- ing the same shall think proper. 14. The j)owers confen'ed by the last section shall extend to all and every person or ])ersons in whom the estate deviaed shall for the time being be vested by survivorshiji, descent or devise, or to any person or persons who may be appointed under any power in the will, or by the Court of Chancery, to succeed to the trus- teeship vested in such devisee or devisees in trust a.s afore- said. 17 want of ex- press power in the will. Imp. Act 22 & 23 V. c. 35, s. 14. Powers given by lust section extended to survivors, de- visees, &c. Imp. Act 22 & 23 V. c. 35, s. 15. 1;;. If any te.stator who shall have created such a charge as is Executors to described in the thirteenth section, shall not have devised the have power of hereditaments charged as aforesaid, in such terms as that his ^?^"^h°°e ^' whole estate and interest therein shall become vested in any trns- there is no tee or trustees, the executor or executors for the time being, sufficient . . devise, aianied in the will, if any, shall have the same or the like power jj^- ^^^ 22 of raising the said moneys as hereinbefore vested in the devisee & 23 V. c. or devisees in trust of the said hereditaments, and such power ' ^* shall from time to time devolve to and become vested in the per- son or persons (if any) in whom the executorshi[) shall, for the time being, be vested ; but any sale or mortgage under this Act shall operate only on the estate and interest, whether legal or equitable, ol" the testator, and shall not render it unnecessary to get in any otitstanding subsisting legal estate. 1 6. Purchasers or mortgagees shall not be bound to inquire Purchasers, whether the powers conferred by sections thirteen, fourteen and &c.,not bound fifteen of this act, or either of them, shall have been duly and j^ polyers correctly exercised by the person or persons acting in virtue Imp. Act 22 18 Law of Property and Trusts, Sees. 13, 1 4 nnd IT) not to affect oortiiin sales, &c., nor to extend to devisees in I'eo or in titil. Imp. Act 22 & 2;i V. f. 35, 8. 18. In case of limitation to uses they shall take effect as they arise, wilhoutortuti- nued seizin or scinlilla ju- rid ill the per- sons original- ly seized. Imp. Act 23 & 21 V. c. 38, s. 7. 17. The provisions contiiinod in sections tliirtccn, fourteen, fifteen luul sixteen, .slmll not in any way iirejudioc or atfect any sale) or mortgage already niado or liereafter to V)e made, under or in pursUHiico of any will coming into operation before the passing of this act, l)ut the validity of any such sah; or mortgage shall be asecttained and determined in all respects as if this Act had not jiassed ; and the; said several sections shall not extend to a devise to a)iy person or {)ersons in fee or in tail, or for the tostator'rt whoh.i estate and interest charged -with debts or legacies ; nor shall they atfect the power of any such devisee or devi.sees to sell or mortgage as he or they nuiy by law now do. The law on the .subject matter of tliese scctioiLS will be found treated of at some length in the works of various text writers (a). SECTION 18. 18. Where by any instrument any horoditaments have been or shall be limited to uses, all uses thereunder, whether expressed or inijilied by law, and whether immediate or future, or contin- gent or executory, or to bo declared under any power therein con- tain(!d, shall take eliect when and as tlu'y arise by force of and by relation to the estate and seizin originally vested in the person seized to the uses, and the continued existence in him or elsewhei'e of any seizin to uses or acintilln Jwixy .shall not be deemed necessary for the supjtort of, or to give cft'ect to future or contingent or executory uses ; nor sliall any sucli seizin to u.ses or sdiitilla Juris be deemed to be suspended, or to remain or to subsist in him or elsewhere. Scintilla juris Much discussion has arisen in determining whe 'e the abohslied. seisin is upon which the statute operates in the case of springing or contingent uses, during their suspense, and when they come into existence ; as, for instance, if an estate were conveyed to feoffees and their heirs to the use of A for life, remainder to the use of his first and other sons (then unborn) in tail, remainder to the use of B in fee. The difficulty arose in this way ; as it was necessary that (d) Sug. V. & P. 662, 14th ed. ; Sup;. Powers, 120-122, 8th ed. : 2 Davidson Conv. 2ed. 254, 832-840: 2 Jur. JV. S. 68; Shelford Stats. 494, 7th ed. 29 Vic. Cii. 28— Secs. IS k 10. 19 there should lio a porsoii soi«ofl to thi* use of the person to whom th(* use was liiuitfil, wliore Mini liow was a, seisin to bo found in the rcotlt'cs to serve the continj^fent rentainders to the first and other sons wlien they eanio into ejiistenco ? Some e(»ntended that the h'pil estate or use continued in tho trustees in remainder expectant on the estate of freehold ; otiiers, that thou<.,di tlie ultimate remaimler was in fee, and was executed in B, yet thcn^ remained in the feotfees, unex- ecuted by the statute, a possibility of seisin, or as it was termed, a scintilla Juris ct lllu/i, to serve the contingent uses as thisy became vested. A third })arty contcnided that the seisin Avns at once impressed upon all the uses, so that in the case put, B woidd take a (/Ka/ijii'il though vested estate, subject to be divested upon tlu' birth of a son of A. These questions wore of no great practical importance, and are now at rest (a). 10. Any porson slutliliiivo jwiwer to a.sHign persDiiiii property, now by law a.ssigiiable, incliiding chattels real, directly to himself and iinotlipr jierson, or other persons or corporation, by the like means as lie might a.isign the same to another. This section will b{> of assistances in the case of trust estates, where it is desired to appoint a new trustee to hold ioiutly with a continuing trustee. If real or personal pro- perty were held by A, or liy A and B jointly as trustees, and it were desired to ap|)oint C as co-trustee with A in the one case, or in the stead of f), who retires, in the other (;ase, two instruments, ami the intervention of some third person, were reipxisite to vest the personalty in A and C. As regards tlie freehold real estate, one instrument only is recpiisite, for A can convey by some conmnni law convey- ance or statutory grant to C, to the use of A and C jointly, Assignment to solf and others. Imp Act 22 & 2;i V. c. :j.% s. 21. Personal pro- perty may be ussi;,'ned by one person direetly to liiinsclt'and anotlaer. (a) It is to be hoped that the action of tho LoLjislature was not fore- shadowed to Popham, C. .!., by the argnraent before him, and that the leariied Judge was endowed witli no mystical lore, when he predicted " that not to clierish tho scintilla juris would be to cast the whole commonwealth into a sea of troubles, and endanger it with utter coa- I'usion and drowning." 20 Law of Property and Trusts. and the Statute of Uses would vest the legal estate in them; but, inasmuch as the statute can, a~s hereafter ex- plained (a), only execute a use when a person is fteised to to the use, it is entirely inoperative as regards personalty. The consequence was, that befoi-e this Act, where the trust estate consisted of freehold and personalty, including lease- holds, the old trustee or trustees conveyed the freehold to the continuing and the new trustee as joint tenants, by one conveyance as before mentioned, bui assigned the per- sonalty by another instrument to some third person on trust to re-assign to the continuing and new trustee as joint tenants, who re-assigned accordingly. The act remedies inconvenience only as regai'ds person- alty by kiiv assignable ; so far as regards choses in action not by law assignable, but ol which an assignment is recog- nized in equity (6), as for instance a mortgage debt, they were nevertheless assigned before the act in ordinary prac- tice, in like manner as personalty assignable at law, cou- pled however with a power of attorney to sue in the name of the transferors (o). Such a practice does not seem to be necessary, and a simpler form might be adopted (iZ), for, as observed by Mr. Lewin, equitable interests shift according to intention, and therefore no legislative interference was required as to them (e). It has been said, that as the Act does not saj' the assigns shall take as joint tenants, (which tenancy is always advis- able in the case of triistees), that its legal operation in that respect has been questioned (/). Con. Stat. c. (S2, s. 10, would not apply to cause the trustees to take as joint ten- ants, as it does not relate to personalty, unless " money to be laid out in the purchase of land, and chattels or other personal property transmissible to heirs." See sec. 14 ol' that act. (a) Post, under Con. St. c. 90, s. 13. (6) See post, under Con. St. c. 90, s. 11. (c) See Davidson Conv. vol. 2, 2 ed. p. 1074. (rfj See last note. (c) Lewin on Trusts, 6 ed. 462 note. (/) Davidson Conv. vol 3, 2d ed. p. 30 note p. 29 Vic. Ch. 28— Sec. 20. 21 SECTION 20. 20. Any seller or mortgagor of land, or of any chattels, real or Punishment personal, or choses in action, conveyed or assigned to a purchaser of vendor or or niorti-'aeee, or tlie .solicitor or agent of any such seller or mort- ™o'''o'ioO'' foi' , , ,, , , .-,.»- , , iraudulent gagoi-, who shall, after the ])as.sing of this Act, conceal an}' settle- concealment nient, deed, will or other instrument material to the title, or any of deeds, &c., incumbrance, from the purchaser or mortgagee, or falsify any ,,\\r^^ '^'"" pedigree upon which the title does or may depend, in order to Imp. Act 22 induce him to accept the title offered or {)roduced to him, with ^.~^ ^: '^■ . . . r 1 1 z' 1 1 II 1 M /. • 1 "^''i 3' 25. and intent in any oi such cases to aeiraud, shall be guilty oi a niisde- 23 & 24 V. meanor, or being found guilty, shall be liable, at the discretion c. 38, s. 8. of the court, to suffer such punishment, by fine or by impri- sonment for any time not exceeding two years, with or without hard labour, or by both, as the court shall award, and shall also be liable ^^ an action for damages at the suit of the purchaser or mortgagee, or those claiming under the purchaser or mortgagee, for any loss sustained l>y them or either or any of thein, in conse(iuence of the settlement, deed, will or other in- strument or incumbrance so concealed, or of any claim made by any person under such pedigree, but whose right was concealed by the falsification of such jiedigree ; and in estimating sucli da- mages where the estate shall be recovered from such purchaser or mortgagee, or from those claiming under the purchaser or mort- gagee, regard shall be had to any expenditure by tliein. or eitlier or any of them, in improvements on the land ; but no j)rosecu- : „ • 1 1 1 • .1 • ■• • . 11 Consent of tion for any oilence included m this section, against any seller or c-^^n Law mort<»a2or, or any solicitor or agent, shall be commenced with- Ollicer to pro- out the sanction of Her Majesty's Attorney-General for Uiiper ^^cution ., , • ir AT • ' 1- ■ inquired. ( 'anada, or in case that ofnce be vacant, of Her jVIajcsty s .Solici- tor-General for Ujiper Canada ; and no sucli sanction ."^hall be given without such previous notice of the ap})lication for leave to pix)secuie, to the person intended to be prosecuted, as the Attor- ney-General or the Solicitor-General ((i.s- t/i<' t-a^r. kkijj In) shall direct ; and no prosecution for concealment shall be sustained unless a written demand of an abstract of title was served by or on behalf of the purchaser or mortgagee [before the completion of the purchase or mortgage. t Independently of this section, the jwrty aggrieved under The law and the circumstances therein named has m, remedy, though not remedy apart ■« ! 22. Law of Property and Trusts, incase of sup- pression of defects, or misrepresen- tation. from the act, to tlie extent given by this act. It is said (a) " moral Avi'it- ers insist that a vendor is bound, in foro conscientiai, to acquaint the purchaser with the defects in the subject of the contract. Our law does not entirely coincide with this strict precept of morality. If at the time of the contract the vendor himself Avas not aware of any defect in the estate, it seems the purchaser must take the estate with all its faults, and cannot claim any compensation for them. And even if the purchaser were ignorant of the defects, and the vendor was acquainted with them, and did not disclose them, yet if they were patent, and could have been discov- ered bj'- a vigilant man, no relief will be gi'anted against the vendor ; and equity follows the law. But if a vendor during the treaty industriously prevent the purchase!" from seeing a defect which otherwise might easily have been dis- covered, he is not entitled to the aid of a court of equity, and it is conceived he could not sustain an action again.st the purchaser for breach of the contract." (b) " The vendor is bound to deliver to the purchaser the instruments by which incumbrances were created, or on Avhich defects arise, or to acquaint him with the facts, if they do not appear on the title deeds, and the same rule extends to the attorney of a vendor who knows of incumbrances. With the exception of a vendor, or his agent, suppressing an incumbrance, or a defect in the title, a purchaser cannot obtain relief against the vendor for any incumlirance or defect in the title to which his covenants do not extend ; and therefore, if a purchaser neglect to have the title inves- tigated, or his counsel overlook any defect in it, he may be without a remedy" (c). Even after the contract is executed, and conveyance and payiheut made, the purchaser can, in case of fraud, obtain relief and have the transaction res- cinded in equity (cZ). The solicitor for the vendor, as well as the vendor, is liable at conunon law, who by misrepre- sentation induces a person to buy (e). (a) Sug. Vend. p. 1. (b) See also Dart Vend. 3 od. .07 ; Ferrier v. Peacock, 2F. k F. 717. (c) Sug. Ven. 14 ed. pp. o, 6. (d) Dart Ven. 3 ed. 520. (e) Id. p. 59. 29 Vic. Ch. 28— Sec. 20. 28 It would seem to be clear that the action at Common Law for fraud or misrepre.sentation would only lie in favor of the party imposed on, and his personal representatives, and would not run witli the land, but the statutory right of action for damages is made, apparently, to run with the land, and placed on much the same footing as a covenant for title. It will be observed the Act limits no time within which an action m\ist be brought, and as it is a new and statu- tory right, it may be questioned whether the time fixed within which personal actions theretofore recognized must be brought, would be a bar to an action under this Act. The Act extends to the conoealmei)t of a document, though not in the custody or jjower of the vendor, for it expressly extends to an incuvihrance, which cannot be supposed to be in the charge of tlie vendor. The sanction of the Attorney-General is not requisite as to civil actions, nor is it neces.sary for such that an abstract should have been demanded in writing. This sanction and tlemand are essential to a prosecution for concealment ; but the latter is not required as to prosecution for falsifying a pedigree. As a check on a vendor and his solicitor, and with a vicAV to evidence against them in case of possible concealment, it will always be advisable to demand and in- sist on an abstract, independently of such being the proper (though perhaps in this country not universal) course of practice. Where both the vendor and his solicitor being liable for damacjes for concealment or fjdsification, the same have been recovered wholly fi'om the solicitor, it may be ques- tionable whether he would have auv remedy over against his client, though the latter may have derived the whole benefit I'esulting from the funds, and the damages were only in proportion to the benefit. In such case the max- ims, might nevertheless still apply, — "ex dolo malo noti oritur actio," and " Itc pari delicto i^otior est conditio defendentis." • The statutory action runs with the land. No time fixed within which action must be brought. The act ex- tends to con- cealing docu- ments not in vendor's cus- tody. No demand of abstract re- quisite as to a civil action, or prosecu- tion for falsi- fying pedi- gree. Important always to re- requite an abstract. If vendor and solicitor both liable, and full com- pensation be got from the latter, can he recover fiom his client? ■0; ill 24 Can a vendor now suppress a defect, when absence of notice of it would not prejudice the purchaser: or can he now sell under spe- cial condi- tions as to title, and not disclose the defect? Law of Property and Trusts, In some repects the Act would seem to interfere with the former hiw and practice; iirst, in tliose (;a:se.s wlierein a defect in title is concealed, knowledge of which would prevent the title being good in the hands of a ])urcha,ser for value, and who without notice would take a good title as a ])urchasei' for value ; .secondly, in th(^se cases wherein vendors have been permitted to sell a title, defective to their knowledge, by the frame of their conditions or con- tract of sale. As regards the first case, there are many occasions wliere- in a vendor may conscientiously and ftxirly suppress what is, in fact, a defect in the title, but is not such as regards a ])urchaser for value without notice. Take the case of an unregistered mortgage in fee, which has, iu fact, been sa- tisfied, but the proof of which is wanting, and the apjiai-- ent owners of the chai'ge or mortgage have been silent for years, though not barred by time ; hei'e, if the purchaser pays his purchase money, and takes his conveyance without notice and aciiuires priority of registration, he will not be aflected by the mortgage. Still, a \'endor, and much more his solicit(jr, may well hesitate how far they can with safety suppress the mortgage ; how far in tins or any other case they can be sure the law and the facts will siu'ely so apply as to i)rotect the ]iurchaser, for on his safety de- pends theirs. Have they foreseen that by ]iossibility the morttraye miffht be registered between the delivery of the conveyance and its registry, or that if the conveyance were registered defectively, it would accpure no ])riority over the moi'tgage ? Are they pre])ared to a?isume the respon- sibility of deciding for themselves the difficult law of no- tice and priorities ? It is apprehended that the effect of the Act will be, that defects and inr-umbranccs will, and probably must, be disclosed, which if unknown to the pur- chaser, would not prejudice him, but being disclosed pre- vent a sale (a). The second case above alluded to is that of sale by a title defective to his knowledge, and where, at least, the (a) Drummond v. Tracy, 1 John. 608. iii 29 Vic. Ch. 28— Secs. 21 & 22. 25 vendor has not himself caused the incumbrance or defect. I* The law has hitherto permitted sale of such a title, by allowing the vendor in his contract or conditions of sale to stipulate against production of documents, or that the vendor shall not make any objections to the title anterior to a certain date (a). The Act leaves it uncertain whether this can still be done, or rather whether notwith- standing any such conditions of sale, the vendor, under peril of the penalties in the Act, would not have to disclose the defect. Probably the vendor need not disclose the de- fect. SECTION 21. 21. In the construction of the previous provisions in this Act, the term "land" shall be taken to include all tenements and hereditaments, and any part or share of or estate or interest in any tenements or hereditaments, of what tenure or kind soever ; and The term " mortgage " shall be taken to include every ins- trument by vii'tue whereof land is in any manner conveyed, assigned, pledged or charged as security for the repayment of money or money's worth lent, and to be re-conveyed, re-assigned or re-leased on satisfaction of the debt ; and The term " mortgagor " shall be taken to include every person by whom any such conveyance, assignment, pledge or charge as aforesaid shall be made ; and The term "mortgagee " shall be taken to include every person to whom or in whose favor any such conveyance, assignment, pledge or charge as afoi'esaid is made or transferred. SECTION 22. 22. A power of attorney executed by a married woman for the sale or conveyance of any real estate of or to which she is seized or entitled in Upper Canada, or authorizing the attorney to exe- cute a deed barring or releasing her dower in any lands or here- ditaments in Upper Canada, shall be valid both at law and in equity ; provided (1) that she be examined and a certificate indoraed on the power of attorney, as required in regard to deeds and conveyances by a married woman, under the Consolidated Statutes for Upper Canada respectively, intituled: An Act (a) DavidsoQ Coav. vol. 1, 3 ed. p. 538, title, coaditions of sale. Interpreta- tion of words used in this Act. " Lands." " Mortgage." "Mortgagor" "Mortgagee" Imp Act 22 &23V c. 35, s. 25. Powers of At- torney exe- cuted by mar- ried women. m' m 26 Lav7 of Property and Trusts, respecting Dower, and -/In Act respecting the conveyance q/ Jieal Estate by Married Women; and provided (2) that her husband is a party to and executes such power of attorney or the deed or other instrument executed in pursuance thereof, where the power is for the sale or conveyance of her real estate. Section 22 is treated of in considering Con. St. U. C. ch. 85, as to conveyances by married women. SECTIONS 23 & 24. As to a power 23. lu case a power of attorney for the sale or management of of attorney j-efll or personal estate, or for any other purpose, provides that pressly to be the same may be e.xercised in the name and on the behalf of the executed after heirs or devisees, executors or administrators of the person ' °. executing the same, or provides by any form of words that the same shall not be revoked by the death of the person executing ' the same, such provision shall be valid and effectual to all intents and purposes both at law and in equity, according to the tenor li .J ofTct thereof, and subject to such conditions and restrictions, ir t»ny, a.s may be therein contained. As to things done and powers of attorney after the-docease, &c., of consti- tuents, with- out such spe- cial provi- sions. 24. Independently of any such special provision in a power of attorney, every payment made and every act done under and in pursuance of any power of attorney, or any power, whether in writing or verbal, and whether expressly or impliedly given, or an agency expressly or impliedly created after the death of the person who gave such power or created such agency, or after he has done some act to avoid the power or agency, shall, not- withstanding such death or act last aforesaid, be valid as respects every person party to such payment or act, to whom the fact of the death, or of the doing of such act as last aforesaid was not known at the time of such payment or act bond fide done aa aforesaid, and as respects all claiming under such last mentioned person. , The Imp. Act The Imperial Act 22 & 23 Vic. c. 35, s. 26, is by no means so extensive as this section, and extends only to trustees, executors and administrators. A power was A power of attorney was, at law at least, revoked by revoked at (Jeath of the donor thereof, though acted on bondjide with- 29 Vic, Ch. 28— Secs. 23, 24 & 25. 27 oiit knowledge of the death (a) ; but tliis rule has not pre- death of the vailed in all cases in Equity, especially where a valuable "0"P''> ^"t in consideration has passed ; and, as .against persons claiming taincfi'sfa.acts under the donor of the powei", acts bond fide done, have bunafideAoue been held upheld after death of the donor [h). The Act would not protect in cases where the donor of The Act does of the power himself had but an interest determinable by ""^ piotect his death, as in the case of a tenant for life. loit.st of tlie donor doter- SECTION 2.0. ■ mined by his death. 25. Where an executor or administrator, liable as such to the . . linhTt rents, covenants or agreements contained in any lease or agree- ot executor or nieut for a lease granted or assigned to the testator or intestate ^'hnniistrator whose estate is being administered, sluiU have satisfied all such lia- j,g,^fj, cove- bilities under the said lease, or agreement for a lease, as may have mints, &c. accrued due and been claimed up to the time of the assignment r . * . liip Act 22 hereinafter mentioned, and shall have set apart a sufficient fund and 2.'{ V. c. to answer any future claim that may bo made in resjject of any -^3, s- 27. fixed and ascertained sum covenanted or agreed by the lessee to be laid out on the property demised, or agreed to be demised, although the period for laying out the same may not have arrived, and shall have assigned the lease, or agreement for a lease, to a purchaser thereof, he shall be at liberty to distribute the residu- ary personal estate of the deceased, to and amongst the parties entitled thereto respectively, without aj)propriating any part, or any furtlier jwrt (as the ca.se may be) of tlie personal estate of tlie deceased, to meet any future liability under the said lease, or agreement for a lease ; and the executor or administrator so dis- tributing tlie residuary est 'e, shall not, after having assigned the said lease, or agreement; lor a lease, and having where neces- sary, set apiirl such sufticient fund as aforesaid, be personally liable iu lesjiect of any subse![uent claim under the said lease, or agreement for a lease ; but notliing herein contained shall pre- judice the right of the lessor, or those claiming under him, to follow the assets of the deceased into the hands of the person or (a) Co. Litt ,V2 h\ per Lord EUenhorough, 4Camp. 272; Houstoua v. Robertson, (i Taun. 148; see also, lie Jones 3 Drew. ()7D. [h) C.impbell v. Anderson, 4 Bligh, N. II. Jl3.; E.vparte MacDonnell, BuckS'J'.); Bailey V. CoUett, 18 Bea. 179; see also Kiddili v. Farnell, 8 S. & G. 434. ^^= 28 iili Mli The former Iftw as to con- tingent liabil ities, and payment of legacies before debts of which exe- cutor has notice. no Protection under ss. 27, 31. Law of Property and Trusts, persons to or amongst whom the said assets may have been dis- tributed. In Williams on Executors (a), referring to the liability of an executor, before the Act, as to contingent claims and the question whether he could safely pay legacies, or de- liver over a residue where there was an outstanding cove- nant of his testator, or bond with a condition, or the like, which had not been, but might be broken, it is said, " it would seem when such liabilities exist, an executor is not bound to part with the assets either to a particular or residuary legatee without a sufficient indemnity ; and that a Court of Equity will not compel him to do so without such indemnity, or without impounding a sufficient part of the residuary estate for that purpose ; for otherwise, if the contingent covenants, &c., should afterwards be broken, the executor would be liable, according to the above deci- sion (6), to answer the damages de bonis propriis, without any fault in him." " Authorities appear to demonstrate that the mere cir- cumstance of want of notice of a debt or claim against the estate of the deceased, will not excuse an executor from the payment or satisfaction of it, if the assets were origin- ally sufficient for the purpose, notwithstanding that in ig- orance of it, he has bond fide handed over the assets to legatees or parties entitled to distribution. But it seems to have been considered in some cases, that lapse of time may operate as a waiver of the right of the creditor or claimant, by way of laches on his j)art, so as to preclude him from complaining of the insufficiency of the as- sets (c)." If, however, the executor or administrator proceed in compliance with sec. 27, he will be entitled to the same protection as if he had administered under decree of the Court (d) ; and in many cases he might find it advisable to ask advice of the Court, under sec. 31. If compelled to pay (a) 6 ed. 1246. .(6) Pearson v. Archdeaken, 1 Al. & Nap. 23. (c) Wms. Exrs. 6 ed. 1254. (d) Clegg v. Rowland, L. R. 3 Eq. 368. 29 Vic. Ch. 28— Sec. 25. 29 a claim of which he had no notice, after having distributed, he has a remedy over against the legatees to refund ; and the creditor himself may follow the assets in the hands of the legatees without proceeding against the personal rep- resentative (a). This section is retrospective in its operation (b). The Act extends apparently only to the case of the personal representative himself having assigned the lease to a pur- chaser (c), and thus it would not take in the case where the testator or intestate being lessee, and having covenanted, had himself assigned the lease ; nor the case wherein the lessee's interest should have been specifically bequeathed, and have become vested in the legatee on the assent of the executor; nor where it has been transferred on distribution of the estate. Where the testator or intestate is not lessee, but assignee of the lease, there is no necessity for applying the provi- sions of the Act, as in such case, not being liable on any privity of contract, but merely by privity of estate, and so liable only for breaches of covenants running with the land during the continuance of privity of estate, the executor or administrator is relieved from future responsibility sim- ply by assigning the estate. This, of course, would not suffice where the testator or intestate is lessee, and has covenanted, for though on assignment the privity of estate would be discharged, yet the privity of contract would re- main, and the covenant could be sued upon, even though the lessee should have accepted the assignee as his tenant (d). Where, however, the testator or intestate, having been an assignee of the lessee, has assigned the lease, and so has become relieved from liability for future breaches of cove- nant, it may yet be that the pei'sonal representative would be liable for such breaches, if the testator had, ( as is not (a) 2 Wnis. Exrs. 1344. See post remarks under s. 27. (A) In re Green, 2 De Gex, F. & J., 121 ; Smith v. Smith, 1 Dr. & Sm 384 ; Dodson v. Sammell, 1 Dr. & Sm. 675 ; 9 W. K. 887. (c) Dodson V. Sammell, 9 W. R. 887. (d) See notes to Spencer's case, 1 Smith, Lg. Ca.; Montgomery v. Spence, 28 Q. B. U. C. 39. Executor can compel le^'a- tce to refund, and the cre- ditor can fol- low the assets. This .section retrospective, Cases to which it does not extend. Where testa- tor is an assignee, no necessity for applying this section; but if the testator on becominfi; assignee have covenanted to indemnify his as.signor, and has after- wards assign- mgm 30 Law of Property and Trusts, : I ilt \m m ■I'd I flii ed, will this Act apply quoad that covenant ? If after com- pliance with the act, and distribution, there should be a breach of a covenant of testator, and further assets come in, the claim on the cove- nant must be regarded be- fore further distribution. unusual), on the assignment covenanted with the lessee to indemnify him ; on such a liability it is not olear that this section would apply. If the personal representative comply with the Act, and assign the lease to a purchaser, and, where there may be future cLaims for fixed swih^ to be laid out on the land, set apart a fund to meet them, ho may distribute without re- gard to future claims not fixed or unascertained under the lease, and without being personally liable for such claims. If, however, after distribution, there should be a breach of any of the testator's or intestate's covenants in the lease, not provided for by the fund as not being of a fixed or as- certained character, as, for instance, a covenant to repair, and the representative should have notice of such breach, it would seem he could not distribute further assets which may have come to his hands since the first distribution had before breach, without regard to the claim under such breach. SECTION 26. As to liability 26. In like manner where an executor or administrator, liable of executor ^g g^^jj jq ^^g y^T^t covenants or agreements contained in any in respect of , •' rents, &c., in conveyance on chief rent or rent-charge, (whether any such rent conveyances be by limitation of u.se, grant or reservation.) or agreement for nr n c ''gs guj.}^ conveyance, granted or assigned to or made and entered Imp. Act 22 into with the testator or intestate, who.se estate is being admin- & 23 V. c. istered, shall have satisfied all such liabilities under the said conveyance, or agreement for a conveyance, as may have accrued due and been claimed up to the time of the conveyance herein- after mentioned, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertiiined sum covenanted or agreed by the grantee to be laid out on the property conveyed, or agreed to be conveyed, although the period for laying out the same may not have arrived, and shall have conveyed such property, or assigned the said agreement for such conveyance as aforesaid, to a purchaser thereof, he shall be at liberty to distribute the residuary j)ersonal estate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part or any further part (as the case may be) of the personal estate of the deceased, to meet any 35, s. 28. 29 Vic. Ch. 28— Sec. 26. 81 future liability undei' the said conveyance, or agreement for a conveyance ; and the executor or administrator so distributing the residuary estate, shall not, after having made or executed such conveyance or assignment, and having, wlieve necessary, set apart such sufficient fund as aforesaid, bn ])orsonally liable in respect of any subsequent claim under the said conveyance, or agreement for conveyance ; but nothing herein contained shall prejudice the right of the grantor, or those claiming under him, to follow the assets of the deceased into the hands of the person or persons to or among whom the said assets may have been distributed. ' Some of the observations made above as to section 25 apply to this section. A rent charge, created by linnitation of use in favor of, Rent charge, or in a grant to, or by v^ay of reservation in a conveyance created, by, the testator or intestate, is spoken of in this section. Since the Stat, quia cmptores a man can no longer make Assignment over his Avhole estate leaving in himself no reversion, and ^V^^ reserva- ,, ,,i.ip A . • n 1.1 tion of rent, reserve thereon a rent to himseii qua rent service, for which, as in the ordinary case of landlord and tenant, distress may be had as of common right. That Statute abolishing sub- infeudation and causing the assignee to hold of the superior lord, prevented any tenure between the assignor and assignee, and thus there can be no rent service. If rent be reserved on such an assignment it will operate as a grant by the assignee, of a rent charge, which, if no power of dis- tress thereupon be granted, will be a rent seek, and may be distrained for if brought within s. 5 of 4 Geo. 2, c. 28. A rent charge may also be created by limitation of use, Rent charge as on a gi-ant to A and his heirs to the use that the grantor bv limitation and his heirs may have thereout yearly a certain rent, to which are sometimes added further uses, as to re-enter and hold till payment after default, and, subject to such use, to the use of A and his heirs. Here the St. of Uses (ss. 4, 5) operates, and the person in whose favor the use is declared, has, by the statute, seisin and possession of the rent, with power to distrain (a). (a) Soa- the language of the Act, post p. 66. of use. 8S Law OB Property and Tritsts, 1. 1 i DiflRculty in applyin soction g this It is not uncommon in sonu! parts ol" i'^ugland to convey building land in fee, in consideration of a |)erj)otual rent charge reserved or limited by way of use to the party con- veying, with a covenant for payment. This section can have little application in this country, even in England it is difficult to see how it can apply to those cases above referred to, of conveyt In fee, which the Act was chiefly intended to meet, lii^ personal repre- sentative as such has no power to convey a freeliold interest, and therefore cannot place himself in a position to obtain the benefit of the Act, which requires a conveyance by him. Possibly an executor might, under the will, have power given him to sell, but an administrator never can sell a freehold. SECTION 27. 27. Where an executor or administrator shall have given such, or the like notices, as in the opinion of the Court in which sucli executor or administrator is sought to be charged, would have been given by the Court of Chancery in an administration suit, for creditors and others to send in to the exec • or administra- tor their claims again,st the estate of the te.sta intestate, such executor or administrator shall, at the expn-a^.c-n of the time named in the said notices, or the last of the said notices, lor sending in such claims, be at liberty to distribute the assets of the testator or intestate, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which such exe- cutor or administrator has then notice, and shall not be liable for the assets, or any part thereof, so distributed to any person of whose claim such executor or administrator shall not have had notice of (a) the time of distribution of the said assets, or a part thereof, as the case may be ; but nothing in the present Act contained shall prejudice the right of any creditor or claimant to follow the assets, or any part thereof, into the hands of the person or persons who may have received the same respectively. Contingent The Imperial Act of 13 & 14 Vic. c. 35, ss. 19 €^ seq. has ed forV7m Provisions bearing on the subject matter of this section, and St. 18 & 14 provides espe '"^ly as to a fund to be set apart for contin- Vic. c. 35. ^ 1 1. As to distri- bution of the assets of testa- tor or intest- ate after no- tice given by executor or administrator. Imp. Act 22 & 23 V. c. 35, s. 29. (a) At? 29 Vic. Cn. 28— Sec. 27. 33 gent claims (a). Tho position of tho executor as regards contingent claim.s of which he had notice, was before refer- red to in treating of section 25. It would seem that it is not absoUitely necessary for a creditor to send in liis claim, if the executor or administra- tor have notice of it. If after di.strihution, fui-thcr as-st'ts should come to the hands of the executor, they will be liable to a creditor who may have sent in his claim aftca' the distribution, or of whose claim the executor has since then had notice. Where j)art of the assets are paid or handed over to next of kin or legatees, and jiart retained l»y the executor on distribution, as being tin; .share or legacies of others entitled, and the executor haw so acted that the payments made, or assets handed over liave been properly made or handed over, the right of a creditor subsequently (-laiming as to the part retained is subject to .some difficulty. Where pay- ments have been made or a.sseis distributed, by direction of the Court, and part retaiiud in Court to answer the share of infants, or legatees, it has been held that a creditor con)ing in after the distribution can claim of the amount re- tained, only such proportion as it bears to the whole amount available for distribution (h). Where, however, the partial distribution had not been had by direction of the Court, it wn\ild seem that before the Act a creditoi', guilty of no laches, could insist on payment of his claim to the full extent of the amount retained (c) ; and the next of kin or legatees thus prejudiced, or deprived of their shares or legacies, would be left to their i-emedy over for contribution against the other legatees or next of kin. Executor luiv- h\)i notice of ii(let)t,&c. not Hciit in. It" lifter (listri- liutioii fur;lu)r iiHsetH coniu in, liable to Hul)Ni'(jueut cluitns. Clninia of cre- ditors coming in when aomo of next o( kin or lei,'iitP(.'.s Hutiaficd and sliurea or lo;^- (icii'S of others reclined. When distri- bution made und'.M- decree of the court; when not undor decree, (a) See King v. Malcott, 9 Hare, 092; Brett v. Ca»michael, 14 Law T. N. S. 820, Ld. Romilly, as to setting apart a fund. (b) Gillespie v. Alexander, 3 Rus. C. C. 130 ; Greig v. Soincrville, 1 Russ. & M. 338. See, however, Davies v. Nicholson, 2 De G. & J. 693, as to the right of the creditor where the estate w.is not administered by the Court, and where the facts were before the provisions of this Act. (c) March y. Ruaaell, 3 M. & Or. 31 ; Daviea v. Nicholson, 2 De G. St Jones, 693. 6 m 34 Where the executor no longer holds as such, but as trustee. Execr. pro- ceeding in compliance with this sec- tion has the same protec- tion as if un- der decree. The notices to be given. Law of Property and Trusts, It has been held, however, that where the executor no longer held the amount retained, in the character of execu- tor, but had constituted himself tructco for the parties entitled, (a) that this would be equivalent to payment, so as to preclude the creditor from looking to the executor, as such, as having assets on hand to the extent of the amount retained, as to which he had become trustee. An executor who has distributed the assets, after issuing advertisements in compliance with this section, will have the same i)rotection as if he had administered under decree of the Court (h). The Act recpiires as ;i condition of its protection, that such and the like notices shall be given as in the opinion of the Court i)i tvhich the executor is sought to he charged would have been given by the Court of Chancery in an administration suit. The proceedings in administration suits, and the notices to be given, are regulated by the orders in Chancery, 407 et seq. (c). The number of notices to be given, mode and place of publication, &c., depends on the circumstances of each case, regarding the nature of the business, domicile, knowledge or probability of there being foreign creditors, &;c., ((/). In ordinary cases, when there is no reason to suppose that there may be creditoi-s residing at a distance, six weeks advertisement in a newspaper published in the county wherein the deceased died domi- ciled, is sufficient. It is of the utmost importance, with a view to obtaining the jn'otection of the Act, that the executor should not only give, but also preserve evidence of haying given, such notices as would be deemed proper in the circumstances of the case, and that he should not proceed to distribute with undue ha.ste. The Act, it will be seen, points out no time (a) See remarks p. .38, under sec. 30 of this Act. (6) Clegg V. Rowland, L. R. 3 Eq. 368 ; and see King v. Malcott, 9 Hare, 692. (c) See Taylor's Chan. Orders. (d) See Brett v. C'^rmichael, 14 L. T. N. S. 820, as to setting apart a fund to meet possible claims. 29 Vic. Ch. 28— Skc. 2.S. 35 within which distribution may bo inailo. The party dis- tributing must take on himself tlie responsibility of being able to satisfy the Coin-t in which he may afterAvards be sought to be "charged. Possibly, \in o notices, time the advice and assistance of the Court, under sec. 31, as to of pajng in, the notices to be cfiven, the time ofdistribution,andthe neces- '^y'^^ *", ° . , . iisked under sity for setting apart a fund to meet contingent claims of s. 31. which he may have notice. Creditoi's who have sent in their claims should be care- ful to preserve evidence of having done so. • 111 case of de- ficiency of assets, certain debts to rank pari passu, and without priority over each other- SECTION 28. 28. On the administration of the estate of any person dying after the passing of this Act, in case of a deticiency of assets, debts due to the Crown, and to the executor or administrator of the deceased person, and debts to others, inclmling therein respectively debts by judgment, decree or order, and other debts of record, debts by specialty, simple contract debts, and such claims for damages as by statute are payable in like order of administration as simple contract debts — shall be paid j^f^^i passu and without any preference or priority of debts of one rank or nature over those of another ; but nothing herein contained Exception, shall prejudice any lien existing during the lifetime of the debtor on any of his real or pei-sonal estate. Possibly this section does not deprive a creditor of prior- Can a credit- ity to be obtained by first suing or obtaining iudgment, o"" still acquire '' . "^ *= b J b > priority by notwithstanding the enjoining that the debts referred to first suing or " be paid pari passu," and that the law in that respect re- ?^"'"n J'^'^o- mains unchanged; the only effect of the Act being to abolish the theretofore existing ' preference or priority ^f debts of one rank or nature over those of another," and place all creditors in the same degree. The law had always been that if one of several creditors in the same degree sued and obtained judgment against the executor, his claim had to be satisfied before the others. And if one creditor com- menced an action of which the executor had notice, he could 1 36 Law of Property and Trusts, make no voluntary payment to another of the same degree, but if that other commenced a subsequent action, and first got judgment, he was entitled to the first payment (a). It would seem that the law as above is not varied by this act. Can the exe- If this be so, it would seem to follow that an executor cutor still pre- \^c^f, ^till the right of retjiiner and preference as to a debt due himself, and that he has even greater privileges than before the Act, inasmuch as then he could prefer himself only among those of equal degree ; whereas now, as the Act places all in equal degree, he can prefer himself, though a mere simple contract creditor, even against the Crown. Still the matter is not quite clear. If an execu- tor or admi- nistrator re- jects a claim, suit must be brought with- in a certain Ceriotl, or be arred. SECTION 29. • , 29. In case the executor or ailministrator gives notice in writing to any creditor or other person of whose claims against the estate such executor or aclministrator has notice, or to the attorney or agent of such creditor or other peraon, that the said executor or administrator rejects or disputes such claim, it shall be the duty of the claimant to commence his suit in respect of such cliiim, within six montlis after such written notice was given, in case the debt, or some part thereof, was due at the time of the notice, or within six months from the time the debt, or some part thereof, falls due, if no part thereof was due at the time of the said notice, and in default the said suit shall be forever barred. This is a provision much for the benefit of legatees, and facilitates the winding up the estate. The Act as to Quiet- ing Titles proceeds on somewhat the same principle, in enabling a person to force an adverse claimant to have his claim adjudicated on or be barred. The case of a It might perhaps have been proper to have provided that clannant issu- y^^ ^.^^^ should be prosecuted "without delav," as is reciuir- ing a writ and . ^ • ,• \ ^ /•!» keeping it ed m replevm, for the letter of the Act may be complied renewed with- ^j^]-^ j^y merely issuing a writ, and the spirit and intention ' of the Act frustrated by not serving the writ, and yet keep- (a) Wms. £xr8. 6 ed. 930, 29 Vic. Ch. 28— Sec. 30. 87 ing it constantly renewed. *If however the executor can properly appear to the writ without service of it, which it is said he may do (a), the difficulty would be obviated, as the practice of the Courts requires that proceedings subse- quent to appearance shall be within definite periods. SECTION 30. 30. After the first day of January, one tliousand eight hundred and sixty-six, no suit or other proc( eding shall be brought to recover the personal estate, or any share of the personal estate of any person dying intestate, possessed by the legal personal repre- sentative of such intestate, but within the time within which the same might be brought to recover a legacy, that is to say, 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 meantime some part of such estate or share, or some interest in respect thereof shall have been accounted for or paid, or some acknowledgment of the riglit thereto shall have been given in writing, signed by tlio person accountable for the same, or his agent, to the j)erson entitled thereto, or bis agent ; and in such case, no such action or suit shall be brought but within twenty years after such accounting, payment or acknowledgment, or the last of such accountings, payments, or acknowledgments, if more than one was made or given. The corresponding Imperial Act 23 & 24 Vic, c. 38, ro- rpj^^ corres- cites sec. 40 of c. 27, 3 & 4 Wm. IV, (Con. St. c. 8S, s. 24,) ponding imp. and that it is expedient that that enactment should extend ^^ ' to cases of intestacy. The Consolidated Statute applies to Con. St. c. a legacy payal)le solely out of personal estate (h) ; and *^^> ^ ^^• to a residue bequeathed by will of personal estate, (c) ; but it docs not apply to a case of intestacy, t)r a }}!irtial intestacy, as a residue not disposed by the will of a testator ; Does this scc- aud the present section does not, expressly at least, take in *'"" "l'.'^ ^' ^" , After Ist of Jan., 18G6, a suit to reco- ver personal estate of an intestate, or any part thereof, must be brought within the same time as a suit for a legacy. Imp. Act 23 &24V., c. 38, s. 13. of residue ? (a) Lush Pr. 3 ed. 3i)2, (6) Sheppurd v. Duke, 9 Sim. 607 ; Ashwell's Will, John. 112; Bullock v. Downes, 9 H. ofL. 14. (C) Trior v. Ilorniblow, 2 Y. & C. 200 ; Christiau v. Devureux, 12 Sim. 264. Soe also the cases in Wms. £xrs. 6 ed. 1874. 38 ! .;! Pi I: t .'i ii 1:1;: Cases wherein an executor who has as- sumed charac- ter of trustee held not enti- tled to benefit of act. What acts in- vest an exe- cutor with the character of trustee. Law of Property and Trusts, the latter ease. It applies to assets distributed by an ad- ministrator, but not to assets retained by him, at least if the existence of such assets were unknown (a). There are cases (b) decided on the Act of William, where- in the benefit of that Act has been denied to an executor who has become clothed with the character of a trustee, in which event the ordinary rule applies that as between trustee and cestui que tritat time is not a bar. The difficulty arises however to ascertain when the executor can no longer be regarded merely as such and becomes trustee (c). It is said (d), this " is, it seems, in the case of a legacy, effected by any act which amounts to an assent to the legacy (e), .and In the case of a residue, by its being ascertained with- out more specific appropriation, but not until it has been ascertained." As regards the case of a residue, however, there is a discrepancy between the various decisions (/). If the legacy is bequeathed sivipliciter, and not to the executor on trust, still, if the executor by any act of his constitute himself trustee for the legatee, the principle of PIdllipo V. Munnings, will apply (g). SECTION 31. 31. Any trustee, executor or administrator shall be at liberty, without the institution of a suit, to apply by petition to any Trustee, exe- cutor, &c., may apply by petition to Judge of the Court of Chancery, or by summons upon a written statement to any such Judge in Chambers, for the opinion, advice, or direction of such Judge on any question respecting the Judge of Chancery for opinion, ad- vice, &c., in (a) Reed v. Fenn, 36 L. J. Ch. 4G4. (h) Phillipo V. Munnings, 2 My. & Cr. 309. See Hnrcourt v. White, 28 Bea. 303. (c) See Smith v. Day 2 M. & W. 684 ; Clegft v. Uowlnnd, L. R. 3 Eq. 368 ; Ewart V. Gordon ; Ewart v. Dryden ; Ewnrt v. Snyder, 13 Grunt, 40, 60, 56 ; Smith V. Smith, 1 Drew. & Sm. 384. (d) Darby on Limitations, 119, («) Dix v. Burford, 19 Bea. 409. Sec judgment in Brougham v. roulctt, 19 Bea. 133, 134. (/) Wilmott V. Jenkins, 1 Bea. 401 ; Davenjiort v. Stafford. 14 Bea. 319; Bullock v. Downcs, 9 H. L. Ca. 1 ; Dinsdale v. Budding. 1 Y. &C. C, C, 265. (g) Tyson v. Jackson, 30 Bea. 384 ; see also Clegg v. Rowland, L. R. 3 Eq. 368. 29 Vic. Ch. 28— Sec, 31. 39 |White, 368; 10, 65 ; julett, Bea. I. &a management or administration of the trust property or the assets management, of any testator or intestate ; such petition or statement to be &°'> of trust accompanied by a certificate of counsel, to the effect that in his j^p jj^^ 22 judgment the case stated is a ju'opor one for the opinion, advice, & 23 V. c. or direction of the Judge under this Act, and such application ^•^» ^' "* to be served upon, or the hearing thereof to be attended by, all jjersons interested in such application or such of them as the said Judge shall think expedient ; and the trustee, executor or admi- nistrator acting upon the opinion, advice or direction given by the said Judge, shall be deemed, so fiir as regards his own respon- sibility, to have discharged his duty as .such trustee, executor, or administrator, in the subject matter of the said application ; Provided, nevertheless, that this Act shall not extend to indem- nify any tinistee, executor or administrator in respect of any act done in accordance with such ojunion, advice or direction as aforesaid, if such trustee, executor, or administrator shall have been guilty of any fraud or'wilful concealment or misrej)resenta- tion in obtaining such opinion, advice or direction ; and the costs of such application as aforesaid shall be in the discretion of the Judge to whom the said' apj)lication shall be made. In Lewin on Trusts it is said that, "in proceeding under Facts are not this enactment there is no investigation of facts, but the investigated, correctness of the petition or statement is assumed, and if shewing them there be any siqypress'io verl, or siujgestlo falsi, the order produced, of the Coxwt, 2>ro tanto, is no indemnity to the trustee." No affidavits therefore ought to be filed, and the costs of them would be disallowed (a). It would seem that the order of The party the Court will be no indemnity, even though the rnistatc- »PP'yi"g "ot ment or concealment were not wilful (h) : the language of statements the proviso affords, however, a strong argument against this ""true. view. The Court will not advise on questions of construction, No advice on or difficult questions of law, affecting the rights of the questions of parties interested (c), nor on matters of detail which cannot or"of kw. (a) Re Muggeridge's Trusts, I John. G25 ; Re Mockctt's Will, ib. G28 ; Re JJarrington's settlement, 1 John. & H. 142. (6) Ro Barrington's settlement, supra, per Wood, V. C ; Re Dennis Will, 5 J. N. S. 1388, per Stuart, V. C. (c) Mockctt's Will, supra ; Re Hooper's Estate, D W. R. 729 ; Re Lorenz'a settlement, I Drew. & Sm. 401 ; Re Evans, 30 Bea. 232. ill If • L n if 1, L. r 40 Cases wherein the court will advise. The petition. Service of petition. Petition of one of several interested. Section is retrospective, Law of Property and Trusts, be pn perly dealt with without the superintendence of the Court, and the assistance of affidavits (a), The Court will advise tus to investment of trust funds, payment of debts, questions as to relinquishing or com- promising doubtful claims, postponement of conversion, pro- priety of conversion of raw material into manufactured articles (b), and matters of that character; It woidd seem also that executors and administrators might, in cases of difficulty, properly ask advice as to notices to be given, and time of distribution, under sec. 27 (c), and the necessity for setting apart a fund to meet contingent claims (d). The pet:.tion should state distinctly the particular ques- tion whereon advice &c. is sought, and not merely state the facts, and ask for advice generally, (e) •It luis been held that the petition should not, in the first instance be served on any one, but that application should be made in Chambers as to the parties on whom service should b(! made (/). Btit Kindersly, V. C, stated that the Judges had agi'ced on a difterent practice, and held that the petitioner must serve such as he thinks proper, and not bring on the petition merely with a view to ascertain who should be served {g). The Court will act on the petition of a cestui que trust (Ji), or of one of several trustees (i). This section applies to cases arising on instruments exe- cuted before the Act (k). . SECTION 32. Every trust ^^' Every docd, will, or other document ci'eating a trust, instrument to either expressly or by implication, shall, without prejudice to be aeeined to ^j^^ clauses actually contained therein, be deemed to contain a contam claus- '' ' . es for the in- clause in the words or to the bffect following, that is to say : — (a) Re Harrington's settlement, 1 Johns. & Hem. 142. (b) Re Caldwell Estate, 2 Oh. Chamb. Rep. 150. (c) See remarks on that section. (d) See remarks on sec. 25. (e) Re Lorenz, supra. (f) Re Muggeridge, supra. {g) Re Green, G J. N. S. 5H0. {h) Re Ward, 14 W. R. 96. (i) Re Muggeridge, supra. (k) In re Simaon, 1 John. & H. 89. 29 Vic. Ch. 28— Sec. 32. 41 "That the trustees or trustee, for the time being, of the said demnity and deed, will or other instrument, shall be respectively charge- reimburse- able only for such moneys, stocks, funds, and securities as trustees, they shall respectively actually receive, notwithstanding their Imp Act 22 respectively signing any receipt for the sake of conformity *.'"„. ^" and shall be answerable and accountable only for their own ' acts, receipts, neglects, or defaults, and not for those of each other, nor for any banker, broker, or otlier person with wliom any trust moneys or securities may be dejiosited ; nor for the insufficiency or deficiency of any stocks, funds, or securities ; nor for any other loss, unless the same shall happen through their otvn wilful default respectively ; and also that it shall be lawful for the trustees or trustee for the time being, of the said deed, will or other instrument, to reimburse themselves or himself, or pay or discharge out of tlie trust promises all expenses incurred in or about tlie execution of the trusts or powers of the said deed, will or other instrument." In the Bill, as introduced by Lord St. Leonards, the sec- The gist of tion corresponding to this contained a declaration that the ^^^ ^'"P- ^^' P11111 7y actment was a clause reierred to should be construed favorably to trustees, clause that it which declaration was in fact tlie gist of the proposed should be enactment, for reasons which will presently appear. Tliis favorably to declaration was, however, struck out in tlie Commons, trustees. though the whole section was introduced simply with a / view to its enactment (a). The clause referred to in this section has been commonly The indemni- used by conveyancers for many years, but latterly it has ^7 Fof^ssed met with disapproval as tending to mislead. It has been not to"be said that the clause adds nothing to the security of the relied on. trustee ; that equity infuses su.ch a proviso into every trust deed, and that the Court has regarded it as innnaterial whether a trust deed contains such a provision or not (^)- It is superfluous where there is no default, and unavailing where there is. Thus where a trustee signs a receipt with a co-trustee for the sake of conformity merely, (the person paying being entitled to, and indeed secure only on, the joint receipt) (c), he could always shew that he was not (a) Sugden Stat. 2 ed. 323. (6) Lewin on Trusts, 3 ed. 317. (c) See remarks on s. 9 of Con. Stat. t)0, j . t4,no6. 6 ■J' 42 Law of Property and Trusts, chargeable for the receipt of the moneys, and that they were in fact received l>y his co-tnistee : on the other hand, if he unnecessarily allow his co-trustee to retain the money, or do not see to its proper application and investment, this section will not protect him on loss consccjuent on such neglect (a), " nor will the protection purpijrtiiig to be given in I'espcct of the insufficiency and deticiency of securities, and in respect of any other losses not happening through the wilful defaidt of the trustees, in any manner exonerate them from the diligence and vigilance which they are bound to use, as well in respect of the selection of investments, as in other matters j)ertaining to the trust." (6). In one case (c) the indemnity clause was to the eft'ect given in this section, and to it was added " that no trustee paying or consentingto the payment to a co-trustee, with a bond fide intention of acceleiating the trust, shall be responsible for the conduct or misconduct of the trustee receiving the same, nor answerable for his application or misapplication of such money, or any pait thereof," A suit was instituted charging the trustee with breaches of trust, wliereby the trust funds liad been lost ; what the particular breaches were does not appear. The defendant said he took no more than a formal and nominal part in the trust, but admitted that he had signed some receij)ts, after signature by his co-trus- tee, which enabled the co-trustee to receive the money ; and he relied on the indemnity clause. The following is the judgment of the Master of the Rolls : " I am of opinion that this clause does not exonerate a trustee from the con- sequences of any acts by which the money has been misap- plied. This clause is constantly brought forward to sanc- tion the misapplication of trust moneys, but until it is provided by the instmrnent creating the trust, that the trustee shall be liable for no breach of tiust, provided he does not obtain a personal advantage, I shall not consider (a) See Lewin on Trusts, 3 ed. 305 ; see also notes to Townley v. Sher- borne, and Brice v. Stokes, 2 W. & T. L•,^ Ca. Eq. 793. (b) Davidson Conv. Vol. 3, 2 ed. 182. (c) Brumridge v. Brumridge, 27 Bea. 5. 29 Vic. Ch. 28— Sec. 32. 43 the clause as giving a trustee the right or lilicrty of conniv- ing at a breach of ti'ust. Even if an instrument containing such an inconsistent clause were brought In lore me, I express no opinion on the result ; but until it is, I cannot allow a trustee to say, that it is not his business to act properly in the performance of his duty as tiustee. The defendant is liable, because, by signing the receipt, he has enabled his co-trustee to obtain and misapply the trust money." It may be gathered from what is above stated that the clause in question does not vary the law for the protection of trustees ; it is important that the law on the subject should be known, a.s it is said that the clause tends to mislead by its being taken by trustees in a stiict literal sense (a,). The above cases are based on the principle that a trustee should either decline the trust, or resign it, unless he is prepared to devote to it as much attention as he would to his own afFaii-s, or rather, perhaps, as an ordinarily careful and prudent man would to his own affairs (h). Still, as above stated. Lord St. Leonards had in view in introducing the . Sher- (o) 3 Davidson •Conv. 2 ed. 184. (6) In Bostock v. Floyer, L. R. 1 Eq. 26, a trustee had handed a sum of £400 to his solicitor, a man of " good repute and extensive practice," as stated in the report, to invest. The so- licitor professed to have invested the sum, and handed the trustee a bundle of deeds, &c., relating to the title, including a document purport- ing to be a copy of court roll, and to shew that one Stephenson had made a surrender of the copyholds in question to the trustee as security for the £400. From the time of the alleged investment, in 1853, to the death of the solicitor, in 1863, the interest was regularly paid through the solicitor. Nothing appeared in the lifetime of the solicitor to raise any doubts as to his integrity ; but shortly after his death it was discovered that he had been guilty of gross fraud, had never advanced the money to Stephenson, and that no surrender had in fact been made by Stephenson. There was no receipt by Stephenson for the money among the papers handed over by the solicitor to the trustee. The Master of the Rolls in giving judgment said: "The case is too clear for argument; the liability of the trustee is a matter of every day occurrence in the Court. If the trustee had banded over the £400 to the solicitor, and he had not invested it at all, but simply retiiinedit for his own use, there could be no doubt of the trustee's liability. This is simply the case of a per.son employing his servant to do an act, and the servant deceiving him ; and any loss so occasioned must fall on the employer, and not on the cestui que trust. Of the two innocent persons, therefore, one of whom must suffer by the wrongful act of the solicitor, the loss must fall on the trustee who employed him, and did not ■ |ll!!l1 Law op Pboperty and Trusts, 44 section corresponding to this, that the law should be re- laxed in favor of trustees (a) ; and the English Legislature has recently conferred benefits in aid of informal convey- ancing, and powers on those occupying a fiduciary position (^)- SECTION 33. In case of per- -^S. When any person shall, after the thirty-firat of December, sons dying one thousand eight hundred and sixty-five, die seized of or entitled cember 1865 *° ^^y estate or interest in any land or other hereditaments, mortgages on which shall at the time of his death be charged with the payment his real prop- ^j- ^^^y y^j^j q^ yii,,,s of money by way of mortgage, and such take all the precautions he might have taken against being deceived. The fund must be replaced with interest at 4 per cent." lu the same case the Master of the Rolls referred to another of a simi- lar nature, which had been before him, as fjUows: "The solicitors, exercising every possible precaution, found what appeared to be an unimpeachable security on freeholds vested in A. B. in fee simple ; but the title to which depended on a forgery by A. B. In that case I had considerable doubt whether the trustee could be made liable for the loss occasioned ; but I was not called on to decide the point." In ex parte Lewis, 1 Gl. & J. 69, assignees of a bankrupt put up the estate in two lots, and bought them in bontljide ; afterwards, on a resale, there was a gain on one lot and a loss on the other, the balance on the whole being in favor of the estate ; they were compelled to account for the diminution of price on the one lot without being allowed to set off the increase on the other. In Lewin on Trusts, it is said that the same prin- ciple was applied to trustees in Taylor v. Tabrum, 6 Sim. 281. In Eng- land, in cases of this nature, trustees are protected by 23 & 21 Vice . 145, sees. 1 & 2. In Robinson v. Robinson, 11 Bea. 371, it was held that where trustees had made several distinct investments not authorized by the trust, on some of which a loss had occurred, and on others a gain, that they should be charged with the loss, and also account for the gain, without any right of set off. This case was reversed on another point, not, however, affecting the decision on this question. The principle of this case is that the trustee shall derive no benefit whatever, directly or indirectly, from a dealing with trust funds, or from a breach of trust, and that by being allowed to set off he would virtually either not have been made responsible for the breach of trust, or have profited by his dealing with the funds. Lord St. Leonards, in 1859, introduced a bill to relieve in such cases; (W. & T. L^. Ca. Eq. vol. 2, 2 ed. 748); and considering the difficulty there sometmies is in knowing on what securities trustees may invest under the various clauses for investment, without being guilty of a breach of trust, (Mant v. Leith, 15 Bea. 524), the case has an appear- ance of hardship. (a) A Bill was also introduced by Lord St. Leonards, in 1859, to al- low trustees to set off gains against losses on investments not authorized by the trust. (6) Imp. Stot. 23 & 24 Vic. c. 145. 29 Vic. Ch. 28— Sec. 33. 45 person shall not, by his will or deed, or other document, have paid out of signified any contrary or other intention, the heir or devisee to ^"'^''^ F"'op'""^y whom such land or hereditaments shall descend or ho devised, ^^■^^ personal shall not be entitled to have the mortgage debt discharged or estate. satisfied out of the personal estate, or any other real estate of such '"[■• r^^^ '■' person, but the lands and hereditaments so charged shall, as 113 between the different persons claiming thi'ough or under the deceased person, be primarily liable to the payment of all mort- gage debts with which the same shall be charged, evory j)art thereof, according to its value, bearing a ))roporti()nate part of the mortgage debts charged on the whole thereof; Provided Proviso, always, that nothing herein contained shall affect or diininisli any right of the mortgagee on such lands or hercilitaments to ol»tain full payment or satisfaction of his mortgage debts, either out of the personal estate of the person so dying as aforesaid or other- wise ; Provided also, that nothing herein contained shall affect Proviso, the rights of any person claiming under or by virtue of any will, deed, or document ah'eady made or to be made before the first day of January, one thousand eight hundred and sixty-six. This section is taken from an Imperial Act connnonly known as Locke King's Act. Prior to the Act, in accordance with tlie general rule that The old law. the personal estate is the primary fund for j>ayment of debts, the heir-at-law or devisee was entitled to have the mortgage debt paid out of such estate, and the land thus exonerated, if the debt were of the devisor's or testator's own contracting or had been adopted by him as his own (a). The Act extends only to " any estate or interest in any lands or other hereditaments," and thci'efore as regards pro- perty not within those terms the law remains as before. , Tlie section does not extend to leaseholds (b), by reason -j^i^jg ggptjo^ of its referring to descent .and devise, heir and devisee ; ) Hepworth v Hill, .30 Bea. 476. .or v. Piper, 1 ' k H. !)I. (d) Power v. Power, 8 Ir. Chan. 31 (e) Rolfe V. Perry, 32 L. J. Cha. 471. {f) Pembrooke v. Friend, 1 .1. & II. I;i2. (g) Woolstencroft v. Wooistencroft, 2 De G. i . trary, or other intention shall be further declared by words expressly, or by necessaiy implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estjite." By the same act the Avord " mortgage " in the prior act and the same is made to extend to a vendor's lien on lands purchtused by ?.^ ^° vendor's ^ •' hen. a testator. (a) Moore v. Moore, 1 De G. Jo. & Sm. 602. (b) Eno V. Tatham, 4 GifiF. 181 ; Mellish v. Vallins, 2 J. & H. 194. (c) Porcher V. Wilson, 12 W. U. 1001. (d) Eno V. Tatam; Mellish v. Vallins; Moore v. Moore, supra; Smith V. Smith, 3 Giff. 263 ; Maxwell v. Hyslop, L. R. 4 Eq. 407. 48 Transfer op Real Property. Ilii ; 1 Taken fron Imp. Stat. 8 & 9 Vic. c. lOG. CON STAT. CH. 90. An Act respecting the Transfer of Real Pro- perty, and the liability of certain interests therein to Execution. This Act is taken lujiiiily from the Imp. Stsit. 8 and 9 Vic. ch. 100 ; its liistory is as follows : The Imp. Stilt, 7 and . 8 Vic, c. 70 was passtid, having for its objects some of the features embraced in >:he later Act, but as it was somewhat faulty, for the reasons j^iven by Mr. Ker in his letter to the Lord Chancellor (u), it wiis repealed by the Stsit. 8 and 9 Vic. ch. 100, which v/as batied on the suggestions in Mr. , K er's lettei", (indeed framed by him), and which re-introduced in dirt'ere it shape some of the features of the repealed Act and made other new enactments. Our Stilt. 12 Vic. ch. 71, was taken from the first Imp. Stilt., and was repealed iis to most of its clauses by 14 iind 15 Vic. ch. 7, which, except in one oi' two particuhirs hereiifter silluded to, followed the Imp. Stat 8 iind 9 Vic. ch. 100. SECTION 1. Interpreta- '^^^^ words and expressions hereinafter mentioned, which in tion of certain their ordinary signification have a more confined or a different woraa in this ,np.jui„u, ylmll in this Act, except wliere the nature of the provi- Act. . . sion or tlie context of tiie Act excludes such construction, he interpreted as foPows, that is to wiy : the word " Land " shall extend to mcssuiiges, lands, teueaients and hereditaments, whether corporeal or incorporeal, and to any undivided idiare thereof, and to any estate or interest therein, and to money sub- ject to be invested in the pundiase of land or of any interest therein; the word "Conveyance" shall extend to a feoffment, grant, lease, surrender, or other assurance of land. 12 V. c. 71, s. 1. ( I See letter ia Appendix- Con. Stat. Ch. 90— Sec. 2. 49 SECTION 2. 2. All corporeal tenements and hereditaments shall, as regards Corporeal the conveyance of the immediate freehold thereof, be deemed to tenements, ,. . . 11 • V 1 J 1 e tr »7 1-1 deemed to lie lie m grant as well as in livery, 14, 15 Y,, c. 7, s. 2. in grant The Common Law loved simplicity and notoriety ; all it required for the creation or transfer of a freehold estate in possession was a mere oral gift, coupled with livery of seisin, the gift being incomplete without livery, unless by way of release or surrender to the next in estate, or by matter of record. Corporeal hereditaments were therefore said to lie in livery. Incorporeal hereditaments of certain kinds, as for instance a freehold remainder created de novo out of lands in possession recjuired livery, (a) and the estate arose and took effect out of the .seisin of the feoffor, but all existing in- corporeal hereditaments, inasmuch as no liveiy could from their nature be made of them, were transferred by way of grant, and were therefore said to lie in grant. To the perfection of a conveyance by way of grant, a deed was requisite at Common Law (h). After the passing of the Statute of Uses, conveyancers availed themselves of its pro- visions to avoid the necessity of making livery, and convey- ances by way of bargain and sale, and lease and release were Bargain and adopted. Thefirstofthese modes hadmany disadvantages ('^.'j; s*'^- Lease it was ineffective as sucli, if not based on a consideration of money, or money's worth ; to ptiss a freehold estate it was necessary by the Stivtuto of Enrolments, 27 H. 8, ch. 10, that it should be by deed, indented and enrolled : general pow- ers, as to appoint or grant lea.ses cannot be engrafted on a bargain and sale, (d) and it is not adapted to certain limi- tations as by way of shifting or springing use in the usual frame and limitations of marriage settlement. There must i^[ V (a) Smith HI Prop. 055, 3rd ed. (b) Co. Litt. h, l'2t\. (c) As to these and other matters relating thereto, seo BUickstone hj Leith, p. 298; and, post, remarks under s. 14. (d) Gilbert Uses, 46; Sugden on Powers, 138; Walk. Conv. 9th ed. 357. f 50 Transfer of Real Property. U\a Object and effect of section 2. vm be an estate in tlie bargainor of which seisin can be had, and not a mere right, contingency or possibility (a). For these reasons the conveyance l)y way of lease and release had in England, at lesist in all special conveyancing, entirely superseded the bargain. and sale; the release operating as a conveyance at Conuiion Law, and not by way of transmu- tation of possession. There was also the further reason and advantage, viz. : that the lease though operating under the Statute of Uses as a bargain and sale for a term, still did not require enrolment, as the Statute of* Enrolments only ap- plied to freehold estates. The disadvantage was that two deeds were requisite, and the lease was frequently lost land incapable of proof, and so the release, as such, in operative. The object and offect of the Statute is to give to the conveyance by \/ay of grant, all the advantages with none of the disadvantages above explained attendant on that by way of lease and release (h). Being the creature of the Act it is not, of course, a Conunon Law conveyance as re- gards an innnediate freehold, but it will oi)crate in the same way as regards all us(>s and powers declared, and should be adopted in every case where tlu; facts do not render other modes of couvi>yance, as by Avay of surrender, as.signment, i-elease, &c., more a])pro])riate. The word , to the u.se of or in trust for C, on a pecuniary consideration exj)res.sed, and the inten- tion were manifest that B .should have the legal, and only the equitable estate, winild the deed to carry out such (a) Co. Litt. 301 b ; Davidson Conv. vol. 1, Ikd ed. p. 69. (h\ Cameron v. Gunn, 25 Q. H. U. C. 77 ; Acre v. Livingstone, 20 Q. 15. U. C. 282. (c) Acre v. Livin^rslon, supra, Haj^arty J. diss. ; see remarks on Con. Stat. c. 'Jl, pest, p. 100. 62 Transfer of Real Property. intention bo construed to operate as a bargain and sale on the principles above referred to (a) ? It would seem that, in the first case put certainly, and in the second case pro- bably, the intention as collected from the whole deed would govern ; if no intention were apparent the grantee might . elect (b). In some cases it is said that where a deed may operate at Common Law, or by way of use, it shall operate under the former mode, unless the grantee otherwise elect for his benefit (c) ; but in applying this principle it must be borne in mind that a conveyance operating xmder this Act is not of course a Common Law conveyance, though it operates as such in regard to the uses declared by it. SECTION 3. Feoffments, 3. A feoffment, otherwise than by deed, shall be void at law, unless bj| deed ^^^^ no feoffment shall have any tortious operation, 14, 15 V. to be void. - „ J I f s. 3. c. I, Feoffments. Effect of. As mentioned under the last section, a mere oral gift was sufficient to convey a freehold at Common Law, but livery of seisin was requisite; a charter usually accompanied the feoftment Jis evidence of the transaction, and was therefore worded in the past as well as the present tense ; a form which is uselessly (except in deeds of disclaimer) sometimes continued in conveyances at the present day. By the Sta- tute of Frauds a writing and signature were enjoined, and now sealing is requisite: it would seem, however, that it is open to contention that the sealing and delivery by the party creating the estate will supersede the necessity of his sig- nature, notwithstanding the Statute of Frauds, and this not only as to feotfments but as to other assurances (d). A feoffment was an assurance of greater power than any (a) Ante p. 51. (6) Shelford Statutes, 729, note v, 7 ed. and cases there cited ; Smith Rl. Prop. 3 e. . S66 ; 1 Hayes Conv. 5 ed. 162; Roe v. Tranmarr, 2 Smith, Lg. Ca. >d. 450 ; Haigh v. Jaggar, 16 M. & W. 526. {c) Ilaigh V. Jaggar, 16 M. & W. 541 ; Heyward's case. 2 Rep. 35 b; Miller v. Green, 8 Ring. 92. (d) Cherry v, Heming, 4 Ex. 631 ; Aveline v. Whisson, 4 M. & G. 805 ; Tupper V. Foulkea, 9 C. B, N. S. ^9^, arguendo-, see further post, pp. 60,61. i' Con. Stat. Ch. 90— Secs. 3 & 4. 53 ly Ith 2 worked a for- other (a). By it, contingent remainders depending on par- ^ ticular estates could be barred or destroyed (b) ; it de- stroyed powers appendant or in gross ; if made by tenant in tail in po.ssession, for a fee simple absolute, it worked a discontinuance, which tolled or took away the right of entry of the issue in tiiil, as also of the rcm.ainder-man or reversioner, and left but a right of action, to be enforced by the peculiar writ of formedon (c) ; when made by a person in actual po.ssession, though wrongfully so, yet if Tenant for a not a mere temporary trespas.ser, it had the eft'ect of ])as,s- '^ss estate / l\ \ I e u- I c a- i. 1 niig'it convey ing by wron;/ tlie estate ot which leonnieut av,is made ; a fee by thus, on a feoffment in fee by a dis.seisor or mere tenant w''o''g, at will, the feoffee took a fee by ivrong, the true owner of the freehold was f//.ssf'/.se(/, remainders and reversion, if any, were (livestcd or See further, Smith Rl. Prop. 3rd ed. C76 ; Watkins, 9th ed. 237 : 2 Bl. Corn. 322. 56 exchange indispensable. Implied war- ranty of title. When requir- ed to be by deed, &e. Leases, at Common Law. Statute of Frauds. Transfer of Real Property. indispensable to this niode of conveyance (a) : thus, in (lower, a plea that the hu.sband of demandant exchanged lands for those in question, and that demandant elected to take dower out of the other lands, was held not proven by an ordinary deed of bargain and sale from the husband for a consideration therein expressed of £G00 (b). An exchange at Common Law could only be between huo part left, but the immber of persons composing each party was immaterial ; the reason was that the implied warranty of title could not be carried out if there were more parties than two (e). On eveiy exchange there was an imj>lied warranty of title, if the word e.cc}i(in(je were used; so that on the actual eviction of either party or his heirs, the party evicted could re-enter on the land given in exchange, and avoid the exchange in whole or pro tanto : but this did not extend to alienees (d). By section lOof this Act the implied war- ranty is iibolislied. At Cvominon Law if the estates conveyed lay only in grant, oi' if the properties were in several counties, the exchange had to be by deed. By the Statute; of Frauds writing was enjoined, and now a deed is requisite. At Common Law a lease for life required to be created by livery, but a lease for a less estate might be by parol. Till entry, on a lease operating at Common Law and not under the Statute of Uses, the lessee has but an interesse tn'mini, and can bring no action of trespass, and receive no release of the reversion. The first four sections of the Statute of Frauds arc as follows : Sec. 1. All leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery of seisin only, or by parol, and not put in writing and (a) Watk. 9 ed. 329; Co. Litt. 50 b., note (1) by Harg. ; Towsley v. Smith, 12 Q. B. U. C. 555. (6) Towsley v. Smith, supra ; Stafford v. Trueman, 7 U. C. C. P. 41 (c) Co. Litt. 60b, note 1 ; 61a, note 1. (d) Smith El. Prop. 676. ill Con. Stat. Ch. 90— Sec. 4. 67 as of signed by the parties so making or creating the same, or their Statute of agents thereunto lawfully authorized by writing, shall have tho Frauds, force and effect of leases or estates at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect ; any consideration for making any such panil leases or estates, or any former law or usage to tho contrary, not- withstanding. Sec. 2. Except, nevertheless, all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to tho landlord during such term, shall amount unto two-third parts, at least, of the full improved value of tho thing demised. Sec. 3. And moreover, that no leases, estates or interests, either of freehold or terms of years, or any uncertain interest, not being copyhold or customary interest, of, in, to, or out of any messuages, manoi-s, lands, tenements or hereditaments, shall be assigned, granted, or surrendered, unless it be by deed, or note in writing, signed by the \YArty so assigning, granting or surrendering the same, or their agents thereunto lawfully authorized by writing, or Vjy act and operation of law. Sec. 4. No action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate ; or wliereby to charge the defen- dant upon any special promise to answer for the debt, default, or miscarriages of another person ; or to charge any i)ci-son upon any agreement made upon consideration of marriage ; or upon any contract, or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or upon any agreement that is not to be jjerformed within the space of one year from the making thereof; 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 pei-son thereunto by him lawfully authorized. The Id section appears to relate to cases where an estate The bearing or interest is created de novo, and actually passes to the °^ ^^^ ^^!^^ lessee or grantee ; the Srd section to cases where an estate of Statute of or interest previously existing is transferred ; and the Frauds. ith section to cases where a right of action only is created by an agreement, or Avhere an agreement is made respect- 8 68 TUANSFF.U OF ReAL PROPERTY. ing the future creation or transfer of an estate or interest (a). The 4y act of law ; and if such estate or interest were such as under section 1 re(iuired to be created by writing, tlien by this Con. Stat, the assignment or surrender, uidess by act of law, must be by deed {d). Whether an There is frecpiently great difficulty in determining instrument is whether an instrument is intended to operate, and does a present de- . raise or only operate, as a present demise, or merely as an agreement, an agreement and Vice vevsd (e) ; in fact some care is requisite in framing an agreement for a lease not recpiisite to be in writing, to . prevent its operating as an actual lease ; to add to the dif- ficulty, ctises varied a.s to whether or not this Act makes any difterence in regard to the question ; the later cases favor the construing as an agreement an instrument which as a lease would be void (/). In one case {(j), Bramwell, B., said : " It seems to me that in Stratton v. Pettit (16 C. B. 420), the Court made this mistake. Whereas before the Stat. 8 and 9 Vic, c. lOG passed, it involved no inconvenience that certain words should be interpi-eted as an actual de- (a) Smith Rl.Prop. 3 ed, 300. (i) Suff. Vend. 13ed. 98; Ued. 123. (c) lb. (d) Hogan v. Berry, 24 Q. B. U. C. 346 ; which would seem to have been a case of an uncertain interest. (e) Shelf. Rl. Prop. Sts. 7 ed. 620, and cases there cited ; Addison Contracts, 316, 5 ed. (/) RoUason v. Leon, 7 H. &N. 77; Hayne v. Cummings, 16 C. B. N. S. 421 : see also Tidey v. MoUett, 16 C. B. N. S. 298, and Stranks v. St. John, L. R. 2 C, P . 376, per Willes, J. ; semble. Stratton v. Pettit overruled. (g) RoUason v. Leon, 7 H. & N. 77. Con. Stat. Ch. 90— Sec. 4. 59 ted. 123. to have Addison mise (an instrument void a.s a lease for want of .signature being also void as an agrconicnt. — AV/.) ; yet vvlien that Statute pa.saed and made tlic sanio reasoning iniiiipllcalile, and rendered it inipossilile that parties using \vord.s of agreement should have iiitondes(!cm thut so far a.s appli(!iiblo tho terms and provisions of tlio iiitt^ndud Icaso will p)vi'rn (*/), Tlion;,'h tin- iiistnnuont l)o void at law as a lease, yet spccifu! peiformancc may be enforeed, treating it as an agreement for a lease* (/>) : and even at law, where an instrument not under seal nnght have (tperated as tin nctiiid demise hut for the Statute, whieh ujakes it void, yet if it <'ontain an agreement for a grant of a regular lease, such iigreemeiit is liinding iind tin action may he main- tin ncd ((•). It will Im' olisorved that under section 4 whieh refers to tufveeinciifs, no estate passing, the authority to tho agent may he hy j)arol ; hut under sections 1 and M, which pro- vide for cases when^ the estate is intended to he actually created or transferred, the authority imist he in writing. Tli(^ Consolidated Statute having enjoined sealing in all cases under section I, (unless within section 2), and in all cases of assignments or surrender in deed within section 3, (unless the interests assigned or surrendered might have heen created without writing), the ([uestion arises whether the authority to the agent nuist not in such cases also ho under seal ; it has heen laid down in a work of some au- thority that it nnist bo hy deed (, the word sit/iwd may he referred to tlie woids iiofc ill iri'Uinrj ou\y. It \v). There is also a chtss of ca.ses where no evi- dence is eapahle of being j^iven of execution of a deed hy i a party to a suit, exoept hy calling liiin as a witness, and where the atte.sting witness cannot be called a.s being ii party to the record : thus, in one etuse the defendant in dower liad witnessed the execution by deinaiKhmt, as a 'markswoman, of a conveyance to one from whom the def'en- pant aftcrwai'iU purdia.sed ; the conveyance e(»ntained a relea.se of dower ; it was considered that proof of the defen- dant's signature as a witness woh inadmi.ssihle (<•). (a) Cherry v. Ileining, 4 E.\. (»;U (b\ Cherry V. Ilcining, 4 E.k. G31 ; see also Clark v. Steveiisoii, mfra, and C. L. P. Act, section 212. (c) Clark V. Stevenson, 23 Q. B. U. C. 525, Hagarty, J., diss. i If. ill ■ if 62 Transfer op Real Property. 11 One seal may suffice for two parties. Assirrnment, of whole ea- tiite in a term lias been con- strued as a lease. All assign- ments must be iti writin;;, and if of inte- rosta that ci'tild not be created with- out writing, then by deed, Authority to ft'^i-iit be by deed, if the nssii^nment be by deed. Where one of two partners signed in the name of both in presence of the other, and for him and with his assent, tliongh there was but one seal, it was held the deed of both ; the deed, however, did not i elate to lands, but appa- rently to a matter of partnership business (a). An assignment is properly a transfer of one'.s whole interest in any estate (6) ; but it is usually applied to an estate for years, or equitable interests. A transfer of the whole interest in a term, has been con- strued as a lea.se, and not as an assignment, rent having been reserved to the assignor, the intention having been to create the relation of landlord and tenant, and the transaction being valid, if regarded as a lease, but void if regarded as an assignment, as not being in writing (o). Lord Dennmn, C. J., ob.served " If we were to decide that the transaction w<'is an assignment, we should at the same time decide that it was no a.s3ignment, being by parol only, and we should construe that which was expressed to be a lease, to be an assignment only ul vrs' pereat, which is against a known salutsvry maxim." As an assignment operates on the whole interest, it is said it cannot be made of a term to take effect in fa- turo (il). The necessity, by reaso'i of section 3 of Sta tute of Frauds, of all assignments being in writing and signed by the as- signor or his agents, or by deed, wasliciore oxplai led (c) ; as also the necessity of a deed in ali cases whore the interest a.ssigned is such as could not be cro.sted without writing Q) ; and also tho question as to whether if the assigament must be by deed, this Act does not superaild the necessity of a seal to the authority to an agent transf(»rring, which by the Statute of Frauds, need only be in writing (//). (a) Moore v. Boyd, 15 C. P. U. C. fil3; see also Hall v. Dunsterville, 4T. 11. :n.i. (6) Walk. Conv. 9th cd. 343; Watt v. Feader, 12 C. P. U. C. 254. (c> Pollock V. Stacy, 9 Q. B, 1035; see also ("ottee v. Richardson, 7 Ex. 143; but see Barrett v. Uolph, 14 M. & W. 348, contra. (d) Watk. Conv. 9th ed. 343 note; Smifli ill. Frcp. 3rd ed. 710. (e) p. 58. (/) p. 5H. {g, p. CO. It" Con. Stat. On. 90--Sec. 4. 63 As before exijlained also, Jio siyuaUire may be rec^aired if tlie a.o:iigi)int'nt, be by deeil. A surrender (a) is the yielding n\> or returning of a smaller estate, to him who has a greater estate in remain- der or reversion inivwdlateli/ expectuxi on sueh smaller estate. Surrenders are of two kinds, express or in deed, and im- plied or in law. _ At Connuon Law, (except as to things whieh lay oid>' in gi'iint, sueh as ineovjutreal hereditaments), a surrender was gi>od by parol, juul though of a freeliold estate, might have been without livery of seisin, by reason of the privity of estate neee.ssarily existing I'etween the parties. The nece.ssity, by reason of the Statute of Frauds, of all suirenders (exeei)t those l>y operation of law) lieing by deed or note in writing was Ijcfore ex[)lained (p. r) give rise to (questions of great dithculty. These Surrender. at Common Law. All surren- clei-s except by act of law mu.st be !n writing. If of an inte- rest that re- quired to be created in witin^, then must be by deed. Authority to the iij^ent inrjt bo by deed, if the surrender is by deed. Surrenders in law. (a) As to surrenders, see Smith Kl. 1 lO;). 3 ed. 700 ; Watk. Conv. y et [Vi'i ; 2 Black. 326 ; 2 Sniiih, Lg. Ca. b ed. 713 ; ed. 75'J. (h) Loi J Ward v. Lumley, o 11. & N. 87 ; see also Fraaer v. Fr^lick, 21 Q. H. U. C. 346 ; Fraaer v. Fra.ser, M C. ?. U. C. 70 ; Laur v. White, 18 c. P. u. (J. yy. (c) Doe d. Burr v. Denison, 8 Q, B. U.O 186. id) Lewis v. Brooks, 3 Q B. U. C. 576. m 64 Transfer op Real Property. Acceptance of new lease. Parol agree- ment and chan^'e of possession. Defence to subsequent rent, not prior rent, except liy way of equi- table defence, sui. >nders liave been referred to the doctrine of estoppel in j)cil8 (a). The term surrender by operation of law wsis said by Parke, B. (b), to be properly applied to cases where some " act has been done by or to the owner of a particidar estiite, the validity of which he is estopped from tlispntinj,', and which could not have been done if the par- ticular estate continued to exist. The law there says that the act itself amounts to a surrender. In such (;aso, it will be observed, then; can ho no question of intention. The surrender is not the result of intention ; it takes ])lace independently, and even in spite of intention." The .acceptance of a new lease, though for a li.',s.> period than the <'.\isting term, is a surrender of tl- term, provided such an estate pass by the new lea>.- as wa- contem[»l;i), except that by 24 Vic. ch. 41, .sec. 8, section 11 of the 24 Vice. 41 Con. Stat, was repealed and re-enacted. The change made »• *^- is that part of the Con. Stat, which enacts that lands be bound by judgMt-nt is by the later Act to be omitted. The Stjit. 12 \'ic. ch. 71 sec. S.wtvs in substance nuich the same as sec. '> of 14 tfe 15 Vic. ch. 7, which repealed it; the former, however, a))plied only to rights of entry fo)' con- dition broken, whilst the latter applies to rights of entry, Any interest in lands which might he con- veyed under this Act to be liiil>le under executions. (a) Bradfield v. Hopkins, supiii ; sec Webb v. Hewitt, 3 K. & J. 438. (6) Post, title Execution. ^ 9 6G Con. St. C.90, a. .O, OS to contingent, interostf, Ac, does not ap- ply to mere possibilities, rights of ac- tion, rights of entry for condition bro- ken, chattels or devises. Distinctions between the various inter- ests. Interests exe- cutory and fu- ture may be contingent, or vested, or neither. Transfer of Real Property, an important (lifleroncc fus licreafter oxplainctl : tlie former Statute also applied to personal ])roperty, whilst the latter does not. The Statute 14 and 15 Vic., Con. Stat. ch. 90, sec. 5, is. taken from the Imj). Stat. 8 & 9 Vic. ch. lOG. Both the Imperial Act and the Provincial Act of 14 & 1;") Vic. were designedly retrospective in their operation, that i.s, contin- gent interests created and existing before the pa.ssing of those Acts were made assignable, but, as hereafter explained, the Con. Stat, by sec. 12 varies this (a). As many titles de])end on the question of the validity (or rather the invalidity), of conveyances of contingent interests and rights of entry before tlu^ Statute, it may be advisable to detine shortly their natiu'e, how they stood at Common Law, and the further statutory enactments as regards their devi.sable quality, especially as the Act does not apply to iiierr ))aked ])ossibilit'ies, or to mere rights of action as distinguished from rights of entry, or to rights of cntiy for conditions broken, or to chattels not being chattel.s real, or to devises. The distinctions between contingeit, executory and future interests, and pos.sibilities coupled with an interest, are sometimes exceedingly refined and subtle (h) : it was said Ijy Lord Ellenborough that it is far easier to insttmce what they are not, than to detine what they are (<;). As they ars now all capable of being conveyed under the Statute, it is not propo.sed to point out all the disti ictions between them. It may be mentioned, however, that all contingent interests are nece.s.sarily executory and future, but all executory or future interests are not neceK,sarily contingent, but may be vested in ])oint of estate, or, says Mr. Preston (d), neither vested nor contingent. (a) See remarks as to sec. 12, pp. 85, 8G. lb) 1 Prest. Est. ; Fearne Cont. Remrs. by Butler and app. thereto on E-^ecutory Interests, by .Smith ; notes to Hanson v. Graham, Tud. Lg. Cases. {c] Doe V. Tomkinson, 2 M. & S. 1 70. (d) 1 Prest. Eat. p. G;{ ; Titles, 2 ed. p. 118. Con. Stat. Ch. 00— Secs. 5 & 11. 67 An executory or future interest, neither vested or con- tingent, may arise by e.xecutory devise, or on a sprinjrfing or shifting use, dependent on no e(intin;,f(Mit or uncertain event, but on one that certainly must hiiii|»en, as on a limitation to B and his heirs to the use of (J and his lieirs on the death of A, &c. The intere.st is not enntingenl, becuise it does not d('j)end on a c(»i(i)i). Of tliis an instarx-e is aflbrdeil by a vested remainder in B dejiendcnt on a life estate in A. The Si.atute relates not to these latter interests, which are presently executed and vested as regards estate, de}»eudent oi. no contingency, and merely execnt»»ry as regards time of enjoyment ; for such were alienable at Common Law. It relates to interests executory and future in all resjK'cts, not only as to tinu; of enJMvment, iuit also of vesting in estJite, which time may be ti.xed and certain, (»r contingent and uncertjiin : and in tliis .sense only they are spoken of hereafter. Strictly speaking there catinot be a contingent cs^rr^c ; there may be a contingent infetrf^t ; but no interest except such JUS is vesteo>^c» of the Statute at least, be illustrated by the cases of gifts to take ett'ect in favor of the survivor of several persons ; to chil- dren who shall attain twenty-one ; to children who may be living on the death of their surviving parent, or the like contingency. These possibilities have been said not to be contingent interests (/>), or cou})h>d with an interest, but to be mere i)ossibilitie8 {•:) ; and if this be .so, then the in.stjinces above j)ut are not within the Statute, and such interests not assignable at law. It is ventured to submit, however, that such cases are within the Act, and for the j)urpo.ses of the Act at lea.st, to be considered as beyond mere possibilities. As regards the existence of a possibility coupled with an interest when the object is not ascertain- ed, Mr. Preston says, "a contingent interest gives a mere possibility ; a possibility which is coupled with an interest when the person is fixed : mere possibilities to [)er.sons not (a) 2 White & Tu. Lg. Ca. Eq. 2nd ed. p, 052; Shelford Stat. 7th ed. 3t5. (6) Per Lord Ellenborough, C. J., Doe v. Tomkinson, 2 M. & S. 170. (c) Preston Estates, vol. 1, pp. 75, 7fi; see also Watkins C'onv. 9th ed. title Possibility, note. Con. Stat. Ch. 90— Secs. 5 & 11. 69 iisccrtainecl, as to the survivor of several — are not coupled with an interest." At the the time he wrote, this definition answered every purpose ; but since then the Act has allu()V(! deHnt'd, not coupii'd with any interest, would talone ap])ear to be exchi(h^d i'roni the Act (a) ; and it is apprehended that thougli l)cfon^ the Act a devise to the survivor of two living persons might bt; termed a possibility not cou])led witli intei'cst, yet it is not so now for the ])urposes of the Act. It would lie diiiicult to suggest any cases answering the language of the Act, of possibilities conjiled with an interest where the object is not hxed, if the above in.stanccs do not. Possiltilities coupled with an interest where tlie ohjcct is fixed, l)ut the event is uncertain whereujxtn sucli object i.s to take, may be exemplified by many cases of contingent re- mainders, or limitationsby way of executory devise, orspring- ing or .shifting use, in favor of ascertained persons, the whicli, however, are not to tJike effector become vested estates till the ha[)i)ening of .some named event, which by jmssibility never may happen (b) ; as on a limitation Ity executory devise or shifting use to A, and on the return of JJ from Rome, then to the use of C The inchoate right to dower of a woman who.se husband is alive is a possibility which is within the Act (c) ; and may be sued for in the name of the assignee (post, JJowei') ; N'lvked ^)ossi- l)ilitios not within till! act. Possibilitios coupicil with an interest whore oljject is fi.xcd, l)ut the event i.s uncertain. Instances. Dower. m\ ■1; I It. i-1 m (a) 2 White and Tud. Lg. Ca. Eq. 2nd ed. 65t; :^rd cd. 70S. (h) See Watkins Con., title Possibility, note. (f) Miller v. Wiley, 16 C. P. U. C. /)29 ; 17 C. P. U. ('. iif.s, .s-, r. In this case, nnfortunatelv, the case of McAiinany v. 'rinrilmll, 10 (irant, 2!)S, was not referrea to; it is distin;,'ui.shal)le from tlial ciiso in this, that in the latter case the husband was dead at the time of ihea.ssij^n- ment of the dower, whilst in the former ho was not. Jn some ret:pect3 Miller V. Wiley upholds the case in equity, for the Tourt said "it may theriifoie be that a demand for dower, which has bet-n lian.sl'ened iifler her husband's death, though broujjht in the name of the woman, as it I 70 Husband's iiilcrest ill liiiidiiof tlie wife. Transfer of Real Property, whilst on the other hand if the husband Avero dead, so that the clement of contingency is removed jus regards the right in point of interest, and the interest becomes vesteil, giving a present certain right of action, the cfuse is not within the Act (rt),and the assignment is recognized only in ccpiity (b). At Coniinoii Law the husliand, liefore birth of issue, can convey (»nly for the joint lives of himself and his wife, and could not convey his jiossibility of becoming tenant Ity tlie curtesy, but aft(;r birth of issue capable of inheriting and on seisin of the wife.he could convey for hisown life his inchoate right as tenant by the curtesy initiate (c) ; and such right as regards alienation needs not the aid of this Act, and is probably must be, is brought for the benefit of the assignee." Now this recognizes tiiat such a transfer is not within the Act, for if it were, then the action must bo brought, not in the name of the woman, but of her assignee, see post p. 7(). On the other hand, the case at hiw conflicts with that in equity in this, that the Court stated (p. 542) " since the Con. Stat. ch. 'JO, we are inclined to think that a woman may before assignment of dower convey her claim to it to any person, for it is an interest, though not an estate in land, and so w« think within the Statute." Now considering that the Court, just prior to the above words, was referring to the case of a widotv's convey- ing, it would seem that by those words they also referred to the same case, and intimated that a widow may convey iiy force of the Act, which conflicts with the prior -'ecision in e(iuity. It is manifest that the Court was in thore worus referring to the case of a widow, for snpposition to the contrary would conllict with what is subsequently laid down (p. .OliJ), where the Court, after referring to the fact that it was a case of re- lease to a purchaser in the husband's life time, said " if it turn out that the alleged purchaser was a mere assignee of her inchoate right of dower, she will succeed, because the assignee will not have been a purchaser, but a mere stranger to the land, and as such a right would not pass, she may well say she did not in la'..- release her dower, as alleged." It is submitted that the assignee of a married woitum of her inchoate right might take by force of the Act, by an assignment executed with the proper formalities, and that the right would pass by assignment; that such inchoate right is at lea.st a possibility coupled with an interest within the Act, and that if the right does pass, the assignee can sue in his own name (post p. 70) : also that the case of an aasignment by a widmo is not within the Act ; and though vftlid as a mere contract in equity, is not valid at law to pass any interest, and the assignee cannot sue in his own name. It is to be remarked that in Miller v. Wiley, the Court stated, (p, 534) " it is not necessary to express any opinion on this question." (a) McAnnany v. TurnbuU, 10 Grant, 2t)8 ; see, however, the observa- tions in the previous note. {b) Koso V. Simmerraan, '^ Grant, 5"J8 ; post p. 257. ic) Smith III. Prop. 'A ed. ISG ; Moffatt v. Giover. 4 C. P. U. C. 402 ; Watk. Conv. 3 ed., by Preston, p. 54 ; see further as to the iiusband's rights, the remarks on Con Stat. ch. 73. just of re- )ut that dower, baser, pass, Jjed." luhoate th the at such in the name within ilid at le. It . 534) :. 402 ; (band's Con. Stat. Ch. 90— Secs. 5 & 11. not within it (d). Before seisin, its in case the •wife's esUite sh()ul), unless in the latter case it is controlled by ( 'on. Stat. eh. 7.S, see. 1.*} (c). Such intere.st would .seem to stand as regards its alieiiahle (qualities by force of this Act on at least as high a looting as a wife's inchoate right to dower during the life of her husband, which is within the Act (; in the instances above given, they were wanting in the ([ualities of such interests, in that they could not even bo relea.sed, {(') or devised under the Statutes of Wills of Henry (/), and it may be doubtful whether they are now devi.sable. Bare po.ssibilities as above defined are not within the Act, and stand yet on the same footing as tlutse coupled with an interest where the object was not fixed o(*cu])ieil before the Act. Though incai)able of being alieneil at law, an assignment ^M' value in enforceable in ecpiity (y). (a) See Emrick v. Sullivan, 2') Q. B. U. 0. 107, per Draper, C. J. (b) SeeMoffattv. Grover, 4C. P. U. 0. 402, per Mcbcnn, J., that after birth of is.sue the husband's intere.st as tetiant l)y the curtesy iiitiato could be sold at Common Law. (c) See observations on that Act. (d) Ante, p. CO. («;) Smith Rl. Prop. .T cd. G92. ( /) Smith 111. Prop. .1 od. 951 ; Doe v. Tomkinson, 2 Mau. & S. 1C5 ; see the principle discussed, 1 Jar. Will.s, 2 cd. 'M. ig) Lyde v. Mynn, 1 My. & Keen, ()8;5 ; Pope v. Whitcombo, .". ]{uss. 124; Wethered v. Wcthered, 2 Sim. 183; see Harwoodv. Tooke, 2 Sim. 192 ; Alexander v. VVellin},'ton, 2 Rusa. & M. 55 ; Carleton v. Leighton. 3Mer. CG7 ; see also 2 W. & T. Lg. Ca. 2 ed., 054, GIO. 71 Possibilitie.'? with an inter- est depend- ent on uncer- tainty of event only, devisable, &c. If the object were unascor- tained, not releasablo or devisable, And the same as to bare po.s.sibilities. 'Mn 72 TuANSPER OP Real Property, Ui{?lit8 of «'iitry, Tlic intcroHtH wliich have been alluded to confor jiiani- fcstly no iiniiKMliiito r!t/hl of entry, and this iij,'lit is to bo distin^uislu'd fVoin a men? rij^ht of action, wliich is not within \\w Act. A right of entry confers a right of action. hut .'1. right of action t.> recover lands df»es not necessarily (lisUnffuisli('(l cnnfer ii I'igltt of entry. A right of entry exists in all cases ln)mri;,'lii.s()l ,,(• j|liateni(;nt, intrusion, or disseisein (a), and simultane- nction. .11 • 1 I. ■ .11 .1 ously with that a right oi ai^tion ; tornu'rly th(> right oi (Mitry might have been toIle), fiutt ciim|>rising cases of abatement, intrusion or disseisin, and the case oi' overholding tenants,) no right of entry, but .-i mere right of ac^tion exists. The claim for dower withhelil is a familiar instancH' of the existence of a right of action without a right of entry ; so also the I'ight to avoid a conveyance on e(|uitable gi-ounds. Hi;,'lit.^ of en- lliglits of entry are further to be subdiviiled for the try il I.St 111- ixirnoses at lenst of this Statute, into ri" O 7 # Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. HS80 (716) 872-4503 ^ 4. £P "^ w- W., i/s '5- n 32 H. VIIT. c. 9, as to sale of rights of entry. Rights of entry not de- visable. Rij^hts of action not assignable at common law, or now, may be released. Transfer of Real Property, that the right of the owner could not be denied by such penson (a). In affirmance of Common Law principles,* by the Stat. 32 H. 8, c. 9, penalties were imposed on both the seller and the buyer (having knowledge of the facts) of the right, whether real or false, of a person disseised for more than a year before sale (6). This Act is virtually repealed by the Con. Stat., at least where an actual legal right of entry does exist, as in the case of the true owner being disseised, and where it is not the case of a mere pretended right which the claimant himself could not enforce (c). The owner whilst disseised could not, at Common Law or under the Stat, of Henry, devise (d), but there were circumstances under which mere adverse possession would not prevent a devise being valid (e). This Statute does not apply to devises, and it does not seem to be quite clear that a person disseised has now any greater power to devise than at Common Law (/)• Rights of action were not assignable at law, on the same rules that prohibited assignments of rights of entry : nor are such lights, not partaking of the nature of rights of entry, but being mere rights, unaccompanied by a right of entry (ry), as in tlie instance above given of a deforcement by non -performance of a contract to convey a freehold estate, or the withholding from a widow of her present existing right to assignment of dower (It), now assignable, as not being within the Act. It follows also that they are not, by force of the Act, saleable under execution. They may, however, bo released to the terre-tenant (i). (CI) Bishop of Toronto V. Cantwell, 12 C. P. U. C. 610, per Draper. C.J. ; Benns, q. t. v. Eddie, 2 Q. B. U. C. 286 ; see also 1 Jarraan on Wills, 3 ed. 44. (6) Beasley v. Cahill, 2 U. C. Q. B. 320 ; Baldwin v. Henderson, 2 U. C. Q. B. 388; Doe d. Williams v. Evans, 1 C. B. 717. (c) Baby, q. t. v. Watson, 13 Q. B. U. C. 531. (d) Jarman Wills. 3 ed. 43. (e) Supra, as to conveyances by disseisee ; Doe v. Hull, 2 D. & Ry. 38 ; CuUey V. Doe, 11 A. & E. 1021. (/) See Con. Stat. c. 82, s. 14. ig) See ante, p. 72. (h) McAnnany v. Turnbull, 10 Grant, ^98. (t) Co. Litt. 265a, note 1 ; Miller v. Wiley, 16 C. P. U. C. 538, • r Con. Stat. Ch. 90— Sec. 5 & 11. 75 In equity, assignments of these rights for valuable consid- Validity of eration are recoernized and enforced (a) ; unless contrary to ^^'S'^ent /.i . reco2;inzea public policy, or partaking of champerty or maintenance, in equity. as in the case of purchase of a bare right to file a bill to set aside a conveyance for a fraud on the assignor (6) ; but if Champerty, the right to file such a bill is a mere incident to the trans- action, and the property which was the subject matter of the fraud is also conveyed, such conveyance is valid even though voluntary (c). A right of action unaccompanied by a right of entry, as Devisable in the instances above given, is devisable as in the nature qualities of of an equitable interest (d) ; but a reversion in fee expec- action, tant on an estate tail which had been discontinued by the tenant in tail could not be devised (e), nor if expec- tant on a life estate, and the life tenant had levied a fine (/). The devisable quality of rights of action, which par- take in their nature of rights of entry, are elsewhere treated Contingent executory and future interests within this Contingent Act were not assignable at Common Law to strangers, but '"*^resis not ° ^ _ o > assignable at might, unless the object were unascertained, always be rcleas- at law, ed to a terre-tenant, or person having a sufficient estate or in- mi-rht be terest by right or by wrong (h). Such releases were allowed as released. tending to preserve unimpaired, subsisting vested estates (i). The reason (k) why contingent and executory interests were inalienable is, that originally, in the early state of the feudal system, property was inalienable, and though in process of time, by custom, and the effect of tlie Stat. Quia Emptores, lands and estates in them became alienable ; (a) Row V. Dawson, Ryall v. Rowles, 2 W. & T. Lg. Ca. Eq., 2d ed. 612, 652. (6) Cases last note, pp. 679, 681 ; Smith Rl. and Per. Prop. 2d ed. 787 ; Prosser v. Edmonds, 1 Y. & C. Ex. 481 ; Dickinson v. Burrell, L. R. 1 Eq. .337; DeHoghton v. Money, L. R. 2 Cha. App. IH- Muchall V. Banks, 10 Gr. 25. (c) Dickinson v. Burrell, L. R. 1 Eq. 337. (d) Stump V. Gaby, 2 D. M. & G. 623 ; Gresle/ v. Mouseley, 4 D. & J. 78 ; Dickinson v. Burrell, supra. (e) 1 Jarman Wills. 3 ed. 43. (/) 6 Cruise Ten. 38, c. 3, s. 30. (^) See p. 74. (h) Smith Rl. Prop. 3 ed. 692, 829. (t) Wms. Rl. Prop. 5 ed. 240. " (A) Wms. Rl. Prop. 5 ed. 241. gWMMPW WMi V 76 Bound by estoppel. Assignments recognized in equity. Since the act, equity need not be resort- ed to except as to bare possibilities and "ontin- gencies in personalty. Effect and operation of the act on assignments. Transfer of Real Property, still this did not extend to those interests which confer no estate (a), and they remained always as they originally were, for the reasons assigned by Lord Coke, as above men- tioned. The true mode of explaining our laws is not to start with the notion that all estates and interests were always alienable at pleasure, and then endeavor to shew why certain kinds are not alienable, but to proceed on the converse principle. These interests might, however, have been bound at law by estoppel, on a fine, or recovery, or it would seem even on an indenture (6). The assignment of these interests for valuable considera- tion 'was recognized and enforced in equity ; the assign- ment of a contingent interest could not, before the Statute, as presently explained, operate as a present conveyance, so that on the happening of the contingency and consequent vesting of the estate it would vest in the assignee and not in the assignor, but the assignment was regarded in equity as a contract by the assignor to assign the estate when it should vest (c), and then to perfect the matter by a sufficient conveyance of such estate. Since the Statute the jurisdiction of a Court of Equity will not require to be invoked as to the interests above referred to, though it will still be requisite as to cases of bare possibilities and contingencies as to personalty. The effect and operation of the Act may be thus shewn. Before the Act, when a contingent or other executory interest took effect on the happening of the event, or on the tiscertaining of the object, and so became a vested estate, such estate, notwithstanding prior assignment of the former interest while contingent, nevertheless vested, not in the assignee but in the assignor, or party to be bene- fited by the original limitation ; the consequence was, that to perfect the assignment and vest the estate in the as- signee, a conveyance thereof to him was requisite ; and, (a) Ante, p. 67. {b) Smith Rl. Prop. 3 ed. 829; Shelford Stat. 7 ed- 345, 346. (c) Story's Lq. Jur. s. 1040 b. Con. Stat. Ch. 90— Secs. 5 & 11. 77 as above explained, a Court of Equity would enforce the giving such conveyance (a). Thus, take the simple case of land granted to A for life, and in case B survived him, then to B in fee ; here is a remainder contingent on the happening of an uncertain event. If B in the lifetime of A should assign his contingent interest to C and survive A, the estate in fee would vest in B, for the law in no way recognized the assignment. Since the Act, however, it is apprehended the eft'ect of the assignment would be to substitute C for B, and consequently that the estate would vest and become executed in C. Contingent and executory interests were devi.sable under the Statute of Wills of Henry VIII. (&), but as before ex- plained in treating of devises of possibilities, if the object were unascertained at the time of devise, the devise would not take effect. No disposition by force only of the Act is to defeat or enlarge an estate tail. By Con. Stat. c. 83, sec. 4, every actual tenant in tail, in possession, contingency or other- wise, may dispose of, for an estate in fee simple absolute, or less estate, the lands entailed, as against all clainiing by force of an estate tail vested in, or which might be claimed by, the person making the disposition. By sec. 1 the expression " actual tenant in tail " means exclusively the tenant of an estate tail which has not been barred. Sec. J) enacts that nothing in the Act shall enable any person to dispose of any lands entailed, in respect of any expectant interest which he may have as issue inheritable to any estate therein. The expectant heir in tail therei'oro ciniiiot by force of ch. 83, defeat his own issue, or ulterior estates, and as fines, recoveries and warranties are abolished, it would seem that his power would extend only to his oavu life interest, and that his conveyance could be valid only in equity as a contract (c). As a contract it would soeni (a) 1 Prest. Abs. 2 ed. 98. (6) 1 Jarman Wills, 43. (c) Ante p. 76, 68, 69, 71. It is apprehended that the conveyance could not operate beyond a contract in equity, and would not be valid under this Act (ch. 90) to pnss at law any life estate when the estate should vest in pos- session, as pointed out ante p. 76 ; and that this is so, notwithstanding the exception of the Act applies only to defealingor enlarging an estate tail. Contingent interests de- visable. Act does not apply to es- tates tail. Conveyance by expectant heir in tail. Cf^r^— 78 Certain contingent remainders made valid. Variance between this and the Imp. Act. In England contingent remainders indestructible by destruc- tion of th(i particular estate. Imp. Act 7 & 8 Vic. c. 76. Transfer of Real Property, it might be good notwithstanding Con. Stat. c. 83, 8. 30, which only prevents the conveyance operating under the Act, but possibly leaves it good as a contract (a). SECTION 6. A contingent remainder, which existed at any time between th© thirtieth day of May, one thousand eight hundred and forty-nine, and the second day of August, one thousand eight hundred and fifty-one, shall be deemed to have been capable of taking effect, notwithstanding the determination by forfeiture, surrender or merger, of any preceding estate of freehold. 14, 15 V. c. 7, s. 6. There is a most ihiportant variance between this section and the corresponding section of the Imperial Act. The omission of two words in the 6th section of Provincial Act of 14 and 15 Vic, which occur in the Imperial Act of 8 and 9 Vic, and the language in which that section is con- solidated cause the variance. In England no contingent remainder can be defeated but by expiry of the particular estate by efflux of time, or according to its original limita- tion, before the remainder can take effect, and thus in cases of the most usual settlements, when life estates are given to persons hi esse, with immediate remainder to their own children unborn, there is no necessity for interposing trus- tees to support the contingent remainders. With us, con- tingent remainders, except those existing between 30th May, 1849, and 2nd August, 1851, are liable to be defeated according to the Common Law rules, by the determination, by surrender, merger, or efflux of time, of the particular estate before the lomainder becomes vested. By the Imperial Act 7 and 8 Vic. c. 76, s. 7, contingent remainders were annulled, and for them were substituted estates having the properties of executory devises, and then existing remainders were not to fail or be destroyed by the destruction of the particular estate, tinless destroyed by efflux of time, or the happening of the event on which it was limited to determine. (a) Sugden Stats. 2nd ed. 196 ; Pryce v. Bury, 2 Drew 11, which, how- ever, was not the case of an expectant heir ; and see s. 37 of c. 83. Con. Stat. Ch. 90— Sec. 6. 79 The Provincial Act, 12 Vic, c. 71, was to the same effect. For reasons explained at length by Mr. Ker (a), the Imperial Act was deemed too wide, and by Imperial Act 8 and 9 Vic. c. lOG, s. 1, the former Act was, as to con- tingent remainders, repealed retrospectively ah initio, and by sec. 8 it was enacted that "a contingent remainder existing at any time after 1st December, 184-4, (the time of operation of the former Act), shall he, and if created before the passing of this Act, shall be deemed to have been, capable of taking effect, notwithstanding the determination by forfeiture, surrender, or merger, of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened." This section re-consti- tute d contingent remainders, rendered them indestructible as therein mentioned, and prevented those, or the executory interests substituted in lieu thereof by the fofmer Act, which owed their existence and validity to that Act, from being defeated by its retrospective repeal (h). The effect is also as above mentioned, that in most cases there is no necessity to interpose trustees to support contingent re- mainders. The Provincial Stat. 14 and 15 Vic, c 7, repealed the former Act as to contingent remainders, but not retrospec- tively, and it made bj^ sec. C the same enactment as above, as contained in the Imperial Act, but omitted the words " shall be." The construction placed on this by the Con. Stat, is expressed by sec. 6 of that Statute ; the dates therein referred to are taken from the Stat. 14 and 15 Vic, and are the dates of the passing of the two Provincial Acts. It would seem as though the Act of 14 & 15 Vic. should have referred rather to the 31st December, 1849, than to the 30th May, as the Act of 12 Vic, though passed on the latter, did not come into operation (s. 14) till the former day, and the object of the Stat. 14 & 15 Vic. appears to have been to provide for thos(^ contingent remainders which Prov. Act 12Vic. c. 71. Imp. Act 8 & 9 Vic. repeals former net and re-enacts. Pror. Act U & 15 Vic. varies from Imp. Act. Con. Stat, varies from Imp. Act. Erroneous reference in the Act of 14 & 15 Vic. as to its opera- tion. (a) See his letter in App. (&) See Browell Statutes, p. 278 note r ; Davidson Conv. vol. 3, 206. M m :;i 80 Transfer op Real Property, on the faith of the operation of the repealed Act, had been created without estates to trustees to preserve them. Sec. Effect on 8. 6 12 apparently conflicts somewhat cs to these dates, for it enacts that the foregoing sections (including sec. G) shall not apply to any estate, right, or interest created before the 1st January, 1850 ; as applied to contingent remainders, sec. 12, (assuming it to conflict with sec. 6,) is nevertheless more strictly correct, and is in terms which, as above re- marked, the Act of 14 & 15 Vic. should have been. See remarks under sec. 12 as to the effect of Con. Stat. c. 1. SECTION 7. Effect of sur- When tlie reversion expectant on a lease of any land merges or render or raer- is surrendered, the estate which, for the time being, confers,, as g r vet- aorgjjjyj. ^^\^Q tenant under the same lease, the next vested right to sions expect- ° ... ant on a lease the same land shall, to the extent of and for preserving such iuci- in certain dents to and obligations on the same reversion as, but for the C&S6S surrender or merger thereof, would have subsisted, be deemed the reversion expectant on the ,same lease. 14, 15 V. c, 7, s. 7. The remedies for the rent and cove- nants in a lease not to be extinguish- ed by the mer- ger of the immediate reversion. SECTION 8. When the reversion of any land, expectant on a lease, ha« merged in any remainder or other reversion or estate, the person entitled to the estate into which such reversion has merged, his heirs, executors, administrators, successors and assigns, shall have and enjoy the like advantage, remedy and benefit against the les- see, his heirs, successors, executors, administrators and assigns, for non-payment of the rent, or for doing of waste or other for- feiture, or for not performing conditions, covenants, or agreements contained and expressed in his lease, demise or grant, against the lessee, farmer or grantee, his heirs, successors, executors adminis- trators and assigns, as the ]ierson who would, for the time being, have been entitled to the mesne reversion which has merged, would or might have had and enjoyed if such reversion had not so merged. 12 V. c. 71, s. 12. S 8 superflu- Section 8, taken from th8 Act 12 Vic, is superfluous. ous, overrid- In England the corresponding section was repealed by the frrgedbyT"?. Act 8 & 9 Vie, c. 106, which introduced a provision from which section 7 was copied in the Prov. Act of 14 &; 15 Con. Stat. Ch. 90— Secs. 7 & 8. 81 Vic. Section 8 is not wide enough, it gives no reciprocity of benefit ; it gives remedies against, but none to, the lessee, &c. Again, it does not extend to the case of the estate, in which the reversion immediately expectant on the lease has merged, becoming itself merged. Thus if A seised in lee have demised for life or for years to B, who sublets to C, who sublets to D with a covenant to D to keep the demised premises in repair; hei'e, if whilst the.se estates are subsisting, C suiTenders to B, his interest and the re- Version expectant on the lease to D is destroyed (a). The consequence at Common Law was that D was liable to pay rent to no one, the reversion to which rent is incident being destroyed by act of the parties, .and there is no privity of estate between any of them. On the other hand, there being no privity '^f estate, B would not be liable on the covenants of C contained in the lease to D. The same result followed if C should take a conveyance of the estate of B, and thus by the merger destroy his reversion on C's lease (b). This was remedied by section 8, but, as stated above, only partially : thus, in the case put B might recover the rent from D, but D could have no action against B on any breach of the covenant made by C. So also, is stated above, if after the facts supposed, the estate of B had become destroyed by surrender or merger, this section would not have applied. Sec. 7 clearly meets the above objection under sec. 8, of want of reciprocity, and apparently also the other objec- tion. The matter (in the case put above) would stand thus : on the surrender by C to B " of the reversion expectant on a lease" to D, the estate of B is "to be deemed the reversion expectant on the same lease" ; and when B surrenders to A, though B's estate may not be " the reversion expectant on a lease," referred to in the first Defects in 8.8. Case of des- truction of the reversion on a lense at Com. Law, only partially remedied by 8. 8, which gave no reci- procity, and did not ap ' to a secom merger. Complete re- medy by s. 7. (a) Watk. Con. 9 ed. 56. (b) Webb V. Rus«ell, 3 T. R. 393 ; Wootley v. Gregory, 2 You. & J. 536 ; Burton v. Barclay, 7 Bing, 746 ; Thorn v. Woollcombe, 3 B. & Ad, 680 ; and see as to these sections, Laur v. White, 18 C. P. U. C. 99. 11 Retrospective effect. The Act 4 G. II, c. 28, af- forded a par- tial remedy in cases of leases surrendered to be renewed 82 Transfer of Real Property, part of the section, (which means the immediate reversion formerly belonging to C,) yet it is still to be deemed tlie reversion expectant on the same lease for nil pui'poses, even for the purpose of causing the Act again to apply on another merger of that (B's) reversion, and not merely for the purposes of preserving the incidents and obligations on C's reversion. It has been said that the Act does not go far enough in not providing for cases of destruction of the reversion by other modes than by surrender or merger, (a). In England the enactment to which sec. 7 corresponds has been held retrospective (h) ; see however here the ob- servations under sec 12. Prior to sees. 7 & H, a remedy was afforded, where leases were surrendered for the purpose of being renewed, by Stat. 4 Geo. 2, c. 28, sec. G, the effect of which is that in such case the new lesise is valid to all intents as if the under- lease had been surrendered before the taking of the new lease ; and the remedies of the lessees against their under- tenants remain unaltered, and the chief landlord has the same remedy by distress and entry for the rents and duties reserved in. the new lease, so far as they exceed not those in the former lease, as he would have had in case the former lease had continued (c). SECTION 10. No implied ^^" Neither the words " Grant " or " Excliatige," in any deed, warranty,&c., hall create any warranty or right of re-entry, or covenant by to be sreateu implication, except in cases where by any Act in force in' Upper "grant" or Canada, it is declared that the word "Grant" shall have such " exchange." effect. 12 V. c. 7, s. 6. A "rant in fee "^^^ supposition that the word grant created a warranty or for giant- or covenant by implication seems to have been founded in "Vteimnlied ^"'*^'' '^^ '^'''^^ ^^^'^'^ ''' ^"''^ ^'^^ conveyed, or the whole of no warranty, the grantor's estate ; but in a lease for years rendering (a) Davidson Con. Prec. 6 ed. p. 32 ; 7 ed. 3.*?. (b) Upton V. Townend, 17 C. B. 30. (c) See Doe d. Palk v. Marchetti, 1 B. & Ad. 715. ' Con. Stat. Ch. 90— Secs. 10 & 9. 83 Express rove- mints destroy- ed iho implied warranty. Exchange, On n partition warranty still implied. The word give still im- j)lie8 a war- ranty. rent it implied a general covenant fur ([iiiet enjoyment ; no implied covenant or warranty, liowevt^-, arose if there were an expreHs covenant on the .siihject (nalajide. within the protection of this section (rt). HECTION 12. 12. Tilt! fon'^Miiiig HoctioiiH of thiH Act shall not exteiiil to any 'p|,ji^ ^(.t not (Icod, ncX or tiling executed or done, or to any estate, right or t<^ extend to intercHt created la-fore the first day of January, one thou.sand pvecutcd be- eight hundred and fifty, but they hIuiII extend to and have opera- lore l,Ht Jan., tion iind ellect on and from that day. 12 V. c. 71, h. 14. ^*^^0- It would seem that this section is a new enactment so Varioii from far, at least, as relates to sections 2, 3, 4, 5, G, 7 & 11, and the acta con- varies from the Acts consolidated by this Statute, unless ^^^^ h^x^r, rc- eoiitrolled by Con. Stat. U. C ch. 1, sees, 5,0, 7, H, I), trospcctivo, The variance seems to have arisen thus : the Act of 12 Vic. "^jjjjj J""" was not retrospective, exeej)t as to contingent remainders Con. St. c. 1. (see its sec. 14); neither was the Imperial Statute 7 & 8 Vic. from which it was taken. The Imperial Act 8 & {) Vic. repealed ni foto tlie former Imperial Act, and re- enacted in better terms, and with some variance, most of its pi'ovisions : it designedly, and for ample reason, wius retrospective in its o})eration (b). Our Legislature followed the English Legislature, except in one or two particulars : by the Act of 14 & lo Vic. they repealed all the clauses of the former Act, except those to which sees. 8, !) & 10 of Con. Stat, respectively answer, the interpretation clause, and that confining the Act to Upper Canada, and also sec. 14 the restriction clause, to which latter the sec. 12, now in (question, of the Con. Stat. an.swers. This see. 14 was not repealed Viy reason of certain clauses as above-named being retained, but as regards the repealed clauses, it fell of itself, and even though the subject matter of those clauses should have been re-enacted in the sjime terms as before (which (a) Lewin on Trusts, 5 ed. 240, referring to Fernie v. Maguire, 6 Ir. Eq, Rep. 137. (b) See the final part of Ker's letter in Appendix, who framed the Bill; Upton v. Townend, 17 C. B. 30. I ti 86 Transfer op Real Propepty. I ^' " 1 '111 ill i m' they were not) still that sec. 14 would not have applied. Thus, sec. 5 of 12 Vic. gave the right to convey a contingent interest, and right of entry fur condition broken, unless (by sec. 14) such right or interest were created before 1st Janu- ary 1850 inclusive. Sec. 5 of 14 & 15 Vio. gave the right to convey a contingent interest nnd a right of entry, which right, as above explained, varies froui th.at alluded to in the former Act : this section, therefore, varies from the old Act; there is no restrictive clause to the later Act, and clearly sec. 14 of the former Act would not apply; moreover, as above explained, the later Act was intended to be retro- spective. The result is, that though a right of etitry on a disseisin prior to 1850, and a contingent interest created before 1850 were, by 14 & 15 Vic, cap.able of being validly conveyed, the Con. Stat, varies the law and withholds from the owner disseised the power he theretofore had of selling and conveying the estate, leaving him in fact as at common law (a) ; and places a person entitled to a contingent interest in the same position, except that the conveyance would be valiu in equity as a contract to be perfected by conveyance, when the interest becomes a vested estate (b). The ab(}ve observations apply to other cases, as, for instance, under sec. 4. When any question of variance arises between Consoli- dated Statutes and the old Statutes consolidated, reference should be had to Con. Stat. U. C. c. 1. ss. 5, 6, 7, 8, 9, variance be- which it may be contended contrdl the operation of the and the for- section 12, now under consideration. In construing a mer acts. Consolidated Statute reference should be made also to the Interpretation Act, section 18. If there be no direct va- riance between a Consolidatetl Statute and the former Sta- tute which is consolidated, the old Statute may be looked at to guide in the construction of the now Consolidated Act (c). Rules of con- struction pe- culiar to the Con. Stats, on (a) As to which see, post, liif! remarks on conveyances of contingent interests, pp. 73, 74. (b) See p. 76. (c) Per Draper, C. J., in Bank Upper Canada v. Brough, 2 E. & A. Reporta U. C, 101 ; The Queen v. Whelan, 28 Q. B. U. C. 117. Con, Stat. Ch. 90— Sec. 13. 87 isoli- ence 8,9, the ig a ) the v;i- liigent &A. SECTION 13. 13. Any Corporation aggregate in Upper Canada, capable of Corporationa taking and conveying land, shall be deemed to have been and to »gg''«^gate be capable of taking and conveying land by deed of bargain and y^^ bargain sale, in like manner as any person in liis natural capacity, subject and sale, nevertheless to any general limitations or restrictions and to any special provisions a.s to holding or conveying real estate which may be applicable to sach Coriwration. 4 W. IV, c. 1, s. 46. So iar as i-egai-ds capacity to take by way of bargain and sale, the provision of this section was superfluous (a) ; and it would seem by no means certain tliat a Corporation could not convey by the sanui mode. It has been said tliat thf)ugli a Coi'j)oration could not become feoffee to uses of lands ownoil and conveyed by a feoftbi', yet they might become seised to uses of tlieir own ■lands {b). Thus A could not (Mifeoff or release to a Cor- poration to hold to the use of B, but a Corporation miglit agree to be seised of tlieir own lands to the use of B, and so convey by way of bargain and sale (c). Admitting, liowever, that of their own lands a Corporation might stand seised to uses, it is difficult to say how the uses de- clared are executed by the Statute of Uses, considering tlie language of that Statute, and why they do not there- fore remain trusts enforceable and recognized only in Equity ; for the Statute executes the use only " wliere any 'person or persons" shall be seised of any lands, kc, " to the use, confidence, or trust of aiiy other person or j)ersons or body politic" (d). In practice, the above distinction was, hoAvever, not acted on, and authority is not wanting that a Corporation could not under any circumstances stand seised to uses. Corporations might take by way of bar- gain and saie, but doubtful if they could convey by that mode. Can a corpo- ration stand seised to a use? (a) 1 Saunders on Uses, 60 ; Gilbert on Uses, 3 ed. by Sugden, p. 191 ; Jones on Uses, 40 ; see also the language of the Statute of Uses, j). 90. (b) See note by Sugden to Gilbert on Usfis, '.i ed. p. 7 ; also Preston Con. vol. 2, p. 2.14 ; Jones on Uses, p. 40. (c) See last note. It is treated as doubtful in Grant on Corporations. {d) See Bacon on Uses, and the language of the Act, post, under sec. 14 of thj-: Act. 8S Transfer of Real Property. either as feoffees or releasees of lands of otherf , or as bar- gainors of their own lands. It was once a maxim with res- pect to a feoffee to uses that there should be confidence in the person, and it was ruled that for want of this a Cor- poration could not stand seised to a use, for how, it was said, could a Corporation be confided in when it had not a soul ? (a). Another reason assigned was that a Coi'- poration was framed at the will of the King for certain purposes, and was no further capable than he willed them, and, moreover, that being incorporate, the Chancery had no ])rocess to compel them to discharge the use or trust (b). This latter ground has long since ceased to exist, and with it the necessity for peraonal confidence (c). A strong argu- ment as against a Corporation standing seised to a use, is furnished by the language of the Statute of Uses above re- feiTed to, which does not take in the case of a Corporation seised to a use, from which it is to be inferred that the Legislature supposed a Corporation could not so stand seised (d). It is to be observed that the section under consideration does not enact that a Corporation may stand seised to a a corporation use, but only gives it capability to convey by bargain and can stand gj^jg ^^^^ therefore, in any case in which a Corporation seised to a ' ^ x use. should be made grantee or releasee to uses, the matters above considered become of importance in determining whether the uses declared are valid as such, and if so, whether the Statute of Uses would execute them. It would seem both points must be answered in the negative. Again, if it be that a Ccrporation could not stand seised to a use of its own lands even, then, as this section gives no such power, but merely gives power to convey by bargain and Importance of the ques- tion, whether (a) Lewin on Trusts, introduction, p. 2 ; see also 1 Saunders on Uses, 59. (b) Gilbert Uses, 3 ed. by Sugden, pp. 6, 7, 367, (c) Lewin Trusts, introduction, p. 9 ; note, by Sugden, to Gilbert on Uses, p. 7 ; 1 Ves. Jr. 468 : 1 Ves. Sen. 536. (d) Bacon on Uses ; see also notes, by Sugden, to Gilbert on Uses, 3 ed. pp. 6, 7. Con. Stat. Ch. 90— Sec. 14. 89 sale, it might be urged that such a conveyance from a Corporation would operate as a statutory grant, or Com- mon Law conveyance, transferring the estate to the grantee without any use raised in the Corporation, (of which they could not stand seised), and without the aid of the Statute of Uses. If this be so, and if no use be raised in the Cor- poration by reason of their incapacity to stand seised, then any use declared on the seisin of the bargainee, being the first use, would be executed in favor of the cestui qui use, giving him the legal estate, and would not give him a mere equitable interest, as would be the case on a bargain and sale by an individual to a bargainee to hold to the use of another. It is presumed, however, the Courts would give the same effect to a bargain and sale by a Corpora- tion as by an individual as regards uses declared, and would consider that virtually this section enables a Cor- poration, on the bargain and sale, to stand seised to the use of the bargainee (a). SECTION U. No deed of bargain and sale of land in Upper Canada, executed Deed of bar- subsequent to the Gth day of March, one thousand eight hundred gain and sale and thirty-four, shall require enrolment or registration to supjjly ^ * » "ot ra- the place of enrolment, for the mere purpose of rendering such ment to ren- bargain and sale a valid and effectual conveyance for passing the ^^^ '* * valid land thereby intended to be bargained and sold ; but this shall ^ not affect any question of priority under the Registry Act. 4 W. VI, c. 1, s. 47,-13, 14 V, c. G3, s. 3. cm The verbal f^t^common At Common Law no deed or writing was requisite to jj ^^^ . create, or rather as evidence of the creation of, an use, gain and sale which was then in effect what is now a trust, bargain on sufficient consideration, raised the use in the bargainor to hold for the bargainee ; on this the Court of Chancery held the bargainor, who continued to retain the legal estate, to be tinistee for the bargainee, who was en- titled to the whole beneficial use, which was descendible, devisable, and assignable without livery. (a) See, however, Hayes Coav. vol. 2, 6th ed., p. 80, note 64. 12 90 Transfer of Real Property. Uses. Stat, of Uses. The object of the Statute of Uses was to abolish the doctrine of trusts, and to annex the legal ownership to the Languaste of beneficial interest. Its language is as follows : — " That TTaoa ' where any person or persons stand or be seized, or at any time hereafter shall happen to be seized of and in any honors, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments, to the use, confidence, or trust of any other person or persons, or of any body politic, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will, or other- wise, by any manner, means, whatsoever it be ; in every such case, all and every such person and persons and bodies politic, that have or hereafter shall have any such use, confidence or trust in fee simple, fee-tail, for term of life, or for yearc, or otherwise, or any use, confidence or trust in remainder or revertei', shall from henceforth stand and be seized, deemed and adjudged in lawful seizin, estate and possession of and in the same honors, &c., with their appur- tenances, to all intents, constructions and purposes in the law of and in such like estates as they had or shall have in the use, trust or confidence of or in the same ; and that the estate, title, right and possession that was in such per- son or persons that were or hereafter shall be seized of any lands, tenements, or hereditaments, to the use, confidence or trust of any such person or persons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him or them that have or hereafter shall have such use, confidence or trust after such quality, manner, form and condition as they had before, in or to the use, confi- dence or trust that was in them." The Statute failed to attain its object, and to destroy trust estates, by reason of its being considered that the Statute exhaustod itself in executing the first use declared, and was powerless as regards any further use, which is a Effect of St. t^'ust as now recognized in Courts of Equity. The efffect of Uses on a of the Act was to introduce a new and secret mode of Bal^. conveyance, passing the legal estate without livery, and Con Stat. Ch. 90— Sec. 14. 91 by the mere verbal bargain or contract of sale on sufficient consideration ; nor were any words of inheritance requisite to carry a fee, as a contract for a fee was implied, unless the contrary were exj)ressed (a). The Statute of Enrolments, 27 H. 8, c. 16, was passed St. of Enrol- with a view to prevent the clandestine character of the ™«"tS' conveyance by way of bargain and sale, and denies effect to every such conveyance of a freehold " except the same be by writing, indented, sealed and enrolled in one of the King's Courts of Record at Westminster," or within the County where the lands lay, before the Gustos Motulorum and two Justices of the Peace and the Clerk of the Peace of the same County, or any two of them, whereof the Clerk to be one, and the enrolment to be within six months after date of the instrument. The first Provincial Act on the subject, 37 Geo. 3, ch. 8, Provincial recited, that conveyances by way of bargain and sale "not-^*^.*^*^*"^*'- having been enrolled in a Court of Record are not valid in sales, law," and substituted therefor the County Registry Office, with a retrospective operation (6). The Statute, 4 Wm. 4, ch. 1, sec. 47, abolished the necessity for any enrol- ment or registry, except to preserve priority of title under the Registry Act; this Act was held to be retrospective (c). The Stat. 9 Vic. ch. 34, sec. 14, declared that registry should be equivalent to enrolment, but this was repealed by Stat. 13 & 14 Vic. ch. 63, sec. 3, reciting that the effect of the former Act might be to render doubtful the meaning of the Act of 4 Wm. 4. These Statutes, combined with a decision (d) that a deed poll may operate as a bargain and sale, havd virtually repealed the Statute of Enrolments. A bargain and sale to operate under the Statute of Uses The consider- cannot be good, except on the consideration of money or »tion ^qui- money's worth; a rent reserved, though but a pepper-corn gain and saJJ, (a) Jones on Uses, {b) Rogers v. Bamum, 5 Q. B. O. S. U. C. 252. (c) Rogei-8 V. Barnum, supra ; Doe d, Louckes v. Fisher, 2 Q. B. U. C. 470. ((2) Rogers v. Barnum, supra, r Jl^ 92 it may oper- ( te as a grant cr otherwise, incorporeal heredita- ments cannot be created by it, nor terms of years or con- tingent inte- rests convey- ed by it. Transfer of Real Property. will suffice (a). If a valuable consideration be proved to have been given, thougbnot expressed, or if expressed, tbough proved not to bave been given, it will suffice (b). Tbe con- sideration need not proceed from tbe bargainee to tbe bargainor (c). If tbe instrument fail to take effect as a bargain and sale for want of proper consideration, or otberwise, it may ope- rate as a grant or covenant to stand seized on consideration of blood, or otberwise, as before explained (d). Not only corporeal, but also incorporeal bereditaments may be conveyed by bargain and sale ; but tbe latter must be in existence at tbe time of conveyance. Therefore a thing not in esse, as a right of way not before created, can- not he created by bargain and sale (e). The Statute of Uses (/) executes the use "when any person shall be seised, &c., to tbe use, &c.," and therefore though a free- holder can create a term by bargain and sale out of the estate of which he is seised, no term when once created can be so conveyed, for of such tbe termor is not seised but possessed. Contingent interests and possi- bilities cannot be conveyed by bargain and sal (g). Other matters and disadvantages attending ^his mode of conveyance, were before referred to (k). (a) 4 Cruise, T. 32 ch. 9, sees. 25, 26 ; Smith Kl. Prop. 3 ed. 6. S. (c) Id. (b) Smith RI. Prop., 3 ed. 656. ( e ) Smith Rl. Prop., 3 ed. 656. (/) See the language of the Act, ante r. 90. (g) Watkins Conv. 365, 9 ed. (A) Ante pp. 49, 50 (d) Ante p. 61. Short Forms of Conveyances. 98 CON. STAT. CH. 91. An Act respecting short forms of Convej^ances. 1. Wlniii ii deed made according to the forms set forth in the first Schedule to this Act, or aiiy other deed expressed to be made in [)insiiauc(^ of this Act, or referring thereto, contains any of the forms or words contained in column one of the second Schedule hereto annexed, and distinguished by any number therein, such deed sliall be taken to have the same effect, and be construed as if it contained the form of words contained in column two of the same Schedule, and distinguished by the .same number as is an- nexed to tlie form of words used in the deed ; but it shall not be necessary, in any such deed, to insert nny such number. 9 V, c. G, s. 1. 2. Any deed or part of a deed, which fails to take effect by virtue of this Act, shall, nevertheless, be as effectual, to bind the parties thereto, so far as the rules of law and equity will j)errait, as if this Act had not been made. I) V. c. 6, s. 4. 3. Every such d(»e(l, unless an exception be specially made therein, siiall be held and construed to include all houses, out- houses, edifices, l)anis, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, water-courses, lights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurte- nances whatsoever, to the lands therein comprised, belonging or in any wise appertaining, or with the same demised, held, used) occupied and enjoyed, or taken or known as part or parcel there- of; and if the same purports to convey an estate in fee, also the reversion or reversions, remainder and remainders, yearly and other rents, issues and profits of the same lands, and of every part and parcel thereof, and all the estate, right, title, interest, inheri- tance, use, trust, property, profit, possession, claim and demand whatsoever, both at law and in equity, of the grantor in, to, out of, or upon the same lands, and every part and parcel thereof, with their and every of their appurtenances. 9 V. c. 6, s. 2. Where word.s of column lof the second Schedule are employed, the deed to have the same ef- fect as if the word.s in col- umn 2 were inserted. Deeds failing to take effect under this Act to be as valid as if Act not made. Deed to in- clude all hou- ses, &c.. and the reversion, and all the estate, &c. 94 Short Forms of Con-seyances, Construction of Act. Remunera- tion for deeds under the Act not to be by length only. Schedules, &c., to form part of Act. 4. In the construction of this Act, and the Schedules thereto, unless there be something in tlio subject or context repugnant to such construction, the word "lands" shall extend to all freehold tenements and hereditaments, whether corporeal or incorporeal, or any undivided part or share therein, respectively ; and the word " party" shall mean and include any body politic or corpo- rate or collegiate as well as au individual. 9 V. c. 6, s. 5. 5. In taxing any bill for preparing and executing any deed under this Act, the taxing officer, in estimating the proper sum to be charged therefor, shall consider not the length of such deed, but the skill and labour employed and responsibility incurred in the preparation thereof. 9 V. c. 6, s. 3, 6. The Schedules, and the directions and forms therein con- tained, shall be deemed parts of this Act. 9 V. c. 6, s. 6. THE FIRST SCHEDULE. This Indenture, made the day of , one thousand eight hundred and , in pursuance of the Act to facilitate the conveyance oi' real property, between (here insert names of parties and recitals, if ant/,") Witnesseth, that in con- sideration of dollars, of lawful money of Canada, now paid by the said (gi-antee or grantees) to the said (grantor or grantors (the receipt whereof is hereby by him (or them) acknowledged,) he (or they) the said (grantor or gmntors) doth (or do) grant unto the said (grantee or grantees) his (or their) heirs and assigns for ever, all, (fee, (parcels.) (Here insert covenants, or any other provisions.) In witness whereof, the said parties hereto have hereunto set their hands and seals. THE SECOND SCHEDULE. DIRECTIONS AS TO THE FORMS IN THIS SCHEDULE. Jn cases of Sale and Conveyance of Real I'roperty. 1. Parties who use any of the forms in the fii-st column of this Schedule, may substitute for the words " covenantor" or " cove- nantee," or " releasor" or " releasee," " grantor" or " grantee," any name or names, and in every such case, corresponding substitu- tions shall be taken to be made in the corresponding forms in the aecond column. Con. Stat. Ch. 91. 95 S 2. Such parties may stibstituto the feminine gender for the ma.sculine, or the phiral number for the singular, in any of the forms in the first column of this Schedule, and corresponding chungcH aliall be tiiken to be made in the corresimnding forms in the second column. 3. Such parties may introduce into, or annex to, any of the forms in the first colnmn, any express exceptions from, or other express qualiKcations thereof respectively, and the like exceptions or (pialifications shall be tiiken to be nuuie from «»r in the corres- ponding forms in the second column. 4. Such parties may add the name or other designati(m of any )>er.son or persons, or class or classes of pei-sons, ov any other words, at the end of form two, of the first column, so as thereby to ex- tend the words thereof to the acts of any additional person or |)er- sons, or class or classes of persons, or of all ))ersons whomsoever ; and in every such ca.se the covenants two, three and four, or such of them as may be employed in such deed, .shall be taken to extend to th(* acts of the yterson or ytej-sons, class or classes of pei-sons, so named. COLUMN ONE. 1. The said (covenantor) covenants with the said (covenantee). COLUMN TWO. 1. And the said covenantor doth hereby, for him- self, his heirs, executors and administratora, coven- ant, promise and agree, with and to the said covenantee, his heirs and assigns, in manner follow- ing, that is to say : 2. That for and notwithstanding any act, deed, matter or thing by the said covenantor, done, exe- cuted, committed, or knowingly or wilfully permitted or suffered to the contrary, he, the said covenantor, now hath in himself good right, full power, and absolute authority, to convey the said lands and other the premises hereby conveyed, or intended so to be, with their and every of their appurtenances, unto the said covenantee, in manner aforesaid, and according to the true intent of these presents. 3. And that it shall be lawful for the said covenan- tee, his heirs and assigns, from time to time and at have^^uiet'^^' all times hereafter, peaceably aud quietly to enter possession of upon, have, hold, occupy, possees and enjoy the said land and premises hereby conveyed, or intended ao 2. That he has the right to convey the said lands to the said (cove- nantee) not- withstanding any act of the said (cove- nantor.) 3. And that the said (cove the said lands. 9^ COLUMN ONE. 4. Free from all in- cumbrances. 5. And the said (cove- nantor) cove- nants with the said (cove- nantee) that he will exe- cute such further assur- ances of the said lands as may be re- quisite. Short Forms op Conveyances, COLUMN TWO. to be, with their and every of their appurtenances ; and to have, receive and take the rents, issues and profits thereof, and of every jmrt thereof, to and for his and their use and benefit, without any let, suit, trouble, denial, eviction, interruption, chiim or de- mand whatsoever of, from, or by him the said covenantor, or his heirs, or any person claiming, or to claim, by, from, under, or in trust for him, them, or any of them. 4. And that free and clear, and freely and abso- lutely acquitted, exonerated, and for ever dischai'ged, or otherwise by the said covenantor or his heirs well and sufficiently saved, kept harmless, and in- demnified of, from and against any and every former and other gift, grant, bargain, sale, jointure, dower, use, trust, entail, will, statute, recognizance, judg- ment, execution, extent, rent, annuity, forfeiture, re-entry, and any and every other estate, title, charge, trouble and incumbrance whatsoever, made, executed, occasioned, or . uffered by the said cove- nantor or his heirs, or by any peraon claiming, or to claim, by, from, under or in ti'ust for him, them, or any of them. 5. And the said covenantor doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree with, and to the said covenantee, his heirs and assigns, that he the said covenantor, his heirs, executors and administrators, and all and every other peraon whosoever having or claiming, or who shall or may hereafter have or claim, any estate, right, title or interest whatsoever, either at law or in equity, in, to, or out of, the said lands and premises hereby conveyed, or intended so to be, or any of them, or any part thereof, by, from, under, or in trust for him, them, or any of them, shall and will, from time to time, and at all times hereafter upon every reasonable request, and at the costs and charges of the said covenantee, his heirs or assigns, make, do, execute or cause to be 22 Vic. Ch. 91. 97 COLUMN OMK. 6. And the said (^cove- nantor) cove- nants with the said (cove- nantee) that he will pro- duce the title deeds enu- merated here- under, and allow copies to be made of them, at the expense of the said (cove- nantee). COLUMN TWO. made, done, or executed, all such further and other lawful act?, deeds, things, devices, conveyances, and assurances in the law whatsoever, for the better, more perfectly, and absolut^^ily convoying and assur- ing the said lands and premises hereby conveyed, or intended so to be, and every part tiiercof, with their a[tpurtenanoe8, unto the said covcnantoo, his heirs and assigns, in manner aforesaid, as by the said cov enantee, his heira and assigns, his or their counso- in the law, shall be reasonably devised, advised or required, so as no such further assurances contain or imply any further or other covenant or warranty than against the acts and deeds of the person who shall be required to make or execute the same, and his heirs, executors or administratoi-s, only, and so as no pei-son who shall be required to make or exe- cute such assurances, shall be compellable for the making or executing thereof, to go or travel from his usual place of abode. 6. And the said covenantor, doth hereby, for himself, his heirs, executora and administrators, covenant, promise and agree with and to the said covenantee, his heirs and assigns, that the said covenantor and his heirs shall and will, unless pre- vented by fire or other inevitable accident, from time to time, and at all times hereafter, at the request, costs and charges of the said covenantee, his heirs or assigns, or his or their attorney, solici. tor, agent, or counsel, at any trial or hearing in any action or suit at law or in equity, or other judica- ture, or otherwise, as occasion shall require, produce all and every or any deed, instrument or writing hereunder written, for the manifestation, defence and support of the estate, title and possession of the said covenantee, his heirs and assigns, in, or to, the said lands and premises hereby conveyed, or intend- ed so to be, and at the like request, costs and charges, shall and will make and deliver, or cause to be made and delivered, true and attested, or 13 98 Short Forms of Conveyances, 7. And the said (cove- nantor) cove- nanta with the said (cove- nantee) that be bos done no act to in- cumber the aaid lands. COLUMN ONE. COLUMN TWO. other copiitH or iibNtrncts of the hriuo deeds, inHtru- iiicntH and writings rcHpectively, or any of thorn, and shall and will permit and Huflcrsuch copies and ahatractH to be oxaniined and c<)n\j)arod with the miid original deeds, by the said covenantee, his heirs and assigns, or such jiersons as ho or they shall for that purpose direct and appoint. 7. And the said covenantor, for himself, his heirs, executors and administrators, doth hereby eovenant, I)romise and agree with and to the said covenantee, his heirs and assigns, that he hath not at any time heretofore made, done, committed, executed, or wil- fully or knowingly suffered any act, deed, matter or thing whatsoever, whereby or by means whereof the said lands and premises hereby conveyed, or intended so to be, or any part or parcel thereof, are, is, or shall or may be in any wise impeached, charged, affected, or incumbered in title, estate or otherwise how.soever. 8. And the said releasor hath released. reuii.sed and forever quitted claim, and by these presents doth relea.se, remise, and forever quit claim, nnto the .said releasee, his lieii-s and assigns, all and all manner of right, title, interest, claim, and demand whatsoever, both at law and in equity, into and out of the said lands and premises iiereby granted, or intended so to be, and every part and parcel thereof, so as that neither he nor his heirs, executors, ad- ministrators^ or assigns, shall nor may, at any time hereafter, have, claim, pretend to, challenge or de- mand the said lands and premises, or any part thereof, in any maimer howsoevei", but the said releasee, his heirs and a.ssigns, and the same lands and premises shall from henceforth for ever here- after be exonerated and discharged of and from all claims and demands whatsoever, which the said releasor, might or could have upon him in respect of the said lands, or upon the said lands. 9. And the 9. And the said (A. B.) wife of the said (grantor), said (A. B.) fQ^ j^^j Jq consideration of the sum of 8. And the aaidl releasor) releases to the sa\d(releasee) all bin claims upon the said lauds. 22 Vic. Ch. 91. 99 COLUMN ONE. COLUMN TWO. wife of tho (lolliii'R, of the lawful money of ('iiimdii, to her in lo^^) herd* '"""' l^""'* ''^ *''" *'"' ('/'•""''"') '^^ "^ ^•"'"'"o tlio bars hor dow- «L'aIiiig and delivery of these preHeiit«, tho receipt er in the said whereof iH hereby aokiiowKnl^'ed, hath granted and released, and by these pre.sentH doth grant and re. leaHo nnto tho said (grantnc) lii.s lu^ii-s and aHsigns nil hor dower and right and titio which in tho event of Hurviving her said husband, she might or would have to dower, in, to, or out of tho lands and premisea lieniby conveyed, or intended so to bo. This Act is taken from the Imperial Act S & 9 Vic, ch. 119, and its oVtjoct is to relievo from tlic labor of inserting covenants at length, and all tho estate clanse, &c., and give to a conveyance drawn under it, using the short forms, the same efficacy and effect as would have been given to it if drawn irrespective of the Act, with the use of tho cor- res[)onding lengtliy forms. A recent case (a), however, Avould seem to indicate that, under certain circumstances, a conveyance may be aided in its effect if expressed to be drawn " in pursuance of the Act to facilitate the convey- ance of real property." In one case (h) an indenture dated in 1852 (<;), expressed to bo drawn in pursuance of the Act to facilitate, &c., for a consideration of £75, with a limited covenant for possession and further assurance, was held sufficient to pass the fee, though the ordy operative words were quit claim and release, and the releasee had neither possession nor estate whereon a release could operate. McLean, C. J., and Burns, J., particularly referred to the fact that the deed was expressed to be in pursuance of the Act to facilitate the conveyance of real property, and that it contained covenants for possession and further assurance. Imp. Act 8 A V. c. 119. Has a convey- anco referring to the act an effect It other- wise would not have ? h (a) Cameron v. Gunn, 25 Q. B. U. C. 77. (6) Nicholson v. Dillabough,;.21 Q. B. U. C. 595. (C) The date given to the indenture in the report is a misprint ; tho date there >,riven ia 1812, but the Act was not passed till 9 Vic. The prior part of the report j^ives the correct date. 100 Short Forms of Conveyances, i-'t In the next case (a) the defendant, by deed, dated in 1865, remised, released, and forever quitted claim to the plaintiff for a consideration of 5s., and without covenants. The Court referred to the fact that the forn\er case was expressed to be in pursuance of the Act, that it was for £75, and contained a covenant that the purchaser might enter and take possession, all which they said was wanting in the case before them, and the instrument was held in- operative as either a release, gi'ant, or bargain and sale. Considering that the Court merely distinguished the cases on the grounds above mentioned ; considering also that to the validity of a bargain and sale, a consideration of 5.s. is as sufficient as a consideration of £75, and that to the validity of a deed as a grant, no consideration is requisite (at least when expressed to be to the use of the grantee, so as to prevent the use resulting to the grantor), it would seem that the Court, in denying efficacy to the deed, must (if they recognized the former case as law) have relied on the fact that it was not expressed to be in pursuance of the Act to facilitate the conveyance of real property, and contained also no covenants for possession or further assur- ance, and probably chiefly on the latter grounds (b). It should be remembered that there is no longer an Act entitled " an Act to facilitate the conveyance of real pro- perty ;" the original Act of 9 Vic. so entitled having been consolidated, and entitled "an Act respecting short forms of conveyances ;" a corresponding change was omitted, how- ever, in the first schedule. On the whole it is submitted that at present a mere reference to this Act will not give a conveyance any greater efficacy than otherwise it would have, except as pointed out in the Act. The operative There is a singular mistake in this Act, in that the only operative word made use of is the word " grant," whereas word grant made use of by mistake. (a) Cameron v. Gunn, supra. (6) See the observntions of Draper, C J., and Morrison, J., in Acre v. Livingstone, 26 Q. B. U- C. pp. 285, 288, 296 } but see, per Hagarty, J., 292. Con. Stat. Ch. 91. 101 lands, that is the immediate freehold, did not at the time of the passing of the Act lie in grant, nor was it till some time afterwards that lands acquired that capacity (n). The error arose from copying the English Act without attention to the fact, that at the time of passing the Act in England, lands there did lie in gi'ant. The error is important, be- cause in some cases a conveyance may be found to fail entirely, and in other cases only to operate by the raising of a use when it was not intended, and thus causing the uses expressly declared, to be but uses on a use, and thei-e- fore trusts. Whatever doubt there may be as to whether words of release only may operate as a grant or bargain or sale (b), there Ccau be no doubt that a deed using only " grant " as an operative word, may take effect as a bar- gain and sale, if on a pecuniary consideration, or as a co- venant to stand seised if on a consideration of blood or maiTiage, or as a reletise if there be possession or a vested estate whereon it can operate, or as an assignment, sur- render, and in other modes. The nugatory grant therefore might be valid as a bargain and sale, or covenant to stand seised, but in such cases, if uses were declared, it would be attended with the results above alluded to, of misplac- ing them and also the legal estate, by the use being raised, unintentionally, yet necessarily, in the bargainor or co- vi'iiantor. Thus, if A, in anticipation of marriage, had by way of settlement, granted to B and his heirs, to the use of him A and his heirs till marriage, and thereafter to other uses declared, the instrument would have been void SIS a grant ; and though if a pecuniary consideration had been expressed, it might have operated as a bargain and sale, then the fee would have been in B in trust for A, and not in A, as intended ; and if the marriage had happened, the uses declared, which it was intended should confer legal estates, as being executed in possession by the The word grant may operate as a bargain and sale, release, But if it oper- ates as a bar- gain and sale, the deed may not operate as intended. /.I I 1 (a) 14 & 15, Vic. c. 7, a. 2; Con. St. c 90, b. 2; see however the effect of 12 Vic. c. 71, 8. 2, repealed by 14 & 15 Vic. c. 7, (ft) See Cameron v. Gunn, and Nicholson v Dillabough, supra, in the text and notes. 102 Short Forms of Conveyances, I Caution required in the use of the forms. Statute of Uses, would have been mere trusts. So also, if A had granted to B, in fee, to the use of him. A, and an- other, in fee, with a view to vest the estate in himself and such other jointly, (a case very likely to have occurred on appointment of a new trustee), the deed was either in- operative, or if it could have operated as a bargain and sale, the legal estate would have been in B. In the above and the like cases the intention was that the instrument should operate as a conveyance at Common Law, and that the first use raised should be in the grantee to uses, and this would be so, and the instrument would so operate now that lands lie in grant ; but if it can only be supported as a bargain and sale, or covenant to stand seised, the first use raised is of course in the bargainor or covenantor. If the instrument could be supported as a Common Law conveyance by way of release, it would work as intended, but this presupposes possession, or some vested estate, at least, in the releasee. Possibly the Act of 12 Vic. ch. 71, sec. 2 (repealed) might aid the want of possession, or of estate, in cases of grants after that Act : the construction of that section is, however, as pointed out by Mr. Ker, very obscure (a). Great caution appears requisite in the use of this Act, as the forms in its schedules are, in strictness, appropriate only to the most simple conveyances. The form in the first schedule is that of a grant in fee simple, and the co- venants in the second section are framed with reference to an assurance of that simple description ; and it may be useful to impress upon parties who choose to avail them- selves of the Act, that more than usual care will be neces- sary to have their deeds accurately engrossed. The Act gives a particular efficacy to a particular form of words, and the slightest deviation from that form will endanger the operation of the Sbitute with reference to the covenant in which the mistake occurs ; and such covenant may then, under the second section, be left to the very doubtful effect it may have by its own independent operation. (a) See letter of Mr. Ker, in Appendix. Con. Stat. Ch. 91. lOd Section 3 of schedule 2 authorizes the introduction of Danger of exceptions and qualifications of the covenants, but for the f"^g"^ ^^® reasons above given it is dangerous to interfere with the forms, unless in very clear cases, for it may not be easy to determine what is the introduction of an exception or qual- ification. Thus the superadding to the covenant for right to convey free from incumbrance, the words " except a certain mortgage dated, &c.," would clearly be within the authority ; but in the very common case of striMng out Effect of strik- the words " notwithstanding any act of the said cove- ing out the nantor" with a view to render the covenant for right to con- ^ithsiandinsr vey, and all sahsequeiit covenants unqiialijied, it is by no any act," &c. means clear that is an introduction of an exception or qualification ; it is rather the omission of that which is in- tended to enlarge the covenant and deprive it of its ex- ceptional and qualified character, and render it according to the common expression '■ full and unlimited." If the forms of covenants in the Act did not, as in effect thev do, except the acts of all other than the covenantor, and were not confined only, as they are, to his acts, kc, and the words " notwithstanding any act of the covenantor" had accord- ingly been omitted in the Act, then the insertion of those words by the conveyancer would have been the introduc- tion of an exception and qualification within the Act; and if this be so, the omission of those words cannot be the same thing, and be also an introduction of a qualification. Even though the omission of the Avords should be within the Act as regards the first covenant, it by no means follows that the eft'eci of such omission would extend to the fol- lowing covenants, and if not, they would remain qualified (a). The common practice in the profession is to strike out the words " notwithstanding, kc," under the belief that thereby all the covenants are to be read as in the second column, but unqualified, and without any acts or defaults of any one being excepted. If, however, the above remarks are entitled to any weight, it might be prudent in such cases to give the covenants at full length. (a) Trenchard v. Hoskins, Winch. 91 ; 1 Sid. 328 : Browning v. Wright, 2 B. & P. 18. f 104 Covenants should extend to matters to which the covenantor may have been party ir privy, also to de- faults. Imprudent to omit any cov- enant, as the remedies vary and are not co-extensive. Damages. Short Forms of Convevances, The forms of covenants adopted have received the sanc- tion of the use of centuries, and as their effect is well under- stood, and they have been illustrated by many cases, it is very unwise to vary from them without necessity. It has beeri said, liowever, that in some respects the forms are not sufficiently extensive, and that they should extend to matters to which the covenantor may have been ■party or 'privy, for that these words are not included within the words " })ermitted or suffered (a). Therefore where a mere trustee to bar dower (the purchaser taking the fee, subject to his interposed estate) (b), joined with the purchaser in making a mortgage, having previously concun-ed with him in another conveyance (c), it was of course held that the latter conveyance was a breach of his covenant that he had done no act to encumber the estate, and the Court would not look to the value of his estate or the trust engrafted on it ; but it was held that he was not responsible for the concurrence of the purchaser in the same deed, although he had covenanted that he had not permitted or suffered any act whereby any incumbrance was created. The common words that he had not been " party or privy," &c., would have given a remedy under the covenant, for of course he was party, and therefore privy to the conveyance, although the purchaser might have conveyed without him. So again the covenants extend only to acts, fcc, knowingly or wil- fully suffered or permitted to the contrary, and not to all defaults of the covenantor, and the distinction is very material (rs and assigns will, within three calendar months nt;xt after such notice, well and suflficiently repair and nuike good accordingly, 7. And also that the le.ssee shall not, nor will during the said term, assign, transfer or set ovci", or otherwise by any act or cU^ed procure tho said premi- ses or any of them to be assigned, transferred, set over or sub-let unto any person or persons whomso- ever, without the consent in writing of the lessor, his hell's or assigns first had and obtained. 8. And further, tho lessee will, at the expiration or other sooner determination of the said term, peaceably surrender and yield ui) unto the said les- sor the said ])remises hereby demised with the ap- purtenances, together with all buildings, erections and fixtures thereon in good and substantial repair and condition, reasonable wear and tear and damage by tire only excepted. 9. Provided always, and it is hereby expressly agreed, that if the rent hereby reserved, or any jiart thereof, shall be unpaid for fifteen day.? after any of the days on which the same ought to have been paid, although no formal demand shall have been made thereof, or in ease of the breach or non-pei- formance of any of the covenants or agreements herein contained on the part of the lessee, his ex- ecutors, administrators or assigns, then and in either of such cases it shall be lawful for the lessor at any time thereafter, into and upon the said demised premises, or any part thereof, in the name of the whole to re-enter, and the same to have again, re- possess and enjoy, as of his or their former estate ; any thing hereinafter contained to the contrary notwithstanding. 10. And the lessor doth hereby for himself, bis heirs, executors, administrators and assigns, coven- ant with the lessee, his executors, administrators In 110 Short Forms of Leases, Jit ■: f'^i a f '11 (lessee) for quiet enjoy- ment. Imp. St. 8 & 9 V. c. 124. Easements not leo^ally appurtenant will not pass. Discrepancy in covenants in obligation to repair in case of fire. Covenant to pay taxes too extensive. COI-UMN ONE. COLUMN TWO. and assigns that he and they paying the rent hereby reserved, and performing the covenants hereinbefore on his and their part contained, shall and may peaceably possess and enjoy the said demised premi- ses for the term hereby granted, without any inter- riiption or disturbance from the lessor, his heirs, executors, administrators and assigns, or any other person or persons lawfully claiming by, from or under him, them or any of them. This Act is tcaken from the Imperial Act of 8 & 9 Vic, ch. 124. Some of the observations made in regard to the Act respecting short forms of conveyances apply to this Act. As- regards easements this Act (sec. 8) is lefs extensive than the Act as to conveyances, for easements which have been used and enjoyed with the premises are not included, and there may be sucli which would not })a,ss as belonging or legally apj)urtenant to the premises (a). There is a discrepancy betAveen the third, sixth, and eighth covenants ; under the third and sixth, as iirc is not excepted, the covenantor wtjuld be bound to rebuild ; under the covenant to leave in good repair, fire and rea- sonable wear and tear are excepted. The covenant iis to j)ayraent of taxes is perhaps too extensiv(^ and im])oses an obligation on the lessee which generally is not intended. Municipal corporations have power to impose assessments for various purposes, as, for instance, for construction of sewers and drainage and local imin'ovemcnts, and under such a covenant as the above the lessee might jjossibly be made to pay such an assessment (6); a payment which, in sliort leases at an)'' rate, it is unlikely is ever intended, for the improvement might be permanent in its nature, and the Avhole expense thereof (a) Pheysey V. Vicary, 11) M. «feW. 48i; Barlow v. Rhodes, 1 C. & M. 43!). See a difference of opinion as to the effect of these words, Lanj;- ley V. Hammond, L. R. 3 Ex. 161. {b) See Mooro v. Hynea, 22 Q. B. U. C, 107; Michie v. City of To- ronto, 11 C. P. U. C. 379 ; Aldwell v. Hannath, 7 C. P, U. C. ; Tidswell V. Whitworth, L. R. 2 C. 1?. 326, subsequently referred to in the text j see also Sweet v. Seager, 2 C. B. N. S. 119. Con. Stat. Ch. 92. Ill payable by twenty or fewer annual instalments, and be of no benefit to the lessee whose lease might be shortly expir- ing : the annual assessment might be more than the rent. By the Manchester Improvement Act, 1851, 14 & 15 Vic, ch. 119, the council were enijiowered to order streets to be sewered and paved by the owners of the adjoining j)rcmises, and, in case of default by such owners, to do the work tlicmselvcs, and -to chai-ge the respective ownei-s with their proportionate ])arts f)f the expense thereof, to be re- coverable by action of debt, &c., and, by wa}; of additional remedy, the council wci-e empowered to require payment from any ])resent or future tenant or occupier, to be levied by distress, aud it was made compulsory on the owner to allow such payments to be deducted from the rent. In 18G3, premises in G. Street were demised by the plaintiff to the defendant for seven years, at the " clear yearly rent" of £90, the latter covenanting that he would " pay and dis- charge, all taxes, rates, assessments, and impositions whatever (except property -tax) wliich during the term should become payable in respect of the demised premises." In 1865, the council gave notice to have G. Street sewered and paved. The plaintiff neglecting to do the required work, the coun- cil caused it to be done, and assessed his })roportion of the expense at 213/. 3s. Gd., which he paid ; it was held that, the payment having been made by the })laintiff, liot for a rate, assessment or imposition which had become payable in re- spect of the demised premises, but for the breach of a duty imposed on him by the Act of parliament, he was not en- titled to call upon the defendant under his covenant to re- pay him the amount. Bovell, C. J., in giving judgment distinguished as to Sweet v. Seager, 2 C. B. N. S. 119, saying, " looking at the language of the covenant in that case, it is almost impossible to conceive how larger words could have been employed. The reddendum there was, paying a certain yearly rent, 'without any deduction wliat- sqever in respect of any taxes, rates, assessments, imposi- tions, or other matter or thing whatsoever then already or thereafter to be taxed, assessed, and imposed upon or in i m 5' V ■t, 1 112 II Does the agreement that the lessor may enter and view extend to his repre- sentatives and his assigns ? Short Forms op Leases, respect of the said promises, or any part thereof, by au- thority of pnvliamcnt, or otherwise howsoever;' and the covenant, that the tenant should ' pay, bear, and discharge all Hiu-h pavliainontary, parochial, and county, district, and occasional lovics, rates, assessments, taxes, charges, imposi- tions, coiitriljutii»ns, burthens, duties, and services whatso- ever as dui'ing the said term should bo taxed, assessed, or imposed upon, or in respect of, the said premises thereby demised, or any part thereof All the Judges, in dealing with the case, refer to the very large and comprehensive language of the covenant. The words, 'burthens,' 'duties,' and 'services,' are especially relied upon. Cockburn, C. J., says : ' It clearly was the intention of the original land- lord, and also of the lessor, that the tenant should bear the landlord harndess against all charges of a general local character imposed upon or in respect of the premises. And Cre;nvell, J., lays stress upon the evident intention of the ])arties that the les.sor should receive a certain sum wholly independent of ' any taxes or assessment of every description or upon any account.' Regard being had to the language and the general object of the Statute, and to the restricted terms of this covenant, I am clearly of opinion that the payment in question must fall upon the landlord and that the tenant is not liable" (a). As regards the covenant giving license to enter and view state of repair it reads thus : " it is agreed that it shall be lawful for .the lessor and his agents to enter, &c.," and the Statute declares that where the premises are of a freehold nature, the covenant shall be taken as made with the heirs and assigns of the lessor and if of a. lease- hold nature, with his executors, administrators and assigns. But the covenant, and the power given by, or subject mat- ter of, the covenant, are quite distinct, and it by no means follows that because the lessee covenants with the lessor, his heirs and assigns, that the lessor may enter, that there- fore his assigns may : the wide distinction between the parties with whom the covenant is made, and the parties (a) Tidswell v. Whitworth. L. R., 2 C. P. 334. Con. Stat. Ch. 92. 118 to whom a j)ower may be given by such covenant, will be ♦ more aj)pareiit by suppo.sing the case of a covenant with the lesMor and liis hciw and jussign.s that some third pei-Hon mij^'ht enter, where elearly neither the lessor, his heirs or iiMsi^'iis, could enter The vifW that the heirs and jussigns of th(! lessor cannot enter under the covenant given by the Act is also favore shares is given to the person who wo'ild have inherited ^]^Q q\^ i^w.* under the former law, it will be requisite to give a brief sketch of that law. It will be found also that for some years to come, and until by possibility of the application of the Statute of Limitations to titles, by which after the prescribed period of possession, a " parliamentary convey- ance " (b) is in effect made to the possessors as against the true owners, and the necessity of tracing out old descents superseded, that a knowledge of the former law is abso- lutely requisite in dealing with real estate. Probably at the present day, as many contested cases of descent are governed by the Statute of William as by that of Victoria, ard the former Act cannot possibly be understood without a knowledge of the common law rules, which indeed, were left partially in force by the latter Act. Of the devolution of estates less than freehold it is not proposed to treat, as they now are and have always been subject to laws of descent different from those applicable to freehold estates, they being mere chattel interests and devolving in cases of intestacy, on the personal representa- ^i'' Vi] (a) In treating of descent at common law, the author has borrowed much from the te.\t of Blackstone. The Statute of William cannot be understood without an appreciation of the common law rules, and the remarks of the learned Commentator on the civil law, and on the rules of computation of consanguinity are of service in considering the present law of descent under the Act of Victoria. (6) Per Parke, B. Doe d. Jukes v. Sumner, 14 M. & W. 39. 116 ^ ill!'! 1. The various modes of des- cent nccordiiig to the viirious kinds of es- tiitt'«. 2. And ut va- vious periods, viz., at com- mon law ; un- der S'lit. 4 Wm. IV. 0. 1 ; under Stat. 14 & IG Vic.c.6. Tbo various kinds of fieJ- liolds. Descent. tives. As will however be seen in the sequel, the Statute 14 & 15 Vic. eh. G; has much lessened the wide distinction theretofore existing as to the descent of the two classes of estates, and assimilated to some extent the descent of free- hold estates to that of chattel interests. The subject may be discussed, 1st. As regai'ds the vari- ous kinds of freehold estates ; inasmuch as each kind is subject under certain circumsttmces to a diticrent law of descent from the others. 2nd. As regards the 'particular time at which the des- cent takes place ; inasmuch fis there are three distinct periods or epochs in each of which descent would be traced in a mode difterent from the others, viz., that when the common law prevailed ; that when the Statute 4 Wm. IV. ch. 1, prevailed; and lastly, that since 14 & 15 Vic. ch. 6. In respect of the first division of the subject, it may be mentioned that of the various kinds of freehold estates, some are not of inheritance ; thus tenant in dower, by the curtesy, in tail after possibility of issue extinct, are mani- festly determined by the death of the tenant, and so not of inheritance ; and in the books estates in fee simple and in fee tail are usually named as the only two freehold estates of inheritance ; but for the purposes of this chapter at any rate, it will be i-ecpiisite to consider a third class, viz., estates pur autre vie, as quasi estates of inheritance. It is therefore these three classes only of freehold estates that will be treated of, as indeed being the only freehold estates to which the law of inheritance is applicable ; and as before mentioned, under certsiin cir- cumstances, each varies as regards its descent ; thus an estate in fee tail, being excluded from the 14 & 15 Vic, is governed by the common law rules of descent, as modified by the 4 Wm. IV., and descends therefore differently from a fee simple ; whilst an estate pur autre vie, which des- cended prior to 14 & 15 Vic, sometimes went to the heirs, and sometimes under the Statute of Frauds to the execu- tors ; and thus varied in its descent iVoui either a fee simple or a fee tail, as will be more fully explained here- after. Consanguinity. 117 The necessity foi" the second division of the subject Tbe law varies nviscs ftoin tlie fact that there ai-e three distinct periods, ""'".'"f ^'"""^ •t ' punoua. during each of which the law of descent was different from that in the others, as above mentioned, viz. : 1. The period from the time when feuds first became hereditary d(jwn to the 1st of July, 1834, (the time of the operation of tlie 4 Wm. IV.), a period during which the common law alone governed. 2. The period from the operation of the 4 Wm. IV., 1st July, 1834, to the 1st January', 1852, when tlie 14 &; 15 Vic. came into effect. 3. The period from Lst Janu- ary, 1852, since which time primogeniture is abolislied, as also the preference of males to females, and of children of the whole blood to tho.se of the half blood, and othei- im- portant changes made ; and the more effectually to su])ersc»le the old law, a })rovision is made that in case of failure of heirs under the rules for ascertaining tlicni given in the Statute, the estate shall go to the next of kin, as under the Statute of Distributions of personal estate. It will be previously necessary to state, as hrieHy as of aesroet- ■ r possible, the true notion of kindred or alliaiu-e of l)Iood, ^""'^■'"'S""'" lineal and collateral ; and for this ])urpose, as also foi- tlie pui'pose of illusti'ating descent at common law, the author Is either ///a // adopts the language of Mr. Justice Blackstoiie in his com- mentaries on the law. " Lineal consanguinity is that which subsists l"el\veeii Liiicaicoiis.ii- persons, of whom one is descended in a direct line I'loin pulnlty. the other, as between John Stiles (the pro/ioiiiliin ia the table of coiisaiiguiiiity) and his father, grauilfatlier, gicat- grandfather, and so uj)wai'ds iii' the direct ascending line ; or between John Stiles and his son, grandson, great-grand- son, and so downwards in the ilirect descending line. Every generation in this lineal direct CDiisanguinity, cmi- stitutes a different degree, retikoiiing either upwards oi- downwards; the father of John Stiles is related to him in the first degree, and so likewi.se is his son ; his graiuLsirc and grandson in the second ; his great-grandsire and gi'eat-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore t: pi I 116 Of collateral kindred. The method of computing the degrees of con- sanguinity at common law which follow- ed the canon law. Descent, universally obtains, as well in the civil and canon, as in the common law. Collateral relations agree with the lineal in this, that they descend from the same stock or ancestor, but differ in this, that they do not descend one from the other. Col- lateral kinsmen are such then as lineally spring from one and the same ancestor, who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles hath two sons, who have each a numerous issue ; both these issues are liiieally des- cended from John Stiles as their common ancestor ; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos. The method of computing these degrees of consanguinity (a) in the canon law, which our (common) law has adoi)ted (h), is as follows : — We begin at the common an- cestor and reckon downwards ; and in whati^oever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they arc related to each other. Thus Tltius and his brother are related iu the first degre*;, for from the father to each of them is counted only one ; Tltius and his nephew are re- lated in the second degree, for the nephew is two degrees removed from the common ancestor, viz., his own grand- father, the father of Titius. Or (to give a more illustri- ous instance from our English nnnals). King Henry the Seventh who slew Richard the Third in the battle of Bos- Avorth, was related to that prince in the fifth degree. Let the propositus therefore in the table of consanguinity , repre- sent King Richard the Third, and the class marked (c) King Henry the Scenth. Now their common stock or ancestor was King Edward the Third, the abavus in the same table; from him to Edmond, Duke of York, the proavus, is one degree ; to Richard, Earl of Cambridge, the avus, two ; to (a) See post p. 13-1. (6) Co. Litt. 23, 24. Consanguinity. 119 Richard, Duke of York, the pater, three ; to King Richard the Third, the propositus, four ; and from King Edward the Third to John of Gaunt (a) is one degree ; to John Earl of Somerset, (b) two ; to John, Duke of Somerset, (c) three ; to Margaret, Countess of Richmond, (b) four ; to King Henry the Seventh, (c) five ; which last mentioned prince, being the farthest removed from the common stock, gives the denomination to the degree of kindred in the canon and municipal law. Though according to By the civil the computation of the civilians, (who count upwards from either of the persons related, to the common stock, and then downwards again to the othei", reckoning a degree for each pei"son both ascending and descending,) these two princes were related in the ninth degree ; for from King Richard the Third to Richard, Duke of York, is one de- gree ; to Richard, Earl of Cambridge, two ; to Edmond, Duke of York, thiee ; to King Edward the Third, the common ancestor, four ; to John of Gaunt, five ; to John, Earl of Somerset, six ; to John, Duke of Somei'set, seven ; to Margaret, Countess of Richmond, eight ; to King Henry the Seventh, nine." The mode of calculating the degi-ees of proximity in the As to peraon- coDateral line, for the purpose of determining what par- mmon cyphers. , '""ENT AT Common Law. 1. The jirst rule is; that inheritances sliall lineally (hscend tt. '•]" issue of the person who last died actually seised, in inftntw /n; L. m sh, U never lineally ascend. Under the Statutes oi' VViiaam (s. 18), and Victoria (sk. 27, 2S), lineal ancestors are admittetl to the inheritance itnmediately after failui'e of lineal descendants; but under the latter Act the privilege is confined to the immediate ancestors ; and thi; common law rul(.' as to necessity of actual seisin is abolished, (ss. 4, 8, 14, 23). No jierson at conmion law can be properly such an an- cestor, as that an inheritance of lands or tenements can be derived from him unless he hath had actual seisin (a) ot Actual seisin (") What constitutes actual neisin. or possession in deed, as distinguisli- distingnished cd fiom seisin in law, or constructive possession, is a question of impor- froni seisin in tance, not merely as regards tracing descent at common law, but also in law. respect of qualilication as tenant by the curtesy and in trespass. Notwithstanding s. H of Con. 8tat., c. 82, dispensing with proof of entry ny the lieir in oidor to prove title in hira, or any one claiming by or through him, (ii provision which, as observed in treating of that section, is unnecessary as regards descent under the Stat, of Wra.), actual entry, or what is equivalent thereto as explained in the text, is still requisite to constitute actual seisin so as to enable the husband of the heiress to take as tenant by the curtesy; Wigle v. Merrick, 8 C. P. U. C. 307, per Hagarty, J., and per Draper, C. J., 318,319; I Inst., 29a. Under the like circumstances of want of actual seisin, the heir was not at com- mon law a good stock of descent as explained in the above and follow- ing pages. The First Canon. 121 such lands, either by his own entry, or by the possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of the freehold, or unless he hath had The case of a conveyance under which the grantor took back tliocstiito to himself or his heirs, and the manner in which the Statute of William affected the common law rules in such cases, is treated of in the text, pp. 128, 152, 153. In cases other than those of descent there would seem to be some diffi- The po.ssos- culty in determining to what e.vtent a person is to be deemed in possession, sion acquired for various purposes, as to qualify the husband to take by the curtesy, or uuder the St. to enable such peraon to maintain trespass, when the conveyance oporutes ''f Uses, to under the Statute of Uses. Thus, would the wife be considered as having '•*''<^ ^y 'ho been actually seised, or in actual possession (mere sei.sin in law, or eon- curtesy, or structive possession, of course not being sufficient) so as to enable her """utiuntres- \ husband to take as tenant by the curtesy ? 1st, where she took by way of bargain and sale, the bargainor never having been in possession — 2nd, where the grantor was or wiis not in possession, and ho conveyed to the feme by statutory grant, or common law conveyance, to a grantee to uses, she taking as cestui qui use. The question is, whether in the above cases the Statute of Uses confers a possession equivalent to actual seisin, or actual possession, within the rule requiring such in the case of a claimant by the curtesy. Whatever may be the case where the bargainor has had actual po,sses- sion, still as regards the cases above mentioned, the author submits the following, as reasons why in neither case t'le husband can take by the curtesy, in other words, why the wife is not to be deemed to have had actual seisin in deed. He does this with greaL diflidenee, because a re- cent case would seem to shew that in either case there would he actual seisin, if once an analogy be established of seism of a rent charge, and of a corporeal hereditament by force of the St. of Uses. In that case (Ileelis v. Blain, 18 C. B. N. S. 00, 11 .Jur. N. 8. IS), the question was whether a cestui qui use, one of the sons of S. Ileelis, was entitled to vote under the Reform Act, 2 Wm. 4, c. 45, as having been "in the actual possession of" a share in a rent-charge for si.v months prior to .31st July, 1864. The rent-charge was originnl' created by deeds of lease and release, and was thereafter conveyed to >'. Ileelis in fee. S. Ileelis had irranted the same to J. H., and his heirs to the use of the five sons of him S. Ileelis, in fee as tenants in common. The first rent jiaid to the cestuis qui use was in July. It was objected that the cestuis qui use had not had " actual possession" for six months prior to July, and so were not entitled to vote. It was conceded that apart from the effect of the Statute of Uses, no actual seisin in deed or possession could bo considered as had by the com- mon law by the cestuis qui use till receipt of the rent ; but,tlie Court held that that Statute gave "the cestui qui use possession imincJiatcly en the execution of the deed creating the use," and that "tie Legislature in- tended the same meaning to the v/ord possession in the Statute of Uses, as it did to the words actual possession in the Reform Act." The language of the Statute of Uses is, that the person who has the " use shall from thenceforth stand and be seized, deemed and adjudged in lawful 'seisin, estate, and possession of and in the same lands, rents, &c., to all intents, constructions and jmrposes in the law, of, and in such like estates as they hud or shall have jn the use, trust or confidence 16 pass, &c. VJ ■ m \ I ! f 192 Descent at Common Law. what is equivalent to corporal seisin in hereditaments that are incorporeal, such as the receipt of rent, a presentation to the church in case of an advowson, and the like. And of, or in the same, and that the estate, title, right and possession that was in stick person or persons, that were, or hereafter shall be. seised of any lands, tenementa, or hereditaments to the use, confidence or trust of any such person or persons, or of any body politic, he from thenceforth clearly deemed and adjudged to be in him or them that have, or hereajter shall have such use, confidence or trust after such quality, manner, form and condition as they had before, in, or to the use, confi- dence or trust that was in them." Considering the language of the Statute it is difficult to understand how if the person seised to the use has not the actual possession or seisin in deed, but merely constructive possession, or seisin in law, the cestui qui use can take any more, or greater "estate, title, righi or possession.'* It is old and well known law that the seisin of grantee to uses must bo commensurate with, and sufficient to ^erve the uses declared. Thus, on a common law conveyance to A to the use of B and his heirs, B can take no fee, but a mere estate pur auter vie for want of seisin in fee in A to serve the use. So also it must follow that if A takes no actual seism in deed,B can take none. In the principal case John Ileelis, the grantee to uses, never had actual seism, or actual possession, therefore there was none such that could be " deemed and adjudged to be in him or them" that had the use. See the language of the Act, p 90, in the text. Concedmg at present that on a conveyance of a corporeal heredita- ment by way of bargain and sale, or covenant to stand seised, " the possession that was in such person" shall be "deemed and adjudged to be in him" who has the use, viz, the bargainee or covenantee, so as to invest him. with the actual seisin or possession of the bargainor, or cove- nantor, by force of the Statute, still in the principal case the Statute did not apply at all in favor of John the grantee to uses, for the conveyance was by way of grant, operating at common law only, and ho therefore had at most mere seisin in law. It is clear that on a common law con- veyance as a grant of a rent charge, or a release in fee of land to one who has a vested estate, but no possession, as also on a conveyance of the immediate freehold in land by way of Statutory grant under Con. Stat. c. 90, no actual seisin in deed or possession, by mere force of the convey.ance only, vests in the grantee or releasee ; and in case of a grant it would make no difference that the grantor was in possession at the time of grant ; in none of these cases will the grantee or releasee by virtue only of his* conveyance, and without entry, or some act equivalent to seisin or entry, be invested with more than constructive possession, or seisin in law, See the authorities given hereafter. In Heelis v. Blain, the distinction was not adverted to between a con- veyance operating, l)y way of bargain and sale, or covenant to stand seised, on the seisin of the bargainor or covenantor, so as to draw out of him and vest in the bai-gaiuee or covenantee the possession of the former by force of the Statute, and between a conveyance operating at common law, vesting in i;he grantee no actual seisin or possession, and conso(iuent- ly none that ciin be "deemed and adjudged to be in him" that has the iise ; and the cdses referred to do not appear to controvert this distinc- tion, or establish wore tbao tbftt AS to which the Statute is clear and pre- The First Canon, 123 therefore all the cases governed by the common law rules,, are upon the supposition that the deceased (whose inheri- tance is claimed) was the last person actually seised thereof." cise, viz, that " the estate, title, right and possession " whatever it may be, of the person seised to uses shall be "adjudged to be in him" who has the use. The cases do not shew what was virtually held in Heelis v. Blain, thut a cestui qui use can take a possession exceeding in quality that ot his grantee to uses, though they may indicate that the estate and actual possession of one seised to an use may be executed by the Act ao as to invest his cestui qui use with the same actual possseison, as in the case of a bargain and sale, oi covenant to stand seised. This latter |)roposition even has been denied on principles and reasoning apparently incontrovertible. Ihe following remarks ot two very eminent real propcrlj lawyers are to the purpose: Mr. Preston (onConv. vol. 2, p. 31)0) in treatingof the conveyance by way of lease and release, alludes to the lease taking effect not at common law, but (as usual on this mode of conveyance) under the Stathte of Uses as a bargain and sale for a year, and ho gives the following ordinary language of such a lease, and his remarks thereon, thus : " To the intent, that by virtue, &c., the said A. B. and C. 1). may be in the actual possession of the premises, and be thereby enabled to accept a grant and release, &c. (as before), to the uses, upon the trusts, and for the intents and purposes to be declared by an inden- ture already prepared, and intended to bear date, &c., and to be made, «ikc." "This clause calls for one observation, it follows the language of prac- tice, in assuming tiie object to be, to put the lessee in the actual posses- sion. This expression, and the j)ractice on which it is grounded, must bo understood as a reference to the operation of the Statute for trans- ferring uses into possession. By possession, is mciint only estate. " 'J'he lease for a year, or bargain and sale, cannot, by its own operation, give to the lessee or bargainee the actual possession. It accomplishes nothing more than to give him an actual estate. * * • Though the bar- gain and sale may be by a person who has the possession, the {lossession will not be changed without an entry by the lessee or bargainee, even when the bargain and sale is to be from a day which is past, or henceforth, &c. At the common law the lessee had not any estate till entry : under the bargain and sale he has an estate immediately on the execution of the bargain and sale, and before entry, provided the bargain and sale ia to hold from a day past, or from the execution. But the bargainee can- not maintain an action of trespass, or be considered as in the actual possession of the land, until he has entered by virtue of the bargain and aale. " With every disposition to encourage an observance of established forms, it is to be lamented that any expression should have been adopted for this or any other instrument, which might lead the student to an inaccurate conception of the true meaning of the expressions whi'^h are used. Some other expreaeion, showing that the lessee was to have an actual vested estate, as contradistinguished from an actual possession, would have more adequately described the object of the lease for a year, and possibly might have been a protection against those errors iuto which not only students, but even men of extensive knowledge in the profession, who have undertaken to write on the subject of this assurance, have been led : — how just is the maxim, ignoratis terminis, ignoralur et ars, and the other maxim, nomina si perdas certediatinctio rerum p^ditur." '*tl I 124 Descent at Common Law. As to taking It is necessary liere, however, to call attention to the y pure aso. ^^^^ ^^ ^^^^ ancestor taking by jiurchase (a) without ac- Jlr. Hayes (Vol. 1, .'iod., p. 78,) follows, and approves of the law as ;^iven ; JJark'cr v. K(?ate, 2 Mod. 24!t ; Ford's case, 11 Kep. 41; Plowd., 301; Noy., 73 ; JiUtwich v. Mitton, Cro. Jac. G04 ; Com. Dig. Trespass H, 3 ; Perry v. Howes, 1 Vent, 3G0, doubtful ; Turner v. Cumeron's Co., 5 R.v. 9:52 ; Litchlield v. Heady, 5 Ex. 931) ; Barneit v. Earl Guilford, 11 Ex. 19 : BuUen & Leak(>, Prac. Pig., 3 Ed. 417 ; Saunders on Uses, Vol. 2, p. 4.5 ; Wigle v. Merrick, 8 C. P. U. C, 332, per Ilagarty, J. ; Doe Cuthberston v. McGillis, 2 C. 1'. U. C, 147; Mahar etux. v. Kniser, 17 C. P. U. C, 408: see, however, Orser v. Ver- non, 14 C. P. U. C, 587 ; Ball v. Young, 8 C. P. U. C, 231 ; as to cases of vacant i)ossession see per Sullivan, J., in Doe d. Cuthbertson v. McGillis, 2 C. P. U. C, 147. Result. The result would appear to be that on a conveyance operating to jmss the estate at common law, as on a grant from the Crown, or release, or a statutory grant under Con. St. c. 90, which passes the immediate freehold , without aid of the St. of Uses, the grantee or release till entry, or its equivalent, has but seisin in. law or constructive possession, and conse- quently if n.ses are declared on the seisin of the grantee or releasee, \he co.stui ()ui use can take no more. That on a bargain and sale, or coven- ant to stand seised, where the bargainor or covenantor never had actual possession, the bargainee or covenantee will not by mere force of the conveyance, without entry, or its equivalent, be considered as taking more than constructive possession, or seisin in law, not sufficient to qualify the husband to take as tenant by the curtesy : whilst as regards the right to maintain tresjiass the authorities conflict. As to ciises of conveyance by a bargainor or covenantor who had actual possession, the authorities, con- sidering Heelis v. Blain and the cases there referred to, also conflict as regards the question whether the bargainee or covenantee is to be con- sidered as taking the actual possession of the party conveying. As regards the heir, entry would still seem to be requisite to give more than seisin in law. (a) As to taking hf purchase, and the alterations made in the com- mon law sense thereof by the Acts of Wm. & Victoria, see pp. 143, 151 ; Bee also Blackstone'a Com. by Leith, p. 175. i con- Aa than com- The First Canon. quiring actual seisin, in which case ho would ^till be a good stock of descent. At common law, strictly speak- ing, there could be no such case as acquisition by purchase of an innnediato freehold without acquisition of seisin ; for the usual conveyance by feoiiment was only perfect by livery of seisin, and if the ctmveyance were by release it required possession in the relea.see. At common law, therefore, the purchaser of an innnodiate estate of freehold being always sei.sed, the canon as above exi)ressed, that descent was to triicc'd from the jjcrson last seised, recjuired no modifica- cation as regarded ])urchasers. But when after the first canon wa.s established, conveyances by devise under the Statute of Wills, and by way of use under the Statute of Uses wei'(! allowed in modes unknown to the common law, traiLsierring the estate without lively or actual seisin, then the canon recinired, and is to be considered, to be modified, to meet the Ciuses of ])urchasers taking by devise or by way of use without accjuiring actual seisin. Otherwise by strict literal application of the above canon, the devisee or cestui qui line, who never entered, would not be a good stock of descent ; for as before shewn ((<) the possession acquii'ed by mei-e force of the Statute of Uses is but a constructive possession, and gives no actual seisin as distinguished from seisin in law. The author apprehends, on the authorities before referred to {b), that the true I'ulc where the ancestor took under a conveyance to uses is, not that he thereby accjuired actual seisin, but that as he took as purchaser, he was a good stock of de 'cent, on the principle before referred to. That this is so, is shewn by the fact that a devisee need not enter or acquire actual seisin to enable his heir to de- rive title from him, and the decisions .arc on the ground that he takes ;i.s pui'duuser (c) ; in such case there could be no aid by the Statute of Uses txa to ])osses,sion. For the same reason the cedai qui use taking as purchaser, need not acciuire actual seisin. In case the ancestor takes by purchase, he may be capable of transmitting the property (a) See note, p. 120, as to actual seisin. (fc) Supra p. 120, n. a, (c) Doe d. Parker v. Thomas, 3 M. & G. 815. 125 .» \]M I ] 1 ?i1 '4'ii' ii ' I f 126 Descent at C8mmok Law. ^i BO taken to his own heirs, without an actual possession in himself (a). "The seisin therefore of any person, thus understood, makes him the root or stock, from which all future inheri- tance by right of blood must be derived ; which is briefly exprosHod in this maxim, seisina facit stipitem. When therefore a person dies so seised, the inheritance first goes to his issue : as, if there be Geoffrey, John and Matthew, grandfather, father and son ; and John purchases lands, and dies ; his son Matthew shall succeed him as heir, and not the gi-andfather Geoffrey, to whom the land shall never ascend, but shall rather escheat to the lord." And thus if a man died seised in fee, leaving no issue or broth- ers or sistei-s, but leaving his father and an uncle, the brother of his father, the uncle took ; the father being prohibited from taking, as his doing so would have been a lineal ascension, he was passed by, and gave place to the collateral and more distant relative, the uncle ; but upon the death without issue of the uncle, (he having acquired actual seisin), the estate ^ then vested in the father; he thus taking as heir, not to his son, but to his brother, the imcle of the original purchaser. Instances of It may be well to illustrate the distinction between tween^lracine tracing from the pei-son last seised, and from the person from person last entitled (b). The difference was sometimes important; last Intitted^ ^^^ ^^ ^^'^ ^^ ^^^^^ ^^ ^^® ^^^ P^^ below, if the person last entitled did not acquire seisin, the inheritance sometimes descended to a person different from him, who would have taken if seisin had been acquired. Thus, if (see 1st Table of Descents) Geoffrey had been the person last seised, and died intestate, and his sons, John, Francis, and Oliver, on his death, become successively entitled, as issue by the first wife, and died without becoming seised, and without issue ; here the son of Geoffrey by the second wife, of the half blood to Oliver the person last entitled, would have taken as next heir to Geoffrey, the person last seised, in preference to Bridget and Alice, the sis- ters of the whole blood of the person last entitled. For (a) Watk. Deac, p. 32. (6) See also post p. 146. The FipT Canon. 117 descent has to bo traced from Ooottroy as last seised, not from Oliver as last entitled; and by force of the 2nil rule, the son of Oeoffrey shall bo preferred to his daughters: but if either John, Francis, or Oliver had obtained seisin, then descent must have been traced from him who was last seised ; and his sisters of his wliole blood would have taken in prefereiHiO to his brother of the half blood. Indeed, as afterwards explained, in such case the half-brother, under no circumstances could ever have taken, and if otlicr heirs were wanting, the estate would escheat. In the case of a remainder or reversion in fee, subject to incnsesof do- and preceded by a life estate, as the seisin was in the "cent of re- ' , , , . miuiidor or re- tenant of the freehold, and not in the remainder-man or virsion depen- revei'sioner, it followed that on death of such remainder- ^'^."' "° ''^* . , , estiitc, man or reversioner, and consequent descent of his estate to his heir, the party claiming the estate on death of .sucli heir pending the life estiito, could not tjike .such intern e- t»ed, inherit- ance descends ;• a'i I il 132 to collateral relatives, of blood of first purchaser. Who is a pur- chaser at Com. Law ? under Stilts. ofWm.& Vic. Feudumnovum ut antiquum. Descent at Common Law, Thus, if Geoffrey Stiles purchases land, and it descends to John Stiles, his son, and John dies seised thereof without issue ; whoever succeeds to this inheritance must be of the blood of Geoffrej' the first purchasor of this family." The first purchasor, perquisitor, is, at common law, he who first acquired the estate to his family, whether the same was transferred to him by sale or by gift, or by any other method, except^ only that of descent (a). Under the Statute of William (Con. St. ss. 4, 5, 6, and 14,) the sense of taking by purchase is extended ; and varied also by the Act of Victoria (Con. St., s. 52.) The Statute of William also varies this canon in permitting the lineal ancestor to take, and that in preference to collaterals, as is explained in the sequel. " When feuds first began to be hereditary, it was made a necessary qualification of the heir, who would succeed to a feud, that he should be of the blood of, that is, lineally descended from, the first feudatory or purchasor. In con- sequence whereof if a vassal died seised of a feud of his own acquiring, or feudum novum, it could not descend to any but his own offspring ; not even to his brother, because he was not descended, nor derived his blood, from the first acquirer. The true feodal reason for which rule was this : that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person. But if it was feudum antiquum,, that is, one descended to the vassal from his ancestors, then his brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance." " However in process of time, when the feudal rigour was in part abated, a method was invented to let in the colla- teral relations of the grantee to the inheritance, by granting him sb feudum, novum, to hold ut feudum antiquum ; that is, with all the qualities annexed of a feud derived from his ancestors ; and then the collateral relations were admitted to succeed even in infinitum, because they might have (a) See pp. 124, 143, 151. ^"~ ^ The Fifth Canon. 188 been of the blood of, that is descended from, the first imaginary purchasor : and all grants in fee of an indefinite character were deemed to be of that tenure (a), and therefore collateral kindred of the grantee, or descendants from any of his lineal ancestors admitted, unless in the case of a fee- tail, and there this rule is still strictly observed, and none but the lineal descendants of the first donee (or purchsisor) are admitted." " Yet at common law, when an estate really descended in a course of inheritance to the person last seised, the strict rule of the feodal law was observed; and none admitted, but the heirs of those through whom the inheritance had passed ; for all others had demonstrably none of the blood of the first purchasor in tliem, and therefore should never succeed. As if lands came to John Stiles by descent from his mother, Lucy Baker, no relation of his father (as such) could ever be his heir of these lands ; and, vice versa, if they descended from his father Geoffrey Stiles, no relation of his mother (as such) could ever be admitted thereto ; for his father's kindred had none of his mother's blood, nor had his mother's relations any share of his father's blood. And so, if the estate descended from his ffither's father, George Stiles, the relations of his father's mother, Cecelia Kempe. could for the same reason never be admitted, but only those of his father's father." " Here we may observe, that so far as the feud is really antiquum, the common law traces it back and will not suffer any to inherit but the blood of those ancestors, from whom the feud was conveyed to the late proprietor. But when, through length of time, it can trace it no farther ; as if it be not known whether his gi'andfather, George Stiles, in- herited it from his father, Walter Stiles, or his mother. Christian Smith ; or if it appear that his gi-andfathor was the first grantee, and so took it (by the general law) as a feud of indefinite antiquity ; in either of these cases, the common law admits the descendants of any ancestor of (a) See also Imp. St. 31, Geo. 3, c, 31, a. 43, Con. Stats. Canada. When an es- tnte descend- ed to the per- son last seised the strict rule of the feodal law observed. Where the feud is really antiquum,none inherit but blood of an- cestors from whom it was conveyed to late proprie- tor. t 'I.J III! 134 Descent at Common Law, VI. Collateral heir of person last seised must bo next collateral kinsman, of whole blood. This rule va- ried by the acts of Wm. and Vic. The canonical degrees of proximity. George Stiles, either paternal or maternal, to be in their due order the heirs to John Stiles of this estate ; because in the first case it is really uncertain, and in the second , case, it is supposed to be uncertain, whether the grand- father derived his title from the part of his father or his mother." " This then is the great and general principle upon which the common law of collateral inheritances depends ; that upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchasor ; or that it shall result back to tlie heirs of the body of that ancestor from whom it either really has, or is supposed by a fiction of law to have originally descended." " The rules of inheritance that remain are only rules of evidence, calculated to investigate who the purchasing ancestor was ; which infeudis vere antiquis has in process of time been forgotten, and is supposed so to be in feuds that are held ttt antiquis." VI. " A sixth rule or canon therefore is, that tJie collateral heir of the person last seised must be his next collateral kinsman, of the tvhole blood." It will be shewn hereafter that the common law infirm- ity of the half blood was partially removed by the Statute of William, who, under sec. 21, take after the whole blood in the same degree, and was .almost entirely removed by the Act of Victoria, under which, by sec. 3G, except in certain cases, they are placed on the same footing as the whole blood. " First, under this common law canon, the heir must be next collateral kinsman, either personally or jure represen- tationis; which proximity is reckoned according to the canonical degrees of consanguinity before mentioned. Therefore the brother being in the first degi-ee, he and his descendants shall exclude the uncle and his issue, who is only in the second. And herein consists the true reason of the different methods of computing the degrees of consan- guinity (6), in the civil law (to which descent by the Statute (6) Ante p. 117. The Sxth Canon. 135 of Victoria is most allied) on the one hand, and in the canon and common laws on the other. The civil law re- gards consanguinity principally with respect to successions, and therein veiy naturally considers only the person de- ceased, to whom the relation is claimed : it therefore counts the degrees of kindred according to the number of persons through whom the claim must bo derived from him : and makes not only his great nephew but also his first cousin to be both related to him in the fourth degree ; because there are three ]>ersons between him and each of them. The canon law regards consanguinity principally with a view to prevent incestuous marriages between those who have a large portion of the same blood running in their respective veins ; and therefore looks up to the author of that blood, or the common ancestor, reckoning the degrees from him : so that the great nephew is related in the third canonical degree to the person jjrojjosed, and the first- cousin in the second ; the former being distant three degrees from the common ancestor (the father of the pro- jio.'iitus), and therefore deriving only one-fourth of his blood from the same fountain; the latter, and also the propositus himself, being each of them distant only two degrees from the eonmion ancestor (the grandfather of each), .and therefore having one half of e.ach of their bloods the same. The common law regards consanguinity princi- pally with respect to descents ; and, having therein the same object in view as the civil, it may seem as if it ought to proceed according to the civil computation. But, as it also respects the purchasing ancestor, from whom the estate was derived, it therein resembles the canon law, and there- fore counts its degi-ees in the same manner. Indeed, the designation of person (in seeking for the next of kin), will come to exactly the same end, (though the degi'ees will be ditterently numbered), whichever method of computation we suppose the common law to use ; since the right of rep- resentation of the parent by the issue is allowed to prevail in infinitum. This allowance was absolutely necessary, else there would have frequently been many claimants in \v,n t-\ id6 On failure of issue of person last seised, in- heritance de- soends to issue of next imme- diate ancestor. Lineal ances- tors, though incapable of inheritance, are yet the common stock from which next ancestor must spring. Descent at Common Law, exactly the same degree of kindred ; as, for instance, uncles and nephews of the deceased ; which multiplicity, though no material inconvenience in the Roman law of partible inheritances, yet would have been productive of endless confusion where the right of sole succession, as with us, was established. The issue or descendants therefore of John Stile's brother are all of them in the first degree of kindred with respect to inheritances, those of his uncle in the second, and those of his great uncle in the third ; as their respective ancestors, if living, would have been ; and are severally called to the succession in right of such their representative proximity." " The right of representation being thus established, the former part of the present rule amounts to this : that on failure of issue of the person last seized, the inheritance shall descend to the other subsisting issue of his next im- mediate ancestor. Thus, if John Stiles dies without issue, his estate shall descend to Francis his brother, or his repre- sentatives; he being lineally descended from Geoffrey Stiles, John's next immediate ancestor, or father. On fail- ure of brethren or sisters, and their issue, it shall descend to the uncle of John Stiles, the lineal descendant of his grandfather George, and so on in infimtam." " Now here it must be observed that the lineal ancestors, though (according to the first rule,) incapable themselves of succeeding to the estate, because it is supposed to have already passed them, are yet the common stocks from which the next successor must spring. But, though the common ancestor be thus the root of the inheritance, yet it is not necessary to name him in making out the pedigree or descent. For the descent between two brothers is held to be an immediate descent, and therefore title may be made by one brother or his representatives to or through another, without mentioning their common father (a) ; if Geoffrey Stiles hath two sons, John and Francis, Francis may claim as heir to John without naming their father Geoffrey ; and (a) This rule is varied by sec. 17 of the Con. St. I I The Sixth Canon. W so the son of Francis may cluun au cousin and heir to Mat- thew the son of John, without naming the grandfather, viz. as son of Francis, who was the brother of John, who was the father of Matthew. But though the common ancestors are not named in deducing the pedigree, yet the law still respects them as the fountains of inheritable blood ; and therefore, in order to ascertain the collateral heir of John Stiles, it is first necessary to recur to his ances- tors in the first degree ; and if they have left any other issue besides John, that issue will be liis heir. On default of such, we must ascend one step higher, to the ancestors in the second degree, antl so upwards, in injinitum, till some couple of ancestors be found who have other issue descending from them besides the deceased, in a parallel or collateral line. From these ancestors the heir of John Stiles must derive his descent, and in such derivation the same rules must be observed with regard to sex, primogeni- ture, and representation, that have before been laid down Avith regard to lineal descents from the person of the last proprietor." " But secondly, the heir need not be the nearest kinsman Heir must bo absolutely, but only sab modo ; that is, he must be the "^"''^st kins- nearcst kinsman of iheivliole blood ; for if there be a much bood. nearer kinsman of the half blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded." " A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For as every man's own blood is compounded of the bloods of his respective ancestors, he only is properly of the whole or entire blood with another, who hath, so far as the distance of degrees will permit, all the same ingredi- ents in the composition of his blood that the Other hath. Thus the blood of John Stiles being composed of those of Geoffrey Stiles his father, and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, hath entirely the same blood with John Stiles ; or he is his brother of the whole blood. But if 18 \ 1} ; , ■!■ n il ii 138 Dkscent at Common Law. not inherit to eaoh other. Half-blood can after the death of Geoffrey, Lucy Baker the mother marries a second husband, Lewis Gay, and hath issue by him, the blood of this issue, being compounded of the blood of Lucy Baker, (it is true,) on the one part, but that of Le^^'is Gay, (instead of Geoffrey Stiles,) on the other part, it hath there- fore only half the same ingredients with that of John Stiles; so that he is only his brother of the half blood, and for that reason they shall never inherit to each other. So also, if the father has two sons, A. and B., by different wives ; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A., who enters thereon, and dies seised without issue, still B. shall not be heir to this estate, because he is only of the half blood to A., the peraon last seised ; butitshall descend to a sister (if any) of the whole blood to A. ; for, in such cases, the maxim is, that the seisin or posaessio frati'ia facit sororemeaae hceredem. Yet had A. died without entry, then B. by force of the first rule might have inherjt,ed; not as heir to A. his half brother but as heir to their com- mon father, who was the person last actually seised." VII. "The seventh and last rule or canon is, that in collateral inheritances the tnaU atocka shall be pre/hi'ed stocks prefer- to the female, (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near,) — unleaa where the lancla have in fact, descended from a female." Thus the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at _. . , all : and the relations of the father's father before those of This rule ex- plained by St. the father's mother, and so on. This rule is explained i'eVbySt!°o"f" ^y sections 19 & 20, consolidating the Act of William. Vic. Under the Act of Victoria it has no eflFect. Where lands Whenever the lands have notoriously descended to a man mother's side, ^^m his mother's side, this rule is totally reversed ; and no no relation by relation of his by the father's side, as such, can ever be ad- fathers side . '' assuch admit- mitted to them ; because he cannot possibly be of the blood ted. VII. In collat- eral iuheri- tunces male red to female : unless lands descended from a female. The Seventh Canon. 139 of the first purchaser. And so, e converso, if the lands de- scended from the father's side, no relation of the mother, as such, shall ever inherit. So also, if they in fact descended to John Stiles from his father's mother Cecelia Kempe ; here not only the blood of Lucy Baker his mother, but also of George Stiles his father's father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland, the mother of Cecelia Kempe, the line not only of Lucy Baker and of George Stiles, but also of Luke Kempe, the father of Cecelia, is excluded ; whereas, when the side from which they descended is forgotten, or never known, (as in the case of an estate newly purchased to be holden ut feudum antiquum) here the right of inheritance first runs up all the father's side, with a prefer- ence to the male stocks in every instance ; and if it finds no heirs there, it then, and then only, resorts to the mother's side. "Before concluding this branch of our inquiries, it may Exemplifioa- not be amiss to exemplify these rules by a short sketch of ^'°.° °^ **"*" the manner in which we must search at common law for the heir of a person, as John Stiles, who dies seised of land which he acquired, and which therefore he held as a feud of indefinite antiquity (a)." " In the first place succeeds the eldest son, Matthew Stiles, or his issue : (No. 1.) — if his line be extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or their issue : (No.. 2.) — in default of these all the daughters together, Margaret and Charlotte Stiles, or their issue : (No. 3.) — On failure of the descendants of John Stiles himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in : — viz. first, Francis Stiles, the eldest brother of the whole blood, or his issue : (No. 4.) — then Oliver Stiles, and the other whole brothers, respectively, in order of birth, or their issue : (No. 5.) — then the sisters of the whole blood altogether, Bridget and Alice Stiles, or their issue : (No. 6.) — in default of these, the issue of George and Cecilia (a) See the table of descents, "J J M \ i •t I 11 J I I 1^ Dehcent at Common Law. Stiles, his father'H parentH ; respect being still had to their age and sex : (No. 7.) — then tho issue of Walter and Christian Stiles, tlie parents of his paternal grandfather : (No. 8,) — then tho issue of Richard and Anne Stiles, the parents of his ])aturnal grandfather's father : (No. 9.) — and so on in the paternal grandfather's paternal line, or blood of Walter Stiles, In, Infinitmn. In defect of these, the issue of William ajid Jane Smith, the parents of his pater- nal grandfather's mother : (No. 10.) — and so on in the paternal grandfather's maternal line, or blood of Christian Smith, Mfc injinitiini: till both tho immediate blot)ds of George Stiles, the ])aternal grandfather, are s]>ent. — Then we must resort to the issue of Luke and Frances Kenipe the parents of Jb/iH/SYi^Cis's paternal grandmother: (No. 11.) — then to the i.ssuo of Thoma.s and Sarah Kempe, the parents of his paternal grandmother's father: (No. 12.) — and so on in the paternal grandmother's paternal line or blood of Luke Kempe, in injiriitwm. — In default of which we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother's mother: (No. 13.) — and so on in tho paternal grandmother's maternal line or blood of Frances Holland, i"/ infinitum ; till both the immediate bloods of Cecilia Kempe, the paternal grand- mother, are also spent. — Whereby the paternal blood of John, Stiles entirely failing, recourse must then, and not before, be had to his maternal relations ; or the blood of the Bakers, (Nos. 14, 15, 16,) Willis's, (No. 17,) Thorpe's (Nos. 18, 19.) and White's, (No. 20.) in the same regular successive order as in the paternal line." If person last ^^ case John Stiles was not himself the purchaaor, but seised took by ^y^q estate in fact came to him by descent from his father, inheritance, i . i ■ t,»> i ^ the blood of mother, or any higher ancestor, there is this dinerence ; that that line of an- |^|^g blood of that line of ancestors, from which it did not cestors from which land did descend, can never inherit : as was formerly fully explained newiSherU ^"^ *^® ^^^ ^^^^' ^ ^^ ^^^^^ exemplified, will hold upon descents from any other ancestors. Explanation of ^^ should be borne in mind, that during this whole pro- the ubie. ceas, John Stiles is the person supposed to have been last Con. Stat, (~;h. 82, Skctions 1. 2, 3, 15, U. 141 sd actually soisod of the estate. For if ever it eornes to vest in any other person, ns heir to John Stiles, a new order of suceession )nust be observed upon the death of sueh heir ; sinee he, by his own seisin, n«iw be(!onu>s hiinself an (uieo.stor or stipfs, and must be put in i\w place of Jolni Sliffn- The ti;rures therefore denote the order in whieh the several classes would succeed to John Stiles, and not to each other: and before we search for an heir in iiny of tlie hi;,dier figures, (as No. 8) we rnu.st be first assured that all the lower classes (from No. 1 to No. 7) were extinct, at ./"/'/) Stiles' decease. Such were the .seven canons referred to by Blackstone as regulating descent at common law : and we now come to consider the changes introduced by Stat, -t Wm. IV., ch. 1, Con. Stat. ch. 82. DESCENT UNDER THE STATUTE OF WILLIAM. CON. STAT. CH. 82, SECTIONS I, 2, 3, 15 i 1(5. 1 . The eighteenth section of the interpretation Act is not to apply to this Act. 2. This Act nhall not extend to any descent which took place on the death of any person who died before the first day of July, one thousand eight hundred and thirty-four. 4 W. 4, c. 1, s. 11, 3. The next ten sections of this Act numbered from four to thirteen shall api)ly retrospectively to the sixth day of March, one thousand eight hundred and thirty-four, and also prospect- ively (as the case may be), and shall be construed as if the same had been enacted and passed on tlie said sixth day of March, one thousand eight hundred and thirty-four. 4 W, 4, c. 1, s. 1 1. l."). The foregoing sections of this Act shall not have operation roti'i.spectively to a period of time aulerier to the sixth day of March, one tho\i.sand eight hundred and thirty-four, so as, by force of any of their provisions, to render any title valid, which in regard to any particular estate had ])rior to that day been adjudged, or has been or may be in any suit which was depending on that day adjudged invalid, on account of any defect, imperfec- tion, mat' or thing, which is by such Sections altered, supplied or remedicii ; but iu every such case the law in regard to any such Relation of the Act. How the next ten Boctiona are to apply. The foregoing sectioniiuot to operate retro- spectively in certain oases. ■if ^*1 I ii I fk i| 1';; . fi 1 ,1 ■ll 'Wl 142 Descent under the Statute of William. defect, imperfection, matter or thing, shall, as applied to such title, be deemed and taken to be as if those Sections of this Act had not been passed. 4 W. 4>, c. 1, s. 60. Relation of 16. As respects every desccrit between the first day of July, thiB Act as to Qjj^ thousand eight hundred and thirty-four, and the thirty-first tween the Ist day of December, one thousand eight hundred and fifty-one, ■^"'•^o?^*^!) . ^°*h *^*y* included, and as respects any descent not included or oember, 1851. provided for in the Sections of this Act, numbered from twenty- three to forty-nine, both included, the following seetiona num- bered from seventeen to twenty-one, both included, shall apply retrospectively to the first day of July, one thousand eight hundred and thirt.y-fuur, and also prospectively, as the case may be, and shall be ci:/nstrued as if the same had been passed on the said first day of July, one thousand eight hundred a»id thirty-four. Seeli, 15 V. c. 6, s. 1. It may be mentioned as to these sections, that they will be best understood by the remark that the original Stat. 4 Wm. IV., eh. 1, was passed on 6th March, 1834, and it is for that reason that day is referred to in the Con. Stat. ; also, that some of the provisions of the original Act were not to take effect till 1st July, 1834, and the Act ceased to apply after 3 1 st December, 1851. Meaning of rvords in this Act. Land. SECTIONS 14 & 4. 14. The words and expressions in the foregoing sections and in the next seven sections numbered from fifteen to twenty-one inclusive, which in their ordinary signification have a more con- fined or a diiforent meaning, shall, in all such .sections, except where the nature of the provision or the context thereof whall exclude such construction, be interpreted as follows, that is to say : the word " land " shall extend to mes.suug(ia, and all ccher hereditaments, whether corporeal or incorfwrcal, and to money to be laid out in the purchase of land, and to chattels and other personal property transmissible to heii^s, and al.so to any share of the same hereditaments and proi)ertit's, or any ot them, and to any estate of inhentance, or estate for any lil'o or lives, or other estate transmissible^to heirs, and U) any possibility, right or title of entry or action, and any othci- interest capable of being inherited, and 'whether the same estates, i^ssibiiities, rights^ Con. Stat. Ch. 82 — Sections. 4 & 14. 143 Persons last entitled. titles and interests, or any of them, shall be in possession, reversion, remainder or contingency ; and the words " the pur- Purchaser, chaser" shall mean the pei-son who last acquired the land otherwise than by descent or than by any partition, by the eflfect of which the land shall have become ]mrt of or descendible, in the same manner as other land acquired by descent ; and the word " descent " shall mean the title to inherit land by reason of Descent, consanguinity, as well where the heir shall be an ancestor or col- lateral relation, as where he shall be a child or other issue ; and the expression '* descendants of any ancestor " shall extend to all Descendants, persons who must trace their descent through such ancestor ; and the expression " the pei-son last entitled to land " shall extend to the last person who had a right thereto, whether he did or did not obtain the possession or the receipt of the rents and prof' ' thereof ; and the word " assurance " shall mean any deed Assurance, or instrument (other than a will) by which any land shall be conveyed or translerred at law or in equity ; and the word "rent" shall extend ^o all annuities and periodical sums of Bent, money charged upon or jjayable out of any land ; and the " per- son through whom another person is said to claim," shall mean any pei-son by, through or under, or by the act of whom the person so claiming became entitled to the estate or interest claimed, as heir, is.sue in tail, tenant by the courtesy of England, tenant in dower, successor, special or general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee or otherwi.sfc ; and every word importing the singular number only, Number and shall extend and be applied to several persons or things, as well gender, as to one person or thing ; and evei-y word importing the masculine gender only, shall extend and be applied to a female, as well as to a male. 4 W. 4, c. 1, s o'J. 4. In every case, on and after the first day of July, one thousand eight hundred and thirty-four, descent shall be traced from the ]>urchaser ; and to the intent that tlie [Hsdigree may never be carried farther back than the circumstances of the case and the nature of the title require, the peraon last entitled to the land shall for the puqwses of this Act Vie considered to have been the purchaser thereof, unless it be jjroved that he inherited the same, in which case, the person from whom he inherited the same shall be considered to have been the purchaser,unlessitbe proved that he InheritiHl the same ; and, in like manner, the last person from whom the land shall be proved to have been inherited shall Descent shall always be tra- cod from the purclia8er,&c. iP 11 ff 144 Descent under the Statute op William, in every case be considered to have been the purchaaer, unless it be proved that he inherited the same. 4 W. 4, c. ] , s. 1. Sec. 4, by requiring descent to be traced from the ^ju^'- chaaer instead of from the person last actually seised, makes a most impoi'tant change in the first canon of descent ; the first part of which was that " the inheritance should descend to the issue of the person who last died actually seised;" so that though such person were Sictnsblly entitled, yet if he did not die actually seised, he was passed by in the order of descent, and inheritance had to be traced from some other actually seised, from whom then the pei^son claiming as heir was taken to inherit directly. What con- stituted actual seisin has been above explained (a) .• by this Act the common law requirements of seisin is abolished. Sec. 14 defines By sec. 14 the word "purchaser" is declared to mean word pur- u y^g person who last acquired the land otherwise than by chaser, '■ i , , _ ^ •' " descent, or than by any partition, by the eftect of which " the land shall have become part of or descendible in the " same manner as other land required by descent." These latter words as to partition refer to such a case as a parti- tion by parceners to whom lands heave descended ; on partition by them they shall not be considered as taking as purchasers, by reason of such partition. By the effect of the statute, therefore, the word " purchaser " has a much larger scope than in its ordinary acceptation, and would include all persons who take not only in the strict sense of the word, but by gift, devise, &c., in short, in every other way than by descent or partition as n.amed in the Statute. The sense and capacity of taking by ])urchase, is also, in contravention of common law rules considerably enlarged by sections 5, G, 8 and 9, as hereafter explained, defines alao ^J ^^^ same section also the words " the person last en- " the person^ titled to land," shall " extend to the last person who had a right thereto, whether he did or did not obtain the posses- sion or the receipt of the rents and profits thereof :" and by force of the extended signification given to the word "land" the act has an equivalent extended effect. (a) Page 137. C^^alifo of (^ouciituijittnttV) .\ll (lie ili-yi'H'S 111' coll. ilcTiil Ifindri'd In lliiy;/v;(;^^)'/«( iir<' i (,m|>itli>tli'* b'lilli 1)1 tlif rn ilitiis iiiiil l(n' .Mi'vciilli (if llii' niiiiiinst.s iMfhisivi'; llir lormci- iMMiiti ilwIiuyiiisluMl Ijv the inmu'i'.il li-iicrs, ilic hiiliM- liv lln> ('(iiiiiiioit rv|)li«>rs. ll mmm StJU "?1 ///•/>. /^:Ci^^ P^ Mnttlirtv SliloH 01iv»»i' StihM firol/ier ^^ UilbtM-l ' Slilps i , .S»ilo.s )] Y .fistcr J ( V' N .\lir.. tixfrr "%. ( Stll.'M \ yA'"'/' ,r,- \fyriii/i/f-/ / «r J.ucv ll.iV .i"' ;."Vi ^ i^^z/V/zz/A /V/<"'^ ■tl liiirlodi' Stile* M ^-m,' ■% ¥U ■—mr i 111 r Ar/r'///^r/ .^ ///t^y 1%'y \\\ III •'f mulor tho Slalulo ol" William. ^ ^//V///// /y^^^. - .y/ VCDSt^ JOHN STILES I I c r t d HI t] y, fr h( in it er or on Bi Ge qu cla bn dei as he thi Ge be bin Con. Stat. Ch. b2--SEC8. 4, 14. 146 We need not dwell long on the second branch of the Last clause of fourth secition, which is that " the person Ijust entitled to '""• *" the land shall he considered to have been the |)un;haser thereof, unless it be proved that he inherited the same, in which ca.se the person from whom he inherited the same shall be considered to have been the purcha.ser, unless it be proved that he inherited the .same," and so ad injinitum. As hereafter explained, it shifts the descent sometimes materially, according to whether the person last entitled did or did not take in any other manner than by descent or partition, as named in sec. 14. The presumption created, that the last person entitled is the purchaser, is to avoid difficulties in the evidence, which would be great if the statute provided simply that descent should be traced from the purchaser. In considering sec. 4, the question may suggest itself viz., Difference be- what difference does it make whether descent be traced !.***° tracing irom person from the person last entitled, or from the person from whom lust entitled, he inherited ? This will be best understood by consider- ""'^^ f^.'^*^ ^^'' ing the following cases in illustration of the question ; and wliom he in- it will be seen that there is sometimes a most material differ- ence. Assume Geoffrey (in the second table of descents) to Instances, have been the purchaser, and to have died intestate, leaving only Francis, his eldest son, and a daughter, Bridget, by one wife, and another son. No. 8, by another wife ; thus No. 8 would be brother of the half blood to Francis and Bridget : suppose further that Francis, as heir at law to Geoffry, entered, and died intestate, without issue : the question is, to whom does the estate descend ? Bridget claims, as sister of the whole blood, in preference to No. 8, brother of the half blood to Francis, and she insists that descent, under this section, has to be traced from Francis, as purchaser, on the presumption that as being last entitled, he was the purchaser. No. 8, on the other hand, displaces this presumption, by shewing that Francis inherited from Ge6firey, and consequently that Geofirey is to be taken to be the purchaser, and as such, descent is to be traced from him; in which case by force of the second common law 19 1 m ii Mil: r t^ 14G Descent under the Statute of William. (anon (that the male sliall bo admitted before the female, which is not interfered with by the statute), he, No.. 8, would be entitled to take an son of Geoffrey, in preference to If'-idj^et the daughter; and this would be so. But if descent were to be traced from Fi-ancis, the person last seised and entitled, iis beinj^ the purchaser, and not from (icortrey ; then of conr.se Bridget would take tm of the whole blood to him, in | reference to the; brother of the half hlood; and th('r.son last entitled as the stock of descent, tied not sciscJ ^v'ithoiit regard to .seisin (<(). At eouniion law as Francis was tin- jtersoii last t^eised, anil so descent had to be traced from him. No. 8. his bi-other of the half blood, not only would have been postponed by force of the Gth canon, as lieing a eollateral relative not of the whole blood, but as bi'fore explained, he never could have Udven ;Mjder any cir- cu!astan(!es, and the hind would have escheated, as on fail- mv of heirs, rather than tliat he f-'hould have taken : l)ut in the Hjime case under the stivtute, he not only takes as heir to Geoffrey, the pnrcha.ser, but in priori t}- to the sistei-s of the whole blood to Francis, the person lasfc seiscnl (h). In furth'jr exemplification, as well of the distinction between tracing from the ]»erson last seised, and iVom the purchaser; a« al.so of tiie distinction under sec. 4, between tracing from the j^erson last entitled, and from the person from whom he inlierited, may be put a case of gi'eat hard- ship (cj. Assunie Geoffrey to be illegitinmte, to acquire an (state by purcha.se, and di(^, leaving Francis his eldest son and h.'irat law, who enters, and dies intestate, without issue ; here the land must escheat for want of heirs : for dtycent hf« to be tvaced, not from Francis, the person last Furtlier insianoo (a) Sor alfoanti {.p. 12(1, 127, 128. (6) Hee posts. 21 of the Con. Ht. (o) "•)oe. Blackburn v. Blackburn, 1 Moo. and R, C47, jior Pirke, B. poR*. 1(»9 n. a. I ^ ^ ■■ Con. Stat. Ch. 82 — Section 4. 147 fieised atnl last ontiUod, but from GeotiVcy (ius Francis inherited from him), and asOeottrey wa.s illegitimate, tl if re can be no heirs ; and thns the mother of Francis (wifi' of Geoffrey) and ad claiming throuj2:h her, are excluded, n.snot being of the blood of the purcha-sor. In Kngljiiid the hardshi}>s in tins latter instaiu>e is removed by the 'l'2u<\ and 23rd Vic, c)>. ;jr>, ss. l!>, 20. Take this ftirtiier case: suppose No. II, and deotfrey in the second t^ble of deseenis, brothei-s of the whole Irlooil ; Geoffrey has two sons, John and No. 8, by different wives, therefore half brothers: John purchases an estate and dies intestate, seised, witiiout issue. Now before the st.Mtutcj No. 11, the nnele of John, would be hLsheir, ane, not A., the wm of No. I I. but Geolfrey, if living, or if dead. No. 8, the half brother of John. If tiie descent has to be trailed from the pei-son last entitled simply, without regard to liis having iidierited, of course A., the son of No. 1 1, W(»u!d tak'-. In the inst'ince above, A. would Uike, but the strict When pi-rson literal c instruction (.f the Act, which woul lexenide A., is '"«^ «"i''i«'' not without authority wlio iiil\t'rite'l VVatk, t'onv. I) ed., 4-').>, note by uii!.i, lenviup; Coventry. I Hayes, t 'on v. Ml 4. Hytli. & Jjuin. Coiiv. by ^ '^' ]^^"j;,y"" Sweet, Vol. I. I. Si), 140 Mr .F(;shua Willicuis at one timi ">i-' aetrinient supported this \ u'W. It will he oltserved the .soii ol tliefmij person la-^^t entitled by a litend inter|)retation of the Act, woeld be excluded by a colliiteral relaitve of .sueh peison : a propositior. which leads to the consideration of ('ooftrr v. /'ra/uic ^a/ and other cases involving the same. tpu>sti./ji, which is .sidistantinlly this: wliether, where the per.sou hist entitled, who has ird\erited the estjite, dies, leaving ehlli/ir)) (a) 14.{urist. 214— V. C. Simdwell ; Mug^jleton v, Rarnett, etfti. 1 11. iN. 282, 2, H, & N. tii;!, 8. t. •y • It i II I 148 % Cooper T. France . Badham v. ShieU. Dercf.nt ttnder thk Statute of William. living, the statute is to be considered as applying so as to compel the descent to be traced, not from the parent, but from some prior purchaser, to the detriment of the children; who would thus, as in the circumstances of the two cases last above, not take the property as enjoyed ])y their parent. This question led to a controversy more widely spread and almost as famous in the profession as that which existed under the old law, wherein Lord Bacon, Sir Matthew Hale, Blackstoiio, and other authorities, differed (a) ; and the authorities in cases wherein the question is involved have (littered in England, Canada, ^6^ and Australia (c). In Cooper v. France, the case shortly in effect may be stated thus: A. was purchaser and died intestate, leaving two dauc^hters, who took as coparceners. One of the daughters died leaving a son, her heir at law. The qiu-sfcion was whether, as the mother inherited, descent was to be tra<'ed from the purchaser A., quoad her share ; in whifh case*, by a literal construction of the Statute, such share wot) Id again descend in copercenary, and be divided equally between the siirviving sister and the son of the deceased ; so that the son would not get his mother's original share, one half, Init only one half of one half, and the surviving sister his aunt the whole residue. It was decided however, that in such cjuse the son would take his mother's whole share: such seems to be also the opinion of Lord St. Leon- ards (il), and of the present learned President of the Court of KiTor and Appeal, (e). Shadwell, V. C, thought in so plain a cjuse the Act did not apply. In the case in Australia of Badhamv. Skiels, 7 Jurist, N. S., 509, one Mary Cannon became indebted to the plaintiff" in a specialty debt. She had inlierited land from her father, the purchaser, and died intestjite, leaving a son, her heir at law, who died, leaving the defendant his heir at law. The defendant was sued as having assets by descent from Mary Cannon ; and his (a) See post sec. 20, Con. Stat. (b) Wigle V. Merrick. 8 C. P. U. C, 307. (c) Badham v. Shields, 7 Jur. .N. S . 5Qi). (d) Sug. Slut. 280, 281. (e; Wigle v. Merrick, 8 C. P. U. C. 307. Con. Stat. Ch. 82 — Section 8. 149 defence was that as Mary ' "annon inherited from her father, thf purchaser, and descent therefore had to he traced from him, the estate was not assets in his, the defenrlant s_ hands by descent from Mary Cannon, tosjitisfy lior specialty debts. Two judges held that they were; another hold tliat they were not. Section 7 is treated of next after s. iil. SECTION 8. 8. Proof of entry by the heir after the tlivith nf tlir !iiioo.st<)r |l.?ir at-lnw shall in no case be necessary in onler to provf title in .such heir, "f'"'' ""» P>"vo or in any person claiming by or through him. 8. 10. 4 W. 4, c. I, eutry. 1 Thi section wis in furtherance of the intention t<» abnlish necessity nf seisin to constitute a stock of dosceiit ; it is not in the Imperinl Act, and appears to be superfluous (a), be- ^''ir.'ie as the descent is to be traced fx"om the })urchaser, it is indifferent \tliether the person last entitled was in actual seisin or not, for his seisin if it existed, would not atroct the descent, which is not to be traced fron» liini. Nor does this section aboli.sh necessity for actual rntry, or its equivalent, by an heiress, to qualify her husband to tfike as tenant by the curtesy (b). i i ^q ■in SECTIONS 5, r> AND :». 5. When any laiul .shall hav»' lii'cn (lovi.Hcil liy any tcstatdC, Uvh ontitlcl •who shall die after the first dav of .Iiilv, hh' tiion.sand ciyht hun- ""''^''" '' *'" • , sliiill tiike us dred and thirty-four, to the heir or to iln' |icrson who shall i)e the devi-cc iind a heir of such testator, such heir shall be ronsiderctl to havtMicciuircd ''"'''»•>"" '<> III 1 ■ 1 II 11 1 , ''"' (Ti'imt'T or the land as a devisee and not liy dfsi "nt ; and when any land his heir sh'iU shall have been limited by any assuranetson who shall thereby have conveyed the same land, such person shall be considered to have (a) See the remarks of Draper, C. J., as to this section i » Wigle v. Merrick, 8 C. P. U. C, 318, 319. (h) See remarks ante p. 120, note a, and the judgment ol llagarty, J., in Wigle v. Merrick, supra. m 4\ ■m 150 ] 1 When heirs take by pur- cbMe uadcr limitations to the heira of their ancestor, the land shall descend as if the ancestor had been the purchaser. II Descent under the Statute of William. acquired the same as a purchaser, by virtue of Huch assurance, and shall not be considered to be entitled thereto, as of his former estate or f>art thereof. 4 VV. 4, c. 1 , h. 2. <). When any person shall have acquired any land by purchase, uvider a limitation to the heirs, or to the heirs of the body of any of his ancestors, contained in an assurance executed after the said first day of July, one thousand eight hundred and thirty-four, or under a limitation to the heirs, or to the heirs of the body of any of his ancestors, or tinder any limitation having the same effect, contained in a will of any testator who shall depart this life after the said first day of July, one thousand eight hundred and thirty- four, then and in any of such case.o, such land shall descend, and the descent thereof shall be traced a.s if the ancestor named in puch limitation had been the purchaser of such land. 4 W. 4, c. l,s. 3. 9. Where any assurance executed before the said first day of July, one thousand eight hundred and thirty-four, or the will of any person who died before that day, contains j^ny limitation or gift to the heir or heirs of any person under which the person or persons answering the description of heir shall be entitled to an estate by purchase, then the person or i)erson3 who would have answered such description of heir if this Act had not been made, shall become entitled by virtue of such limitation or gift, whether the person named as ancestor shall or shall not be living on or after the said first day of July, one thousand eight hundred and thirty-four. 4 W. 4, c. 1, s. 12. Of course, when so important a ch.tnge wa.s made as re- quiring descent to be traced from the purchaser, instead of from the person last actually seised, it became requisite to provide for many cases in which, by tlie common law per- sons were considered n.s taking by descont, althougli the facts wero such as shewed an apparent intent that they should not so take ; as in the case for instance, of tlie heir at On devise to law taking by devisj from his ancestor. Here, if tlie devise Btui by des- were to take effect in the same way as tlie estate would oeut at com- have descended to the devisee as heir at law, he w.as not ' considered as taking under the will, as a purchaser, as would be the case with any devisee not being the heir at Limitations made before l8t July, 1834, to the heirs of a person then living, shall take effect as if this Act had notbeenmade. S. 5. Reasons for first branch of it. Con. Stat, Ch. 82— Sections 6, 6, 9. 151 law, but he was considered as taking by descent (a), so that if this rule had not been altered by the statute, on the death of such person intestate, descent would after the statute, have been traced not from him, but from his ancestor, if the purchaser. To remedy this particular case, under St. Wm. the first branch of the 5th section was passed, declaring "" l'"''cl'«8er, that the heir at law should not be considered as taking by descent, but as devisee ; in other words, as purchaser. It thin varied hy W'U be seen tliat under section 52, and other sections of " ' "^ the statute of Victoria, the effect of this section is much varied. The bearing and importance of this first clause of sec. 5, Effect of s. 6, may be ilkistrated by the following case, viz., that Geott'roy, the purchaser, ilied, leaving as his eldest son and heir at law, Francis, and leaving also a daughter, Bridget, by one wife, and another son, No. 8, by a second wife, and con- sequently brother of the hall-blood to Francis. Assume Geoffrey to have devi.seil the land to his heir at law, Francis, in fee : now but for sec. 5, the devise would have been wholly inoperative to alter the descent, since Francis, not- withstanding it, woulil have been in by descent, and not as jmrchaser : consecjuently, as before (^xplaineil, as Francis inherited from Geoffrey, and Geoffrey was the purchaser, the j)erson claiming as heir would have to nmke himself heir to Geoffrey ; and this would be No. 8, the son of Geoffrey, and the brother of the half-blood to Francis, to the exclusion of Bridget, the sister of tlie whole blood : but, by virtue of sec' 5, this woidd not take place, for by it the devise would operattt so as to make Francis take as pur- chaser, and the j)artyclniming would have to make himself heir to liim, and not as above to liis father Geoffrey : now the heir to Francis woulil lie Briilget, his sister of the whole blood, in preference to No. 8, his l»rother of the half- blood. As to the last clause of section Ij, and sections 6 and Si, Latter part of these may be considered together, and the change effected ^„j y" ''*■ ' )-»! m m m (a) Ante, pp. 128, 129, :--.:lf' hi 152 Descent under the Statute of William. by them will be best understood by considering the prior law on the subject (o), bearing in mind the distinction "Right heirs" between " heirs of the body," and " right heirs," which the body," ° Ifitter term includes collateral relatives, as brother, uncle, and their issue. when and how At common law, the heir wherever it was practicable, byoonveynnce ^'^^k by descent as his better title; and no man could by make them deed, without departing with the whole estate out of him, talte by pur- . ^ • , , , • • ; . / • i xu i. chase, and not ^iise a lee Simple to Ins own right heirs by that name as by descent, piu'chaserti : nor could he by deed at common law, make the heirs of his body take by jiurchase : and though by way of use he could effect the latter object, yet he could not make his heirs general take by purchase, or alter the descent by such a limitation by way of use. To effect that object, it was necessary to depart with the whole estate, and take under a new conveyance back, an estate which would vest in him, or his heirs by purchase, according to limitation. What is above stated may be exemplified partially by the following : assume A. to be seised in fee, and before the statute to convey by a common law conveyance, as feoffment, or lease and re-lease, to B. for life, with remainder to the heirs of the body of him A. ; or with various remainders, and an ultimate remainder to his right heii"s. Here the heirs of the body in the one case, and the right heirs in the other, would ttike by descent, and not by purchase; the remainders would be considered as of the old estate. But if A. had by common law con- veyance, conveyed to C in fee to the use of B. for life, and on his death to the use of the heirs of the body of him A. in remainder ; here, as the limitation is by way of use, A.'s hell's of the body would take by purchase, and not by descent. But A. could not so make his right heirs take by purchase : as, if the conveyance had been to the use of A. the gi'antor for life, and on his death without issue to the use of his right heirs in fee ; the right heirs would never- theless take by descent. To have made the right heirs take (a) Sugden'a Statutes, 269, 260, 2nd Ed. Sections 6, 6, 9. IBS by purchase, it would have been requisite for A. to have conveyed to B. in fee, and then by a new and distinct con- veyance to have^taken back the estate witli the requisite limitations. The law on this head, as it existed at common law, was before alluded to, and an instance given of the practical effect of the alteration by the statute (a). The following remarks of Mr. Hayes, in reference to the above sections, will be of service; he says: (b) " If A seised in fee, convey or devise either at the common law or by way of use, to B and the heirs of his body, or to B and his heirs, B will take an estate in fee-tail or fee simple by pur- chase, and the word heirs will be merely a word of limitation indicative of the quantity or duration of his estate. If A, so seised, convey, at the common law, to B for a particular estate, aa for life, or in tail, with reversion to himself (A) and his heirs, or, without naming himself as an object, (for the result will be the same), to his heirs or right heirs ; or convey, by way of use, to himself (A) and his heirs or right heirs, or, without naming himself as an object, to his heirs or right heirs, either in possession or in reversion, or by way of springing use, A will take an estate in fee by purchase, and the word heirs will be merely a word of limitation indicative of the quantity or duration of his estate ; for though, in the instance of the limitation to his heirs or his right heirs, it is by the attraction of his former ownership, and not by force of the express terms of the instrument, that the fee revests in him, yet the statute (sec. 3), imbues that fee with the descendible qualities of a new estate. In fact, A takes, under his own assurance, as if the estate were to him and his heirs of the gift of a stranger : and where he creates a particular estate, limiting the expectant fee to himself and his heirs, or without naming himself as an object, to his heirs, he takes the fee, for the purposes of descent at least, not as a reversioner, but as a remainder-man. But where, on a con- veyance at the common law, creating particular estates w i' ii' -, (a) Ante pp. 128, 129. 20 (t) Hayes Coqf. 5 ed., vol. 1 p. 317. ^Hl i 154 Descent under the Statute op William, only, the fee tacitly remains in the grantor ; and where on a conveyance to uses, not disposing of the ultimate use, or of any use, the use of the fee tacitly results to the grantor, his former estate is preserved. If A, so seised, devise to his heir, or to the person who shall sustain that character, individually, the devisee will take, as such, by purchase, in the same manner as if he were a stranger. Again, if A, so seised, convey or devise, either at the common law or by way of use, to the heii^s of the body, or to the heira or right heira of B, (who, if the conveyance be at the com- mon law, must be a deceased pei-son, since it would otherwise be void, as being a eraon who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in conse- quence of their being no descMnlant of such lineal ancestor, so that the father shall be preferred to a brother or sister, and a more remote lineal ancestor to any of his issue, other than a nearer lineal ancestor or his issue. 4 W. 4, c. I, s. 5. These sections may be considered together. It must bo Establishing borne in mind that at common law the inheritance never ancestor in lineally ascinded, but only collaterally (b). Section 18 prf'erenoe to u .u 1 1 f 1 r *u r I ooHttteral rel- alters the common law rule of excluding the Imeal atite. ancestors ; and by it the father of the purchaser will take before his children, the brothers and sisters of the purchaser; and the grandfather before his children, the uncles and aunts of the purchaser, and so on in the ascending scale ad inJlrAtiim, contrary to the common law. Section 17 resulted from the enactment of sec. 18 (c). Under those sections alone the half blood of the purchaser cannot inherit by descent from the common ancestor, for it is only by sec. 21, that the* common law rule is abrogated which required that the collateral kinsman to take as heir should be of the whole blood. . ' ', The Act of Vic. by as. 27 and 28, recognizes the The act of Vic. right of the parents of an intestate to take in preference "'•'"^s °"'y ^ . ' . . ' to parents, to his brothers or sistera, but only in certain cases to a limited extent. (a) Sugden's Statutes 260. (c) See the former law p. 136. (6) Ante p. 120. ;l IK 'I '■■'I' 'I m I': f/^ iMi '(ft : if !■ £ ' 1 i' ft ll 1* nil m 1&6 Descent under the Statute of William, The male 1in« 19. None of the maternal anceaton of the person from whom to b« prefer- ^1,^ descent is to be traced, nor any of their descendants, shall be eapahle of inheriting until all his paternal ancestora and their dcHcendants have failed ; and no female paternal ancestor of such person, nor any of her descendants shall be ca|>able of inheriting, until all his male paternal ancestors and their dencendants have failed, and no female maternal ancestor of such person, nor any of her descendants shall be capable of inheriting, until all his male maternal ancestors and their descendants have failed. 4 W. 4, c. 1,8. 6. The mother of 20. Where there shall be a failure of male paternal ancestors Jr* "*"*/•■ _ of the person from whom the descent is to be traced, and their cestor to be descendants, the mother of his more remote male paternal ances- preferred to ^j. ^^ jj^^p descendants, shall be the heir or heirs of such person, the mother of . , , \ /. , , . the less remote ^^ preference to the mother of a less remote male paternal ances- male anoestor. tor, or her descendants ; and when there shall be a failure of male paternal ancestors of such person, and their descendants, the mother of his more remote male maternal ancestor, and her de- scendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor and her descendants. 4 W. 4, c. 1, s. 7. It will bo observed that these sections proceed on much the same principles as governed under like circumstances at common law, with the variation only of admitting the lineal ancestors to take before their issue. The Act of Victoria by ss. 27 and 28, also recognizes the right of lineal ancestors in the first degree, as parents of the intestate, to take, but in certain cases to a modified extent only. For the consideration of section 19, it is necessary that there should be a proper appreciation of the words, pater- nal ancestor, maternal ancestor, male paternal ancestor, female paternal ancestor, male maternal ancestor, female maternal ancestor. In one sense, paternal ancestor, and male paternal ances- tor, mean one and the same class of persons ; thus by examining tho table of descents it will bo seen that Geoff- rey, Georgo, Walter, and Richard Stiles, answer the descrip- tion of paternal as well as male paternal ancestor. It is when the term male paternal ancestor is used in connection 8. 19. Male line of ances- tors preferred to female. Definition of paternal, ma- ternal, male paternal, fe- male pHterniil, male mater- nal, female maternal, an- oeitors. Bt H! SBCTIONft 19, 20. 167 with, and in coninrdiBimciAonio female paierncU ancestor, that it bears a different signification from paternal aiicea- tor. Thus in speaking of the patornal ancestor George Stiles, (No. 10) in connection with his wife, Cecilia Kenipe, (No. 24) he would be termed the male paternal ancestor, and she the female paternal ancestor ; and so in reference to Walter and Richard Stiles and Cecilia Kcmpe ; or Rich- ard or Walter Stiles and Christian Smith, (No. 1 9) and it is to convey this distinction that the terms male [>aternal and female paternal ancestors are uaed in the statute. Every mother of a lineal paternal ancestor of a pur- chaser, is a female paternal ancestor. The converse of the above holds in reference to female maternal ancestors and male maternal ancestors; thus Lucy Baker, (No. 37) Esther Thorpe, (No. 54) Emma White, (No. 62) and Catha- rine Ward, (No. 66) are maternal ancestors in direct line of lineal ascent ; but spoken of in connection with other an- cestors of the purchaser on the mother's side, they would be termed female maternal ancestors. Thus Esther Thorpe. 54, the grandmother of the purchaser, spoken of in connec- tion with Andrew, 40, Herbert, 43, or Henry Baker, 46, would be termed the female maternal ancestors, and they the male maternal ancestors. Every mother of a lineal maternal ancestor is a female maternal ancestor. Both male maternal and female maternal ancestors, trace and a^scend through the mother of the purchaser ; whilst the male paternal and female paternal trace and ascend through the father of the purchaser. The first clause of sec. 19 provides that maternal ances- tors shall be postponed to paternal ance.stor8 and their de- scendants : thus before the mother of the purchaser, Lucy Baker, or any one claiming through her can take, the paternal ancestors in direct line of lineal ascent, and the descendants of each must fail. The second clause provides that no female paternal an- cestor, or her descendants, shall take until the male pater- nal ancestors and their descendants shall hove failed. The fiist clause only postponed the maternal ancestors, this post- ■t:;jl ill 111 !::11 m ''11 m -If IMAGE EVALUATION TEST TARGET (MT-3) // // V ^ fe ,^^ #. (/x V. 1.0 I.I 1.25 .c 112 16 M |||||m 1.4 11.6 V] <^ n ^. '■^/ e/y. ^m A ^ <^ /.^ y #^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 d ^^ i\ ^q\' % V ^v %^ % ^^ <^*^ 'nly I to the by his ed tly ter iny lied, lood I not such a case as above, but such as follows : assume, in the above case, John to have been the purchaser, instead of having inherited from Geoffrey as the purchaser, and to have died seised without issue, leaving only his father Geoffrey, his sister Bridget, and his half brother No. 8 him surviving. Now in this case also at common law. No. 8 could never inherit ; but under the statute, on John's death, the estate would go to the father Geoffrey, and on his death, since he inherited, descent would be traced, not from him, (in which case it would go to No. 8,) but from John ; and therefore Bridget, his sister of the whole blood, would take in prefer- ence to No. 8, the brother of the half-blood. Now on Bridget's death after entry, without issue, an heir would be wanted ; and at common law this heir would not be No, 8, who could not inherit (being of the half blood), but would be Bridget's uncle, the brother of Geoffrey, or other collateral ancestors : but under s. 4, on Bridget's death, descent would have to be traced again from John, the purchaser, and No. 8 would be within the exact words of section 21, viz, a "person related to the person from whom the descent is to be traced, by the half-blood," and therefore he would be capable of inheriting, and he would be, in the words of that section, " a brother of the half-blood on the part of the father " inheriting " next after the sister of the whole blood on the part of the father." Thus again, in the table of descent, Nos. 8, 9, and 9, the issue of Geoffrey Stiles, and of the half-blood to John the purchaser, would at common law never inherit, at least by tracing descent from him ; but under section 21 they take next after the sisters of the whole blood on the part of the father, Bridget and Alice Stiles. Where the common ancestor is a female, as where the where half- half-blood is related through a mother on a second mar- ^'?°fgd*not riage, instead of through a father ; here the half-blood take through the immediately after the mother, the common ancestor, since ^^t^er "' * * such mother does not take herself till all the paternal an- cestors and their descendants are exhausted. Under certain circumstances the half-blood to the per- 21 ii! im w ?■';, iiii 111 !l'!= 162 Descent under the Statute of William. son last entitled are not admitted to inherit : thus, if John were last entitled, and shewn to have inherited from his father Geoffrey, the purchaser, his half blood on his mother's side, Nos. 38 and 39, never take ; in fact the ma- ternal ancestors of John and their descendants are all excluded, as having in them none of the blood of Geoffrey the purchaser. And so also, if John were shewn to have inherited from his mother the purchaser, the whole pater- nal side including the half-blood on that side are excluded. S. 21 admits only the half-blood of the person from whom dsscent is to be traced, and in neither of the above cases have the half blood to John any of the blood of such person ; in both cases the estate will escheat rather than such half- blood or ancestors be admitted to inherit. The hardship of the above case, as also of a case before referred to (a), would not have arisen if the Act had fol- lowed the report of the real property commissioners, who recommended that descent should be traced from the per- son last entitled, and not from the purchaser; and Lord St. Leonards has expressed his approval of this plan (b). The Statute of Victoria has dealt in many respects more liberally with the half-blood than this Act. SECTION 7. After the 7. When the person from whom the descent of any land is to death of a per- be traced shall have had any relation who, liaving been attainted, died before such descent shall have taken place, then .such attain- der shall not prevent any person from inheriting such land who would have been capable of inheriting the same by tracing his descent through such relation if he had not been attainted, unless such land escheated in consequence of such attainder before the first day of July, one thousand eight hundred and thirty-four. 4 W. 4, c. 1, s. 9. Imp. St. 3 & 4 This section is taken frora the Imperial Act 3 & 4 Wm. Wm. 4, c. 106, 4^ c. 106, s. 10, and in connection with it should be consid- ered the provisions of the Prov. Act 3 Wm. 4, ch. 4, Con. Stat. U. C, ch. 116, taken from the Imp. Act 54 Geo. 3, ch. 145. Iiis descend Hilts inny iuherit. (a) Ante. p. 146. (b) Sng. Stat. 263. iiiki ^'h.. Con. Stat. Ch. 82, Sec. 7.— Con. Stat. Ch. 116. CON. STAT. CHAP. 116. An Act Respecting Corruption of Blood. 1. Except in case.s of high treason, and of abetting, iirocuring or counselling the same, an attainder for felony, shall not extend to the disinheriting of any heir, nor to the prejudice of the right or title of any jjeraon, other than the right or title of the offender during his natural life only. 2. Every person to whom, after the death of any such offender, the right or interest to pr in any lands, tenements or heredita- ments should or would have appertained if no such attainder had taken place, may enter into the same. 3 W. 4, c. 4. 163 •(-». Except for high treasdti, no attiiinclcr to disinherit the heir-at- law. After death of the person at- tainted the heir may enter. These sections are taken from the Imp. Stat. 54 Geo. 3. Imp. St. 54 Ch.l45. Geo 3, c 145. There was a distinction between forfeiture to the Crown and escheat to the lord (a), but the distinction is of little importance here ; there being no mesne lords, and all fee simple lands being held of the Crown, the Crown would take whether on forfeiture or by escheat. The law of escheat on attainder for treason or felony is Escheat and thus described Ly Sir W. Blackstone : " The blood of the biood^on°at- tenant being utterly connipted and extinguished, it follows tainder. not only that all that he now has shall escheat from him, but he shall be incapable of inheriting anything for the future. There is yet a further consequence of the corixip- tion and extinction of hereditary blood, which is this: that the person attainted shall not only be incapable him- self of inheriting or transmitting his own property by heirship, but shall also obstruct the descent to his pos- terity, in all cases where they are obliged to derive their title through him from any remoter ancestor." Therefore in the case of grandfather, father, and son, and the father at- tainted, and dying in the lifetime of the grandfather who dies seised in fee, the son at common law could not inherit, but under sec. 7 he can. As the descent between brothers wa» at common law immediate, and the father need not gt \ ■ \ i ■m (a) 2 Black. Com. p. 251. *!fiy f Con. Stat. ch. 82 does not prevent es- cheat as to vested estates In such onse the Con. St. o. 116 applies, except in cas- es of treason. 7 Anne, c. 21, applies in cas- es of treason. 164 Descent under the Statute of William. have bean pamed in the pedigree, his attainder would not prevent one brother from inheriting to the other (a). The case of fee tail differed from a fee simple at common law, aa the issue in tail claimed per formam doni ; there- fore, if the son of donee in tail were attainted and died in the lifetime of his father, leaving issue, the latter would take notwithstanding the attainder, (b). The Act of 4 Wm. 4, alone would not apply to prevent an escheat where the estate was vested in the party attainted, as it applies only to tracing descent through him. The Act of 3 Wm. 4, however, prevents escheat or for- feiture in such case beyond the life of the offender, but still it does not apply in cases of treason. The Stat, of 7 Anne, ch. 21, sec. 10, is in terms the same as the Act of 4, Wm. 4., except that it only applies in cases of treason. Its operation was postponed by the Stat. 17, Geo. 2, ch. 39, till after the death of the Pretender and his sons, and both these Acts were repealed in England by the Imp. Act, 39 Geo. 3, ch. 93. As this repealing Act was passed in England subsequently to the grant of a Constitution to Canada, and the introduction of the English law as it then stood by Prov. Act 32 Geo. 3, ch. 1, it is not in force, and has no repealing effect here (c) ; unless, indeed, it is to be deemed of such general import to all British subjects, as by its mere enactment to apply to all British Colonies (d). If the Imp. Act does not apply, then, as Cardinal York, the last son of the Pretender, died in 1807, it would seem that in Canada in cases of treason, corruption of blood and forfeiture, except for life of the offender, is abolished, SECTION 10. Grantees, de- 10. Whenever by any letters patent, assurance or will, made Tisees, &o., ^^j executed after the first day of July, one thousand eieht ■hall Dot take __^__^ (.t^ 1 Vent. 413. (6) Dowtie's case, 3 Rep. p. 25. (c) Dunn v. O'Reilly, 11 C. P. U. C, 404; Blackstone Com. by Leith, p. 17. (d) Brook v. Brook, 9, H. L. Ca., 1861, pp. 214, 222, 240; Black- stone Com. by Leith, p. 21. See also the words "necessary intend ment " in the Imp. Act 3 & 4 Vic, ch. 36, sec. 3, Con. Stat. Ca., p. 20. ./'« Con. Stat. Ch. 82— Section K). 165 hundred and thirty-four, land shall be granted, convoyed or as joint-ten- devised to two or more persons other than executora or trustees, »"'"' unless in fee simple, or for any less estate, it shall bo considered that ^q expressed. such persons took or take as tenants in common, and not as joint tenants, unless an intention sufficiently appears on the face of such letters patent, assurance or will, that they shall take us joint tenants. 4 W. 4, c. 1, s. 48. Executors and trustees are excepted from the opciation of this section, since they are appointed, and estates are vested in them by reason of personal confidence reposed in them, and it is more consistent with intention and con- venience that the survivor should hold solely than in common with the representatives or devisee of the deceased tenant. Under the former law, on a simple conveyance or devise to two or more, they took, as a general rule, as jointtenants unless an intention sufficiently appeared on the face of the instrument that they should take as tenants in common. Equity followed the law, except in the case of loan on mortgage (a), of purchase money paid in unequal pro- portions apparent on the face of the instmment, or with partnership funds, or in case of purchase for a joint under- taking or partnership, or marriage articles (h). By this section the former rule is reversed, and the burden of proof as to intention thrown on those who insist on a joint tenancy. Questions can rarely arise under this section, for it seldom happens (unless in the excepted cases of trustees and executors) that there is any intention ofjus accrescendl, and that the parties should take otherwise than as tenants in common on a conveyance on devise to two or more, and if that intention exist, it is generally (on a conveyance inter vivos at least), so expressed as to remove all doubts. It must be borne in mind however that though benefit of survivorship points strongly to a joint tenancy, it is not (a) See ante, p. 84. (I) See notes to Morley v. Bird, Tad. Lg. Ca. 2nd Ed. 788. Executors and trustees ex- cepted. By the old law on conveyance to two, they took as joint tenants unless a contrary in- tention ap- peared. So also in equity, except in certain cases. Benefit of sur- vivorship, or the words ''as 4 1^ 3 i u 1 ,1 K ''1 i t M i . >ttK ■ ■ IfiG Descknt undkh thr Statute op Victoria. "as joint ten- ants" not con- clusive to C8- tikblish joint tenancy. Cases in wills wherein joint tenancy infer- red, aH against words import- ing a tenancy in common. concluHive oven under the old law. " A tenancy in com- mon, with benefit of Hurvivorship is a case which may exist, without being a joint tenancy, because survivorshij) is not the only characteristic of a joint tenancy " (a), and it has been held that even the use of the words " as joint tenants" in a be(iuest of personalty is not conclusive in favor of }i joint tenancy (6). Sub.sequent expressions following words, which standing by themselves will confer a tenancy in common, may shew it was a testator's intention to confer an estate in joint tenancy, as by a gift over being only to take effect after the decease of the survivor of several ; or after the decease, or deceases of prior legatees : but where, before the gift over, there are previous gifts for life of distinct properties, it Avill not be implied that survivorship was intended (c). This closes the enquiry as to the modifications of the common law rules of descent effected by the Statute of William, of which a comprehensive view can be had by examination or the table of descents. If it be desired to consider more fully the objects of the statute, and the grounds for the changes effected by it, reference should be had to the report of the real property commissioners, on which chiefly the Imperial Legislature proceeded in passing the Imperial Act from which ours is taken. THE PRESENT LAW OF DESCENT. Conforms to civil law and Stat, of Dis- tributions. The Statute of Victoria, Avhich governs descent since the first day of January, 1852, is entirely subversive of the former system, and based on the rules of the civil law. In many respects, as hereafter pointed out, it bears a close ii it: ■)h I (a) Doe d. Borwell v. Abey, 1 M. & S. 428, per Bailey, J. ; 2 Jarman Wills, 3rd Ed. 700. See alsoHatton v. Finch, 4 Bea. 186 ; Re Drakeley's Estate, 19 Bea, 395; Haddelsey v. Adams, 22 Bea. 276; Conmee v. Taaffe, 12 Ir. Ch. Rep. 338. See notes to Morley v. Bird, Tud Lg. Ca. 2nd Ed. 798, (b) Booth V. Alington, 3 Jur. N. S, 835, 27 L. ,1. N. S. pt. 1, 117. (c) See notes to Morley v. Bird, supra. See also 2 Jar. Wills, 3rd Ed. 240 et seq. Con. Stat. Ch. 82— Sections 22, 23. 167 Ed. resemblance to the mode of succe.ssion to personalty under the Statute of Distributions, and many of the decisions on that statute, especially as to the advancement and hotch- pot clauses, may be applicable to this statute ; but in ap- plying the cases the difference of language in the two acts hereafter pointed out nmst be borne in mind. Tliis act Tnken from seems to be copied almost entirely from the revised act of York, the State of New York, and thf- American decisions under that act, and of the laws of descent of some other of the States of the Union will be found to be of service, (a). SECTION 22. 22. The following sections numbered from twenty-three to Descents since flirty-nine, both included, shall apply retrospectively to the fir.st ''»* Ist Junu- (lay of January, one thousand eight hundred and fifty-two inclu- sive, and also prospectively, as the case may be, and shall be construed as if the same had been passed on the said first day of January, one thousand eight hundred and fifty-two. 14, 15 Vic, c. G, s. 1 . The statute came into force on 1st Jan., 1852, which fact explains this section. SECTION 23. 23. Whenever on or after the first day of January, in the How real es- year of our Lord one thousand eight hundred and fifty-two, any \'^^^ ° ,'".' '"" •' _ * J y J teslale dying j)erson shall die, seised in the fee simjde or for the life of another nftcr Ist Jun- of any real estate in Upper Canada, without having lawfully ""'7.' i'^"' i •' ^l ' ° •'.shiill descend. devised the same, such real estate shall descend or pass by way of succession in manner following, that is to say : — Firstly — T(j his lineal descendants, and those claiming by or under them, per stirpes ; (a) The author regrets that he lias had but limited means of availing himself of the sources of information referred to in the te.xt; the Amer- ican Reports at Osgoode Hall are fur from being complete, or of recent date, and the only American text writers on the law of descent are Mr. Chancellor Kent and Mr. Washburn, both of whom treat of the subject in a very cursory way in their Commentaries on the Law of Real Properly. The present Act of New York is, as far as the author can ascertain, in the first Vol. of the Revised Acts of New York, p. 751, and to be found at Osgoode Hall in the edition of Denio and Tracey, Vol. 2, p. 157. A short sketch of the various laws of descent in the different States is given by Mr. Washburn. •A" i' f"\ m m Stat includoH estates in fee simple, pur autre vie, but not estates tail or estates held in trust. No longer trace from pur chaser. Do we revert to com. law rule of tracingfrora person last ac- tually seised? According as descent is traced from person last seised or per- son last enti- tled will the person who is to take as heir be varied — instances. Descent under the Statute of Victoria. Secotully — To his fathor ; Tliifdly — To his mother ; and Fourthly — To his collateral relatives ; Subject in all cusch to the rnles and regulations hereinafter pre- Bcribod. 14, 15 Vic. c. C, s. 1. rt is to be observed that this section expressly includes estates imr autre vie, and does not include estates-tail : the descent of the latter are governed therefore, as presently explained, per formaitn doni. Moreover if the legal estate is vested in a trustee, then by sec. 41 this act does not apply to affect the descent of the legal estate, though by see. 50 the equitable interest of the cestui qui trust will descend according to its provisions: the reference to the " fortieth " section in sec. 50, is a misprint for " forty-first." Sections 50, 51 & 52, should be referred to before conaider- iiic: other sections. Descent is no longer as under the Statute of William to l)e traced from the purchaser, or person last entitled ; but the language of sec. 23 is, that the real estate of any person who shall die intestate, seised in fee-simple, or for the life of another, shall descend, &c. The first question which suggests itself on the language of this section is, whether we are again referred to the rigorous common law rule, which was, that the descent should be traced from the person last actually seised, and that a mere seisin ill law did not sufl^ice to constitute a good root of descent , a seisin in deed, or its equivalent, being requisite. Thus in a case put before, of A, a bastard dying seised, leaving his wife and wife's brother, and B his son and heir at law, him surviving ; assume that B never was seised, and died intes- tate : here, at common law, as descent had to be traced from A as last seised, the wife's relations could never take, . and the estate would escheat ; but had B entered, then his mother's collateral relative might have taken as heir to her son. Under the Statute of William, in such case there must always have been an escheat, even though B had entered, on its being shown that he inherited, and that A Con. Stat, Ch. 82— Section 23. 169 ion ia, non ,ced isin snt, 9 in his im ites- ced ,ke, his hev ere ad It A was the purchaser (a). The hardship in this instance was never removed here, but a remedy was applied in Eng- land by 22 & 23 Vic. ch. 35, sec. 19. In such a case, under the Statute of Victoria, the question would be whether the mother could take under the latter part of sec. 28 as heir to B ; or whether, as B never acquired seisin, descent would have to be traced from A {Ui the atirpa, and so escheat; for it is apprehended that in such a case the mother could not take under sec. 37, which is confined to the next of kin to A under the statute of distributions. Again suppose A., the purchaser, seised in fee, to grant a life estate and die seised of the reversion in fee, leaving his son B, his father C, and wife D him surviving : here the reversion would descend to the son B ; but if he, B, died pending the life estate, (in which case, as before explained (6) he would not at common law, for the purposes of descent, have acquired actual seisin,) the question would be, under the Statute of Victoria, whether when the estate in reversion became one in possession on the death of the life tenant, the parties claiming must take A or B as the stirpa of de.scent. If A be taken, then the estate will go to A's father, under the first part of sec. 27 ; if B be taken, it will go to the mother of B under sec. 28, and not to his grandfather. A consideration of the above, and other cases put before, New York St. will show the importance of the question. Sec. 23, as regards ^^°^ "" *''"■ this point, appears to be worded much as the statute of the State of New York of 178G. Mr. Chancellor Kent, in reference to that statute, says (c), " The rule of the com- Decision on. mon law existed in New York under the statute of descents of 1786, and the heir was to deduce his title from the person dying seised. It had been repeatedly held, that during the existence of a life estate, the heir on whom the reversion or remainder was cast, subject to the life (a) Doe Blackburn v. Blackburn. 1 Moo. and B., 547, per. Parke, B., ante p. 152. (6) Ante p. 127. (c) Vol. 4, ed. 11, p. 388. 22 i li irf Is -ill I il 170 Descent under the Statute of Victoria. estate, was not so seised as to constitute him t:he posBesaio fratris or the atirps of descent if he die pending the life estate.and the person claiminf; as heir.must claim from a pre- vious ancestor last actually seised. If the estate in fee had been acquired by descent, it was necessary that there should have been an entry to gain a seisin in deed to enable the owner to transmit it to his heir ; and therefore, if the heir on whom the inheritance had been cast by descent died before entry, his ancestor, and not himself became the person last seised, and from whom the title as heir was to be deduced J but the New York revised statutes have wi&ely altered the pre-existing law on this subject." The wording of the New York revised statute is : " The real estate of every person who shall die without devising the same shall descend," &c. And by the interpretation, clause the term " real estate " includes every estate, interest, or right : our statute has adopted this interpretation clause (dec. 50), by which the term " real estate " is to include every estate, interest, and right, legal and equitable, held otherwise than in trust infee simple, or for thelifeof another. We have however, still retained the word seised in sec. 23, which is struck out in the revised Statute of New York. The word There can be little doubt that by virtue of the compre- tetsed identical hensive meaning given to the words " real estate," actual yiith etituled to °° , . ,. . for purposes of seisiii is not requisite, and tliat the word seised, m section 23, will be construed as entitled to (a) ; for the word seisin, in its strict sense, is inappropriate to many rights, interests and estates, which are to descend, and would therefore re- ceive a wider signification appropriate to such rights : more- over by section 8 proof of entry by the heir is dispensed with : still there are no decisions in our courts ; our statute differs as explained above from the Aniei'ican ; and that is sometimes taken as law in the courts of the varioi's States which would not be so taken here. Mr. Wash! i irn (b), after stating the inile at common law as to desc^'it of an ilescetit. (a) Washburn Rl. Prop., Vol. 2, 2nd ed. pp. 405, 4iO. (ft) Washburn Rl. Prop., Vol. 2, 2nd ed., p. 406. Con. Stat. Ch. 82— Sections 23, 24, 25. 26. 171 estate in remainder or reversion dependent on a freehold estate to be as before expressed (a), says in reference to such an estate, " the law is changed in several, if not all the United States, and the heirs of a reversioner or remainder-man take as absolutely as if their ancestors were actually seised of a freehold in possession, the word seised being equivalent to oivnimj when applied to such an interest; a remainder-man or reversioner, therefore, becomes ' a proper stock of descent, &c.. ;" and he refers to cases in support of this, decided under the Statute of 1786 above- named. If seisin in law, or mere right of ownership, suffices under the Statute of Victoria to constitute a good stirps of descent, a.s would seem to be the case, then it is similar in its eflect to the Statute of William, by Avhich descent is to be traced from the person last entitled ; the only difference being that under the Statute of Victoria you cannot shift the trace of descent from the person last entitled by shewing that he inherited, as you can under the Statute of William. The wording of the 23rd section requires explanation, as Descent per it is somewhat calculated to mislead. It enacts that the ^1'^'^'"°.^'^'^ estate shall de,scend to the lineal descendants of the person ja'ls, follow- last seized, and those claiming under them. pf;r stirpes : j^^^ now this expression at the outset would lead to the inference that the common law rule of succession per stirpes was to be the prevailing feature in the statute, t whereas it is just the reverse; and it is the civil law rule of succession per capita that prevails, and descent per stirpes only takes place as an exceptional case, as will be seen in the sequel. SECTIONS 24, 25 & 26. 24. If the intestate shall leave several descendant.s in the direct Astodescend- line of lineal descent, and all of equal degree of consanguinity to *°'^ '° equal such intestate, the inheritance shall descend to such persons in coasanguin- equal parts, however remote from the intestate the common '^^J- degree of consanguinity may be. 14, 15 V. c. 6, s. 2. (a) Ante p. 127. :< »' \ m m 1,1 172 Descent under the Statute of Victoria. If some chil- 25. If any one or more of the children of such intestate be dren be living living and anv one or more be dead, the inheritance shall descend una others . dead leaving to the children who are living, and to the descendants of such issue. children as have died, so that each child who shall be living shall inherit such share as would have descended to him if all the children of the intestate who have died leaving issue, had been living J and so that the descendants of each child who shall be dead shall inherit in equal shares the share which their parent would have received if living. 14, 15 V. c. G. s. 3. Same rule as 26. The rule of descent prescribed in the last preceding Hection oendants '^^' ^^^^^ ^I'P^y i" every case where the descendants of the intestate, unequal de- entitled to share in the inheritance, shall be of unequal degrees of grees of con- consanguinity to the intestate, so that those who are in the nearest sanguiDity. ... degree of consanguinity shall take the shares which would have descended to them, had all the descendants in the same degree of consanguinity who have died leaving issue, been living, and so that the issue of the descendants who have died, shall respectively take the shares which their parents if living would have received. 14, 15 V. c. 6,8. 4. S.24ezpre8sly introduces de- eceatper capita when degrees of consanguin- ity equal, but if some heirs be in equal and others in une- qual degrees, t^ien under s. 25 Jescent partly ;7crt/i>- pet, partly per capita. Section 24 expressly introduces descent per capita to the exclusion of the former system of descent per stirpes. Thus A dies seised, having had two daughters, both dead, in A's lifetime ; one of which daughters left one son, and the other eleven sons : here instead of the one grandson taking one half, as would be the case tracing descent per stirpes (by force of the 4th canon), he will only take equally with the others, viz., one-twelfth. But it will be observed this rule only applies when all taking are of equal degrees of consanguinity : otherwise under section 25, if in the above case, the mother of the one son had been alive on the death of A, and the mother of the eleven sons dead ; here as the des- cendants of A are in unequal degrees of consanguinity, the mother living will take one half, and the eleven sons of the mother dead the other half between them all : the descent is partially per stirpes and partially per capita ; it is per stirpes as between the daughter living and the eleven sons of the daughter dead, but it is per capita as between such eleven sons among themselves. n Con. Stat. Ch. 82— Sections 24, 25, 26. 173 S.26. This Ariixed system of descent per stirpes or per capita according as the parties ifintitled are in equal or unequal degrees of consanguinity to the intestate is not confined to this section, and will be found to pervade the act. In- heritance per stirpes is admitted when representation becomes necessary to prevent the exclusion of persons in a remoter degree, as for instance when there is left a son, and children of a deceased son, but when all are in equal degree, AS grandchildren, representation becomes unnecessary, and i^ould occasion an uneffual distribution, and all take per capita (a). Take the following case in further illustration of this Illustration of 2.5th section ; assume that A has three children, B, C, and D ; that C and D die in the lifetime of A, C leaving two children and D four children, and then A dies seised, intestate : here B, the surviving child, will take one-third, being " such share as would have descended to him (by sec- tion 24) if all the children of the intestate who have died leaving issue, had been living; "the two grandchildren, issue of C, will take per stirpes quoad their ancestor, vi one- third, which they will divide per capita between them- selves, and each take half a third or sixth : and the four grandchildren, issue of D, will take in the same way, per stirpes, their ancestors share one-third, which they will divide between them per ca/pita, and each take a fourth of a third, or a twelfth ; and this because " the descendants of each child (of the intestate) who shall be dead, shall inherit in equal shares the share which their parent would have received if living." The 25th section applies only " if any one or more of the children of the intestate be living," and not where none are living, but have left descendants in unequal degrees : the latter case is reached by the 26th section, and by it the rule prescribed by section 25 " shall apply in every case where the descendants entitled to share shall be of unequal degrees, &c. ;" thus if in the case t I (a) As to descent per atirpea and per capita, and the grounds on which they Beverally rest, see Vinnias on the Institutes, lib. 3, tit. 1, n. 6. HI m ' Ml i?*,, m Descent under the Statute of Victoria. I ': I last put, B, C, and 1), had been grand-children, instead of children of A. (their parents bning dead) ; section 25 would not have applied to meet the case, as no children of the intestsite would have been living on the death of the intes- tate ; but by the combined action of sections 25 and 26, the estate would go as above stated. It will be seen hereafter Thehaifbiood^jjg^^ jj^ posthumous child is to be considered as in esse : and botch pot. Analoi^y in the above to right under St. of Distri- butions. Interpretation as to sections 23 to 50. that, except in certain cases, the half-blood take equally with the whole blood in the same degree : and that a child who has been advanced shall bring, before })articipating, his advancement into hotch-pot. The course of descent, as above mentioned, is the same as the rule of succession to personal property prescribed by the Sttitute of Distributions of Charles, under like circum- stances, i. e., where an intestate dies leaving lineal des- cendants and no widow ; and even if there be a widow, the Statute of Victoria, section 41, expressly reserves the widow's right to dower, which would be one-third for life, whilst the Statute of Distributions gives her one-third absolutely. SECTION 52. 52. Whenever in any of the i.aid twenty-eight sections the ex- pressions " where the estate shall have come to the intestate on the part ' of the father,' or * mother,' " as the case may be, are used, the same shall be construed to include every case where the inheritance shall have come to the intestate by devise, gift or descent from the parent referred to, or from any relative of the blood of such parent. 14, 15 Vic. c. 6, s. 27. This section is taken out of its order, inasmuch as the prior 27th, 32nd, 34th, 35th & 36th sections cannot be understood without appreciation of it. The prior sections speak of the estate " coming to the intestate on the part of his father," or " mother," as the case may be, and send the de- scent towards the paternal or maternal line accordingly, preserving a relict of the preference given by the prior law to the blood of the purchaser: section 52 defines what is meant by the expression in the prior sections of " the estate Con. Stat. Ch. 82— Section 5ii. coming to the intestate on the part of his father," or mother, as including "devise, gift, or descent from the i)arents re- ferred to, or from any relative of the blood of such parents." It will be observed this section considerably alters and enlarges the mode by which under the Statute of William, a person was considered as taking an estate ex parte materua, or paterna, as the case might be : he was before considered as so taking, in those cases only whore he took by descent, tracing from the paternal or maternal ancestor as the purchaser ; but if (at least aftei" the Statute of William) he took by gift or devise from such ancestor, then the estate was not considered as descending to him at all, but he took as j)urchaser (a) , and paiiies claiming on his death had to make themselves heirs to him as the ])urchaser, and to no one else, and if they could not, the estate would escheat. The change effected in the Statute by Victoria is very great, as will be seen by considering one simple ami common case : suppose that in the second table of descents, the estate had been either devi-sed, or given to John Stiles, by his mother, or any relative of hers ; here under the statute of William, John Stiles would have been considered not as takini; ex parte materna at all, but as a purchaser; and the result was that all the paternal ancestorsand their descendants, however remote, must have failed before any maternal ancestor, or any one claiming through such could have trken Now however in such a case, the estate is to be considered as having descended ex parte viatcrna, and the paternal line are excluded : except only that if the mother be dead, and there be any brothers or sisters of the intestate, or any of their descendants, the fatlier will take a life estate ; or if the mother be dead, and there be no l)rothers oi- sisters of the intestate, or their descendants, then the estate will go to the lather ; and paternal are postponed to maternal uncles and aunts. Questions may arise as to the consti-uction of sec. 52 in those cases where the intestate hiis taken from some person on the paternal or maternal side, who in turn has (a) See p. 144. 175 Alters and ex- tends former mode and sense of tak- ing bv pur- chdie. Instftnce of clmnge ns to tnking bi/pur- r/ia.ie effected by Stilt. Vic. i.-'i ' . ii ! 5 i 176 l!)ESCEltt? UllBER THE STATUTE OP WlLLlAM, Capeofthein- t^ken from the other side, ftud the question would be taken from a which sido would have preference in distribution of the in- paternal reiii- heritance. Thus, the intestate has acquired the estate by taken from a devise, gift or descent, from his mother, who acquired it in maternal rela- either of those modes from her husband, the father of the tive. intestate : the only relatives are brothers and sisters of the mother, and brothers and sisters of the father, and ' under ss. 32 and 34, either side will take to the exclusion of the other, according to whether the inheritance is to be con- sidered as come to the intestate on the part of his father, or of his mother. Again, if in the case above supposed there were brothers of the half-blood of the intestate on his father's side, would the half-blood be excluded under sec. 36; in which section however the words " ancestors" is made use of. Many other instances might be put under the various sections, (a) but the above will serve to elucidate the question. It is apprehended on the language and con- struction of the act and the American decisions (6) that in such cases the person from whom the ir testate immediately takes is the propositus who alor i will be regarded, and that you cannot, change this by shewing how the estate was acquired, as you can in cases of inheritance under section 4 of the Statute of William Thus where an intestate had inherited from his brother, who had inherited from his father, and the intestate left no descendants, ancestors, or brothers or sisters, it was held on the New York act and the sections therein corresponding to ss. 52, 35 and 32, that relatives on the side of the mother of the intestate were not excluded in favour of those on the side of the father (c). A further question is whether where the intestate has acquired an ancestral estate by gift devise or descent coming under section 52, alienation by him, which under the old law would have made him a new stock of descent, and also a purchaser, and deprived the estate of its former hereditary (a). See remarks v;nder a. 3&. (6). Curren V. Taylor. 19 Ohio .36; Gardner v. Collins 2 Petera 58, Supreme Court; Hyatt v. Pugsley. 33 Barb. 373 : Prickett v. Parker, 3 Ohio St. 394. (c). Hyatt v. Pugsley, supra. Con. Stat. Ch. 82— Section 27. 177 ir. qualities on the paternal or maternal side (a) will equally operate under this act to cause all consideration of the estate being ancestral to be rejected (b). This question may arise in various shapes : thus if the intestate had sold the estate, there can be no doubt that the proceeds, though earmarked, would go as personal estate under the Statute of Distributions. If the proceeds were laid out in other real estate, this would have no ancestral quality in it, and under no circumstances would there be a preference to ancestral paternal or maternal side. It would seem to follow, especially on applying the former law (c), that the result would be the same if the intestate had conveyed to some one, and forthwith, or at any time afterwards, obtained a re-conveyance : and consequently that there would be the same result if the estate revested through the medium of the Statute of Uses, as on conveyance by the intestate to a grantee to uses to his own use. If, however, the intestate should not have made disposition of his entire interest, but merely of a portion, leaving a reversion to come by act of law to himself and his heirs, it is apprehended this reversion would be imbued with the former qualities of the estate. The meaning of blood relationship and of the words " of the blood of," is considered in treating of sec. 36. SECTION 27. 27. In case the intestate dies without lawful descendants, and if the inteitaie leaving a father, then the inheritance shall go to such father, — ^*'"'® "° unless the inheritance came to the intestate on the part of his rights of fa-' mother, and such mother be living ; and if such mother be dead, ther, mother, the inheritance descending on her part shall go to the father for "■ life, and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by col- lateral relatives hereinafter provided ; and if there be no such brothers or sisters, or their descendants, living, such inheritance shall descend to the father. 14, 15 Vic, c. 6, s. 5. (a) Ante pp. 127, 152, 163. (6) On this head see the American cases, Champlin v, Baldwin^ 1 Paige 661. (c) See laat note. 23 I' eI 1 m I II ' 'Mi Hi 178 S. 27. if no descendants, the father takes, unless inheritance came on tiie part of the mother, &«. Meaning of expression "if the inheri- tance come to intestate on tlie part of his mother and the mother be living." Instance of operation of 8. 27. Descent under the Statute of Victoria. The first clause provicle.s that if the intestate die without descendants, the inheritance shall go to the father, if living, unless the inheritance came to intestate on the part of the mother, and the mother be living ; what shall be the descent in the latter event, if the mother be living, is provided for not by this section, but by sec. 28. First however should be explained what is meant by the expression in this section as to the inheritance coming to the intestate on the part of his mother, and the mother being living. Taking the word inheritance in the sense in which in reference to descents it is frequently used (as in the 7th common law canon), as referring to or as synonymous with, course of descent, or the descent itself, instead of the subject matter thereof, it is difficult to understand how an inheritance as such can come to a child as from a living mother. Mr. Justice Blackstone and others express the 7th common law canon thus : " In collateral inheritances, the male stocks shall be preferred to the female, unless the kauris have descended from a female ;" in sec. 27, the word inheritance is not used in the sense in which it is used in the 7th canon, but in the sense in which the word lands is there made use of ; for the 50th section declares that the word inheritance shall be understood to mean in the prior twenty-seven sections, " real estate ;" and the 52nd section declares, that the words " where the estate shall have come to the intestate on the part of tr;e father or mother," shall be " constinied to include every case in which the inheritance shall have come to the intestate by devif^'.e, gift, or descent, from the parent referred to, or any relation of the blood of the parent" (a). This section may perhaps be best explained by illustra- ting it by the table of descents. Thus assume John Stiles to be actually a purchaser for money ; (for money is said, because the 52nd section, as above explained, has altered the meaning and implication of the word purchaser, \a) See as to blood relationship under American acts, and that a father ia within the meaning of the act of the blood of a child, Cole v. Bfttley, 2 Curtis, G. C. 562. See also remarks under sec. 3G and sec. 52. Con. Stat. Ch. 82— Section 27. as fornijrly under.stooi-l, by oxciadiiig from it the ca.^o of a man taking by gift or devise from some relative on the father's or mother's side ;) in such case, on John's death without issue, the father if living, would tfike under the first clause. The case of the inheritance coming ex parte vuiterna, and the mother being livliuj, is provided for in the 28th section, and that therefore is passed for the present, and the next clause proceeded to, viz., the like ca.se of inheritance ex parte materna, and the mother being dead, and the father Geoffrey, living, and also the bi-othcrs and sisters of intestate of the whole blood, Francis, Oliver, Bridget, and Alice : here the father would take a life estate, and the reversion would go e(pially among the brothers and sisters. If also at the time of death of John, his half- brothers and sisters ex parte materna had been alive, N(js. 38 and 39, and also his half-brothers and sisters ex parte pateriia, Nos. 8, !) and 9 then, under the 36th section, the half-blood ex parte vuiterna would have been entitled eijually per capita with the brothers and sisters of the whole blood. The half-blood ex parte paternxi would not have taken, if the estate came from a maternal ancestor : descendants of any brothers and sisters deceased would have taken per capita and per stirpes, as the case might be, as explained in the 30th section. Under the last clause of the 27th section, if the estate came on the part of the mother (a), and the mother, brothers and sisters of John, and the descendants of such brothers and sisters were dead, then the estate would go to the father, Geoffrey. This latter again varies from the Stat. 4 Wm. IV., under which in ca.se the estate really did descend ex parte inatcrna, that is, by descent to John, from Lucy his mother, it would not go in fee to the father, but to Andrew Baker, the father of Lucy, John Stiles' mother, subject to the tenancy by the curtesy of John's father, Geoffrey. This 27th .section varies from the Statute of Distribu- tiCns in this; that failing lineal descendants, personalty (a) Sees. 62^ andante p. 162. 179 S. 27. Last clnuse, if es- tate came ex . parte materna, aud mother, brutliers and slaters and descendants dead, the fa- ther takes. Varies from St. of Distri- butions. \\- I'M it''- T' . M H:] 'yil I - '.Ill I 180 Descent under the Statute (if Victoria. goes, one-half absolutely to the widow, and the other half to tho father ; whereas under this statute, the father takes all absolutely, subject to the widow's right to one-third for life, as dowress. If there be no widow, the father as being in tho first degree, takes all personal estatfe absolutely, with- out regard to how the intestate acquired it; such regard is had, however in the case of reality, for if it came to the intestate on the maternal side, the father only U'kes a life- estate. SECTION 28. If there be no 28. If the intestate shall die without descendants and leaving father entitled ,jq fi-jher, or leaving a father not entitled to take tho inheritance under the last preceding section, and leaving a mother and a brother or sister, or the descendant of a brother or sister, then the inheri- tance shall descend to the mother during her life, and the revei-sion to such brother or sister of the intestate as may be living, and the descendants of such as may be dead, according to the same law of inheritance hereinafter jirovided ; and if the intestate in such case leaves no brother or sister, nor any descendant of any brother or sister, the inheritance shall descend to the mother. 14, 15 Vic. c. 6, s. 6. If no descend- This Section is somewhat explained by what has been said aiiis and no j reference to the 27th. This section provides for the case father who _ _ ^ can take, but of the father being dead, who otherwise would be entitled Uier and'sis°" ^^ ^^^® ^^^ inheritance ; and also for the case of his being tui'- alive, and yet not entitled to take under sec. 27, by reason of the estate coming ex 'parte materna, and the mother or collateral relatives being alive. Thus assume that on John's death his father Geoffrey was either dead, or not entitled to take as above mentioned, and that the mother of John, and his brothers and sisters, Francis, Oliver, Bridget, and Alice, were alive : the mother would take for life, and the brothers and sisters per capita, and descendants of deceased brothers and sisters would take as provided for in the 30 th section. If the brothers and sisters, and their descendants, were dead, then the estate would go to tl^e mother. It should be mentioned that all the brothers and sisters of the half-blood would take equally with those of Con. Stat. Ch. 82— Sections 28, 2!), 30, 31. 181 the whole blood under the 36th section ; that is, if John were purchaser for money, all the half blood ex jmrte paterna and m/iterna, viz., Nos. 8, 9 and 9, and 38, 39, 39, would take equally with the brothers and sisters of the whole blood : but if Juhn got the estate ex parte patent a or iiuiterna, then the half-blood only on that side would take. Under the Stat. 1 James II., ch. 17, s. 7, the personalty The right to of an intestate who leaves no father, wife, or children, will ut^oase!^ '" go in equal shares between his mother and brothers and sisters : the above section is on much the same principle, except that the mother takes only a life-estate in all. SECTIONS 29, 30, 31. 29. If there be no father or mother capable of inheriting the And if there estate, it shall descend in the cases hereinafter Miecified to the be neither . . . ' father nor collateral relatives of the intestate ; and if there be several of mother. such relatives, all of equal degree of consangitinity to the intes- tate, the inheritance shall descend to them in equal parts, however remote from the intestate the common degree of constvnguinity may bo. 14, 15 Vic. c. 6, s. 7. 30. If all the brothers and sisters of the intestate be living, the SucceBsion of inheritance shall descend to such brothers and sisters ; and if any brothers anJ one or more of them be living and any one or more be dead, their desoond- then to the brothei-s and sisters and every of them who are living, "^I'S' and to the descendants of such brothers and sisters as have died, so that each brother or sister who may be living, shall inherit such share as would have descended to him or her, if all the brothers or sisters of the intestate who have died leaving issue had been living, and so that such descendants .shall inherit in equal shares the share which their parent, if living, would have received. 15 Vic. c. 6, s. 8. 14 31. The same law of inheritance prescribed in the last section As to such shall prevail as to the other direct lineal descendants of every descendants , . /. 1 • 1 '° unequal brother and sister of the intestate, lo the remotest degree, when- degrees. ever such descendants are of unequal degrees. 14, 15 Vic. c. 6, s. 9. These sections assume there are no lineal descend- In cases where ants, father, or mother, and provide for cases of descent to rents iivi°n^* m m %'■■■ •id ■y.-i 'J i ' i r .; . \ X -t;.. if. 182 oollatorals take. f ! I'Mlii! DfWRNT ITNDKR THK STATITTK OF ViCTORU. collatoiiil relatives, a.s brothorH, sisters, and thoir descoiul- iitits, as next entitled, and tho mode in which tliey shall take. The mode of taking hereby presented as regards taking /> I r i k r: f I' I i ^ Con. Stnt. 73, as to separate property of married women. Comparison of descent of realty and of succession to personalty, grandmother on the mother's side share equally, dignity of blood not being material. Aunts and nieces, uncles and nephews, being all in the third degree, are equally entitled. Relationship by marriage gives no title, except in case of the wife of the intestate. Relations by the half-blood take equally with those of the whole blood in the same degree. The above is subject to an exception as regards the separate personal property of a married woman, under Con. Stat. ch. 7IJ, by s. 17 of which, such property, on death of the married woman intestate, leaving a husband and children, will go as to one-third to the husband, and the residue to the children ; and if there be no children, then it will go as if the Act had not been passed, and so the husband could acquire the whole as entitled to ad- ministration. It will have been seen, as pointed out, in considering the various sections of the Statute of Victoria, that the whole course of descent does not differ widely from the rules of succession to personalty under the Statute of Dis- tributions ; that the former as well as the latter are based on the civil law, and the claimants take much in the same order and computation of degrees; and where claimants do not take under the Statute of Distri- butions equally with those in the same degree, the same exceptions exist under the law as to realty. Thus, father, mother, and children of an intestate are in the same de- gree of consanguinity to him, viz., the first degree ; but an exception to the rule that all in equal degrees share equally, exists both as to personalty and realty in favor of the children, who take priority, without any distinction as to the half-blood, (unless in case of real estate come from a lineal ancestor, section 36) ; and in each case they and their descendants take ^9er stirpes or per capita, ac- cording to whether they are all in equal or unequal de- grees ; a system quite unknown to the common law. Again, failing the father and descendants; the mother being the only remaining person in the first degree, would Realty and to Personalty. 207 have taken all, but by the Statute of James (there being no widow), she is to take an equal share absolutely with brothers and sisters of the intestate, and their children : and the Statute of Victoria proceeds on the same principle, and gives the realty to the mother /or life, and the remain- der to brothers and sisters, and their descendants. As to those in the second degi'ee, viz., grandfathers, grandmo- thers, brothers and sisters, the same rule and the same exception to it exists as above alluded to ; they are all in equal degi'ees, and yet the brothers and sistera take pri- ority. So again, neither as to personalty or realty will one or more surviving brothers or sisters, as nearest in degree, exclude the children of a deceased brother or sister, as more remote in consanguinity — no distinction is made by reason of age, sex, or blood, (uidess, indeed, as to the latter in case of an ancestral estate) : and the peculiar mode of taking, sometimes per stirpes and sometimes 'per capita, pervades both systems, and applies in like cases : there is also the same law of hotch-pot with but trifling variation. The rights as to realty of the widow or hus- band of an intestate cause no gi'eat variance, at least in principle : they take interests in the realty under the same circumstances that they would in personalty, though the value of the interest may differ. Thus, the widow by ex- press reservation of her right in the Statute of Victoria, takes her dower or one-third fur life in realty ; and in personalty she takes the same proportion absolutely if there are lineal descendants, and if none then one-half ab- solutely : so the husband may take under similar reserva- tion as tenant by the curtesy (issue being born who might inlierit), the whole of the realty for life ; whilst, as to personalty, tlie separate property of the wife, he will un- ■ der Con. Stat. ch. 73 receive one-third absolutely and the residue will go to the children in the same manner as per- sonalty of a husband would be distributed between widow and children, and if no children he will take all absolutely. The variance seems chiefly to consist in this : that the Variano*, Statute of Victoria, when the inheritance is derived by the 'a'' , /I' ■1: t| , ! 1.' 'A"4 -Hf ■i r 20d Comparison as to Personalty and Realty. Varianoe, : }j*; t>nnietinicB a It/e estate in tiie whole giv- en 13 to real- ty, when in hiiiiiliir cir- cumstances aa to personalty, a akare is giv- en abtolutety. intestate from a relative, gives preference in certain instances to the blood of such relative, as may be exemplified by its excluding the half-blood, (if the estate have been de- rived from an ancestor), and postponing the uncles and aunts, (if derived from a relative), on the side on which tlie inheritance is not derived ; and in giving also the father only a life-estate,if the property came on the maternal side, where he would otherwise take the fee : whilst as to person- alty no regard is paid as to the derivation of the property. Again, grandfathers and grandmothers are excluded as to realty, unless they can take under s. 27 ; whilst as to jjer- sonalty, they are only postponed to those in the same de- gi'ee, viz., brothers and sisters, and share in the same class with those of the third degree, viz., uncles and aunts : fur- thermore, as to realty, the right of representation is ex- tended to descendants of collaterals, as of brothers and sisters, uncles and aunts; whilst as to personalty, it extends only to children of one class of collaterals, viz., of the brothers and sisters of the intestate. It will be seen that sometimes the Statute of Victoria gives a life estate in the whole and remainder over ; whilst the Statutes of Distributions in like circumstances give only a proportion or share of the whole, but absolutely: the principle still is the same ; the same parties take, and are perhaps equally benefited, though in a different mode, for the absolute right to a proportion may be worth neither more nor less than a life estate in the whole. The Statute of Distribution, dealing only with personalty, could give no life-estates, such a dealing with personalty would be foreign to its nature, and the laws which govern it (a), whereas no such difficulties present themselves in giving a life-estate in realty ; and such a course has the advantage over giv- ing a share absolutely, that the estate is ultimately pre- served more entire. The 28th section afibrds an illustra- tion of this ; it gives the mother an estate for life in all, whilst the Statute of James gives her, in like circum- (a) See Wms. Pers. Prop, as to the rights and remedies in equity of one entitled in remainder after a life interest given in chattels. Descent of Estates Tail. 209 igii stances, (and there being no widow), a moiety absolutely in personalty, the other moiety going to brothers and sisters. of the intestate. The Descent of Estates Tail is unaffected by the Statutes Estates tail, of William and Victoria, and is of a peculiar character, for as it is regulated performam doni and the statute Mood, that descent could not lie traced • from or throu civil, instead of the fi-udal law. Kvery traet; of the latter , ceases to exist (except a [)iirtial relic <»f the prefcn^nce given to the Vjlood of the puirluuser in cases of the liiilf- hlood, and uncles and aunts), and lands, as regards their descent, are placed on somewhat the same footing as clint- tels; primogeniture is abolished; females take equally with males in the same; degree ; descent per ctipifa jirevails in the place of descent /)f'.r .i^irpew ; the half-blood are admit- ted eiiually with the whole blood in the sanu^ degi-ee (unless in case of an ancestral estate, and the half-bh^od not being of th(^ blood of the ancestor) ; and, as though the more fully to sweep away the former law, the Statute (»f Distributions are to govern in ca.ses not specifically provided for. The* e.Kistence of each particular system during the three epochs into which the subject has been divided, may be referr(>d to the requirements of the country and of the age in which such system existed or exists, though perhaps in that respect both the Statutes of William and Viitoria might have been passed at earlier periods. i.ii \ n irrt il ii* ! I Ft < ' 11 J «»» » «■ if' 1 'ii. t w 212 Dower. CON. STAT. Ch. 84. An Act respecting Dower. Dower out of equitable estates. Dower where husband had A right of entry. Certain dower abulished. Dower may be barred by joint deed of liusl)iind and wife. When may bo barred by se- parate deed of wife. Wl .0 wife to be examined as to her con- sent. WIDOWS TO BE ENTITLED TO DOWER IN CERTAIN CASES. 1. When a husband dies beneficially entitled to any land for an interest which does noi entitle his widow to dower out of the same at law, and such interest whether wholly equitable or partly legal and partly equitable, is an estate of inheritance in possession, or equal to an estate of inheritance in i)ossession, (other than an estate in joint tenancy), then his widow shall be entitled in equity to dower out of the same land. + W. 4, c. 1, ss. 13, 14, 15. 2. When a husband hath been entitled to a right of entry or action in any land, and his widow would be entitled to dower out of the same. if he had recovered possession thereof, she shall be entitled to dower out of the same, although her husband did not recover possession thereof ; but such dower shall be sued for or obtained within the period during which such right of entry or action might be enforced. 4 W. 4, c. 1, s. 14. DOWER ABOLISHED IN CERTAIN CASES. 3. No widow shall be entitled to dower ad ostium ecclesice, or dower ex assensu patris. 4 W. 4, c. 1, s. 15. HOW DOWER MAY BE BARKED. 4. A married woman may bar her dower in any lands or heredi- taments in Upper Canada, by joining with her husband in a deed or conveyance thereof in which a release of dower is contained. 2 V. c. 6, s. 3. 5. A married woman may also bar her dower in any lands or hereditaments by executing either or alone, or jointly with other persons, a deed or conveyance to which her husband is not a party, containing a release of such dower. 37 Geo. 3, c. 7, s. 1. G. A married woman barring her dower by a deed or convey- ance to which her husband is not a party, shall be examined by one of the Judges of the Courts of Queen's Bnnoh or Common I'leas in Upper Canada, or the Judge of tiie Uuunty Court, or J. I Con. Stat. Ch. 84. 213 Chairman or presiding Magistrate of the Court of Quarter Ses- sions, or two Justices of the Peace for the County in which she resides, or happens to be, touching her consent to be barred of her dower. 37 Geo. 3, c. 7, s. 1 ; 3 W. 4, c. 9, s. ] ; 2 V. c. 6, —50 Geo. 3, c. 10, s. 1. 7. If such married woman ujwn being so examined gives such Certificate of consent, and the same appears to the Judge, Chairman or pre- consent, siding Magistrate, or Justices examining her to be voluntary and not the effect of coercion on the part of her husband or of any other person, such Judge, Chairman, or presiding Justice or Justices shall certify on the back of the deed' to the following effect : 37 Geo. 3, c. 7, 8. 2. We, A. B. and C. D., of the County of , in the Form. Province of Canada, Esquires, two of her Majesty'.s Ju.stices of the Peace, in and for the said County, or, I (a Judge, Arc, as the , case viny be), do certify that E. F., wife of G. F., personally ap- peared before us {or me, as the case may be), and being dul}"^ ex- amined by us {or me), touching her consent to be barred of her right of dower of and in the lands in the within deed mentioned, it did appear to us {or me) that the said E. F. did give iier con- sent thereto freely and voluntarily without coercion or fear of "coercion on the part of her husband or of any other person. _, Signed, Dated at 3 W. 4, c. 9, .s. 1. 8. A married woman being within the United Kingdom of Who to certify Great Britain and Ireland, or any of Her Majesty's Colonies, or "ut of Upper the United States of America, and there barring her dower by any deed or conveyance to which her husband is not a party, shall be examined as mentioned in the sixth section of this Act, by the Mayor or Chief Magistrate of a City or Town if in the United Kingdom, or if in a Colony or in one of the United States, by a Judge of the Supreme Court of the Colony or State, and if she gives such consent and the same appears to the person so c imin- ing to be free and voluntary and not the effect of any coercion as aforesaid, such peraon shall certify on the back of the deed to the effect prescribed by the seventh section of this Act. 48 Geo. 3, c. 7, 8. 1, 9. Any certificate under the last section of this Act, shall, if Certificate, granted by a Mayor or Chief Magistrate, be under the common ^"'^ verified, seal of the City or Town over which such Mayor of Chief Magis- ft'B 1 % el I' i ,11 (1 214 Dower. Unless the husband is a party, dower not barred wirhout iiokuowledg- inent. Fee for certi- ticftte. trate presides, or under the seal of office of such Mayor or Chief Magistrate, and if granted by a Judge, such certificate shall be verified by the seal of the person adininistering the government of the Colony or State of which the person certifying is a Judge' 48 G. 3, c. 7, ss. 2, 3. 10. No deed or conveyance of a married woman to which- her husband is not a party, shall be effectaal to bar her dower unless the directions contained in the sixth, .sevouth, eighth and ninth sections of this Act, («« tlie case may be), are complied with. 37 Geo. 3, c. 7, s 1. 11. A fee of one dollar may be demanded for any certificate under this Act. 50 Geo. 3, c. 10, s. 2—3 W. 4, c. 9, s. 2. It will be necessary for the consideration of the above, and of other sections and statutes relating to dower, to take a short comprehensive view of the subject. It may be considered under the following heads : — 1. Who may be endowed. 2. Of what the widow may be endowed at Law. 8. Of what in Equity. 4. How dower may be barred and defeated, and the right thereto conveyed. 5. The mode of endowment, and damages for detention. 1. Who may be endowed. She must be the actual wife (a) : the rule as to proof whereof varies here from the practice in England ; as here dence thereof, evidence of co-habitation, and reputation of marriage will and validity, suffice, subject to the presumption arising therefrom being rebutted, (b). As to the va- " The rule that a marriage which is good in the country where it is celebrated is good everywhere (c), is subject to Who may be endowed. lidity of the iniirriage. (a) As to maniage, the Acts relating thereto, evidence, &c., see Draper on Dower, ch. 2 ; the Acts there referred to and commented oil are : 33 Geo. 3, c. 5 ; 38 Geo. 3, c. 4 ; 59 Geo. 3, c. 15 ; 11 Geo. 4, c. 3G; 20 Vic. c. 66 ; Con. Stat. c. 72 ; Imp. Stat. 5 & 6 Vic. c. 26, and the Statutes of Henry. See also Hodgiiis v. McNeil. 9 Grant 305 ; The Queen v. Roblin, 21 Q. B. U. C. 352 ; Kegiiia v. Chadwick, 11 Q. B. 238. (b) Graham et ux. v. Law, 6 C. P. U. C. 310 ; Beatty v. Beatty, 17 C. P. U. C. 484. (c) See as to marriage by a Christian British subject with a Cree squaw, in 1803, in the Hudson Bay Territory, and cohabitation as man and wife, Conolly V. Woolrich, Lower Ca.i. Jurist, Vol. 11, p. 197. See also, as to marriages ontilled to the privileges of necessity, Ruding v. Who may be Endowed. m ■ 4 the qualification that the marriage must not be one pro- hibited by the country to which the parties belong ; and tlii'reforo a marriago in the United States between parties domiciled in t'anada, who cannot contract marriage here, would be held void and illtitfal in oui- Coiu'ts" (a). The distinction must be borne in mind between void and void- able marriages ; in the latter case, " after the death of either of the parties, the temporal courts, which have no jurisdiction themselves, and nnist regard every marriage (/tJ/acYo, as good, until it is declared void by the ecclesi- astical courts, will not permit them to declare the marriage void after the death of one of the parties, when their sentence can have no effect on the marriage itself, it being already dissolved by death, and its (mly effect will be to bastardize the issue. The result is, that after the death of the parties, the man-iage is valid and the issue legitimate (le facto but not de jure" (h). Thus a marriage with a deceased wife's sister cannot be questioned after the death of either party to it, and the widow is entitled to dower (c). The Imj»erial Act 5^0 Wm. 4, ch. 54, does not apply liere to make such ^ marriage void, and there is no tribu- )n(l competent to dissolve it. " It cannot be said that any ecclesiastical tribunal or jurisdiction is retpiired in any colony or settlement where there is no established Church, and in case ot a settled colony, th(! ecclesiastical law of England cannot, for the same reason, be treated as part of the law which the settlers carried with them from the viother country" (res, Law Rep. Cf. Pro. and Div. Vol. 1, p. 130, Hyde v. Woodmansee. {(I) Draper on Dower, p. lit; Brook v. IJrook, 7 .Jur. N. S. 4'J2 ; Hodgins v. McNeil, 9 Grant, 305, per Esten, V. C. (b) Hodgins v. McNeil, supra, per Esten, V. C. (c) Hodgins v. McNeil, supra. (d) Re the Bishop of Natal, 11 Jur. N. S. 358, per Ld. Chan. (6) Per Esten, V. C, in Hodgins v. McNeil, supra. 11 I 1 t I r-\i m i I 216 Dower. Constitutional Act," (32 Geo. 3, ch. 1), and that the Pro- vincial Act, 33 Geo. 3, ch. 4, " presupposes the ecclesiastical law in force." In Regina v. Roblin it was considered that the Constitutional Act introduced the English Common and Statute Law relating to marriage, including the 26 Geo. 2, ch. 33, unless perhaps section 11, and with the excep- tion of such laws as were not applicable to the condition of the colony (a). On a divorce a vinculo making the marriage void ah inito, there will be no dower, but on a divorce a mensd et thoro, dower will be allowed {b). Forfeiture by By the Statute of West. 2, if the wife commits adultery adultery and j^^^^j elopes she forfeits her dower, unless the husband con- elopement. ^ _ , ' done the offence. The leaving and separation must be the voluntary act of the wife ; for where the husband aban- doned the wife, and she afterwards lived in adultery, this was held to be no bar to her dower (c). On the other hand, if the wife leave by reason of her husband's cruelty, and live in adultery, she forfeits her dower, for the excuse only applies to tlie leaving (d). As to the right At common law the widow of an alien, and an alien dows'and^' i- wi*^o"w Were not entitled to dower (e) ; but by special Act, dows of aliens. 8 H. 5, (not printed), alien women married thereafter to Englishmen with the King's license, are endowable (/). And it would seem that under certain circumstances a quasi estoppel would arise which would prevent the plea of alienage of the husband from being a defence. Thus, where the widow of an alien who had conveyed to the ten- ant, sued for dower, and the defence was the alienage of the husband, Draper, C. J., in giving judgment for the de- mandant said, ((/) "the only title the tenant has, was derived (a) See also per Eaten, V. C, in Hodgins v. NcNeil. (b) Co. Litt., 32a. (c) Graham v. Law, 6 C. P. U. C. 310. (d) Woodward v. Dowse, 10 C. B. N. S. 722. (e) As to alienage, and the statutes and cases relating thereto, see Leith's Blackstone, 181, 190. (/) Co. Litt. 31b, and note 187, ib. (g-) Davenport v. Davenport, 7 C. P. U. C. 401 ; see also Irwin v. McBride, 23 Q. B. U. C. 570, per Draper, C. J. Who may be Endowed. 217 from the demandant's husband ; on the principle of the two cases referred to, and especially the latter, there is no doubt in my mind the defence fails." In the case referred to (a) the grantee of an alien was allowed to recover in eject- ment against the grantor of the alien who had remained in possession. The Con. Stat, of Canada ch. 8, sec. 9 is as follows : — Every Alien shall have tlie same capacity to take, hold, possess, Oon St. c.8, s. enjoy, claim, recover, convey, cleviHe, impart and transmit real ^' ofthling . ,, ,. 1 . T^ . 11 1- , nliens to tiike estate ni all parts ot tins 1 rovmce, as uatural-born or naturalized ^„j trausinit. subjects of Her Majesty, in the same parts thereof respectively. Provided alway.s, that nothing herein contained shall alter. Proviso. impair or affect, or be construed to alter, imi)3ir or affect, in any manner or way whatsoever, any right or title legally vested in or acquired by any person or persons whomsoever before the twenty-third day of November, 1849. 12 V. c. 197, s. 12. By 29 Vic. ch. IG, aliens can take and transmit by descent, 2!) Vic, c. 1«, and the Act is to be read retrospectively as part of the Act en'stotifkeaud of 12 Vic, and has a similar proviso as to vested rights. ti-finsmit by ilescnt. 2. Of what the widow may be endowed at law. To entitle a widow to dower at law (as distinct from Requisites, her right in equity, which is presently explained), the rule is that she is entitled to be endowed of all lands and tenements of which her husband was seised in fee simple or fee tail at any time during the coverture, and of which any issue which she might have had might by possibility have been heirs ; the seisin must have been a several sei- sin, and of an estate of inheritance in possession (b) ; though seisin in law would suffice, as also by Stat. 4. Wm. 4, c. 1, a right of entry or action to such estate. It will be observed that there is no necessity that is- sue should actually be born, as is requisite in tenancy by the curtesy, but the possibility suffices. There must, to entitle the widow to dower at lavj have Seisin (a) Doe d. McDonald v. Cleveland, 6 Q. B. U. C. O. S. 117, Macau- lay, J., diss. (b) Wms. Rl. Prop. 8th ed., 224 ; Watkins Conv. 9th ed., 89. 28 ' i' r 'n [ ^m 1 ?ri m f . s i^wn 1 I'M !. Am t il 1. \ 218 Of what Dower may be had at Law. Seisiu. i If" been seisin in the husband during coverture, and that of an estate of inheritance in possession ; this branch of the rule is, however, subject to an exception, created by 4 Con. Stat. c. Wni. 4., ch. 1, Con. Stat. ch. 84, sec. 2 (a), by force of which, ^^' "■ ^' if the husband were disseised before coverture and so con- tinued during coverture till death, the widow would yet be entitled to dower, but it must be sued for and obtained within the same period, that the husband's right of entry might be enforced. But if the husband were once seised during coverture, his sulise<]uent disseisin and bar by the Statute of Limitations wo\xld not operate against his widow (b). It is the necessity for seisin in the husband which excludes the widow at law from dower in trust estates of the hus- Dower out of band, of which the legal seisin is in the trustee. So a remaiuder. q\^q^ dower does not attach on a remainder in fee depen- dant on a life-estate, if the remainder-man die or alien pending the life-estate (<.') ; for the seisin of the freehold is in the tenant for life, and the remainder also is not an estate of inheritance in possession : but if a remainder or revei'sion be dependant only on a term of years, as the possession of the tenant is the possession and constitutes the .seisin of the remainder-man or reversioner, dower will attach ; and this is so also with regard to tenant by the Old form of Curtesy. It was by force of that part of the rule now under conveynnce to gon.sideration that the widow was excluded from dower uses to bar dower. under one form of conveyance to uses to bar dower, in vogue before the statute last leferred to : which form shortly stated was this ; to the purchaser for life, with remainder on determination of that estate by surrender or otherwise, to a trustee and his heirs during the purchaser's life, with remainder to the heirs aiul assigns of the pur- rhasei' in fee {d). It will be .seen imder this form of convey- ance that, though quoad the life estate the purchaser is sei- sed in possession, yet that estate is not of inheritance, and (a) Ante p. 212. (b) McDonald v. McMillan, 23 Q. B. U. C. 302. ic) Cumming v. Alguire, 12 Q. B. U. C. 330 ; Pulker et. al. v. Evans, l-tQ. B. U. 0. ;'.46. ' (d) More fully explained post p. 232. Of what Dower may be had at Law. 219 though (by force of the rule in Shelley's case) he is en- titled to the remainder, which is an estate of inhei'itnnce, still it is not an estate of inheritance in jyossesaion. If the estate be subject to a term of years granted before Lease out- coverture by way of mortgage, the widow of the mortgagor *'""* '"^ will be entitled to dower at law, with a ''etiset o.xecntio during the term {a), and in equity be entitled to redeem if she thinks fit (6). If the lease be absolute, the widow will be entitled to a third of the rent immediately, and also dower of the land with a cesset executio during the term (c). A seisin in law of the husband will be as edectual as a seisin in law seisin in deed, in order to render the wife dowable ; for it f"ffic«'8. is not in the wife's power to bring the husband's title to an actual seisin, as it is in the husband's power to do with re- gard to the wife's lands ; which is one reason why he shall not be tenant by the curtesy but of such lands whereof the wife, or he himself in her right, was actually seised in deed. The seisin of the husband for a transitory instant but not atrnn- only, when the same act which gives him the estate con- ^""""^ ''eihin. veys it out of him again, will not entitle the wife to dower ; for the land was merely in trcDisitu, and never rested in the husband. Thus, the widow of a grantee in „s ofgnintee fee to uses, in whom the use is immediately executed into *" """'*• possession by the Statute of Uses, in the cesta'i qui use, is not entitled to dower ; as if A grants to B and his heirs to the use of C and his heirs, here the widow of B shall not have dower, for the seisin of B was but transitory, the Secus, if tim same conveyance which gave him the estate also immedi- ^'^'''V' .'''^"Jed ately took it trom him by declaring a use on which the husband, Statute of Uses would operate (d). But if the land abides in the husband for the interval of but a single moment, the wife shall be endowed thereof (e) : as where a vendor exe- (a) Chisholm ▼. Tiffany, 11 Q B. U. C. 338. {) I As li redumption by u widow see post p. 22;!. (c) Prec. Ch. 250. (d) Per Esten, V. C, Norton v. Smith, in Appeal, 7 U. C. L. J. 263. (e) Cro. Eliz. 603 ; 2 Black, Com. 132. HI 5il til ml •,m 220 as on oonvoy- anoo and re- conveyance by way of mortgage. The willow entitled, but chargeable as to her nllot- nient, witli one-third of the mortgAgc. Not of part- nership pro- perty. Of what Dower may hf, had at T,a\v. cuted a deed of conveyance to a purchaser in fee, who im- mediately after such execution, re-conveyod the lands to the vendor by way of mortgage, to secure the unpaid pur- chase money, it was held the widow of the purchaser was entitled to dower (a). But in such a case the dower al- lotted will be chargeable with a third of the interest of the mortgage, unless the dowress will pay a third of the mortgage debt; and the acquisition of the equity of redemption by the owner of the legal estate,or mortgagee, will not catise a merg- er so as to preclude him as against the dowress from insisting that the mortgage is on foot and unsatisfied (b). When the parties desire (j^woarf the purchase money, to be j)lacedin the relative positions of mortgagor and mortgagee, and the wife of the purchaser declines to bar dower, the lands may be conveyed by common law conveyance; or by grant, to some third person, to the use of the purchaser and his heirs till default in payment of the purchase mono}', and on de- fault to the tise of the vendor in fee : here on the happen- ing of the event, viz., default, the use limitc^d to the vendor will arise and the fee pass to him, and the wife of the pur- chaser not be entitled to dower; for the estate is limited to the purchaser, not simply in fee, but as a conditional limitation, restricted and liable to be defeated by the very terms of the conveyance (c). As to dower in regard to mines and the like, see Boides's case, Ttid. Lg. Ca, 2. cd. 69 ; Stoiighton v. Leigh, 1 Taunt, 410 ; Rex v. Mi/Irr, Cowp. 019 ; Dickon v. Hamer, 1 Drew. & Sm. 284. A widow will be restrained in equity from claiming dower out of real estate purchased with partnership pro- perty in the name of her husband, or in the joint names of him and his co-partners, for the purpose of partnership in (a) Potts V. Meyers, 14 Q. B. U. C. 499 ; Norton v. Smith, 20 Q. B. U. C.213 ; s, c. in appeal, 7 U. C. L. J. 2G3. (i) Heney v. Low, 9 Grant, 265; see, howevnr, thu jud^jniitnl of Esten, V. C. as to the necessity of some evidence of expiost iiituntion in the owner of the legal estate to keep alive the mortgage by assignment to a trustee or otherwise ; see also as to dowor on merger. Bowles's case, Tud. Lg. Ca. p. .^S, 2 ed. (c) Watkina' Conv, 9 ^i., p. 103 anc|note, Of what Dower may bk had at Law. 221 If liusban'l, trustee or niortgiigee. trade (a) ; for such property is considered in equity as ])er- sonal estate, and therefore not liable to dower, and more- over the husband is trustee for the partners! lip : the defence also can be raised by equitable plea at law (h). So Nor in case of also if the luisband hefore marriaye had contracted to sell gpli'V'ofore or fjranted a right of purchase of, his real estate; hero, ifmarringe. the contract or right were still subsisting on the htisband's death, the widow, as against the party entitled to claim the benefit thereof, wouhl be ei^ually restrained in e(pnty (r). In these cases, as also in the case of the widow of a trus- tee, or of a mortgagee when the e(|uit3'^ of redemption is for- feited !it law but is subsisting in equity (in which case the mortgagee is still in equity considered as trustee for the mortgagor,) the widow, it has been said by high authority (ft), before the days of equitable pleas at law, is in strict- ness at law entitled to dower; for there was in the husband fill that wius required to entitle his widow to dower as- suming him to have been seised in fee ; but as remarked in one case on the point, " if the wife of a trustee or mort- gagee were to be so ill-advised as to prosecute her legal claim, equity would imdoubtedly saddle her with all the costs, and restrain the action at law." Now the flefenco could be set up by ec^uitable plea. The widow of a mortgagee will not be entitled to dower, where the estate of the mortgagee never becomes absolute, but is defeated by performance of the condition {<•). When a mortgage has become absolute, and the equity of redemp- tion is extinct at the time of the claim made for dower, by lapse of time and other circumstances, still if that state of things dill not exist at the death of the husband (the mort- gagee), and the eqtiity of redemption was then still sub- sisting, his widow will not be entitled to dower (/). («) Phillips V. Phillips, 1 My. & K. 649 ; Conger v. Piatt, 2"! Q. B. U. C. 277 ; see also generally as to partnership property, 1 White k Tud. Lg. Ca. 3 ed. IGBj Bisset on Partnership, p. 50. ( b ) Sae form of plea Conger v. Piatt, supra. (c) Parke on Dower, 106 note o. ; see post, p. 225. Id) Su:. Vond., ch. 12. s. 1 ; Lewin on Trusts, 6 ed. 2D9; Park on Dower, 100. (ej Ham v. Ham, 14 Q. B. U. C. 497. ( f) Flack V. LoDgmate, 8 Bea. 420. t! >h ft •A ' 1^ -fi* I 222 Sole seisiD. Kx(;linnge, The right in equity by Con, Stitt. 84. No (lower nt Com. law out of trust es- tates. Husband must die en- titled. Instance of estate partly legal and part- ly equitable which quali- fies. Of what Dower may be had in Equity. The right of the widow of a mortgagor is considered in treating of dower in equity. The seisin must have been a .so/e seisin ; therefore the widow of a joint tenant is not, though the widow of a ten- ant in connnon is, cntiUed to dower (u). In case of exchange of lands, th(! widow is not entitled to dower in the land both taken and given in exchange : she is in such case put to her election as to the lands out of which she will be endowed (6). Where dower is allowable, it matters not though the husband aliene or incumber the lands during the cover- ture ; for he alienes them liable to dower. 3. Dower in equity, arising by virtue of the Con. Stat., c. 84, s. 1 (c). Prior to the statute a widow was not entitled to dower out of trust estates of her husband, though they might have been equitable estates of inheritance in possession : this varied from the law jus to curtesy which gave the husband a. life interest in such estates of the wife, the other requisites to qualify the husband being present. It will be observed, the husband must die bene- ficially entitled, therefore if the husband alien there will be no dower. The old form sis above given of limitations to uses to bar dower (hereafter explained (d), and now rendered inoperative by this Act), affords an instance of that interest named in the statute as part,ly legal and partly equitable ec^ual to an estate of inheritance in posses- sion ; the first life-estate to the purchaser and his remain- der in fee being legal estates, and the intervening estate to a trustee for him being an ecjuitable estate, and the three together equal to an estate of inheritance in possession. (a) Haskill v. U. C. 497. Fraser, 12 C. P. U. C. 383 ; Ham v. Ham, 14 Q. B. (6) Co. Litt. 31 b ; McLellan v. Meggatt, 7 Q. B. U. C. 554 ; see also Towsley v. Smith, 12 Q. B. U. C. 555; Stafford v. Trueman, 7 C.P. U. C. 41, as to the proof required that the transaelion was an exchange, (c) SeB the statute ante p. 212. (d) Poht. p. 232. Of what Dower may be had in Equity. 223 A widow will be entitled to dower when the husband has Dower of an conveyed in fee by way of mortgage Ijoforo coverture, and rejemption. dies entitled to the equity of redemption ; that is, she may on redemption, claim dower. If the estate be subject t(» a term of years granted by way of mortgage before cover- ture, the widow of the mortgagor will be cnititled to judg- ment at law for her dowei", with, however, a ceHnct cxecutlo during the term {a), and she may redeem if she think fit. If the mortgage be after coverture, and the wife join to bar dower, and the husband die entitled to the ecjuity of redemption, the widow will be entitled to redeem and claim dower ; and in such case if she pay the whole mort- gage she will be entitled to the whole estate till she shall have been reimbursed the whole redemption money, less so much ihereof as shall be proportionate to her dower (h). Where the husband during coverture, made three convey- ances in fee by way of mortgage, in only the last of which (securing £111) the wife joined to bar dower, it was held on a bill to foreclose after the death of the husband by a plaintiff as holder of all the mortgages, that the widow was entitled to redeem all, aiid hold the whole estate till she should be reimbursed the redemption moneys, less so much of the £111 as should be proportionate to her dower; or if she prefeiTcd to be let into her dower on jmyment of the £111 only, and if the prior mortgages should be afterwards satisfied, to be entitled to a conveyance of the whole estate to hold till .she should be reimbursed the £111, less so much thereof .as should be proportionate to her dower (<•). But in a very recent ca.se the widow had joined in a morttrase to bar dower; the estate was sold under decree in an administration suit, and after deducting the mortgage debt there was an available surplus of le.ss than a third of the sum realized and value of the land ; it was held that the widow was entitled to have the whole surplus set apart and invested for her dower, as being entitled to have the (a) Chisholm v. Tiffany, 1 1 Q. B. U. C. 338. (6) Thibodo v. Collar, 1 Grant 147 ; Sauiiderson v, Caaton, 1 Grant 349. if) Thibodo v. Collar, supra I. 'to;! -I ■ ■■ill :|: i 'I .tli 'aLY 224 Ui|;ht to rvUeein. On husband's contract to purchase. Compulsion by widow of Of what Dower may be had in Equity, estate exonerated and mortgage paid ofi" out of personal or even real estate, as against creditors, to let in dower, and not merely to a third of the surplus as repreHentinj,' tlu> value of the equity of redemption; and th(! only assets being the surplus, the creditors were postjjoned to the widow during her life (a). If the widow have barred her dower in a mortgage in fee and the husband convey his equity of redemi)tion, or it be foreclosed, or sold under execution, she will not b<; en- titled to redeem to let in dower, for the husband diil not die beneficially entitled (/>). On a bill for foreclosure against the mortgagor and his wife who joined to bar dower, the equity of redemption being reserved to the husband, the bill was dismissed im against the wife Avith costs as an unnecessary party (o). Nor can the widow redeem, having joined in a mortgage to bar dower, as against a purcha.ser under a power of sale contained in the mortgage ; and if the husband mortgage (in fee) before coverture, though he die entitled to the equity of redemp- tion, the widow will not be entitled to redeem as against a purchaser on a sale after the husband's death, under a power of sale in the mortgage (d). The light of a widow of a vendee who, on conveyance by the Ncndor, haa re-con- veyed by way of mortgage to secure the purchase money, in which the widow did not bar dower, is befoie treateil ol" (('), as also the right of the widow of a mortgagee. Where a husband contracts to purchase in fee, and dies, the widow will be entitled to dower as against the heirs-at-law (y); and even though the contract could not be enforced in law by reason of default in the purchaser in the terms of the contract, still, if it be a contract subsisting and capable of being enforcedin equity, the widow will be entitled ( n d'»wt'i , and in such cases even be entitled to c;il' mi le pei.^un.il (a) Sheppard v. Hheppard, 14 Grant 174. (/j) Moffatt V. Thomson, 3 Grant HI. (c) MofFatt V. Thomson, supra. (d) Smith V. Smith, 3 Grant 461, (e) Ante jt. 'J 9. (/) Craig V. Templeton. 8 Grant 483. i.ll Of what Dower may be had in Equity. reprosentativt'H of the deceased husband to tulministev and pay the purcha.st' money and comi)lete the (U)ntra('t. The ea^d uu con- triict to HoU. Kiititlcd in equity to dow- er out of what nmy lie yvr- .xiiiiiil estate at law. So also hus- band entitled to curtesy out of personalty. (N'1 WW II ii ■■ n 226 Of what Dower may be had in Equity. Liable for waste. Tenant in dower is liable for ivanle. It is by no means clear that the cutting of timber for the ])urj)o.se of culti- Clcaiiug wild vatin;:^ wild lands is waste, and as regards tenancy in dovvei*, the question, since the late Act of 32 Vic, is of little impor- tance, thougu in cases of tenancy by the curtesy and other life estates it is still important (a). lanus "i flov; fur tlie id) U is iimtiifest liiat in many cases, os|ieeiully in lespoct to wild lands, EiiRlish linv of the interest of the lifii tenant nii land, and i.i:;>rovin;; and cultivating the sane according to ihe custom of flood husl)andry, and oflTpper Caiuidu. and that thereiiy the nmd was eidnine- ed in value; the main question vas not decidid, for tlie plea did not n3cessarily call for it, as it was b id in not .settin^f out that the land in fact was cleared of the trees cut down, and it was consistent witli the plea that the trees were left lyin^c to encumber the land. < ):i the one hand it may be urged that the Tendering the jiroperty more valuable will not the less prevent the ce.ttiiv^ 'iniber from being waste accordin,!^ to the adjudged cases; thu:i, the converting one species of editiee into another, though it is improved in vaLie, is waste. The [)rinciple how- ever in sueli ca.ses apjiears to be, that the tenant shall not as against the reniainder-inan or reversioner, impair the evidence, of title by altering the character or nature of the estate, as in Knglaiid at least, pro- perty is tre(iuently conveyed by specific reference to and des- cription of its character. It laay as regaids the ipiestion of ameliora- tion, perhaps also !)e urged, that though looking only at the present, the reversioner or remainder-man may be beuolite(l by bringing timbered lands into cultivation in case his estate .'shonid by di'ath of the life ten- ant shortly fall into possession, still that is matter of speculation and might be otherwise, lor the lite tenant might well live twenty or lifty years, and there can be little doubt that in such case it would have l)een far better for those in remainder or reversion that the estate should come then into their hands as timbered lauds and virgin soil, than as perhaj s an exhausted faim ; the lact also that we aie entirely dependent on foreign supply for all fuel except wood migiit be urged. Oi\ the other hand, public policy and the ii-.terests of the country reiiuire the encour- agement of agriculture, and acting on this, the ( u'tiug of timber on wild lands in order to bring them into cultivation, has, throughout the United States been held not to be waste: Washburn K.l. I'rop., 2nd ed., lOK; 4 Kent Com. 70. bi Bac. Ab. Waste, eh. 1, is this note — '"Some *ay that ploughing must be prohibited by covenant to pay so much an acre, for that al)solute i-estraint from ploughing is void." In Hob. & Har.'. Dig., title Wu.ste, ieferring to Taylor v. 'Taylor, K. T. 1 Wm. t, not reported, it • ■ said : " An iivtiini on the case for waste may he brought under G Ed. 1, ch. 5, by hini in remainder or reversion for life or years ;' and where land was deviaed for lil'u with a reservation of Of Bar of Dower. 227 4. how dower may be barred or defeated, or the right thereto conveyed. A widow may be barred of her dower not only by elope- ment, divorce, and other disabilities before mentioned, ])nt also by declining the title deeds or evidences of the estate Detinue of from the heir, untd she restores them (a). By the Statute of Gloucester (6), if a dowress aliens the Forfeiture by land assigned her for dower, she forfeits it ipf>o facto, and conveyance, the heir may recover it by action (c) : by this must be ^ utiderstood the case of a dowress conveying hy feoff me id a greater estate than, for her own life (, where the plea was nul wast, and the defendant sought to give in evi- dence that it was a(.'cor(]ing to good husbandry and for the melioration of the land, which was r<-jected as not being specially pleaded, 'J'indal, C. .1., says, — " I do not say that that wliich is prima facie waste may not be altered in its character, if under particular circumstances it should a[>pear to have been di-ne for the melioration of the lands, but if that be so, it must be expressly staled on the record." In England even the ((ue^tion as to whether the felling of certain kinds of trees be waste, de- |)ends sometimes on whether such trees be sca.it or not. Lord Coke says, f'o. Fjitt. .OUa. — " Oak, ash, and elm, these be litnber trees in all places, . . . also, in countries [meaning places in England, En.] where timber is scant, and beeches or the liUo are converted into build- ing for the habitation of man, or the like, thoy are ail accounted timber :" so that waste as to trees appears to be governed by circumstances : see also. Chisholm v. Sheldon, per lilake, ('., I (Jrant, l^ls ; Luwrence v. •fudge, 2 (ii'.'vnt, .SOI. It must bo borne in mind, there is i:i the case of a lease n^servin.; lent. ai\ argument in fa\or of the tenant, which may not exist where the estate comes by act of law. for in the former case it may be implied ("rhaps, that, the intention of the parties was that the lands niiirht lie cleared. ,<;, I'liiL on L)ower, 2'.i.">, 2'J() : see also Diaper on Dower, Sli. (b) 6 Ed. 1, c. 7. (c) 2 Black. Com. 136. (,d) 2 Inst. 309. V I "\i .f.« ' 1 1 f* I?? ( I K^^' 11' II 228 Jointure nnd ante-nuptial settlement. Definition. A bar under Stat, of Uses. Requisites of jointure. Of Bar by Jointure. would pass such greater estate hy wrong, and the penalty was forfeiture of all estate. Another method of barring dowers is by jointure, as regulated by the Statute 27 Henry 8, ch. 10, or by ante- nuptial settlement in lieu of dower. A jointure, which strictly speaking means a joint estate, limited to both hus- band and wife, but in common acceptation extends also to a sole estate limited to the wife only, is thus defined by Sir Edward Coke : " a competent livelihood of freehold for the wife, of lands and tenements, to take effect in profit or possession presently after the death of the hus- band, for the life of the wife at least." Before the Statute (»f Uses the greater part of the land of England was conveyed to uses, and the cestui qui ane then stood in much the same position as a centii! qui trust after the St;itut(', and had but an e([uitable beneficial interest. Now though a husband had the uw of lands in abso- lute fee sinjple, yet the wife was not entitled to any dower therein, he not being seised thereof; wherefore it became usual on marriage, to settle by exj»ress deed some special estate to the use of the husband and his wife for their lives, in joint tenancy or jointure, which settlement would 1)0 a provision for the wife in caso she survived her hus- band. At length the Statute of Uses ordained that such as had the use of lands, should to all intents and purposes be reputed and taken to be absokitely seised and possessed of the soil itself In consecjuence of which legal seisin, all wives would have become dowabk' of such lands as were hold to the use of their husbands, atid also entitled at the same time to any special lands that might lie settled in jointure, had not the same statute provided, that upon making such an estate in jointtire to the wife before mar- riage, she shall be forever ]»recluded from her dower. But then these four requisites must be punctually observed : 1. The jointure must take effect immediately on the death of the husband. 2, It must be for her own life at least, and not pur auter vie, or for any t<^rm of j'^ears. or other smaller estate. 3. It muat bo made tu herself, and '^\\ Of Bar by Marriage Settlement. 229 no other in trust for her. 4. It must be made, though it need not in the deed be expressed to be («) in satisfac- tion of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, she has her election after her husband's death, as in dower ad ostium ecdcsla;, and may either accept it or refuse it, and betake herself to her dower at common law ; for she was not ca})able of consenting to it during cover- ture. And if by fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted or turned oxit of possession, she shall then (by the provisions of the same Statute) have her dower p>'o tan to at the common law (h). A more usual mode, in Ontario at lesi^t, of preventing Bar by nnte- right of dower in present or future acquired property, is ^"^^ **'" "" by settlement or agreement before marriage, by which the intended wife accepts p.ny provision in her favour which is declared to be in lieu of dower in such present or future to be accjuired property ; and if the intended wife were adult at the time of the agi-eement, the inadequacy, ])reca- Though inmle- riousness, or failure of the provision for her will not pre- ^"!''®' •"■ " vent her being barred : on this point Lord St. Leonards (c) thus expresses himself — " If the present were a jointure operating as a bar under the Stjitute of Uses, [above ex- plained — FaD.] the case would have been governed by .sec- tion 7 of that Statute ; but in equitif the bar rests solely on For the hnr is contract, and my opinion is that in this court, if a woman, ^°°,j.j^Jj' ® being of age, accepts a particular something in satisfaction of dower, she must take it with ail itsfatilts, and must look at the contract alone; and cannot in case of eviction come against one in possession of the lands on which otherwise her dower might have attached ; this has nothing to do with the performance of covenants or the like. . . . My conclusion is, that the plaintiH" has accepted in lieu of dower (a) Gilkisonv. Elliott, 27 Q. B. U. C. 95. (6) 2 Black. Com. 1.38. (c) Dyke v. Kendall, 2 DeGe.x. Mac. k Gor. 20!»; see also Earl of Ruckinghnm v. Drury, 2 Eden 60 ; Corbet v. Corbet, 1 8. & S. 612 ; seo uIbo, Tud. Lg. Ca., 2 cd., p. 63, 64. i^A f k % 'i'-'A tm 230 Infants barred lit Inw by le- piil jointure, but not by aiitti-nuptial iigrcemcnt, but bound in eijuity by irood equita- ble; jointure. Bab as to Infants payment of money at least, and that she is also concluded by the acceptance of the bond, and that, though the bond was not satisfied, she has no right to resort to lands of her husband l:)Ought and sold during marriage." It must be borne in mind however, that the above remarks were made in a ease in which tlie widow wiis seeking to eti- force her dower, not against the heir at law, or a devisee, or a volunteer, but against a pun-haser for value, who on purchase was aware, and perhaps relied on the settlement and agreement of the wife to accept the husband's bond in lieu of dower. Still, however, it would appear on the whole that the acceptance by an adult woman before marriage of any provision in lieu of dower, will though it fail, bar her as a matter of contract as against the hus- band and those claiming under him. Infants mny be barred a^ law by sufficient legal join- ture under the Statute of Heniy 8, as above explained. If the joint\ire be competent it will be good though it be not of the value of the dower (a) : aiu^ though at law an in- fant may not l)c bound by her ante-nuptial agieement to accept a provisi(tn in lieu of dower, still in eipiity a provi- sion made foi- an infant on her marriage, at least if with the as,sent of her father or guardian, and in all respects as certain, secur(% ani-ecarious and uncertain jirovision, however, which she might never enjoy, though it might bar an adult on her contract to accept it as above mention- ed, would not bar in < ase of an infant (c) : thus a settle- (a) Eail of Huckinghain v. Drury, ^^ Bro. P. C, Toml. ed. 492 ; Drury v. Drury, 4 Bro. C. C. 506, note; Harvey et ux. v. Ashley et a!., A Atk. 607. (6) See cases la. lote ; Tuil. Lg. Ca., '2 ed., p. 6:i ; see also Davidson Conv., vol. 3, 2 ed., p. 728 note rt, where the law is fully dismissed ; Sugd. Statutes, J cd., 24G ; liul see Fisher v. Jameson, 12 C. P. U. C. 601, in which case, however, the provision made was precarious, insecure, and failed : see also this case in Appeal, 2 Error & Appeal Reports, 242, the remarks of Eaten, V. C. (c) Carruthei-s v. Carruthers, 4 l!ro. C. C. 500, Jl;! ; Smith v. Smith. 6 Ves. 188; Fisher v. Jameson, supra. I. BY Jointure or Marriage Settlement. 231 ment of an estate on an infant for life, after the death of the intended Juisliand and of some third person, will not be a bar as a good ecjuitable jointure ; for the third person might survive not only the husband but the wife who might therefore never take'anything. Whether a i)rovision, whieh is not valid as a tjood li'ual But if made , CI . T 1 • Ml 1 Without assent jointure under the Statute of Henry S, but is still substan- of parents? tially eijuivalent to it, would bar an infant in e([uity, if ma«.le before marriage vithout assent of her father or guardian, is not jterhaps quite clear. In one ease (a) it is said : " A female infant is liound by the settlement made on her marriage as to dowei' and thirds, not by ftn'oe ). It m.ay well be contended that the assent of parents and guardians is not recpiisite for the jn'otection of the infant, as the statute is a sufficient jnotection ; and that the absence of .such a.ssent will not, on the one hand, render an ade([uate e(piitable jointure invalid, and on the other hand, that the presence of such assent will not render an inadequate one valid. (a) Simsoii v. .loiies, 2 Ruas. & Myl. '•'>'' ; Staiiipor v. Barker et al., 5 Madd. lo7. (b) Drury v. Drury, supra, Ilarg. Co. Litt. 36 b, note 7 : Williams v. Chitty. 3 Ves. 545; Corbet v. Corbet, 1 S. & S. G12; Sugden Statutes, '2nd td. 'J-IG ; Jnniieson v. Fisher, 2 Krr. fc App. Repts. 242, per Ksten^ V. C. iri I If III 232 Assent of pa- rents not ma- terial, if join- ture bad. Former mode of conveyance ao that dower never even attached. Conveyance to Uses The acceptance before marriage by an infant of an insuf- ficient equitable jointure, or of one which has failed, would not suffice in equity, to deprive her of her legal right to (lower, though accepted with the assent of parents or guar- dians : in other words, the concurrence of parents or guar- dians will not give force to a settlement accepted by an infimt, which would not have been binding on her without such occurrence (a) ; for " a competent livelihood " is re- quired at law : an incompetent jointure, or one that turns out worthless, would not be a good legal bar, under the Statute of Henry 8, and the courts of equity proceed only by analogy to this, unless indeed they can proceed and bar as on a matter of contract, (as in the case of an adult as above mentioned), which ground is insufficient where it is an in- fant who contracts to her own disadvantage. A conveyance to a husband may be so drawn, as that he may reconvey without the dower of his wife attaching. A form of such conveyance once used, was by common law conveyance to convey to the purchaser (the hu.sband) and his heirs to hold to such uses as he should appoint, and in default of and till appointment to the use of him and his assigns during his life, without impeachment >f waste, and on the determination during the life of the purchaser of that estate, by forfeiture or otherwise, to the use of the dower trustee and his heirs, or executors and administra- toi\s during the life of the purchfuser, in trust for him and his assigns, and after the determination of the estate limit- ed to the trustee to the use of the heirs and assigns of the purchsxser. Under such limitations the husband, by exercise of the power, had full control, and if he died without exer- cising it, dower never even attached, for the only estate of which the husband would be seised in 2iosses8lon, during his life, would be the life-estate ; and the remainder in fee is pi'evented from becoming an estiite of inheritance inj^osses- (a) Simson v. Jones, 2 Rusa. & My. 377, 365 ; Field v. Moore, 7 DeO. M. & G..691, 706, 709 ; see Harvey et ux. v. Ashley et al., 3 Atk. 607 j Ainslie v. Medleycott, 9 Ves. 13 ; Earl of Buckingliam v. Drury, 2 Eden 60; Corbet v. Corbet, 1 S. & S. 612; Fisher v. Jameson, 12 C. P. U. C. 601, and the text books referred to On prior page, note b. TO BAR Dower. sion by force of the rule iu Shelley's case, and the law of merger, iu consequence of the intervening estate to the trustee (a). Such limitations as the above will however, now no longer suffice, unless indeed the husband exercised the power, I'or by Con. Sttit. ch. 84, s. 1, " When a husbaml dies beneficially entitled to any land for an interest which does not entitle his widow to dower out of the same at law, and such interest whether wholly equitable, or partly legal and partly equitable, is an estate of inheritance in posses- sion, or equal to an estate of inheritance in possession (other than an estate in joint tenancy), then his widow shall be entitled in equity to dower out of the same lands." Under such limitations as the above, the estiite, it will be observed, is partly legal and partly equitable, e(iual to an estate of inheritance in po.ssession. Another form sometimes adopted, and which can yet bo adopted with effect, so far as to enable the husband to con- vey free of dower, was to convey to the purchaser in fee (the husband), to such uses as he should aj)point, and in default of and till appointment, to him in fee ; (the limita- tions were usually more ccnnplex than as above in fee, but it simplirtes so to sttite them) (h). Under such limitations, dower docs attach, subject to be divested, on exercise of the power of appointment ; for the hu.sband, till exercise of the power is seised of an estate of inheritance in possession ; but on execution of the power, tlie appointee (a purchaser from the husband), comes in as if named in the conveyance to the husband (in consequence of the peculiar operation of such powers and appointments), and so paramount to the right of dower of the wife. The oi)eratit)n and effect of these conveyances is thus : A conveys by common law con- veyance, or by grant, to B (the husltand), in fee, to such uses as he (B) shall by deed appoint, and in default of and till appointment, to him (B) in fee ; B sells to C, and conveys and appoints the esttite to C in fee, reciting the power of 233 Now useleta by Con. Stat. 84, 8. 1. Another form can yet bo adopted under which riftht will attack, subject to be defeated. (a) Watk. Conv. 9th ed. p. 91, and notes. (b) As to the <'ovi'natit.-j for title, 1 Smith, Lg. Ca. 6th ed. p. 64. See forms of conveyances, Davidson's Conv. vol 2, 1G9-173. 30 ^■''i ■ m si; '..('1 -f Ill 1 J I ;l 'if n i 234 Dcvifc or he- (]UPSt in lieu of Uower, Devise or Bequest appointment : the whole transaction is now to be read as though by the first conveyance, A had conveyed to B and his heirs, to the use of C and his heirs ; which would under the Statute of Uses vest the legal estate and fee in C, and so paramount to the right of dower (a). Of course if B die without exercise of the power, then if the limitations be in the simple form put, the widow of B would be entitled to htiv dower, which was never divested (b). Tlio acceptance by a widow of what is given to her expressly in lieu of dower is a good bar to her claim for (o) That executions mny tlius be defeated — see infra, note b. {b' There arc probably few poinfa in the law of real property which have been the subject of more eonHictinj| weij;hty authority than that stated in the text. At one time it was supposed tluit inasmuch as an estate limited in defiult, or till exercise of a power, is a vistfd estate, and there- fore as dower did attach, that it could not be defeated by subsequent exer- cise of the power. Ii seems however quite clear that it can be so defeated ; see Park on Dower, 186; Su-n Uses, Vol. 1, p. l.')5; Preston Conveyancing, Vol 2, p. 482; Vol. 3, PI . 2ti.), 271, 494 : see also ihejirst part of the note to Watkin's Tonvey- ancuiL', 5)th cd. p. 2Hl ; and Goodill v. iJrigham, 1 B. &P. 11)2. This con- stitutes a formidable array of authority against the doctrine in the text; on tiie other hand there is no less weighty and more modern authority in its favour. Lord St. I^eonards (Sugden) in bis work on Powers, 8th ed. p. 93, reviews all the authorities, and comes to the conclusion that an estate under an appointment created as named in the text can well take effect; and of this opinion also is Mr. Coventry : see his note in brackets to the first part of the note in Watkin's Conveyancing above referred to; see also per Draper, C. J., in Lyster v. Kirkpatnck. 26 Q. B. U. C. 228. The conveyancer may avoid all question by limiting the estate by common law conveyance, or by grant under Con. Stat. eh. 90, to some third person in fee to such uses as the purchaser may appoint, and in default of and till appointment to the use of the purchaser and his heirs. It is 8uV>m'ttpd however that this precaution is quite unnecessary: see also Gorman \. Byrne, 8 Ir. C. L. Rep. 394. IN LIEU OF Dower. dower : so also if it can be clearly implied from the will that the provision was to be in lieu of doAvcr ; " it is not enough to say that on the whole will it i« fairly to bo inferred that the testator did not intend that his widow should have dower,, in (»rder to justify the Court in put- ting her to her election, it must bo satisfied that there is a positive intention to exclude her from dower, either ex- press or implied " (a). The mere gift of an annuity out of the estate will not render it coriipulsory on the widov/ to elect between it and her dower, she will be entitled to both. Parol evidence of the intention of the testator to ex- clude dower is not admissiblo. In order that the widow be barred by acceptance of the provision in lieu of dower, there must have been an oppor- tunity to elect, and the acceptance must not have been in ignorance of the provision being in lieu of dow(!r (l>). It has been said that in order that the election to take should be a defence at late, the. intention that the provision should be in lieu of dower must be ex[)ressed on the face of the will, and not left to be gathered or inferred from it, in which latter case, before eipiitable jdeas were allowed at law, it was said the defence was in eijuity only (c). In the latter case therefore it will be fidvisable to plead the election by way of e(puta,ble plea (d). Accojitance by the widow of a conveyance from the heir- at-law in lieu of dower, is a good bar, so also of a bond (c). The action for dower ttnde nihil luihet might be barred by the Statute of Limitiitions, Con. Stat. ch. ), which in such ease gives her dower in virtue of such right in her luisband. limits the period of suit for dower to that within which such right mijiht be eidorced. By Con Stat. ch. 88, s. 18, " no urrear.s of dower, or daniiiges on account of such arrears shall be recovered or obtained by any arrcaiBofdow- action or suit for a longer [teriod than six years next before the yuTs. cfj|„i,iein;(;„u.i,t of such action or suit." Dower may also be barred by deed of the nuirried wo- man executed as reijuired by the statute authorizing thi.s mode of bar (0). Prior to the Stat. 37 Geo. 3, eh. 7, the mode of bar waa by line or recovery, that by fine being the nu)st usual. Fines and recoveries were abolished with other real actions, except in dower, by 4 Wm. 4, eh. 1, Con. Stat. ch. 27, s. 78, and the statutory bar above remains. The in- iti Begley et ux. v. St. Patrick's Association, 2H Q. B. U. C. .TJ.5, and by Siuaru V. C, in Marshall v. Smith, .34 L. J. Ch. 181», which is tlie only Kngiish case on the point, aiidLaing v. Avery, 14 Grant, 315. In Leach v. Shaw, 8 Grant, 494, Esten, V. C, expressed doubts as to dower bein^ within the act by reason of the definition given to the word '* land" in ib" interpretation clause, which he said seemed ''studiously framed to excji.d ■ such an estate" ; he thought however, that dower might he within tlic- general meaning of sec. 1 of the Con. Stat., and held himself bound by ih« two cases first cited. In those cases a difficulty was felt in holding dowei' to be within sec. 1 inasmuch as sec. 2, which proposes to define the perioils at which the rights barred by the act shall be deemed to have first accrued does not take in the case of dower. It has been held, however, that this will not prevent the application of sec. 1 ; James v, Salter el a!., :t B. N. C, 644; Grant v. Ellis, 9 M. & W. 124; see also 4 Rep. 2 a. (a) Per Draper, C. J., in Begley v. St. Patrick's Association, supra. That the Statute of William applies in cases of dower, sec supra, uotej'. (b) See the Statute, ante p. 212. (c) See the Statute, ante p. 212. Relkahk nv Dkf,i> rNDF.R Con. Stat. Ch, 84. convenience of the mode of bar by fine iiuluceil the Legis- lature at an early period to intro(hice a more simple mode of liar; tlie first Act, 37 (>eo, 3, eh. 7, by analogy to the mode of bar by fine recpureil an <'Xamination in all ea.ses. Hy subsetpient legislaticm however, examination is no longer reiiuisite where the Imsband is a jiarty to the dcefl, but continues rccjiiisite when Ite is not a party ; a dis- tinction based on no sutficient reason, and wliich, consid- ering the object of the exanunation, should nither be the other way (n). A married woman cannot without the eonciirrciice of her husband, notwithstanding exanunation and ccrtiticate under the dower acts, release her right to dowi'r in lands of her dcciased former husband (h). And it is ap|ireliend- ed, although this was .so deci(h'd before thv ("on. Stat. ch. 73, settling the property of married women t(j their sepa- rate u.se, and a!th(»ugh the right released is a mere right of ai^tioji, and no estate in the land, that even Hince that act, the husband should be a party (c). It may be (pjestiou- al>le also whether such a relcjuso would be valid if exe- cuted under the Stat. 25) Vic. ch. 28, s. 22, which authorizes a relea.'-e under a ])owcr of attorney from a n)arried wo- man, there being an exandnatioii and certificate imdorsed (»u the power as recpiired by the dower Act (»/). This (piestion of ir/f'dsr of tlu' rifjfd of dcfion to the tenant of tlu> freehoM is of course very diHerent from that ol' (issi;,{) ic) Sac ri'iiuirks as to (Ion. Slat. ch. 85 ; see also per A. Wilson, J., Miller V. Wiley etui., 16 C. 1'. U- C. 542, and Heward v. Scott, 2 Cooper, Cliii. Chiini Ucp. 274. (d) See as to execution under a power of attorney from the wife, the remarks on the Slat. 29 Vic. ch. 'IH, s. 22, in treating of Con. Stat. ch. 85. 237 The early ncln as to Imr. HflciiKc by niurrU'd wo- niiin of do w IT in Iniids (it 'locciised hUM- bund. Assignment of the right to a stratiger. • *H SI 288 Informal Certificates aided I S " ppciMionfi a* • arkiiowlt-Jg- mentsnnd cer- tificates. «2 Vic 0. 7. 8. 23, remedim irifnrmalitiea in certificates, Qiiestious BridiDg on s. 23 of 32 Vic. Ob. 7. Wha( is meant by joining m a deed to release doner. the freehold (a), and yet that the right should not be, as it has been held not to bo (b), assignable to a stranger. Many (»f the decisions on Con. SUit. eh. H'l (c), enabling married women to convey their real estate are applicable to this act as regards the effect of the language of th(> certificate ( named in those sections after a.s well as before the passing the act ? As regards the first ])oint it is to be observed the Con. Sbi! . s. 4 authorizes a married woman to bar by joining wiiji her hufiband in a deed in which a release of dower is eon • (a) Ante pp. 74, 75. (fc) McAnnany v. Turnbull, 10 (iliaiit, 29H ; see however, p. fiO, note c, and p. 70 ; see also post p. 240. (r) See the cases commented on in treating of that Act, p. 260. (d) Monk V. Fariinger, 17 C. P. U. C'.41 ; Stavner v. Applegatc, s ( . P. U. C. 451 ; McNally v. Church, 27 Q. B. U. C. 1(J3. (e) Monk v. Fariinger, supra ; Jackson v, Robertson, 4 C. P. U. ( . 272 I Allison v. Rednor, 14 Q. B. U. C. 451) ; McCammon v. Bimu prfe. 25 Q. B. U. C. 41y joining with the hu.sband in a deed, there must be an examination and aeknowledgenit-nt (the necessity tor whieli in that ea.se more than the other is not apparent) (a). Now where the wife ji. ins witlj the lui.sband no acknowledgement is requi- site, and it is well known in practice that in the great majo- rity of cases, where acknowledgement is recjuired by section 0, it is when the wife executes alone joining with no one ; if therelbre, this section is to be read according to its .strict grununatical construction, as applying where the claimant joined in a deed to relea.se ilower, and .so relate oidy to the joint execution named in section ') of the Con. Stat., it will fail to take in the majority of cases, viz., those of .sole execu- tion by the married woman, foi- which tliere was the chief necessity to provide. What the Jjcgislature intended to jtrovide for were the cases wherein a married woman with- out rcleoiiiiuf (loivcr (h),y>'u\vA with her husiunul as a con- veying Jiarty of the land itself, (and there were many such conveyances), and also those cases whei-ein her husband, who conveyeil by a separate instrument, was no party to the relejuse, and the neces.sary acknowledgement was defec- tive. This .section also presuppo.ses that the inchoate right to dower wiis not alone the subject matter of the purcha.se, but that .some intere.st of the husband was chieHy involved as to which the wife was extinguishing her right {r). In order that arelea.se l)y deed poll shouhl be within the Act, it would re(iuiro that the words "joined in" should receive a iliH'erent construction as applied to such a release, to that which it has as applied to conveying with the hus- («l Sc-e lemiiiks of Robinson, C J., in Iliiwurd v. Wil.son, 9 Q. B. U. C. 4J0. (t) Such a conveyance, without ii releasf of dower therein, would not be within ihe power conferred on married women to bur dower by '2 Vic. ch. 6, s. 3, Con. Slat. ch. 84, s. 4. (C) Miller v. Wiley et al., 17 C. P. U. C. 368; s. c. 16 C, P. U. C 62U ; ante p. 69, n. c. and p. '237. 23d m A ! .■' '.''if; 'Til : 1^ : 1:1 1 'rim m M ' l! 240 \ 'bat iamennt by the words " purcliacpr for value." Docs sec. -■> virtually ubol- ish necessity for future ho- knowledg- lueiitN? 32 Vrc. Ch. 7, Section 23. band, and that in the former case they should be read as "executed," and probably they would receive that con- utructiou. As rej^ard.s tlie extent of signification of the words "pur- chaser for valut'," it may be observed that the fornwr Act of 124 Vic. cii. 40, s. 1!), which is worded much as .scctiiMi -3 of this Acv, referretl merely to a "purchaaei;" it would seem, howevt.-', that the variance is n(tt material, oulcss, indeed, the word "purchaser" in the former Act must bo taken, not in its ordinary acceptation, but in its strict legal sense, as including any one who come.s to an estate by his own act or agreement and nut by descent, and so include a volunteer (a). The Registry Act speaks of" pur- cha.ser or mortgagee for vabnible consideration," and the Act of 27 Kliz. ch, 4 of purchaser" f(tr money or any good consideration," and the decisions un, 27; .Su<^. Vend. Mtli c ; Hill v. Ui.shop of Exeter, 2 Taunt. G9; Douglas v. Ward, 1 Ch. Ca. 7'.>. A<) to the amount given to consti- tute value in referonce to the worth -if the property, see 1 I*. W. 282 ; Wilson V. Shier, G (irant C:iO ; Dee v. James, IG East, 212 ; tiug. Vend. 13th ed. riH7, note g. See also Persse v. Persse, 7 CI. & F. 317; Owen V. Owen, 3 H. & C. 88. (c) Miller v. Wiley, supra. /'^^^ The Bower Act of Ontario, 32 Vic. On. 7. 241 ant joined in a deed," 8zc. The commencement of this section would be broad enough U> operate ou deeds exe- taitod af'ti^r the Act and so hit in the necessary consequence, viz., that nil longer is any acknowledgment re(|nire). the freeholJ. li-2 VIC. CH. 7. An Act to Altku the Law of Dower, and to Regulatk i'uocekdintjs in actions for the recovery (>t' DowEU IN' Uf'peh Canada. Her Majesty, by atid with the Hclvice and consent of the Log- i.slat:ve A.s.seml»ly of Ontjirio, enacts as follows: — 1. The twciityoiglith cliapter of the ConsolicJated Statutes ot (Jon. St.ii. U. Uppci- (. Hn:ula, intituled: An Act reapecting the procedure j'^ ^ ■ *'; -^ "'"' Actions of DoweVy and the Act j/tLsaeJ in the twenty-foiirtli year npeiiicii of Her ^b>jesty'.s Keign, intituled : An Act /or (he better assign- ment of Dower in Upper CuiKulii, are repealed a[)on, frori luui after the day this Act shall cotne into force. 2. All actiuiiH of right of dower or of dower Jimfe nihil hahet ^^,.- j. sliiill ho brought atid carried on accordingj to the prov'sioMM i>l Jmvor j^overii- this Act. cdi,:,thi.,..u-.t. 3. Dower ali.ill not be recoverable out of any separutc and dis- d^wit not le- tinct lot, tract or parcel of land, which, at the time of the alien- covernijlo out ation by the hu^bimil or at the time of hi.s deati'., if he died seized ^^ nutuiu (a) Dwarri.s on Statutes, 530. (6) Ante, pp. 09, note c, 70, 7C, 237, 238, and o. 257. 31 'li III .• . / ^I;i 242 The Dower Act of Ontario, &c. when aliened, t'uereof, waa in a aUitt: of nature, and unimproved by clearing, fencing o. lytherwise for the purposes of cultivation or occupation, l>ut this shall not restrict or diminish the right to have woodland assigned to the demandant under the thirty-first section of this Act, from which it shall be lawful for her to take firewood neces- sary for her own use, and timber for fencing the other jiortions of land assigned to her of the same lot. tract or parcel. The latter part of tins .section considerably enlarges its ettect. Under thejfirst ])art, if any portion of the hind had, prior to alienation by the hu-sband or his death, been ini- ])ri»ved, tlie widow wouhl not be deprived of w' light to dower she had under the former law, whii^ii yave pos.sibly the right to clear woodland for th' purpose of actual cultivation (a). Thus, if three acres out of a lot <>f ninety-nine acres had been iniprovid, tlu' wiiluw would have been entited to dower out of the uniniproveil a.s well a.s the improved ])ortion, and all rights of citaring for I'ul- tivati(»n tlie wild portion which might not have been deemetl waslc. Tlie latter part of tins section however, apparently by implication restiuins tlu? right to clear any of the unini]»roved i)ortion, even though such clearing, under tlie old law, might not be deemed wa.ste. Action to be OOminPtioeiJ by suniiiioiis to piirty in pu-iM«!jnii>n. •1 Every action for dower shall be coninienced by writ of .siim- ni(i"s and shall be addressed to tin? person in aetnal iiossession of the land, out of wliif 'i dower is claimed and to eve>y other pc'r- .son who is tenant of the freehold of the same lanarty defendant shall be mentioned, and the land or property out of wliiih dowi'r is clainier, such notice shall contain a further statement that the de- mandant claims damages for the detf^ntion of her dower from some day to be stated in the Jiotice. S. Any defendant named in the writ may appear within the time appointed and with the appearance, may Hie a notice ad- dressed to the demandant setting out that he denies that he is Dute of writ, whence isHii- ableand wheft returniilile Notice endors- cil thereon. Where do- niiindiint cliiims damng- es for deten- tion, &c. Defendant may appear and deny ten- ancy, &o. I'M. m '>im .1'' 244 Effect of np- poHrance without de- nial. The Dower Act of Ontario, tenant of the freehold of the lands mentioned in the writ, which denial shall as against that individual defendant be taken to admit the claim of the demandant to dower as stated in the writ. 9. Any defendant named in the writ may appear within the time appointed, anil, by filing an appearance without siicli de- nial, shall be taken to admit that h? is tenant of the freehold and shall not afterwards he allowed to deny the same. 10. Every tenant in itossessiun who is not also tenant of the , freehold and who is served with a writ under this Act, shall tuled as de fendnnt. Ti-naiit inpns- HPfHion not nlno tenant of . . ,. , /• , • i ,■ , , i freehold to no- lorthwith give notice thereof to his landlord or other pei-son under tify landlord, whom he entered into ])08sess!on, under the penalty of forfeiting the value of three years' improved rent of the premises in the |)osst's.sion of such tenant, to the pei-son under whom he entered IVii:ilty. into jMJSsession, to be recovered l>y action of debt to lie brought in either of the Suj)erior CouiU* of Common Luw in Ontario. LniMJIord may 11. The landlord or other (lersun under wliom such tenant, as apply to court jg mentioned in the next preceding sectitiu, holds or entered into to be substi- . ...,,, , • , , . ,. , pos.session, may, if he has not been served with the writ of dower, apply t« the Court or a Juilge upon athdavit, that he is tenant of the freehold, and is advised and believers ti'iat there is good ground for disputing the demandant's claim to dower, and the Court or Judge may, after summons to or rule ujion the demand- ant, order that such applicant bu substitute 1 as defendant in the action, in lieu of the tenant in jMmsession, upon such conditions as shall to the Court or Judge appear just. If no person in 12. If no person be in acttial occupation of the lane's of iictiial occu- ^)^jpi| ^j,e demandant claims dower, the writ shall nevertheless pation, how _ _ ' writisserved.be served on the tenant of the freehold, who shall be named therein. Writ to be 13. The writ of summons may be served in Ontario, and the served per- g^^vice shall be penwmal whenever that is pmcticable, but the Bonally except ' , ... in certain demandant may, on affidavit, apply from time to time, either to the Court out of which the writ issued or to a Judge of either Court in Chambers, and if it a|)pear to such Court or Judge that rcoonable efforts have been made to effect personal xeriice, and either that the writ has come to the knowledge <>f defenoant, i>r that he wilfully evaded service of the same, and has not appeared thereto, such Court or Judge may, by ruU' or onler, grant leave to the demandant to proceed as if personal service had been ef- cascs. 32 Vic. Ch. 7. 245 fpcteil, subject however to such conditions as to the Court or Judge Heenis fit. 14. In all cases where tlie tenant of the freehold resides out of Ontario, the deniandiint may issue a writ of suninions in the form above set fortli by giving a sufficient number of days, not less in any case than twenty -one for the defendant to ajipear, ac- cording to the distance of the place of the defendant's residence, and having due regard t«» the means of and rea.sonable time for postal or other communication ; which writ of summons shall bear the same indoraement and notice or notices iw the writ of summons hereinbefore set forth, making such changes as the nature of the ciuse renders indis|)ensiible. 1.5. Upon the Court or Judge being satisfied that such writ has been pei'sonally served u|»on the defendant, or that rea.sonalile efforts have been made U) effect personal service thereof on the defendant, .so resident out of Ontario, and that it came to his knowledge, and that he has not appeared, such Court or .fudge may from time to time, direct that the demandant may proceed in the action in like manner as if the defendant had been served under this Act in Ontario, subject to such conditions its to such Court or Judge may seem fit, having regard to the time allowed to the defendant to ap|)ear, being : easonable, and to the other circumstances of the ca.se. ir». Any defendant named in the writ, may within the time appointed, file an ap|>earance ami acknowledgement that he is ten- ant of the fioehold of the land named in the writ, together with his consent that the demandant may have judgment for her dower therein, and may take the ])roceedings avithorized by this Act lo have the same ai»signed to her, unless the parties shall otherwise agree, and he shall forthwith .serve the demandant or her Attor- ney with a c(»py of such appearance, acknowledgement aiid eon- sent, together with an affidavit of the day ot the entering and filing the same in the propn- oflfice, and in every such case when the defendant so admits the right to recover, the demandant may enter judgment of seizin forthwith, and may obtain a writ of a.s- .signment of dower in manner hereinafter specifi'vl, but slie shall not be entitled to tax or recover the costs of suit or entering such judgment against the defendant. 17. Tn cnse an appearance be entered with a denial by the de- fendant that he is teinmt of the freehold, the demandant may at How writ iT!»y be serveil where tenuiit rei'iilos out ' 11(1- poanince mid acktiowlfclge tenancy. Judf^uicnt i)f seizin iirnl writ nf ns.sijtii- ment thereon •:.illi ; .';i • O'il '■M m Proceedings when nppear- ' M}! 240 The Dower Act of Ontario, i only iippoar anco e Forraof deols ration. anoe and de- once and without further pleadings take issue on that deninl and inal filed. make up nu issue book, setting out tJie writ, the appearance and denial and the issue thereon, and may give notice of trial and jirocecd to trial as in personal actions, and if she obtains a verdict she shall he entitled to co.sts and to enter judgment of seizin of her dower, a> against such defendant. Procccdingsif IS. In case only an appearance he entereil, the demandant may utered "*' '""^ derlar(>, and when damages are claimed in the writ, they may also be claimeil in the declaration which may be to the effect following : In the {the style of the Court) County of I ,p, 11- , o to wit: I 1''" ^'«y"^ 1« A. B, widow, («« the case mny be) who was the wife of 0. B. deceased, by her Attorney, demands against (the defen- dant) the third part of {the Imid and premises as described in the writ) with the apjairtenanees in the {tmnnship, f a, Judge in such mattei-s, and also the rules of (^)Uit, from time to time in force relative to pleading and practice, shall, so t"ar as they can be made appli- calde, and are not at variance? with this Act, be in force and apply to and regulate the course and j)ractice of pleading and proct;- dure in actions of dower. 20. Special ca.ses may be stated by leave of the Court, or a Judge in like manner as in other actions. 21. In estimating damages for the detention of dower or the year'.y \aliie of the l:i ids, fur the purpose of r.\iii:,' a Nearly sum of money in lieu of an assignnuait of dower by metes and bounds- To what ex- Spvcial cases, Mode of esti- niikting dam- ages for de- 32 Vic. Ch. 7. 247 m the value of permanent iniin-ovcinents made after tlie alienation tention of of the lands hy the huHlmud or after the death of the hn.sliaiid •'o'^*f> *o. Khali not Ite taken into aeeoniit, hut such d!iina;;es or yearly value Hhali he istiniat«'d iipdn tlie state nf the property at the time of Hiic 1 alienation or deatli, allowinj^ for the s^eneral rise, if any. in the priee and valut; ol land in tiie particular locality. SoiiR' r tinj writ ?^',^^^/^f^*",|J^ of assiirnnient of dower after iudtrinent, and (s. 31) for Hxini; whenhusbnnd ii yearly valtie in lieu oi assii^nnicnt l)y metes and ''<»niids, jj^y jg jggj do not aj)ply (see s, 42). 'i'lie Act of 24 \'ic. wliich as to an aniiuity in lieu of dower has provisions somewhat aiialo<;(Jus to the late Act, ditl not iipply as respects such provisions when tlie husband died before bstli May, 1!SG1, and i.s more- over repealed. Tlie 24th .section of the late Act provides that /H'liduijj actions may be cirried on U) jiuhiuivut as if it had not been ]»as,s(!d. Section \'\ enacts tliatin cases not otherwise provided for, the ])Ieadint,rs and proceedinj^s shall be regulatcil as they were before lOth August, LS.jO (l.'i k. 1 4 Vic. eh. 58, (. 'on. St. ch. 28). The question may arisi; there- fore luivv far where the husband w lieing allowed (ft) Svio also remarks under section 24, and as to the old law, dower uiidcluina;{cs in regard to iinproveaieiits, sco Parle on Dower, 2..)tj, .301 ; Hiirg. Co. Litt. :r2 a, note 8; Norton v. .Smith, 20 Q. B. U. C. 213; Buck V. McCiUlum. 13 C. P.U. C. IG3; Kobinet v. Lewis, Draper's Hep. 272 ; Bishoprick et ux v. Pearce, 12 Q. B. U. C. 30C. 1 1 ii ■ :f'. i is ! i 1 \i 248 The Dower Act of Ontario, (lower out of improvements were considered, and that case appears to conflict as to the old law with the auth(trities in our courts. It was there held that the widow was entitled to a third in value, estimating the value »is it was at the time of the jissignment, though they had heen inipnn-ed in value after tlu; conveyance by the husband by buildings erected thereon. And that though since the conveynnce by the liu.sband, the lands had passed into the hands of various person.s, and one third at least had not been huilt on, she Wius entitled to dower out of the lands in jHwse.ision of each person. Time for 22. No action of dower hIihH he brought Imt witliin twenty bringing ac- yeai-s from the deutli of the husband of the deinandiint tion. '' This section was be+bre treated of (<(). Cases where 23. No such action shall be licreafter niaintiiined, in ease (lie action not to Jeniandant has joined in a deed to convey the land or to releaw be maintain- •' ■' ed, her dower therein to a purchaser for value, although the acknow- ledgment required by law at the time may not have been made or taken, or though any informality may have occurred or happened in the making, taking or certifying such acknowledgment. This section was before treated of (ft). Tending ac- 24. All actions of dower which shall be pending at the time tions may be ^j^j^ ^^.j. g\^^[\ gome into force, may be continued and earned on to coutinued. ... -^ i • » judgment in like manner as if this Act had not been passed. It must be boi'ne in mind that this section is limited to jiroceedings before judgment. After judgment this Act Avill apply, except where the husband died before IHth May, 1861, when sections 26 to 40 will not apply (s. 42). In such latter case the proceedings on the execution must apparently conform to the old law as it existed before 24 Vic. ch. 40 (as that Act by its sixteenth section will not apply and is moreover repeated) except so far as such old law may be controlled by sections 3 and 21 of this Act (f). It may be also that sections 26 to 40 will not apply where the writ of execution has issued before the Act. (a) Ante p. 236. (i) Ante p. ni'. (c) See also observations as to section 21. .32 Vic, Ch. 7. 25. Unless where it is in this Act expressly dcclurcd to the contrary, costH Hhall be taxed and allowed to, and bo recovemblo by cither party, in an action of dower, in like manner as in |)urHonal actions, and writs of execution to levy the »unie, with dun)agef>, where damages have been adjudged, may tie sued out and executed im in personal actions. 20. After judgment haa been rendered in the demandant's favour to recover dower, whether with or without costs or dam- ages, she shall be ttntitled to sue out a writ of assignment of dower, founded upon auch judgment, directed to the sheriffof the County in which the lands lie, in which writ shall be ^et forth the lands out of which the demandant has recov(!red judgment to recover her dower. 27. The Sherilf, on receipt of such writ, shall by writing under his seal of iilfice, ap[»oint two resident freeholders of his County who are n(*''d on the assessment roll for real estate of a vahu^ not less than two thousand dollars each, and a licensed deputy pro- vincial surveyor, and each of whom would in other respects be eligible to serve as a juror between the parties named in the .said wi'it, to be Ctunmissioners to admeasure the dowei", and the Sheriff shall in such writing .set out a copy of the writ of a.s.sign- n»ent, and shall name therein a day cm or before which the Com. missioners shall make and return to him a report of their proceedings, ami determination in the execution of the duty a.ssigned to them. 28. In case of the dtsath of, or refusal by, any or all of the Commissioners so ajipointed. the sheriff .shall, from time to time, in like manner, appoint another or others tt) perform the duty of such as die or lefuse. i 29. Every Commissioner ,so apjKiinted shall, before entering upon the execution of his duty, take and subscribe an affidavit in the form or to the etlect following, which oath any jwrson d\ily authorized and ajuiointed to tike affidavits in the Superior (Courts of Common Law, is hereby empowered to admini.ster, and the said Commissioners .shall annex to their report the affidavits sworn by them, and return them to the sheriff. "1 , do swear that I am not of kin to the demandant {ii'mif'tif/ hfi>-) nor to the defendants (iiaming h!m or ihevt) nor in any way interested in the lands out of which the as- signment of dower is to be made by me, and that I will honestly, 32 249 When costs recoverable. EfTc'ct of judg- ment tor lie- lauDilaut. StierifT to np- point Coni- iiiis!ceitain im- pruveinviila, &c. ; nnd where CouimisHion- era cannot assign bounds, &c., to assess a yearly sum. Thk DnwKii Act of Ontarfo. iuipurtiitlly, and to tho bent of my Hkill Hiid ability, execute and |ioi'tbi-m tho duties iini)08cd M]H)n mo by the appointment of £8quirc, Sheriff of tho county of , as a Commissioner for tho adiui'as\ircnient of dowor iK'twccn tho said demandant and tlio riiiid ddendantH lu-coi-ding to law." .'10. A ftor taking and HubHcribing Hueh afTidavit, the Commis- sidnci's and oach of them nhall, for all purpoHeH in the fulfilment of tho dnticM by law reriuired of tht-ni, be considered m ofiicerH of the Court outof which the writ of aHsignnient in imned, and shall be entitled to the same imniunitie.H anliiti<>n to the same, such evidence to be reduced to writing and taken upon oath (which any one of the Commissioners is hereby authorized to administer), and to be subscribed by the witncRs «>xaniin*>d ; 4. Ruch yearly sum shall be a lien u|M)n tlie lands mentioned in the writ of assignment, unless the Oonimissioners specially direct otherwise and make the same issuable and payable out oi some specific ]>ortion of such lands, and the same Hliall Im- re- coverable by distress as for rent or by action of ilebt against the ttmant of the freehold for the time being ; 5. The rejHirt of the Commissionei's shall be in writing, sul)- Hcribed by them and directed to the Sheriff and shall contain a full statement of their proceedings, and, where th»! dower is as- signed by metes and bounds, shall distinctly ]>oint out and de- iMiribe the same and the {)osts, stones or other monuments desig- nating the boundaries, and, for the pur|iose of plantinij; and marking such ]x>sts, stones or monuments, they may, if necessary, employ chain-bearers and labourers. 32. The Sheriff may in his discretion u|x)n the recpiest of the Comroissionei-s, enlarge the time for making their report, for not more than ten days, and he shall, within twenty-four lioui-s after the receipt thereof, endoi-se thereon the day and hour of s\ieli receipt, and he shall then forthwith return the writ of admeas- urement of dower, together with the re|>ort and all papers an- nexed thereto, to the ottice wherein the suit was commenced and carried on, and the Depiity Clerk of the Crown, into whose ollice such writ and other papers have been retiirned, shall, on the ap- plication of either party, transmit the same to tht( ])roper prin- cipal office in Toronto, in like manner, and on the same eon ditions as he is recpiired to transmit any record of A'/,s/ J'rins and subject to the same liabilities, in owe i»f his default. 33. Either party may, after the expiration of ten days from the filing of the Sheriff's return to the writ of assignment, pio- vided such ten days have elapsed before the fii'st day of the ttsrm nex^. after such filing, and if not, then within the fiitst four days of the succeeding term, apply for, and the Court may graiit a Kvidence to be on nath. .SucliBumtobe alipiionlniidfi, iinU'Hu other- wine direoled. Report of CoiiimisHion' CTH. Slicriir niny pnlnrKC time for report. Ilei)ort to bo returned to Deputy riorlt ol Crown. Hither party may apply to set aside re- port. •i » /J 'a c^: el ''^M c>1 *> V' o /A 7 Photographic Sciences Corporation iV d V ^ ^4 ^ ^ ■-% F.:» % 'V^ ^^^ 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 Order of Court thereon. Eff -ct of re- port being moveil iigninst for miscon- duct, &c. 252 The Dower Act of Ontario. rule calling upon, the the opposite party to shew cause why the Commisioners' report should not be set aside upon gi-ounds appar- ent on the report and papers filed therewith and upon such other grounds, as the Court may see fit, the same being supported by affidavit and every such ground being set forth in the rule ; and the Court after hearing the parties may order tlie report to be varied or amended, if in their judgment they have sufficient mat- ter before them to amend by, or may annul and set aside the report and may appoint three new Commissioners or direct that the Sheriff shall do so, and such new Commissioners shall have the same powers and execute the same duties and be subject to the same conditions and responsibilities as are in that behalf hereinbefore expressed, and the report of such nt'w Commission- ers shall be treated as if no other rejiort had been previously made and shall be dealt with and proceeded upon accordingly. 34. If the report is moved against upon the ground of any misconduct or fraud on the part of the Commissioners, the Court may, in its discretion, make them j)arties to the rule, and if wilful misconduct or fraud be established in the opinion of the Court, the report may be set aside and the Commissioners be ad- judged to pay to the parties injured all the costs which have been incurred and have been rendered useless by such misconduct or fraud, and all the costs of the rule to set aside the report, and such payment may be enforced by the like pi-ocess and proceed- ings as are or may be in use to compel a Sherifi" to pay costs of any rule or summary proceeding against him. Costs of rule. 35. The rule to set aside the report may be discharged, with or without costs, and the Court may order the party at whose instance, or on whose complaint or representation, the Commis- sioners may have been made parties to the rule, to pay such Commissioners their costs of answering the same, and if the rule be discharged, or if the report be not moved against within the projjcr time, or if the Court refuse to grant a rule to shew cause, the report shall thenceforth be final and conclusive on all parties to the dower action, and a copy of such report certified by the Clerk of the Cro\vn, under the seal of the Court, shall be regis- tered in the Registry office of the County or place where the lands lie, for which service the Registrar shall be entitled to receive one dollar. Demandant 36. After such registration the demandant shall be entitled to Copy of report when finnl to be registered. 32 Vic. Ch. 7. sue out a writ directed to the proper Sheriff, commanding him to mny then sue put her into jjossession of the lands and premises assigned and nossraaion admeasured to her for her dower, and to levy all such costs as by the judgment and any rule of Court, or either, shall have been awarded to her against tiie tenant. 37. In case judgment shall have been given against the If judgment demandant and costs l)e awai-ded to be i)aid by her to the defend- ^S*")^' "®* \ M 11 mandant de- s /* ant by such judgment, or by any rule ot Court, such defendant fendant may may Lssue a ,wi"it oi' fif-ri Jacias to recover the same. issue//, /a. 38. In case it is desired by either party to produce any wit- Mode of pro- nesses before the Commissioners, such party may, on a])plication curingattend- to the Court out of whicli the writ of assignment issued, or to any nessea before Judge of either of the Superior Courts of Common Law, on affi- Coraraiasion- davit that the evidence of any such witness is necessary, obtain an order commanding the attendance of any such witness before the said Commissioners, and, if in addition to the service of such order, an appointment of time and place of attendance in obedience thereto, signed by one of the Commissioners, be served on the person whose evidence is required either with or after the service of the ordei-, non-attendance shall be deemed a contempt of Court, and shall be punishable ac;ordingly, but the jierson required to attend, shall be entitled to be paid the the same fees, allowance and conduct money as if he had been subpojnaed as a witness in an ordinary suit, and no witness shall be obliged to attend more than two consecutive days. 39. The Commissionera shall be entitled to receive from the Commission- demandant the sum of four dollars for each day's attendance, not, *"' '^^^*' however, to exceed two, and may also charge at the i-ate of twenty cents for every hundred words for drawing up their report, and ten cents for every hundred words of each copy furnished by them to either party. 40. The demandant shall pay tht? cost »)f suing out and the By whom cost of the Commissioners in executing tlie writ of assignment of •'°!''' *° ^® dower, and making the report thereof, but each ])arty shall pay their own costs of witness"s, or of attorney, or counsel, attending before the said Commissio.iers. 41 . The demandant and the tenant of the freehold may, by any Demandant instrument under their respective hands and seals, executed in the *°^ tenant presence of two credible witnesses, agree upon the assignment of "" 8< Li 1 1*'' I 'i Ml 'vK I I i i: ,11 \m I 5 1 Tt: 254 The Dower Act op Ontario. upon assign- ment, &c. i in Sections 20 to 40 not to affect certain cases. Mode of proceeding where not pre- scribed. Sliort title. dower, or upon a yearly sum, or a gross sura to be paid in lieu and satisfaction of dower, and a duplicate of such instrument proved by the oath of one of the subscribing witnesses, which oath any Commissioner duly appointed for taking affidavit may admin- ister, shall be registered in the Registry office of the county where the lands lie, .;nd shall entitle the demandant to hold the land so assigned to her, against the assignor and all parties claiming through or under him, as tenant for her life, or to distrain for, or to sue for, and recover in any Court having jui'i.sdiction to the amount, the aimiial or other sum agreed to be paid to her by such tenant of the freehold, and such instrument so registered thall be a lien upon the land for such yearly or other sum, and shall be a bar to any other action, suit or proceeding by the de- mandant for dowei- in the lands mentioned thei-ein. 42. The several clau.ses of this Act, numbered from twenty-six to forty, both inclusive, shall not apjjly to or affect cases in which the right to dower became consummate by the death of the hus- band, before the Eighteenth day of May, which was in the year of our Lord one thousand eight hundred and sixty-one. (a). 43. In all cases not otherwise provided for by this Act the pleadings and proceedings^ shall be regulated by the law as it was in force in Upper Canada, relative to suits and actions of dower, before the tenth day of August, which was in the year of our Lord one thousand {eight hundred and fifty (6). 44. This Act may be cited as The Dower Act of Ontario, and shall take^eflfect upon, and^from and after the first day of Febru- ary next. («) See observations under ss. 21, 24. (6)|See_ob3ervations under S8. 21, 24. Con. Stat. Ch. 85. 255 m CON. STAT. CH. 85. An Act respecting the Conveyance of Real Estate by Married Women. Prior to the Act of 43 Geo. 3. ch. 5, the only mode by which a married woman could convey her estate or any interest therein was by fine or recovery, except as to leases under the St. 32. H. 8, ch. 28, hereafter referred to. That statute of 43 Geo. 3, recited that no express provision had been made for levying fines in the Province, but there can be no doubt that fines and recoveries were introduced with other real actions and forms of procedure by the 32 Geo. 3, ch. 1 : they were abolished with other real actions, except on dower, by 4 Wm. 4, ch. 1 ; Con. St. ch. 27, s. 78. The various enabling statutes all required an examination of the married woman by analogy to the examination re- quired on levying a fine, but as regards the certificate of such examination, they would appear to be merely directory till the Act of 1 Wm. 4, ch. 2, under which the deed was expressly declared not to be valid unless the certificate were endorsed ; and the next Act of 2 Vic. ch. 6, first made the certificate prima fo.cie evidence of the facts therein stated. ' SECTION 1. 1. Any married woitihii seized of or entitled to Real Estate in Upper Canada, and being of the age of twenty -one yeai-s, may, biibject to the provisions hereinafter contained, convey the same, by deed to be executed by lier jointly with her hitsband, to such use and uses as to her and her husband may seem meet. 59 G 3, c. 3, s. 1. ; 2G. 4, c. 14. What interests in real estate are capable of being con- veyed under this Act, whether where the realty is directed to be converted into personalty, or where the interest is a At com. law conveyance by married women was by fine or reco- very. The early sta- tutes prior to 1 W. 4. c. 2 merely direc- tory as to cer- tificate. Act of 2 Vic. first made cer- tificate evi- dence. Married wo- man of full age may con- vey. Whatinterests in real estate can be con- veyed. W u "i !l m ^1 M 2,56 Con. Stat. Ch. 85 — Joint Execution. Cnses as to joint execu- tion, exanii nation, &c. mere charge, or is a roversioiuiry chose in action, and other- wise, is considered in treating of Con. St. ch. 73 (a). Where a conveyance by husband and wife was executed by each in a different place but so far as appeared on the same day, and it was duly certified by two Justices as required by this Act, this was held to be a joint execution within the Act ; and Draper, C. J., said that he did not imderstand that the deed must necessarily be executed in j)resencc of the husband (b). A conveyance was dated the 2()th October, 1834, and the certiticate shewed it to have been executed, or at least acknowledged as executed by the wife, on 17th November, 1834, it was held that even if the deed were open to an objection that the examination was after the execution, that such defect was cured by 22 Vic. ch. 35, s. 2 (s. 11 of this Act) ; and as regarded the joint execution, the Court recognized the case above referred to, and held also that the production from the proper custody of the deed 30 years old proved a joint execution according to the purport of the deed (c). If the husband be not named as a party to the deed, then though he execute, and be referred to in the deed as husband of the wife it will not suffice (d). Must certifi- The certificate is required by ss. 2 & 3, to be on the day cate be given of execution of the deed, and if this means the day of joint on day of . . , ./J joint execu- execution by both husband and wife, then apparently both tion by bus- jmjg^ execute on the same day : if however the day of bund and wife? .. n , i, r. -ii execution is to be referred to the day of execution by the wife, there is still no decided case expressly shewing that execution by the husband on a day prior or subsequent to that of execution by the wife would suffice. The preamble of the Stat. 2 Vic. ch. 6, bears on the question. It is to be observed that .section 4 does not enjoin certifying on the day of execution. Whatever may be the law on the sub- (a) Post p. 275. (6) Burns v. McAdam, 2i, Q. B. U. C. 449. (c) Monk V. Farlinger, 17 C. P. U. C. 41. (d) Doe d. Bradt v. Hodgins, 2 Q. B. U. C. 0. S, 213 ; Foster v. Bjall, 15 Grant, 244 ; but these cases would not be conclusive against a deed executed under a power of attorney from the wile to which the husband was a party pursuant to 29 Vic. c. 28, s. 22. 29 Vic. Ch. 28, Section 22. 267 ject, the parties will not be precluded by the date of the deed from shewing that in tliith it was executed by both husband and wife, or either, on a day differing from the date : and possibly where the date of the deed and the certificate vaiy, still if the certificate states in the body thereof that the conveyance was executed on the day of the examination aixd certificate, it would, since 2 Vic. ch. G, be sufficient prima facie evidence that the deed was executed by the woman on that day so as to rebut the presumption of execution by her on the day of the date of the deed ; still however the presumption would continue as to the husband, and the question of joint execution would remain. Considering the cases before refeiTed to it may be where a conveyance is executed by a husband and dated of the day of such execution, and the wife executes and is examined and the certificate given on a subsequent day that it will suffice. The question of joint execution of the deed of convey- 29 vio, c. 28, ance is somewhat affected by 29 Vic. ch. 28, s. 22, authorizing "• 22, as to ex- execution by the wife under a power of attorney, the wife of power language of which would imply that where the husband °^*"°'"®y" is a party to and executes the power, he need not be a party to or execute the conveyance, and that if he execute " ' the latter he need not execute the former. The section is as follows : , A power of attorney executed b^ a married woman for the sale or conveyance of any real estate of or to which she is seized or entitled in Upper Canada, or authorizing the attorney to exe- cute a deed barring or releasing her dower in any lands or heredita- ^ ments in Upper Canada, shall be valid both at law and in equity ; provided, (1) that she be examined and a certificate indorsed on the power of attorney, as required in regard to deeds and con- veyances by a married woman, under the Consolidated Statutes for Upper Canada respectively, intituled : An Act respecting Dower, and An Act respecting the conveyance of Real Estate by Married Women : and provided (2) that her husband is a party to and executes such power of attorney or the deed or other in- strument executed in pur.snance thereof, where the power is for the sale or conveyance of her real estate. 33 !i,P'^ H^^ !' I k i ' 1] i \ 1 • m >i 'I il 258 Con. Stat. Ch. 85, Sections 2, 3, 4. It would seem that the second proviso relates only to the case cf convej^moe of real estate, and if so, then the act is silent as to execution by the husband in case of release of dower by the wife by deed poll to which he is no party. In such case, irrespective of this section, examination and certificate thereof endorsed on the instrument is requisite (a) : and it is not perhaps quite clear tliat such , a case is contemplated or taken in by the act, and whether it does not relate solely to her "joining with her husband in a deed or conveyance in which a release of dower is contained," (b), as named in Con. Stat. ch. 84, s. 4, in which case the act gives authority which did not before exist. As regards conveyance of real estate the act implies that if the husband execute the deed he need not execute the power and vice versa. It is by no means clear that section 5 of the Con. Stat., making the certificate prima facie evidence of the facts therein stated would apply to a power under this section. It may be proper where a power to convey is given under this section to add in the certificate before the Avords "without coercion, &;c.," the words, " and to give and execute the within deed." The judges in The Judges of the Court of Chancery have no power to have no'^power ^^^ ^^ examination under the act. to examine. ^.^^^,„.., „ SECTION 2. How to con- 2. In case such married woman executes such deed in Upper rlnaHa Canada, she shall execute the same, in the presence of a Judge of one of the Courts of Queen's Bench or Common Pleas, or of a Judge of the County Court, or of two Justices of the Peace for the County in which such married woman resides or happens to be when the deed is executed, and such Judge or two Justices of the Peace (as the case may be) shall examine such married woman ap?\rt from her husband respecting her free and voluntary con- sent to convey her Real Estate in manner and for the purposes expressed in the deed, and if she gives her consent, such Judge or Justices s? r.ll, on the day of the execution of such (a) See ante 237. (6) See Miller v. Wiley, 17 C. P. U. C. 371, per A. Wilson, J. Canada. Con. Stat. Ch. 85, Sections 2, 3, 4. 259 deed, certify on the back thereof to the following effect : 59 0. 3, c. 3, 88. 2, 3,-1 W. 4, c. 2, s. 1,-2 V. c. 6, s. 1,— 14, 15, V. c. 115. " I, {or we, inserting the name or names, &c,) do hereby certify that on thi8 day of at the within dged was duly executed in my (or our) presence by A. B., of , wife of , one of the grantors therein named, and that the said wife of the said , at the said time and place being examined by me {or us) apart from her husband, did appear to give her consent to convey her estate in the lands men- tioned in the said deed freely and voluntarily and without coercion or fear of coercion on the part of her husband or of tiny other person or persons whatsoever. w- • > SECTION .3. 3. In case any such married woman resides in Great Britain How in Great or Ireland, or in any Colony belont-ing to the Crown of Great Britain or Ire- ,,..,, _T ,t ^ 1 ^1 1 land, or in the Britain other than lJp|)er Canada, and there executes any such colonies. » deed, she shall execute the same in the jjiesence of the Mayor or. Chief Magistrate of a City, Borough or Town corporrate in Great Britain or Ireland, or of the Chief Justice or a Judge of the Supreme Court of such Colony ; and such Mayor or Chief Magistrate, Chief Justice or Judge (as the case may be) shall examine such married woman, apart from her husband, touching her consent in manner and form and to the effect specified in the second section of this Act, and if she thereupon gives such con- sent, such Mayor or Chief Magistrate, under his hand and the seal of the City. Town or Borough, or such Chief Justice or Judge under his hand, shall, on the day of the execution of such deed, certify ou the back thereof to the effect hereinbefore men- tioned in the said second section. 59 G. 3, c. 3, ss. 2, 5 — 1 W. 4, c. 2, s. 1,-2 V. c. 6,-14, 15 V. c. 115. SECTION 4. 4. In case any such married woman resides either temporarily jj^^ j^^ f^^_ or permanently in any State or Country not owing allegiance to eign states, the Crown of Great Britain, and there executes any such deed, she shall execute the same in the presence of the Governor or * other Chief Executive Officer of such State or Country, or in the presence of the British Consul resident in such State or n\ II If;. '.1^ .41 260 Con. Stat. Ch. 8.5. Country, or in the presence of a Judge of a Court of Record of such State or Country, and sucli Governor, Chief Executive Officer, Consul or Judge («s the cine inai/ be) hHhII examine Huch married woman apart from her l)UHV)aii(l, touching lu-r conHcnt in manner uml form and to the effect H|)ueitied in th v. Vernon that the deed with the certificate upon it, coming from the proper custody, proved itself; and that from the fact that the possession of the land had gone in accordance with it for more than thirty-one years, it would be presumed that the deed as produced had been properly executed, and that everything done by the Justices a,s public ofticers, had been rightly done until the contrary was shewn (a). Where the certificate signed by two Justices of the Peace omitted to state in the body thereof any place where the execution of the deed, dated in 1857, or the examination of the married woman took place, but in the margin, the county was given as the })lace wherein the Justices were authorized to act, it was held tTiat it sufficiently complied with the statute (6). Where the certificate endorsed on a deed, executed in one of the United States in 1859, was given by a person described as a Judge of the District Court in that State, and under the seal of the court, but it was not stated in the certificate (which would have been enough), ta) Monk v. Farlinger, 17 C. P. U. C. 41 ; see also Orser v. Vernoti, U C. P. U. C. 573. (6) Robinson v. Byera, 13 Grant 388 ; Simpson v. Hartman, 27 Q. B U. C. 460 ; see also Monk v. Farlinger, supra. 2fil n ('>. i 'i ttr M iii 262 Con. Stat, Ch. 86. or (jthcrwiso proved, tbat hucIi ('ourt \vii.4 a Court of Record it wits hold, in.siiffioient, (o). VVhero tho quostioii was whether a deed by a married woman liad been executed with tho requisite formalities, and some evidence was given to show that it had been acknowledged before a Judge of a Superior Court here, it was held that the jury were rightly directed, if they should find that the deed had been so acknowledged, to presume that it was done within the proper time (/;). The certificate endorsed on a deed bearing date 18th May, 1856, was that at the Court of general Quarter Sessions, holden at, &;c., " on Tuesday, the 16th day of May, 1856, per- sonally appeared the within named S E, wife of the within named D E, and being duly examined, &c.," in the usual ' form, it was held sufficient, for it should be assumed that the 16th was the first day of the sessions, which might have been continued, and the certificate signed after the execution of the deed. Semble, per McLean, J., that de- fects in such certificate, or even the omission of it alto- gether, would not invalidate the deed if it were proved that the acknowledgment was in fact duly taken (c). A certificate under the 2 Geo. 4., ch. 14, signed by the chairman, and countersigned by the clerk of the peace, and endorsed on a deed, that on, &c., personally appeared C B, within named, and being personally examined in the presence of, &c., justices of the peace, &c., touching her consent thereto, and did appear to this Court to give the same freely and voluntarily, without any coercion on the pai-t of her husband or any other person. Held, that such ' certificate, though deficient in form, was good in substance (d). A certificate which did not state that the woman was examined " apart from her husband," and no proof of that fact being given on the trial, was held insufficient (e). (a) McCammon v. Blaupre 25 Q. B. U. C 419. (6) TiflFany v. McCumber, UQ. B. U. C. 159. (C) Allison V. Rednor, 14 Q. B. U. C. 459. (d) Jackson v. Robertson, 4 C. P. U. C. 272. (e) Stayner v. Applegate. 8 C. P. U. C. 133. Sections 2, 3, 4. 263 m A conveyance of land in the Eaatem District, by a mar- ried woman, executed on the 8th October, 1821, had endorsed upon it this certificate : " Personally appeared this day, in open session, the within named E B, wife of J U, who heini,' duly examined toucliiii;,' her consent to alien and depart with her lands within mentioned, declared that she freely and voluntarily, kc. Given under my liand, in (ipeii Court, this 10th Octol)er, IH21. (Signed), Joseph Anderson, Chairman." It was proved that Joseph Ander- son was chairman of the Sessions, being usually chosen so, thony:h not the Juilj'e of the District Court. The defend- ant objected that the certificate did not state tliat she ap- peared and was examined in open Court, nor that it appeared to the Court that she freely, &:c., nor that the Court was held in and for the Eastern District ; nor did it appear that she was then over the age of twenty-one ; it was held, (the execution of tlie deed being proved by its age), having regard to the intention of the Legislature to do away with tlie effect of informalities, (C. S. U. C. ch. 85, s. 13), that the certificate with the evidence was sufiiic- ient (a). The certificate on a married woman's deed, twenty-five years old, signed by two justices, was as follows : MiuLAND Di.sTBicT, ( " Be it remcmbercd, tho.t on the 8th To Wit: (May, 1845, R G, wife of the within named L G, who being examined by us, separate and apart from her said husband, touching her consent to surrender and give up to the within named H L, his heirs and as.signs, all her right and title," &c., tfcc. ; it was held sufficient — for, 1. It was immaterial that the certificate was not endorsed on the deed, but written in the margin on the face of it. 2. The venue sufficiently shewed where the examination took place : and an admission which was made of the Justices' authority, must be taken to mean their authoi'ity as Justices for that district. 3. As the names of the two witnesses to the deed were the same as those of the ,(iri M. : (a) Morgan v. Sabonrin, 27 Q. B. U. C 230. t\ 'i 264 Con. Stat. Ch. 85, Sections 5, 6, 7. I! I Justices, and the handwriting similar, and the date of the deed and certificate the same, it might be inferred that the execution took place in their presence. 4. The words " suiTender &rA yield up" were equivalent to the statutory , • phrase " deport with." The motion being for a non-suit, as there was thus evidence from which a jury might have found the requirements of the Acts complied with, the rule was discharged («). Certificate to 5. Every certificate given under this Act, shall be jn-ima facie be evidence gyijence of the facte therein stated. 14, 15 V. c. 1 U, s. 2. prima facie. ' ' Sec. 5 should This section should refer also to 2 Vic. ch. 6, s. 2, under "yicV6 8°2 which also the certificate is 'prima facie evidence. The prior to which earlier Acts have no such provision as to certificates were not^evi- granted under them. The cases bearing on this section dence. are before referred to. 6. It shall not be necessary for any Judge or other Officer who may certify in any of the foregoing cases, to attest a.s a subscrib- ing witness, the execution of any Deed upon the beck of which he may so certify. 14, 15 V. c. i]5, s. 1. The officer certifying need not at- trjtaa a wit- ness. If not duly ex- 7. If any such Deed of any such married woman be not exe- ecuted, the cuted, acknowledged and certified as aforesaid, the same shall not deed shall not ' «. be valid. be valid or have any effect. 14, 15 V. c, 115, s. 2 — 1 W. 4, c. 2 s. 1,-59 G. 3, c. 3, s. 5. In the statute as printed, reference is also made to 59 Geo. 3, ch. 3, s. 5, which is a mistake, as that act has no such clause, and the error is not unimportant (h). It is quite clear that before the Statute of Wm. a joint conveyance by husband and wife of her estate, and of the in- terest of the husband, invalid for non-compliance with the is^vaiid'to pass f^^^^li^i^s as to examination, (fee, enjoined bj' the statutes, husband's in- is void also to pass any interest of the husband (c). The terest. (a) Simpson v. Hartman, 27 Q. B. U. C. 460. (i) See, per McLean, J., Allison v. Rednor, 1 i Q. B. U. C. 459. • (c) Deed. Dibble v. Ten Eyck, 7 Q. B. U. C 600 ; Allan v. Levea- conte, 15 Q. B. U. C. 9 1 but see per Esten, '''. C, Gillespie v. Grover, 3 Grant. 689. How far con veyance by husband and wife, invalid IMF' Section 7, its effect on the Husband's Estate. acts of 43 Geo. 3, ch. 5, and 59 Geo. 3, ch. 3, expressly en- acted that " nothing in such deed contained shall have any force or effect to bar such married woman, or her said hus- band, or her heirs, unless," &c. The language in the sub- sequent statutes is different ; it is, " such deed shall not be valid or have any effect unless," &c.; and it has been said (a), that this may make a difference, and that under those statutes the interest of the husband may pass as at com- mon law, though the deed is void as against the wife and her heirs ; but this again has been denied (b), and in this conflict of views the author does not presume to give any opinion. It is to be remarked however, that the statutes are enabling statutes, and to empower the estate of a married woman to be conveyed, there was no necessity to empower the husband to convey his interest ; and it may be argued that where these enabling acts declare that the " deed shall not be valid or have any force or effect what- ever," this means quoad only the interest as to which they were enacting and authorizing to be conveyed. Something perhaps might be urged by reason of the change of lan- guage in the later acts, and the omission of the name of the husband. A recent case in England bears on the question. A lease was made by husband and wife for seven years of lands of the wife, in April, 1860, containing a covenant by the lessee and defendants as his sureties to pay rent during the term. The wife did not acknowledge under 19 &; 20 Vic. ch. 120, s. 32, which gives power to married women to dispose of her estate in lands, " save and accept that no such dis- position — shall be valid and effectual unless the husband concur in the deed by which the same shall be effected, nor unless the deed be acknowledged by her as hereinafter directed." The lessee entered, and occupied till August, (a) See per Blake, C, Wallis v. Burton, 5 Grant, 354; and per Rich- ards, C. J., in Doran v. Reid, 13 C. P. U. C.400| alsothe views of Eaten, V. C, in Gillespie v. Qrover, supra, and MofiFatt v. Grover, 4 C. P. U. C. 402 ; and Beattie v. Mutton, 14 Grant, 688, per Spragge, V. C. (fi) Farquharaon v. Morrow, 12 C. P. U. C. 313, per Draper, C. J. j Allan V. Levesconte, 15 Q. B.U. C. 9. 34 265 r r". I I ■^■'}\ *i'\ Mm '■'HI "I ill I "4 ^ji 266 Con. Stat. Ch. 85, Section 7. 1866. The husband died in January, 1866, and the wife in January, 1867. The executors of the wife sued on the covenant to recover rent accrued due in June, 1866. It was contended that no action could be brought on the cov- enant, as the lease was void as against the wife, and the term stipulated for was never created, and Swatman v. Amber, 8 Ex. 72 (a), was relied on. The Court referred to the fact that there was nothing to shew that it was con- templated the deed should be acknowledged so as to make it conclusively binding on the wife and her heirs in case she survived, nor but that the leseee and the defendants were willing to take a lease executed by husband and wife at common law. At common law of course the lease would be good against the husband during coverture. It was held that the covenant bound the defendants, as the lessors had executed the deed, so as to pass the term for which the lessee and the defendants were to be taken as having contracted for, viz., a term for seven years, terminable at the option of the wife on death of the husband during the term; and that as the wife had done nothing to avoid the lease but allowed the lessee to retain possession, the lease was subsisting up to her death, and the plaintiffs could recover (b). Where the It has been suggested also that whatever may be the vord merely '* ^^® ^""^ ^ passing the interest of the husband, where the conveyance by him and his wife is not in accordance with the formalities of the act as to examination, &c., that there may be a distinction where the deed is void as to the wife by reason merely of her nonage, and in such case the deed will not be void as to the husband (c). Where the husband by his own deed to which the wife is no party, conveys his own interest in the lands of his wife, such deed is not open to the objections arising out of the statutes (d). (a) See post, chapter on mortgages. (h) Toler v. Slater, L. R. 3 Q. B. 42. (c) Doran v. Reid, 13 C. P. U. C. 400 per Richards, C. J. (d) Would such coaveyance be valid to pass any estate as tenant by the curtesy to a stranger, if made before birth of issue and before 14 because the wife la a minor. II:. Con. Stat. Ch. 85. 267 I It is apprehended that even though the conveyance by Liabilities of husband and wife should be invalid to pass any estate of h"/ooy^nan. either, that the covenants for title of the husband, if any, for title, where are valid as matters of contract ; and that a grantee for validTo pass ' value might after eviction recover adequate damages on estate, the covenant for quiet enjoyment (a), or enforce specific performance against the husband to the extent of his in- terest on the covenant for further assurance. The nature of the interest of the husband in the lands The interest of of his wife at common law, and under the Con. Stat. ch. 73, in lands onhe both as regards his marital right during the joint lives of w''® himself and his wife, and as tenant by the curtesy ini- tiate, and consummate on death of the wife, is treated of in considering the Con. Stat., ch. 73. Such interest, and the validity of conveyance of it, is of importance in the not uncommon case of conveyance by husband and wife of her. inheritance and his interest in it, void certainly as to wife for non-compliance with the act. The question of necessity for compliance with the terms Question of of this act on a conveyance by a married woman of her |^!fe*to°di8-* estate which is settled to her separate use either by virtue pose of her of the Con. Stat. ch. 7o, or by deed or devise, is treated of peny*ns a™' in considering that statute, as also her power to devise /""« '"'« , without ex- SUCn estate. amination.&o. A release under the Registry act by a married woman Release of of a mortgage to her is considered in discussing the laws """Kag®- as to mortgages. Probably this act virtually repeals the act of 32, H. 8, Leases under ch. 28, under which husband and wife by indenture can ' demise for thi'ee lives or twenty-one years, so as to bind the wife and her heirs, under certain conditions and res- trictions. The point admits perhaps of doubt as the acts are all enabling acts. & 15 Vic. ch. 7, s. 5, Con. Stat. ch. 90, allowing conveyances of contin- gent interests. See observances on that act, p. 70 and on the questioD of conveyance of contingent right to dower, p. 69, note c. 78. lO) As to damages recoverable, see p. 1 04t it '\H m tm . If. I 'if : 14 268 Con. Stat. Ch. 85. The deed not to haye great- er effect than if ebe was eole. Fee for certi- ficate Recital. Certificate under former nets to be va- lid.thougl) the justices were not resilient in tlie county or district in which the married wo- man resided. Certificate to be valid tho' given subse- quent to the execution of the deed. 8. No deed of a married woman executed according to the pro- visions of this Act shall have any greater effect than the same would have had if such married woman had been sole. I W. 4, c. 2, 8. 2. 9. The sum of one dollar may be demanded for every such cer- tificate. 59 G. 3, c. 3, s. 2,-1 W. 4, c. 2, s. 4. 10. And whereas it is expedient to provide for cases in which, before the Fourth day of May, one thousand eight hundred and fifty-nine, informal or erroneous certificates had been indorsed upon Deeds conveying real estate executed by married women jointly with their husbands, as well as for cases in which such Deeds had been executed in presence of and certificates endorsed thereon by non-resident Justices of the Peace, or in which certi- ficates had been endorsed on such deeds subseqtient to the execu- tion thereof : Therefore, Whenever any certificate on the back of any Deed executed before the said Fourth day of May, one thou- sand eight hundred and fifty-nine, by any married woman, pursuant to the Act of the Parliament of Upper Canada, passed in the first year of the reign of his late Majesty King William the Fouith, chapter two, or pursuant to the Act of the said Parliament of Up))er Canada, passed in the second year of Her Majesty's reign, chapter six, has been signed by two Justices of the Peace, such certificate shall be held and is hereby declared to be valid and eifectual for all the purposes contemplated by said Acts, although the said Justices were not at the time residents of the District or County in which such married woman resided ; and every Deed executed before the said Fourth day of May, one thousand eight hundred and fifty-nine, in the presence of such Justices, and every such certificate so signed shall have the same force, validity and effect as if the said Deed had been executed in the presence of, and such certificate had been signed by two J ustices of the Peace of the District or County in which such married woman at the time of the execution thereof resided. 22 V. c. 35 (1859) s. 1. 11. When any certificate on the back of any Deed executed by any married woman, pursuant to the Act in the last preceding section first mentioned, had, before the said Fourth day of May, one thousand eight hundred and fifty-nine, been given on any day subsequent to the execution of such Deed, such certificate shall be deemed and be taken to have been given on the day on which the said Deed was executed ; and such Deed shall be as good Con. Stat. Ch. 85. 269 and valid in law as if such ccrtiticate had been in fact signed on the day of the execution of the Deed to which it relates, as re- I m 1 i ! 272 This Act not to prevent seizure in exe- cution in cer- tain catb' con- by the instrument under which she takes, directed to l)e ' for her separate use, is subject to some difficulty. Thus, if lands are conveyed or devised to trustees to be sold, and half the proceeds to be paid to the wife ; or the interest of the proceeds are to be paid to a third persop for life, and after his death half such proceeds to be paid to the wife ; and till sale in either case the rents and profits to be j)aid over, as the interest would be paid if sold : or where a third person takes the legal estate for life, and after his death the lands are to be sold by trustees, and apro])ortion of the proceeds paid to the wife : what jjower is there in either case to dispose of the interest of the wife f If the proceeds are to be held for the sepai'ate use of the wife for sepantr without restraint on anticipation, then, as hereafter ex- ""*• j)lained, she may convey as a feme sole, whether her inter- est be in possession or reversion (a). But if the separate use were iiot created by the instrument, but only by force of this act, then, regarding the wife's interest as an interest in personalty, as it is by force of the direction to convert, her power so to dispose of her interest, even though not re- versionaiy, is by no means clear (b). And where the interest, coming within the protection of this act, is revevslonavy, Reversionarv though the lands be not sold, it would seem it does not so in^'rest far savor of the realty that conveyance by husband and wife executed and acknowledged pureuant to the Con. Stat. ch. 85, would suffice. The cases in England, establish- ing that a married woman jointly with her husband by deed executed and acknowledged pursuant to the Imperial act $ »i iff! *5: <'i3f 11 ' lil (a) Lechmere v. Brotheridge, 9 Jur. N. S. 707, per Sir J. Eomiliy ; Keene v. Johnston, 1 Jones & Carey, Irish Rep. 255. (fr)See Chamberlain v. McDonald, 14 Grant 447, per Mowat, V. C, post p. 278. i 276 POWKR TO DISPOSK OF CHOSES IN ACTION, &C. Oporntion of this act as a marriage set- tlement. 3 & 4 VVm. 4, ch. 74, can convey a reversionary interest in realty directed to be converted into personalty, and which can only reach her as such, do not appear to be applicable here. That act (sec. 77) gives power to a married woman to dispose of any estate in her lands of any tenure or in money, subject to >ie invested in the [turchase of lands (whidi money in etpjity island), providing the disposition shall not be valid unless the husband concur in the deed of disposition, antl it be acknowledged as required by the act. By sec. 1, the word estate extends to any interest, charge, lien, or incurid)rance, in, upon or aflecting lands at law or in cijuity. Under that act, where a married woman wiis entitled to a fund to he raised out of real estate on the death of a tenant for life, it was held that a deed executed during the life of the tenant for life, by her and her hus- band, and till' parties entitled to the estate, and acknow- letlged under the act, would not bar her right in case she survived (a). In later cases tliis decision has been overruled, and it h settled that by deed under the act a reversionary interest of the wife in realty directed to be converted can be con- veyed (b). These cases are grounded chiefly on the ex- tended signification above referred to given in the word estate. The Con. Stat. ch. 85, however gives to the words " real estate " and " land " no signification beyond their usual import, and it may well be contended that the wife's reversionary interest in realty, which can only reach her as personalty, cannot effectually be disposed of. Draper, C. J., in reference to this act has observed (c), " I think it may be said to operate by making a marriage settlement for every woman, who, having property of her own, has married since the 4th May, 1859, without any marriage contract or settlement ; and also for every woman who on or before that same day, having property of her (a) Hobby v. Allen, 15 Jur. 835, 20 L. J. Ch. 199, s. c, (h) Briggs V. Chamberlain, 11 Hare 69 ; Tuer v. Turner, 20 Bea. 6G0 ; see as to conveyance by the wife, or husband and wife, of her interests, Shelford Stats., 7 ed, p. 389, 396 ; Davidson Conv. 2nd ed. vol. 2, p. 112, note. (c) Commercial flank v. I^ett, 24 Q. B. U. C. 555, FowKH TO Convey as a Femk Sole. 277 own married without such contract or settlpmcnt." Section 10 Hhoiilil not bo ovodooked in considering sections 1 &; 2, for the latter part thereof has an important hearing on the subject matter (»f the first sections. In a, c»Ke wherein it was held that notwithstanding this The wife act a married woman could not convey as a fnne hoIv, then; ^""""* ^•'"^''.v are some remarks as to the effect of section 18 on seetions without cnni- 1, 2, & U), as follows: "The wife in this case took the f';;;";;';;^''!;..^ (istate )>y I'orce of the deed from her father. Being a married woman at the time, her husband, if there was issue of the marriage, would have an inchoate right as tenant by the curtesy ; and the l.'Hh section of the net appears to us intended (o go furtlier, and to recognise that by virtue of the marriage the husband ac([uired other estates or interests in the wife's real estate, for otherwi.se the provision that such estate or interest should not be subject to his debts would be useless. During the wife's life liis estate or interest as tenant by the curtesy would not bo consunuuate, and cftidd not be made so subject, and therefore we appre- hend the statute must refer to the estate he has as being jointly seised with his wife, and in her right, during' the coverture, of hei- real estate, and then lie is a neces.sary party to the conveyance of .such estate" { ) m in her but not for separate M use by force of this act, or otherwise. 2nd. Where only the equi- table interest is in her, not for her .sepa- rate use. ■ ' \- lu^t-;^: 3rd. Where legal estate is ■ : i ■ ; ;./ in the wife, i'-f'" and is for sep- / 'i' arate use by . force of this act. !' ; tl : . ' '■'' 1 '^;i 280 Power to Convey as a Feme Sole. tl ' or by the instrument under which Bhe takes, Conveyance by the wife if invalid at law to pass legal estate may be valid in equity to pass equita- ble interest where separ- ate use is cre- ated other- wise than by the not, 4th. Where legal estate is in trustees for separate use of the wife. passed in the same session : Con. Stat. ch. 85 makes no mention of this : but from Bank U. C. v. Brough (a), it ap- pears that the original act can be looked at to guide in con- struing the Consolidated Statutes, at least if there be no direct conflict of expression. It must be admitted that in favor of her right to convey ss. 4 & 16 afford an argu- ment, by enacting that no conveyance or will of a married woman shall deprive her husband of his tenancy by the cur- tesy, but as before remarked, section 4 on that point would appear to have little meaning in it. It has however, been decided that where the wife has in her the legal estate for her separate use by force of this act, that to pass the estate at laiv the Con. Stat. ch. 85 must be complied with (b). And where the legal estate is held by the wife for her sepa- rate use otherwise than by force of this act, then also to pass the estate at law chapter 85 must be complied with. Where on a conveyance for value the estate should fail to pass at law for non-compliance with the act, and the separate use is created otherwise than by the act, still on the principles which govern (c) in the foui'th case now next to be considered, such conveyance might be recognized and enforced in equity as a good disposition by the feme of her equitable interest. It would appear, however, that it would be otherwise where the separate use is created V>y force of the act, for the jus disponeiidl which a married women possesses of property settled to her separate use by will or instrument inter vivos is withheld by this act (d). In the fourth case, it is now settled that the Con. Stat, ch. 85 will not apply, and that in equity the conveyance by the wife as a feme sole by deed or will to the extent of her interest in fee or otherwise, is a good disposition of the trust which the trustees must obey (e). (a) 2 Err. & App. Rep. U. C. 101. (b) Emrich v. Sullivan, 25 Q. B. U. C. 105 ; see also Royal Canadian Bank v. Mitchell, 14 Grant,412: Chamberlain v. McDonald, 14 Grant,447. (c) See Sugd. Concise View, 147 ; Smith Rl. Prop. .3 ed. 107C. ((/) Royal Canadian Bank v. Mitchell, 14 Grant, 412. (e) Taylor v. Meads, 11 Jur. N. S. 166: Lord Chancellor overruling Buckell v.Blenkhorn, 5 Hare, I'M, and Lechmere v. Brotheridge, 32 Bea. 353 ; see also Hall v. Waterhouse, 11 Jur. N. S. 361, V. C. Stewart. Power to dispose by Will. 281 Fifthly, a married woman has in the first and second 5th. Power of cases no power to devise, her common law incapacity re- nhove'cases to mains (a). In the fourth case she has such power (b). In dispose by the third case ; as to that branch of it which refers to the *' legal estate being vested in the wife, and held for her sepa- rate use otherwise than by force of ch. 73 ; it would seem that the same principles which govern, iis above mentioned, in the case of conveyance inter vivos, in determining whether the legal or e(piitable estate would pass, also gov- ern as regards disposition by will, and that the wife can devise as she thinks i^roper. As regards that other branch of the case which refers to the legal estate being held by the wife for her se])arate use, by force of this act, the act must govern ; it limits somewhat the right to devise by requiring that it be exercised first in favor of children, and dispenses possibly to some extent with the formalities re- quired in other cjises on execution of a will ; its language is as follows : SECTION IG. 16. From and after the said fmuth day of May, one tliousaiid Married eight hundred and fifty-nine, and hereafter, every niairied woman "<"?''■" '"^^ ° . 'J devLso or hv- niay, by devi.se or be(|iie.st executed in the jjreatince of two or more qucath hor witnesses neither of whom is her hu.sband, make any devise or s^P'^^'f F""' 1 1 ' • 1 P^rty, &c. f)equest of her .separate jiroperty, real or pel•.son^u, or of any rights therein, wluither sucli property wtus or be acquired before or after marriage, to or among her cliiM or chiklren issue of any marriage, and failing there being any issue, then to her husband, or as she may s»^e fit, in the same manner as if she were sole and unmarried ; but her husband shall not be deprived by .such devi.se or bequest of any right he may have ac(iuired as tenant by the ctu'te.sy. 22 Vic. ch. 34, s. IG. At common law no estate in lands, greater than for term Right to do- of years, could be disposed of by will. Under the Statute j'"*® ''* ""'"' of Wills, li2 H. 8, ch. 1, as explained and declared by 34" & 35 H. 8, ch. 5, all i)er.sons might devise to any other person "^^f^^^ ^''*'" "^ two-thirds of their lands held in chivalry, and all held in socage ; and when tenures in knight service were converted into socage tenures by the Stat. 12 Car. 2, ch. 24, all lands (a) Per Wp.stbury, C. in Taylor v. Meada, supra, (b) See last note. 36 ii "I !/ 1 f I .) &^ t't h I m 11 ' ir;f 'i (! i\' V 282 Con. Stat. Ch. 73, Section 16. to in!ii'i'ie i'4» 9|^ 1 '1 1 . .'■! J ^'^ ■ i ■ Vtl: :^1v« •■u\ ■ 11 mm i 'i 284 Con. Stat. Ch. 73, Section 17. extend to descendants generally, in this section it is so controlled, and it relates to the immediately antecedent words, "child or children." It is apprehended that although the words " child or children," either in a statute (a) or a will (6) may sometimes include grandchildren, that in this section and section 17 they will be construed according to their strict sense. It was hardly necessary to enact that a devise or bequest by the wife of her real or personal property should not deprive the husband of his tenancy by the curtesy ; for, as regards the subject matter of a bequest, it never yet conferred an estate by the curtesy ; and even in the case of a devise by the wife of a fee simple (the only devis- able estate which could confer an estate by the curtesy), she could no more by devise deprive the husband of such estate, than he by his devise could deprive her of her dower. SECTION, 17. Separate per- 17. The separate personal property of a married woman dying tv"of w[f ^d"""- "'^^s''*'''^*^ '^li*!! ^^ distributed in the same proportions between her ing intestate, hiLsband and children as the per.sonal property of a husband dying how to be dis- i„testate is distributed between his wife and children ; and if tributcd. . . . ' , there be no child or children living at the death of the wife so dying intestate, then such property shall pass or be distributed as if this Act had not been passed. 22 Vic. ch. 34, s. 18. Does the word child include grandchild ? S t I! I k \W In this section as in section 16, it would seem the words " child or children " will not extend to grandchildren (c) but the construction is by no means clear, inasmuch as in the case of a husband dying intestate grandchildren are entitled. The mode of succession to the personalty of an intestate husband leaving a widow and issue has been before referred to (d). (a) See s. 42 of Con. Stat. ch. 82, and the remarks thereon and caaes; ante, p. 193. (fc) See last note. (c) See remarks on section 16, (d) Ante pp. 204, 205. it is so itecedent although (a) or a it in this ording to )r bequest lould not ;sy ; for, lever yet the case ily devis- curtesy), i of such ir of her man dying tween her tand dying n ; and if le wife so ;ributed as i. .he words ildren (c) ich as in Idren are intestate B referred 1 and cases, ;ctiun 16i Con. Stat. Ch. 73, Section 13. 285 If no child be living on the death of the wife intestate the husband will be entitled either as at common law by force of his marital right, or as entitled to administration, according to the nature and position of the property (a). SECTION 13. 13. Any estate or interest to which a husband may, by virtue Estate to of his inarrirtge, be entitled in the real property of his wife, which a hu8- whether acquired betore or alter the loiirth day ot May, one tigj \^ x\\(i thousand eight hundred and fifty-nine, or after this Act takes property of effect, shall not during her life be subject to the debts of the subject to his hu.sband, but this provision shall not effect the right which any debts during peraou, by or under any judgment or execution obtained against the husband, had obtained in respect of any such estate or interest acquired by a husband before the said fourth day of May, one thousand eight hundred and fifty-nine. 22 Vic. ch. 34, s. 13. It is difficult to say what estate or interest is here alluded to. The object seems to have been to benefit the wife through the medium of the husband at the expense of his creditors. As before explained apart from this act the estate or interest to which a husband is entitled by virtue of the marriage in the freeholds of the wife is a freehold estate during the coverture giving right to the pernancy of the profits, and after death of the wife and birth of heritable issue he would be entitled as tenant by the curtesy. As regards chattels real he had complete power of disposition during coverture. What estate or interest is protected by this section ? Is it the right to the per- nancy of the profits, a right which was saleable on execution against him (6), or the contingent interest by the curtesy, which was also saleable (c), or both these interests ? It is not probable that the Legislature intended to restrain the sale during coverture of the interest as tenant by the (a) Wms. Exrs. 6th ed., 1376, 656, 815; 29 Car. 2, ch.3, s. 25 ; ante, p. 273. (h) Dalton 186. Ante p. 273. (C) See ante 09, note C. 71, 273; and MofTatt v. Grover, 4 C. P. U. C. 402. ■''1 !i i4i; 1 f :a I 2«6 Con. Stat. Ch. 73, Section 13. curtesy, for as it only takes effect after death of the wife the sale in her life time could be of no detriment to her. As regards the husband's right to pernancy of the profits of freeholds of the wife and to disi)ose of her chattels real, during coverture, that right is taken away by sections 1 2 & 19, except under section 2 in the case of real or per- sonal estate taken possession of by the husband before 4th May, 1859 ; as regards real estate so taken possession of section 13 would seem to apply. So also, though the realty were not taken possession of section 2 would not protect the husband's interest against his debts contracted before 4th May, 1859, and here again section 13 would seem to apply to protect during life of the wife except in case of judgment or execution before such day (a). (a) See as to this section Einrick v. Suilivun, ante p. 277. Con. Stat. Oh. 82, Section 11. 287 41 ■'ft WILLS. Con. Stat. Ch. 82, Sections 11, 12, 13, and the Act of 32 Vic. Ch. 8. SECTION 11. 11. When the will of" any person who shall die after the sixth Estntes acqui- day of March, one thousand eight hundred and thirty-four, con- i'*'"'^'**'' (he tains a devise in any form of words of all such real estate as the will niny j ass testator shall die seized or poasessed of, or of any part or propor- ^y ^^^ "'" tion thereof, such will shall be valid and effectual to pass any intention is land that may have been or may be acquired by the devisor after expressed. the making of such will, in the same manner as if the title thereto had been acquired beft)re the making thereof. 4 W. 4, c. 1, 8. 49. The provisions of the Consolidated Statute are still all important, as the Act of Victoria only applies to testators dead after 1st Janucary, 1869. The important variance between this section and the Varies from Act of Victoria taken from the Imp. Stat. 1 Vic. ch. 26, I^penai Act ' ' and "rov. Act must be borne in mind, and it will be seen that by reason of of Victoria, this variance, the cases on the later acts, hereafter treated of, do not apply here. Under them every will speaks from the death of the testator, unless intention to the contrary appear. Under the Consolidated Act the burden of proof, so to speak, is the other way, and after acquired real es- estate will not pass unless such an intention appear. A will of lands under the Statute of Wills was considered By the former not so much in the nature of a testament, as of a conveyance '*^ " ^''^ declaring the uses to which the land should be subject (a); after acquired and a testator could no more devise freehold real estate to ^""eeholds, be acquired after his will than he could or now can, (ex- cept under Con. Stat. ch. 90, s. 5) convey at law by instru- (a) 2 Rl. Com. .378 ; Doe d. Baker v. Clark, 7 Q. B. U. C 44. if;' m ' m I M It'll I I'm mm '■'i i Ifi' 288 Personal es- tato acquired after the will could pass. Bequest of "all my lease- holds" nicitnt present lease- holds. A codicil might have the effect of republication of the will so as to pass af- ter acquired property. General be- quest of " all my lease- holds" before the uct, stood on same foot- ing as a devise of " all my freeholds" af- terwards ; in neither case would they pass if acquir- ed after the will. Con. Stat. Ch. 82, Section 11. ment inter vicos iu anticipation of acquisition ('a/ The will as to freeholds spoke from its date, and was only valid as to then acquired freeholds, though it should ex- pressly profess to deal with after acquired property. Personal estate, including chattels real, was not govern- ed by the same rules as freehold interests, and might pass though acquired after the will. There was, however, a distinction as regards chattels real, and also as between a general and a s[)eciiic becpiest. Thus, a beciuest of " all my leasehold estates," 2)/'imtJ. facie, and in the absence of anything from which the contrary could be inferred, spoke from the date of the will, and did not include after-ac- quired leaseholds, or a renewed lease, unless there were an intention apparent to that effect (b). A codicil had iiriiwi facte the effect of republishing the will, so as to make it speak from the date of the codicil, and include lands acquired before the codicil (c) ; but the codicil had not this effect if it shewed any intention to deal only with the specific property devised and no more (d). It has been stated above that under a mere general be- quest " of all my leasehold estates " without more, lease- holds acquired after the will did not pass. For this there is the authority of Lord Eldon, who says (e), " a lease- hold interest for years may be disposed of by a will made before the testator acquired that interest, but the general doctrine is, that you must shew that intention." Applying this observation to the section now under consideration, it would seem that as regards freeholds, a mere general devise " of all my lands " after the Statute of William stood in the same position as a general bequest of leaseholds before that act. After acquired freeholds by the Statute of (a) That a deed may operate by wiiy of estoppel, and the estoppel be fee on the acquisition of the estate does not precliuU' the above state- ment, {b) James V. Dean, II Ves. 3U0. (c, Goodtitle v. Meridith, 2 M. & S. 5 | Ke Earl's Trusts, 4 K. & J. 673. (d) Bowes V. Bowes, 2 B, & P. 500 ; Monypenny v Bristow, 2 R. & My. 117, 132. (e) James v. Dean, II Ves. 390. w Con. Stat. Ch. 82, Section 12. 289 William were made as capable of being devised as after- acquired leaseholds were before the act, but in each case the intention to pass must be apparent. In the absence of intention apparent a general gift was ainljiguous, for it might mean to refer cither to property which the testa- tor had at the making of the will, or miLdithave at the V"'?®'" *''""'^! (IGT1S6 Oi " All time of his death. It has been held that under a general my real ps- devise of "all my real and i)ersonal estate" the C-onsolidatod *''*®'" "f**" '' ' _ acquired pro- Statute would not operate to carry after ac((uired free- perty will not holds {a). P"'- SECTION 12. 12. Whenever land is or shall be devised in a will made by any person who shall die after the sixth day of March, one thousand eight hundred and thirty-four, it .shall be considered that the de- visor intended to devise all such estate as he was seized of in the same land, whether fee simple or otherwise, unless it appears upon the face of such will that he intended to devise oidy an estate for life, or other estate le.ss than he was seised of at the time of making the will containing such devise. 4 W. 4, c, 1, s. 50. The language of the Imperial Act, 1 Vic. ch. 2(>, s. 28 is much as in this section. Under the old law a devise to A, simply, would pa.ss no more than a life-estsite, urdess it ai)peared that the testator intended to devise a larger or other estate. By this section the burden of proof is shifted, and on such devise the fee or whole estate of the devisor will pass, unless intention to the contrary appears {!>). It Avill be for those who con- tend for a restricted eft'ect of the will to make out the intention. The act only applies to estates .and interests existing in the testator, and not to those first cr-eated by the will. Thus, a devise to A of a rent charge held by the testator in fee will pass the fee ; but if the testator devise to A an an- A devise of land shall be taken to carry as large an estate as the testator had in the land, unlesH a con- trary inten- tion he ex- pressed. Resembles the Imp. Act. The former law. The Act does not apply to estates creat- ed de novo by the will, as on devise of an (a) Whateley v. Whateley, 14 Grant 430, Mowat, V. C, diss. ; see also Gibson v. Gibson, 1 Drew. 62, per Kindei-sley, V. C. (6) See Farrell v. Farrell, 20 Q. B. U. C. 652, as to an indefinite devise passing the fee, and the circumstances which favor such construction. 37 ■>!t ^rl I !- ''.;»' m m i mi 2d0 Con. Stat. Cir. 82, Skction 13. life ! annuity to A Focureil by w y (if rent ohiirgo. IriMtiinccH wlu'ifMn lic- Ciiro tlio (ipt iiulcfiiiitc di'- viM(' wniiM ) otilnrni'il Id IV f.e. Witiii'Hsi'H nntii init hiiIi Hcrilitt ill tlic prowiico iif llii< tc«t,iiiir Provisions of St. of FriuiOs, nuity, and charge it on his land, A will take but a life- intt'iust (). So also, if there were a. gift ovei- on the devisee dying under a sjieci- fied ag(i (c) ; or under age and without i.ssue ( witnesses ; and it sliall !)(( .suillcient if .such witnesses sulisoi'ihe their names in presence! of (Mch other, although theii' names may not he sidtscriiied in prosfjuct of tla; testator, 1 W. I, ch. 1, s. ol. The provisions of section o of the Statute of Frauds (21) Car. 2, cli. ;J), are as ibllows : " All devises and berpiests of any lands and tenonients devisable either by forc(\ of the Statute of Wills, or by this statute, or by force of the custom of Kent, or tlio cnstoni of any bo ongh, or of any particdar custom, shall be in wiiting, and signed l)y tho party so devising the same, or by some other person in hi.s (a) Nichols v. Hawkes, 10 Hare 342; Reay v. Rawlinson, 7 Jur. N. S. 118. (h) Docd. Stevens v. .Snellinnr, 5 East, 87, 98, perLe Blanc, J. ; Dood. Sims V. (tailick, 14 M. & W. G98, per Parke. B. ; Burton v. Poweid, 8 K. & J. 170 ; InsallB v. Arnold, 14 Q. B. U. C. 296. (c). Burke v. Annis, 1 1 Hare, 2;}2 ; Frogmorton v. Holyday, 3 Burr. 1618 ; Doc Wight v. Cundall, 9 East, 400. (d) Toovey v. Bassett, 10 East, 460. ■<■ I Con. Rtat, Ch. H2, Skction i;i 291 proHoiicc, iind l)y his oxproHH tlirnctioiiH, luid hIiiiII be iittested mul Nul)scribe(l in tlio lUCHoiieo of tlio Haiti dcviHor by tlircn or lour cri'dihlo witiu'Hsc'H, or cImo hIiiUI ho utterly void, mid of iioiio I'tr.-ct." riio vjiriiiiicc hctwct'ti tlic Statutes of ('linrlcH and oi' Vnrlnnc* bo- William is tliis : that Ity tlu; lonnt-r, tlio will niiist he J,]^J'.^||^^,||"'^'',"j attt'.stod and ,sul»serilic»l In, /Hrscncr of tlir ttxUilin' hif /A/vr, "f Wm. or l\mrc)'ey two witnesses, is as valitl as if in tlic presence of, and attested ]>y three witnesses; and it is sntlieient if sneli witnesses .snb>icril)0 in jtre.sencc of eaeli other, withont sidiseriliin;^ (as reqnircd by tlio Statntu of (,'harles) in the presence of the testator. Motwitlistandin^,' the Act of William i.s silent as to WiinoHHo^ ei'.'(lil)ility of tlu; witnesses, that ipialilication still eontiinujs ii',iLM,N','i,'„il^!r" t>hc reqnisite as nnder tlie Act of Charles (n). f^t .if Kiuudx. The St. of C'lwirles is not impliedly repealed \>y that of St. of FoukJh William (/>). It .seems cl.>;,r thendore that a will invalid ■"'""i"';!'"', a:; not complying with the latter a('t, is valid if it complies odiupiyini; with tho former. In a late case (c) the court went further, i^^l'et'willBuffico ami held in ell'ect that the statutes \vv\v cnnudative, and minht he read together, and so that a will invalid imdei „y,a jj„ ^„,n|. either statute taken singly mi'dit he supixtrted on their »«""'"'"''- "o • • . <1 •, r,M ■11 . I • n ..tlmtu Will joiut antlionty. J lins a will executed in the. pre.sence oi valid mulor i wo witne.s.ses who suliscrihed in the pre.sence of the testator, "."',''"•'!" ""•'" • 11 j« • vnhmlly may iiut not in presence of each othei- lias oe(>ii hidd sumcient. yet he upheld Tile author iloes not itresume to (luestion tlie unanimous ''■^''''^''"'J*^'"' ... cltuct ? judgment of tlie Court, l»ut he deems it riglit in a matter of ( ucli importance to refer to the language of Draper, C. J. ill a sulweijuent case, and to suggest that it may he a jiroper precaution always to comply with tlie Statute of W^illiaui, I: (aj llyiin V. Deveieu.\, 'JG Q. B. IT. C. 107. (6) Criiwfoid V. Curragh, l.'i C. P. U. C. 05. (c) Crawford v. Curra^li, supra, m Ml V I 292 Con. Stat. Ch. 82, Section 13. Varianco be- tween this and the Imp. Act. Attestation clause. and require that where there are only two witnesses, they should sign in pre.sence of each other. In the case referred to (a), Draper, 0. J., alluding to the doctrine laid down in C'rdicfofd V. Cuvvagh, says "I advisedly abstain from expressing an o])inion of concurrence in, or dissent from, that decision. I have not arrived at any positive con- clusion upon it." The practitioner should bear in mind that the Imp. Act, 1 Vil^ ch. 'IC), has in England varied the mode of execution of wills, and therefore the cases decided under that act may be inapplicable here, indess on the words "signature," " presence," " direction," " other person," " attestetl," " sub- scribed," which are connnon to the Imperial Act of Vic- toria, the Statute of Frauds, and the Provincial Act. The attestation clause need not shew that the retpiisites of the statntes have been coni[>lied with, and whether shewn or not, proof of due execution must lie given. Due execu- rresuipptioii tiou may however be |)resumed ; and possession for a of due execu- lengthened period (in one case IG yeai*s) in those claiming under the devi.se, coupled with evitlence that the witnesses are dead, or do not rcmendjcr, and especially if the pos- S(!s ■• 111 were with the knowledge of the heir-at-law, are matters from which due execution may be inferred (h). In the Court of Probate in Kngland it has been held that the maxim ohiiiia rite esse ), though in strictness it cannot be said that such prt)[)crty is iti the words of the act coiiipyised in the will. As to personal estate, excejjt chattels real (o), the general rule before the act was that a will spoke from death of testator. A residuary devise under the former law was regarded as a spe(;itic devise of such lands as the testator tlien had which he had not disposed of by his will, and such lands only would pass by the residuary devise. This was a con- se(pience of regarding the Avill as a present conveyance (d). If therefore a testator seised of Blackacre and Whiteacre devised the former to A and the residue of his lands to B, and A tlied in the lifetime of the testator, whereby the de- vise to him lapsed, B would still not take Blackacre. The Every will speaks fi'iiiii death of tes- tator, who dies after 31st January, 1868. Sec. (5. This Act takeu from Imp. Act 1 Vic. c. 2t). Residuary de- vise will not carry propn- ty as to which a devise may have lapsed. (a) Croft V. Croft, 4 Swa. & T. 1 0. (h) tJib.soii V. Gibson, 1 Drew. (J2. id) Ante p. 287; I Jar. on Wills, 3 ed. 610. (c) Ante p. 288 ,:,\m ri: '■m ilf! 294 32 Vic. Ca 8, Section 1. same doctrine applied on the devise to A failing by his dis- claimer, or the illegality of the devise as contrary to the Statute of Mortmain, the rule against perpetuities, or other- wise. The Imperial Act expressly provides (sec. 25) that unless intention to the contraiy appear the siibject matter of the devise which fails shall be included in the residuary devise. It may be questionable whether this .accords with the general intention of a testator who perhaps luis disposed of the bulk of large proj)erty to others than the residuaiy devisee, and shewn but slight intention of benetiting him. It is conceived that this section of tlie Im})erial Act wa.s designedly omitted in the Provincial Act, and that in its absence, though the will sj)eaks from death of the testator, and is no longer to be regarded as a present .conveyance, yet the mere fact of the devise being resi- duary, which is intended to be but a devise of what has not been excepted, and, as in the case above, is intended only to carry Whiteaci'e under tlie name of residue, would be sufficient evidence of intention that the subject matter of the devise which fails should not pass to the resi- (Uiary devisee (a). Though the will is to speak from the death of the testa- tor, still it would seem clear that a will made by a minor who dies after majority is not valid. This section does not apply to the objects of the testa- Itfects of tes- ^^^'^ bounty, who are to take the real and personal estate tator's boun- given by the will, but only to the rerd and personal estate comprised in the will. A testator bequeathed the income jirisiniT from certain funds to A, a widow, for life or until her marriage, and after her deatli or marriage, which should first happen, he gave tlie ]>rincipal amongst her children by two former husl)ands : A niai'ri(Hl again be- tween the date of the will and the death of the testator, and he was aware of her marriage: it was held, overruling the (a) That a residuary devise in England is no longer to be treated a.-^ specific, see llensm.an v. Fryer L. R. 2 Eq. 027 wherein however stress was laid on the ellect of section '!'> of the Wills Act : see Clark v. Clark, 34 L. J. Ch. 477; Tearmain v. (Jwiss, 2 Giff. 130. Will of minor who attains niiijority inva- lid. Act does not 32 Vic. Ch. 8, Section 3. 296 decision of Vice Chancellor Wood, that A was not entitled to the iucomo of the funds, l)ut that the gift, upon her de- cease or nijvrriage, came at once into operation (a). Section 2 is hereafter treated of in conjunction with sec- tion 4. SECTION 3. 3. Every will sliall he nnokrd by tlu; maniage of the testator, y/w]^ except cxwpt a will inadt' in e.vurcist* of a jiowcr of appointment wlien ninde in pxer- tlii' real or personal estate thereby appointed wonld, in default p„^er ,,.. of such appointi'ient. ]iaKs to the testator's heir, executor or ad- ^^oked by mar- luinistrator, or the person entitled as the testator's next of kin "*^*' under the Statute of Distributions. By section (5 the act does not a]>))Iy to the will of one who is dead liejore 1st January, ]8(>1). As a general rule marriage of a man coupled with birth The former of issue revoked his will made before marriage, and the ^^*' mere marriage of a woman was a revocation of her will. If a man before marriage lias l)y his will made gifts to Necessity uu- his relatives or others, and Invs after marriaw(> made no '^^'' "^'y,!'^,'^ , . . . . . of repulilisli- new will or codicil confirming, or reiterating his Avill, re- inReKisiing lyiu"' on the absence of issue of the marriage as not revoking T'-"^ '" ^'"' •' " '^ o taui cases. it, it will now be necessary that he shouhl make a new will, or republish the old one. In England it has been held that avoid marriage, a.s with Void marriage a deceased wile's sister after the Act of o & (5 William 4, H7>th;>ecens. ' edwife':^ sister ch. 54, which makes such marriage void, will not revoke no revccaiion a will (h). Though tliis act has been lield not to apjily to the colonies still it was in the same case considered that such a marriage here is void, though under certain eircumstaiices, as for the purpose of bastardizing issue, it cannot be called in ([Ue.stiou after the death t)f the ])aities (c). The act provides that marriage sliall not revoke the will, where it is made in exerci.se of a power, when the estate appointed would not jiass to the testator's heir, executor or (a) BuUock V. Bennett 24 L. J. ch. 512, ;?97 ; 7 De G., M. & G. 283 ; S. C. 3 Burr. (h) Mette v. Mette, 1 Swa. & Tiist., 116. (c) See p. 215 as to dower. Hodgins v. McNeil, 9 Grant, 305. i. ,!, ■'■? n.i\ 1 s^ 296 32 Vic. Ch. 8, Sections 2, 4. administrator, or next of kin, for the only effect of annulling such a will would he, not to vest the i)roj)erty in the new family of the testator, but to carry it over to the persons entitled in default of appointment. But it is not necessary that the property, in default of ap- pointment, raust go to the new family if he have any, but only that it 'Diay ; for if a man have a general power of ap- pointment with the limitation in default of appointment to himself in fee, and having a son Ijy his first marriage, make his will and marry again; his will will be re- voked; and yet if he die intestate the estate will descend to the son by the first marriage, in exclusion of the issue by the second. Where in default of appointment the estate is limited to a particular class of issue as ])urchasers, for example, to all or any of the children of a first marriage, the second marriage will not revoke the will ; because al- though in default of appointment the heir may take; yet it will not be in the character or Avith the quality of heir (a). And where the will was made under a power in a settle- . ment, and then the testator married, and if there had been no will, the same persons would have taken either under the . settlement or the intestacy ; it was held that there was no revocation, for the persons entitled in the event of an in- testacy would take under the settlement, and not under the Statute of Distributions (h). No convey- ance, &c., to preventopera- tion of a will as to such in- terest as ex- ists on death. No revocation by change in circumstan- oes. SECTIONS 2, 4. 2. No conveyance or other act made or done subsequently to the execution of a will, of or relating to any real ov |)ersonal estate therein comprised (except an act by which the will is re- voked) shall prevent the operation of the will with respect to snch estate or interest in such real or personal estate a.s the testator shall have j)ower to dispose of at the time of his death. 4. No will shall be revoked by any presumption of an inten- tion on the ground of an alteration in circumstances. (a) H. Sugden Wills, 55, 1G. [h] In re Sir Charles Fitzroy, 1 Swa. & Trist, 133. 32 Vic. Ch. 8, Sections 2, 4. 297 Under the old law the general rule was that it' a testa- tor seised of a freehold estate devised his whole in- terest, and then aliened the same to the extent of such interest, the will was revoked : but if the alienation were not to the extent of the whole interest, as if a testator seised in fee should have demised for life or a less estate, the revocation was pro tanto only, and the devisee would have taken subject to the demise. Though a conveyance of a freehold estate were for no defi- nite object, it revoked a previous devise ; thus if the lands devised, should after the will have been conveyed to tlie testators use for life with remainder to his right heirs, so that it merely operated to revest the fee, the devise was revoked. Even an ineffectual conveyance had the same eftect. Where however, the conveyance was a mere charge, as in case of a mortgage in fee with power of redemption to the mortgagor, in the usual form, the will was not wholly revoked in equity, but merely to the extent of the charge, and the devisee took curii oiiere (a). A contract to convey or settle lands theretofore devised operated in equity, tliough Jiot at law, as a revocation or ademption of the devise, and this it would seem would be so, though the contract should have been rescinded in the testator's life-time (b) ; so also if the lands were sold under compulsory powei"s given to a railway company (c). A contract for sale, unless such whereof specific jierform- ance would not be enforced, will now as formerly, as regards the beneficial interest, be a revocation of a prior devise of the lands sold, and the unpaid purchase money will go to the executor or next of kin entitled to have the contract carried out for their benefit, but the legal estate will go to the de- visee (d). If however the contract have been abandoned (a) As to right to exoneration, see 29 Vic. ch. 28, sec. 33, ante p. 45. (6) 1 Jarm. Wills, 3 ed. 150. (c) Gale V. Gale, 21 Bea. 349 ; Smith Rl. Prop. 3 ed. 988 ; see how- ever 1 Jarm. Wills, 3 ed. 152. (d) Farrar v. Earl of Winterton. 5 Bea. 1 ; I Jarm. Wills, 3 ed. 152 ; Sug. Stat. 2 ed. 360, Moore v. Raisbeck, 12; Ford v. DePontes, 30 Bea.' 72. 38 - Old law as to revocation by implication, revoked by conveyance, unlessconvey- ance were of a, partial inte- rest only. mi •■\'\ I it-;! ■ I a;- ■m 1^''' :.'..; if-. , H m Not revoked •wt by a mortgage WS * or mere " j ! i - , ■ ■ r ■V: V clmrge. | ; ; l; Revoked in equity by con- j;: ■, tract to sell, |;: |; ' ii even though rescinded, -^ or sale com- |^HR 1. Revocation K i under the new iP. law, ■ i oil contract of sale. ' '■ k f ; i 298 On contract (o purchase. EflFect after devise of con- veyance by the devisor, of i'v whole ♦vfc relimit- ■ ^>l , himself (! ; f.i tiul inte- rest. Effect of sec. o may be in some cases to necessitate republication of wills now executed. 32 Vic. Ch. 8, Sections 2, 4. the property will now pass under the will contrary to the old law (rt). If a man having a tenn of years contract for the fee, and then devise the estate and die before the conveyance, the equitable fee will pass as before the statute, and the term will attend it (b) : if the conveyance were made to the purchaser, or to a trustee for him, simply in fee, or pursuant to the contract before death, the devise would stand good both under the former and the present law (c). The act " goes much further than simply to leave the will to operate on such interest as the testator has left in him under a conveyance subsequently to his will, for the will is to operate on such estate or interest as the testator has power to dispose of at the time of his death : therefore if a man were to make a will disposing of his real e.state, and afterwards were to convey the whole fee to uses, or on tr -sts, relimiting or leaving any interest in himself, that iuborest would pass by his will; and still further, if he were afterwards to convey to a purchaser his remaining interest, and at a subsequent period repurchase the property, and die seised of it, it would pass by his will to the de- visee (d). As the act by section G will apply to all wills except those of testators who die before 1st January, 1869, it will be requisite that testators should consider how far their in- tentions may be varied by the new act. Thus, if a testator having made his will disposing of some of his real estate in a particular way, should afterwards by post nuptial settle- ment before the act have granted such estate to the use of his wife for life and after her death to his own use in fee, and have made no alteration in his will, relying on the same being by the old law revoked by the conveyance, quoad the property conveyed (e), and in fact so intending, he would find such intention defeated by this act. (a) Sug. Vend. 14 ed. 191. (b) Sug. Stat. 2 ed. 364. (c) 1 Jarm. Wills, 3 ed. 144, 146. (d) Sogd. Vend. 14 ed. 191. (e) 1 Jarm. Wills, 3 ed. 136, ante p. 297. 32 Vic. Ch. 8, Sections 5, 6. 299 SECTION 5. 5. No Will or Codicil, or any part thereof, shall be revoked Sec. 5. How otherwise than as aforesaid, or by another Will or Codicil exe- '^J. beTevo- cuted according to law, or by some writing declaring an intention kcd. to revoke the same, and executed in the manner in which a Will is by law required to be executed, or by the burning, tearing or otherwise destroying the same by the testator, or by some one in his presence and by his direction, with the intention of revoking the same. The 21st section of the English act has not been enacted here. It provides that no obliteration, interlineation or other alteration shall have any effect, except go far as the words or effect of the will shall not be apparent, unless such alterations shall be executed as the act requires. SECTION 6. 6. This Act shall not apply to the Will of any person who is Sec. 6. Act dead before the fii-st day of January, one thousand eight hundred to^the'wtll'of and sixty-nine. one who dies before 1 Jan. As this section does not exempt from the operation of 1869. the act, wills executed before the first day of January, 1869, it may be requisite in some cases by reason of the change the new law works on such wills (as in the instances before given) that testators should republish their wills (a). The power and mode of devising by a married woman is Devise by considered in treating of Con. Stat. ch. 73. married ° woman. (fl See ante pp. 298, 295. ^li; 300 Sale and Title under Execution. SALE AND TITLE UNDER EXECUTION. !l 'i STATUTES. 13 Ed. 1, c. 18, St. Westminster — Fieri Facias and Elegit. 33 Hen. 8, c. 39— Crown Debts. 13 Eliz. c. 4 — Crown Accountants. 29 C. 2, c. 3, ss. 14, 15 — Signing Judgment — Purchasers. 4 & 5 W. «fe M. c 20 — Docketing Judgments — 1'urchix.sers. 5 Geo. 2, c. 7, s. 4 — Fieri Farias against lands — Pleadings and j)roceeding8 in suits against executors to reach lands. 2 & 3 Vic. c. 11, s. 8, Imp — Registry of Crown Debtors and Accountants. 24 Vic. c. 41 — Repeal of Registry of Judgment — Judgments no lien on land. 27 " c. 13, s. 1 — Sale of equity of redemption. See chapter on mortgage-s. '' " " c. 13, s. 2 — Renewal of executions. '' " c. 15 — Sales of lands on ^n/«ctV/,s against executors. 29 " c. 28, s. 28— Crown debts. 29 cfc 30 Vic. c. 42, ss. 5, 6 — Issuing ol fieri facias lands — Return of writs against goods in order of priority. ■ " " c, 43 — Abolition of binding effect of Crown bonds. 31 Vic. c. 20, ss. 58, 59— Registry of Siieriffs' deeds. '' c. 25 —Lands and goods in one writ — Return, itc. Con. Stat. c. 5 — Registry of Crown bonds. " c. 22, s. 249 — Renewal of writs. " c. 22, s. 252 — Lands and goods not to be in one writ — Sale, &c. " c. 22, ss. 257, 258, 259 — Sale of equity of redemption. See cha|)ter on mortgages. " c. 22, s. 2(51 — Seizure of mortgage. See chapter on mortgages. •' c. 22, s. 268 — Advertising, seizure, itc. " c. 22, s. 269— Sheriff" vacating office. " c. 89, ss. 48, 49 — Registry of judgments. " c. 90, ss. 5, 11 — Sale of contingent interests. See chapter on that Act The Writ of Elegit. 301 nds. and s no f on nni Is. it- lon. on See In order properly to consider this subject it will be Of execution, necessary to considei- the state of the law in England as* well as here. The Statute of Westminster 2, 13 Ed. 1, eh. 18, was the St. Westmin- first which gave a Judgment creditor a right to proceed a remeJy against the lands of his debtor. Under that statute the fga'^^t lands dv ft writ of judgment creditor may "have a fieri facias to the shaviH' eifffU. to levy his debt on the lands and chattels of the debtor, or tha,t the sheritt' shall deliver to him all the chattels of the debtor (saving only oxen and beasts of the plough) and the half of his land, until the debt be levied, on a reasonable price or e.vtent." It is from the election given by the statute to adopt one of the two remedies that the writ of elefjlf, derives its name, and from the entry of the award of this on the judgment roll, "quod elcfjlt slbi e,t:eciitionc)u," (fcc. Before this statute, a man could only have satis- faction of goods, chattels, and the present profits of the lands l)y the writs of fieri facias or levari facias, but not the po,ssession of the lands themselves, which was a naturni consequence of tlie feodal principles which prevented the alienation, and of course the encumbering of the tief with the de1)ts of the owner. And when the restriction on alienation l)egan to wear away, the consequence still con- tinued, and no creditor could take possession of the lands^ but only levy the growing ])roHts, so that if the defendant aliened his lands the plaintiff was ousted of his remedy ^ the statute, therefore, granted the writ of clcijit. The writ o{ fieri facias only affected the goods of the debtor, and the sheriff sold them under it: the writ of leixwi facias affected the goods and the present profits of the lands of the debtor, but not the lands themselves, and under it the sheriff was not authorized to sell or extend the lands, or deliver them to the creditor; but could only |)roci ed to collect the rents and prollts. Both the.se writs are yet in force in England : the latter however, lias become almost obsolete, from the more advantageous remedy given by tlie writ of elegit ; whilst to the former extended o{)eration has been given in England and here, so as to affect other per- :. in 3'!! 302 Thk Writ of Elegit. sonal estate than was theretofore liable to seizure under it. It will be observed that the statute does not authorize the sheriff to sell the goods of the debtor under the wi'it of elegit, but to deliver them to the plaintiff. If the plaintiff desired to ,seU the goods, the course was to issue a Jl. fa. ; and it is said to be more advisable to sue out &Ji. fa. against goods in the first instance, and afterwards, if they are not sufficient, to sue out an elegit. The practice on the writ of elegit is for the sheriff to impanel a jury, who appraise the goods and the annual value of the lands ; the sheriff delivers the goods to the plaintiff at the appraised value, and if they be sufficient the lands cannot be extended, but if insufficient the lands are extended. The sheriff does not give actual possession of the lands extended, and the plaintiff gets |)ossession as he best can, sometimes being driven to an action of ejectment. And when the creditor is satisfied out of the profits of the lands, the debtor is entitled to have the lands back again. Under this Statute of West- minster only half the lands could be extended under the writ ; and when there were two elegit creditors, and the fii'st had a moiety, the other had a moiety of the remaining moiety. vSo also the interest of a cestui que trust, and certain other interests of debtors in lands were not to be reached under execution. By the Statute of Frauds how- ever, as will be hereafter more fully explained, the interests of cestuis que trust are made subject to execution ; and by Imp. Stat. 1 & 2 Vic. ch. 110, the remedy by elegit is extended to all the lands of the debtor, and to estates in lands over which the debtor has such disposing power, as he might, without the assent of any other person, exercise for his own benefit. The proceedings by writ of elegit have been briefly referred to, not only because an acquaintance with them is requisite to understand the cases wherein the writ or its effect is alluded to, but because it may be perhaps that such writ might issue in this country (a) ; it should be borne in mind however, (a) Rymal v. Ashberry, 12 C. P. U. C. 342; Doe d. Henderson v. Burtch, 2 Q. B. O. S. U. C. 514. See post p. 312. Fieri Facias Against Goods. 303 that on any such writ issued in this country, no Imperial statute subsequent to 17th January, 1822, in regard to such writ, would apply (a), and therefore the writ could not have the extended effect given to it by later Imperial enactments. The only writs of execution in use in this country affecting property, except where the Crown is concerned, are the writs of Jieri facias, and of venditioni exponas, and the writ of sequestration, the latter only issuing out of Chancery {h). It may be well to consider 1st, the operation of the writ of fieri facias as regards personal interests in lands liable to seizure under such a writ against goods; 2nd, its oi)eration as regards other estates not being personal, and only to be affected under such a writ against lands. The writ of /ieri /«c7'rt.s against goods has by provincial /«./«. against legislative enactments, a much wider operation than it had Boods- at common law (c) ; and also, as regards both goods and lands, may now i.ssue when it could not at c(jmmou law, as for instance to enforce payment of money payable uixler decree or order of the Court of Chancery, or by any rule or order of the common law courts ((/). The operation of the writ against goods as regards personal interests in lands in any way will alone be considered. Under the writ against goods, the sheriff' at common law What interest can sell no estate of freehold, unless perhaps an estate j)W' goid'unJer / autre vie (e); but he may sell a lease or term of years /«• against belonging to the defendant, as also a tei'ni of years belong- ing to the wife of the defendant, the execution and .sale by the sheriff" having the .same effect as to reduction into possession, as a disposal by the husband himself ; if how- ever such term is the separate I'state of the wife under the Con. Stat. ch. 73, then it cannot be sold. If a lease for years contain a covenant by the lessor with the lessee to 1^.1 (a) See Con..Stat. c. 9, s. 2. (6) Con. Stat. ch. 24, ss. 21, 19. (c) Con Stat", ch. 22, ss. 257, 260, 261. (d) Con. Stat. ch. 24, s. 19. (e) Johnson v. Streete, Comb. 290. 304 Fieri Facias Aoainst (Joods. convoy to him tlio fo»M)ii payiiu'iit of a named sum, on salo ofthu 1o.hh(m''h interest undci' red hereafter, as also wiiat distinction ihcw. may he heLween sales under an clcnif, and under the wiit of fieri facias. Under this writ the sheriff cannot sell part of a lessee's interest (b), nor can he, it has been saiil, on sale of the term, turn an occupant out of jjossession to give possession to a |)urchaser, who nuiy therefore hav(^ to resort to an .Siilo under, is action of ejectment to obtain possession («•). The assign- Frouds^an'i "'^ "'^'"*^ by the sheriff of the debtor's interest, is atiected both Registry Act. by the Statute of Frauds ((/) and the Provincial Registry Acts, and therefore, unless within the exceptions In these acts, imist be in writing and registered (e). By St. of At connnon law the writ bound from thi' teste, but this Frauds binds h^,.,i^hi,, yy,^^ removed by ii!) ( 'ar, '2, ■ ' , s. Ki, which en- from delivery ' _ •' ' _ ' ' ' _ only to sheriff acted that the writ should only ])in< \ its del ioery to '^HircTaXl ^^^ sheriff to be executed. This extends only to jjurchasers for value, and not to the dei'endant himself, as to wliom the writ binds still from its teste, and therefore if lie (lie after the teste and before delivery to the Sheriff the writ can be proceeded on (/). Fi fa. against '^'^^^' ^^'"'^ oi' Jieri facias against l(Ui. ( 1 ,' ni \r (a) How and when such a defence should be set up, see Wood v. Camp- bell, 3 Q. B. U. C. 261) ; Doe d. Richardson v. Dickson, 2 Q. B. O. S. 296, per Robinson, C. J. ; Hearle v. Ross, 15 Q. B. U. C. 262, 263. (6) Mason v. Babington, 17 C. P. U. C. 149. (c) See Gardner v. Gardner, 2 Q. B. 0. S., per Robinson, C. J., p. 537. hi I 310 Effect of Judgments and Executions What inte- The interests in real estate which are affected by the by the writ" writ against liinds, and the judgment on which it issues, iigainst lands, from wliat time, and the course of proceeding to and after sale, are now to be considered. Fffect of In considering Avhat interests are affected by the writ, binding lands, it may bc wcll to take a short retrospective view of the various Provincial Statutes rendering judgments liens on lands, and the cases on the subject ; for though the effect of judgments as a lion on lands is abolished by stat. 24 Vic. ch. 41, still (|uestions are constantly arising as to the effect of such liens, and many titles depend on them. As before remarked Avith reference to the writ of elegit, a judgment at the suit of a. creditor did not, nor did any proceedings on it affect the lands of the debtor, from the early feudal doctrine that the tenant could not alien or encumlier his land. In ])rocess of time this restraint some- what worc^ aAvay, but before the statute " quia emptores, it is generally thought the proprietor of lands was enabled to alien no more than the moiety (n) f so far as regarded the judgment creditor however, the consequence of the earli- est feudal rul(^ contiinied, till the Statute of Westminster 2 gave the writ of r/f'//'V, as alwve mentioned, and the sta- tute therefore pormitti'd only so much of the lands to be affected by the process ot" law as a man was capable of alienating by his own deed. On the passing of this sta- tute a judguKMit became a lien on a moiety at least of the lands of the debtor, not only from the time of its actual recovery, but sometimes by a fi(!tion of laAV, even from an antecedent period. Judgments at one time Avere only given in term Avhen the Court sat ; and Avhen subsequently cer- tain iudirments Avere allowed to be recovered and entered out of term, the api)oaranco of their having been actually • given in term was still kept up, and if entered in A'acation, in most cases, they had ri'lation back, and Avere entered as of the i)rior term, and of the iirst day of such term, and the. execution on it usually Avas so tested. The conse- quence Avas that latuls of a, defendant Avere liable to be (a) Black. Com. vol. 2, p. lt)l. fi;i;s AS Liens on Lands. extended in the hands of a ])iirchaser even tliougli the judgment did not actually exist at the time of tlie pur- chase, if the judgiiieut and writ related back to a time antecedent to tlie sale, v!'.., to the lirst day of the term. To remedy this it was provided Ijy '2\) Car. 2, ch. .'J, ss. 14< & 15, that the day of the month and yv.w n\' siLjiiing judj^- meuts be entered, and that ;is ivgards lands, they sliould only bind from the time of such cntiy as against bona fide purchasers f(n' value, and not relate to the hrst day of the term ; and t(j facilitate scavchcs i'or judgments, it was enacted by 4 & 5 W. & M. ch. '20, that an alphabetical list of the defendants' names should be kei)t by a docket thereof, and that no judgment not y llule of Court No. 47, all judgments are to be entered of the day when signed, and have relation to no other day, unless by order. It must be borne in mind that Ivuschohl ))ro])erty, which is not affected by the writ against lands, but only by that against goods, was by the Statute, of Chai'k's, as regards purchaser.s, bovnul only from the deliveiy to the sheriti'of the writ ; as between the parties howt^ver and personal representatives, it is bound I'rom the teste ('((^, which is now the day of issuing (li). The Statute! of (icorge 2, whicli gives the writ oi' fieri f(tcl*igiieil. (a) See post p. 313, n. b. (b) Con. St. c. 22, s. 24'J, Fi. fa. ngainst lands 1)11 siiuiH footing (IS Ji. fit. fiooils by T) Goo. 'J. iiiul so binds only from di'livcry to .shi'ritl' :is against pur- chasers. Judgment to n bind only i:!5!' from entry, and relation back to lirst day of term ; ' ", ' 'v; ' taken away by St. of Frauds. , ■*, : . rw. ■ !■#• 4&fjW.&M. ,:. it :ft c. 20 required :,;;': m:' ii docketing. % i \"yM. , 'i * ' m ■.:tt:: '|::i;'' : : .w " ■: -l* 'i m :• i :f|:^ ill 312 Of the Writ op Elegit. lien on lands. elegit. pect it will be seen that its relation back was less than that of the writ of elegit, which referred to the docket- Judgment no ing the judgment, It nmy be taken as now settled (a), that a judgment is not a lien on lands either for the pur- poses of an eleAjit or otherwise. Of the writ of The writ of elegit was certainly introduced with the English law generally into Up[)er Canada. In one case {b) Esten, V. C, seemed to consider that tlie case of Doe d. Dempsey v. Boulton (c) decided that the writ of elegit was not in force here : on reference to that case how- ever, it will be seen that the language of the court was that " the Legislature knew that the process by elegit was never resorted to here, being considered to be super- seded by the fi. fa. .against lands under the 5 Geo. 2." In another case {d) wherein an ekgit actually did issue, the right to issue it was not determined, though it was held that an elegit issued in March, 1S27, could not re- late back and prevail over a Ji. fa. issued in May, 1826, under a conveyance was made by the sheriff in Novem- ber, 1827. In a recent case (e) it is said it may be a question whether the writ of elegit may not be the proper remedy on a judgment against an heir on the debt of his ancestor. Admitting that an elegit will not relate back to the judgment for the purpose of binding lauds, still it would seem to relate back to its teste, as the Sta- tute of Frauds would not govern. Even a fi,. fa. relates back to the teste, except by force of that statute as against purchasers (f). The consequence would be that an elegit tested before, though not delivered to the sheriff till after a sale by the defendant, would override the sale. The fi. fa. against lands binds in the same way as that against goods, and as it owes its existence to the Statute (a) See 24 Vic. ch. 41, s. 10, and Gardner v. Juson, 2 Er. & App. R. 204: Doe d. Mcintosh v. McDonell, 4 Q. B. O. S. 195 ; Doe d. Audjo V. Hollister, 5 Q. B. 0. S. 739. (6) Bank of Montreal v. Thompson, 9 Grant, 51. (c) 9 Q. R. IT. C. 5:52. (d) Doe d. Henderson v. Burtch, 2 Q. 13. O. S. 514. (e) RymaU v. Ashberry, 12 C. P. U. C. 339. (/) See pp. 311, 313, n. b. binds from the teste. Fieri Facias against Lands. 313 5 Geo. 2, before referred to, wliioh declares thai lauds shall be subject to the "like remedies process and proceedings" as personal estate to satisfy debts, it follows that the writ against lands binds in like manner as the writ against goods, viz., by 29 Ch. 2, ch. 3, s. IG, as regards j)iuchasers from delivery to the sheriff, tli^ugh as regards the defend- ant himself and his heirs from the teste (a). This latter point may be of importance if the defendant should die after the teste, but before delivery to the sherift", in whiih case the writ may still be proceeded on notwithstanding the lands had passed by descent or devise (b). And if the defendant die on the same day, and before the writ issues, it will still be valid and may be proceeded on, for the issuing the writ being a judicial act will be referred to period of the day earlier than the death (a). As between parties claiming to enforce their liens in equity against the equitable interest of the debtor after executions issued, it has been held that the executions bind and take priority and the parties are entitled according to the time of delivery of their respective writs to the sheriff, and not from the time that any one of them should first file a bill to enforce the claim ((/). A purchaser for value buying in good faith from the heir or devisee cannot be disturbed by a subsequent judg- ment and execution founded on a simple contract debt of the ancestor (e). The difficulty seems to be, however, as to what is a purchase in good faith. In Reid v. Miller, Parnall the purchaser from the heir, appeared not to have had an^- notice of debts due from the ancestor, aud though the defendant, who claimed through Parnall, or a mesne pur- chaser, may have had such notice, yet he was entitled to the (a) Ante p. 304, 311. (b) Doe d. Hagerman v. Strong, 4 Q. B. U. C. 510 ; Converse v. Michie, 16 C. P. U. C. 167. (c) Converse v. Michie, supra. (d) Moore v. Clark, 11 Grant, 497. See post, p. 318, as to reaching equitable interests. (e) Reid v. Miller, 24 Q. B. U.C. 610; see Peck v. Buck, Cha. Cham- ber Rep. 294; Sug. Vendors, 13 ed. 640; Levisconte v. Dorlaud, 17 Q. B. U. C. p. 437 40 Fi. fa. binds as against defendant, his heirs or devi- see from its teste, and though defendant die before it issues, if on the same d&y, binds in equi- ty from deliv- ery as against a subsequent execution creditor who first files his bill to enforce the equitable lien. Purchase from heir or devisee in good faith good as against subse- quent execu- tion. til^'i'' mM :klM;:: 814 m Interests not saleable under fi.fa. lands. Bent seek. Rent charge. Widow's right to dower. Right of jiur- chiise. Vendor's in- terest. Interests saleable under benefit of the rule that a purchaser with notice claiming from or through a purchaser without notice, is protected. It is suggested that on purchase from the heir or devisee, with notice of the insolvency of the ancestor or devisor, it would be a wise precaution, beyond other evidence of good faith, such as the giving a not entirely inadequate price, to see that the purchase money be properly applied in pay- ment of debts. The following interests in real estate are not liable to sale under the writ of fieri facias against lands. Lease- holds, they being personalty; the interest of a mortgagee {b), he being quasi trustee for the mortgagor ; a renu seek (c) ; and it has been doubted whether a rent charge with power of distress, secured on freehold estate can be sold under the writ ; the statute Geo. 2. referring to houses, hereditaments, and real estate, &c., " situate and being in any of the said plantations," thus referring to something corporeal and visible, and which it was said did not in strictness include a rent charge on lands {*!) : such a rent charge i.s how- ever extendible under an elegit even prior to the Imperial Act 1 & 2 Vic. ch. 110. A toidoxv's right to dower before assignment has been held not to be saleable ; but the right can be sold if the husband is alive (e). A right of purchfvse cannot be sold, and though granted in a lease and exercisable by the les.see and his assigns and the lease be sold under execution the right to purchase will not pass (/'). Whether the interest of a vendor is .saleable when he has entered into a valid contract of sale, or without such contract, is bound by a parol contract and part perfoi-mance has been much questioned {cj) ; it has been said he stands in the position of a mortgagee whose interest is not saleable. Prior to the statute 12 Vic. ch. 73, tin; interest of a mortgagor in lands could not be (a) Parke v. Riley, 12 Grant, 69 ; 3 Err. & App. 215, S. C. (6) Doe dem. Campbell v. Thompson, Hil. 6 Vic. ; R. & H. Digest, 202. (c) Dougall V. TurnbuH, 8 Q. B. U. C. 622. \d) Dougall V. TurnbuU, 8. Q. B. U. C. 622. (e) See ante p. 69, n., c. 70. (/) Henrihan v. Gallaghe , ante 308 n. g. {g) Parke V. Riley, 12 Grant, 69, 3 Err. & App., 216, S. C. Fieri Facias against Lands. sold ; by that statute, however, all the legal and equitable interest of a mortgagor may be taken in execution (a). By the lOthJsection of the Statute (m Frauds, the equita- ble inierefitti' o{ cestuia que trust are made liable to seizure and sale under executicm; but it would seem that the trust estates saleable by virtue of tltat statute must bo where the estate is held on a pure and simple trust, and not where the trust is of a special nature (b), and the statute does not ex- tend to equitable estates in chattel interests (c). It has been doubted in one case (d) whether a trust esbite is saleable at ail in this country under a yi, fa. lands, and this doubt renders perhaps, the consideration of the (jues- tion as to whether slti elegit can issue, of more im))ortance. The alienable qualities under execution or by convey- ance from the party, at common law, and under Con. Stat.ch. 90, ss. 5. 11, of the marital interest of a husband in the lands of his wife, of his interest as tenant by the curtesy, (e), of a woman's right to dower (/), and of the estates and interests of mortgagors and mortgagees Qj) have been before considered. The interest of a reversioner during the life of the tenant for life may be sold (h.) A vested remainder was, even prior to the statute 14 & 15 Vic. ch. 73 (i), allowing styles of future interests, saleable under execution (Jc). Prior to this statute also, a right of entry was not sale- able under execution ; that is, where some person was in 315 Trust estates Baleable under St. of Frauds, if the trusts are pure and simple trusts, saleable under ^./o. T Husband's, wife's, mort- gagors and mortgagee's interests. Reversions. Remainders. Rights of entry. (a) See the mode and effect of sale fully considered, post, chapter on mortgages. (b) Simpson v. Smyth, 1 Err. & App. Rep. U. C. 44 ; Doe d. Simpson v. Privat. 5 Q. B. U. C. 215; see also Doe d. Jiuvis v. dim- ming, 4 Q. H. U. C. 390 ; McLean v. Fisher, 14 Q. B. U. C. 617. Doc d. Hull V. Greenhill, 4 B. & Aid. 684; 2 Wms. Saund., 11 a. n. 17. (c) Scott V. Scholey, 8. East, 467; 2 Wms. Saund., 11 a. n. /. ; but see Doe d. Phillips v. Evans. 1 C. & M. 450, per Bayley, J. {d) Doe d. Laurason, v. Canada Company, 6 Q. B. 0. S. U. C. 42S. (e) Ante pp. 273, 70, 71, 69, n. c. {/) Ante pp. 69, n. c. 70. (g). Post, cluip. on Mortgages. (A) Doe d. Cameron v. Kobinson, 7 Q. B. U. C. 335. (I) Con. Slat. ch. 90. (k) Lijmly v. Maloney, 11 C. P. U. C 14.;. m "m m I :','■. i' I !'§■ (15,'' I i VI m .'■Siii^ 4 'ii m m 316 Reoistry of .IrnOMENTS. Rights of ' ntry. Contingunt intercHts, Rinding effect Riven by St. to ju(I|2mcnts iiud execution on various in- terests. Vic. oh 34, B8 to registry of judgments. 13 & 14 Vio. eh. 63, Con. St. eh. 89. pos.session of the land claiming the land a.s his own adverse- ly to the true owner, the interest or right of entry of such dispossessed owner was not saleable under execution; this was on the principle that as the owner could not himself by deed or otherwise convey his interest, but must first gain possession {a), so neither could a transfer of such interest take place through the instrumentality of ihe sheriff (6). At connnon law also, contingent interests could not be ef- fectually conveyed by deed, (<;), though under circiunstances they were upheld in equity {d) ; and not being capable of effectual conveyance by deed, they were not liable to exe- cution, nor bound by any judgment. The inability of the common law to reach by judgment and execution many s])ecies of interests, .as rights of entry, contingent remain- ders, &c., caused the interference of the Legislature, and their action on this is as follows: — By statute 9 Vic. ch. 34 {e), judgments registered in pursuance of the act were to bind all the lands within the county in which registered in like manner as the docketing of judgments in England then bound lands ; this was an unfortunate reference by the Legislature, because at that time the practice of docketing had been discontinued in England by statute for some time, and no longer existed, being superseded by another mode. In one case here it became necessary to decide wlxiit the Legislature meant, and whether lands were bound at all under the act by registry ; and the court held they were, and that the statute must be read as though it were ex- pressed that registry should bind in like manner as docket- ing, " when docketing Wius in force in England." The Legislature by 13 k, 14 Vic, ch. G3 (/) corrected the statute 9 Vic. ch. 34, by referring expressly lo the effect of docket- ing'before it was discontinued. By these statutes therefore, lands could be bound by the effect of registry from the time of such registry, whilst theretofore (at law at least for the purpose of execution and (a) Ante, p. 73. (h) Doe d.Ausman v. Minthorne, 3 Q. B. U. C. 423. (c) Ante, p. 75. (d) Ante, p. 76. (e) Con. Stat. ch. 89, ss. 48, 49. (/) Con. Stat. ch. 89, s. 49. Registry of Judgments. 3T assuming that, the writ of elegit was not in force,) the lands were only bound from the delivery of the writ of yi. fa. against lands to the sheriff, which could not take place till a return of the writ against goods. It was not only in re- spect of the ptiwer to bind lands before the delivery of the writ to the sheriff that the statute 1.3 & 14 Vic. conferred a benefit, but that statute went beyond the statute 12 Vic. and allowed the judgment the widest effect in binding every s])ecies of interest of the judgment debtor, "over "which he had any disposing power which he might, with- "out the assent of any other person, exercise for his own "benefit." The advantage creditors gained by these statutes may be Advantage of shewn by reference to one or two cases. As before inentioned, to^credUors!" there are many interests not bound by an execution, which were bound by registry of the judgment (a); it has been shewn that the interests of a mortgagee, and of a cestui qiw trust, (unless in case of a pure and simple trust,) were not bound, and could not in any way be reached at law; so also Exercise of if an estate were limited to a man and his heirs to such uses F,o^*n,ent''' as he should appoint, and in default of, and till such ap- may defeat pointment to him in fee, such an interest might not be sale- **^^ ""'' " able imder execution, because the subsequent exercise of the power of appointment in fee would override the execution ; the appointee being deemed to take, not from the appointor under the appointment as from that time, but under the original conveyance, as though he were a ]iarty to whom the use in fee wjus by it originally limited (b). Such interests and power however, would have been bound under the statute 13 & 14 Vic. That act was copied from the Imp. Act 1 &; 2 Vic. ch. 110, It will be observed it gave the coui'ts of common law no greater scope than they had before : an interest not saleable under exectition before the statute was not saleable after it, though bound, and the course was to proceed in equity on the lien. (a) Feme v. Kelly, 9 Grant, 262. (6) See ante p. 233; Wms. Rl. Prop. 8 ed. p. 255; Doe d. Wigan v. Jones, 10 B. AC. 459. M ■n ':?* , ^-^1 318 Con. Stat. cli. ItO, HS. f), 11, HiitliorizeH Hale of riglitH of entry, con- tingent inter- eats, &c. Effect of judg- ment as a lien abolished by 24 Vic. cb. 41. Equitable in- terests may bo reached in equity. Reoistry or Judgments. It wa.s Ity the statuto 12 Vic. ch. 71 that the common law courts got extondcil powers uiulcr executions. This statute however, was in its main provisions re[)eale(l by 14 & IT) Vic. ell. 7, uiulcr wliii^h "a contingent, an execu- tory, and a future interest, and a po.ssihility coupled with an interest in any land, whether the olijoct of tlu! gift or limitation be or be not aseertained, also a right of entry whether immediate or future, vested or contingent, may be disposed of by deed ;" and are liable to seizure and sale under execution. The effect of the provisions of the.se statutes, consolidated by eh. !M), ss. 5, II, have been before considered, and the interests that are salealtle there- under (rt). The jiower to bind lands by registry (»f the judgment is taken away by 2t Vic. ch. 41. In p]ngland such power still continues, but when in Engli.sh ca.ses and books re- gistry of a judgment is referreil to, it is not registry in a county registry office, but registry as named in the Im- j)erial Act in the Court of Common Pleas. The result of taking away the power to bind such interest in lands of a judgment debtor over which he has any disposing power which he could exercise of his own sole authority is that there are, as above mentioned, many interests in lands which are not bound at all by a judgment, nor except so far as the Stat. 14 & lo Vic, Con. Stat. ch. !)0, extends can they be reached at law, at Iea.st under an execution. In equity, however, after execution issued, many interests which cannot be reached at law can be made available to satisfy the judgment creditor (b). Proceedings however must be taken in equity tluring the currency of the writ (c) ; though if a decree be obtains I '"''igthc currency the subsequent lapse of f' ■ w i will in»i prejudice (d). (a) Ante p. 05. {h) Neate v. Duke of Maii 'ugh, 3 America v. Matthews, H (Jraiit, i '•! ; M Tomav. Peck, 12 (imiit, :^45 ; Yule v. son V. Proudfoot, If) Giant, 10.'{; Gilbeu Horsley v. Cox, L. R. 4 Cha. App. 1)2. (c) Wilson V. Proudfoot, supra. M. & ('. 407 ; Bank B. N. ire V. Clark, 11 Grant, 497 ; ■Itorton, 13 Grant, .'502 ; Wil- . . Jarvis now in appeal : and (rf) Yale V. Totterton, supra. Proceedin{»s as to Kquitauli: Inteiiksts. Ah between jmrtinH stfukiiif^ t<) onforce their cliiimH in equity on ('xeeutions iHsue*! nd'ecttiii^ the e(|uit(ihle in- terest (»r th(! cced against lands in a very difficult position, when the first execution creditor insisted on his right to renew and to take no return (c). Sec. 252 of the Con. Stat., and ss. 5 and G of 29 & 30 Vic. ch. 42. were repealed by 31 Vic. ch. 25, which is as follows : — 31 VIC. CH. 25. An Act as to Executions aoainst Goods AND Lands. jV 4'i Assented to 4th March, 18G8. Wlierea.s, by an Act passed in the session of Parliaiiieiit PreamMe. lield ni the tweiity-nintli and thirtieth years of Her Majesty '.s reign, chapter forty-two, intituled " An Act to amend the Com- mon Law Procedure Act of Upper Canada," the principle is recog- zised of allowing jwrsous who havt priority executions in regard to goods, to retain the same in regard to hi)>ds ; but difficulties exi.st iri applying the said Act by reason of its enactment tlmt the Sheriff shall return writs against goods only in the order of pri- (a) Paton v. Ontario Bank, 13 Grant, 107, 12 Grant, 3f)6, s. c. ; Ontir-o BanK V. Kerby, 16 C. P. U. C. 40. per A. Wilson, J. ; but see also Untario Bank v. Muirhead, 24 Q. B. U. C. 563. (t) Chit. Arch. P. I2th ed. 681. (c) Gleaaon v. Gleascn, 4 Prac. Rep. 117. 41 m m 322 31 Vic. Cfi. 25. i ority in wliicli tliey conift t<» his liiUidH, whilst, nevertheless, a jjerson liaving a first execution against goods is entitled to renew the same indefinitely without any return thereof : Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of Ontario, enacts as follows : 29 & 30 Vic. !• Sections five and six of the said Act, and the two hundred ch. 42, 8s. 6 & and fifty-second section of the Common Law Procedure Act, are CLP AcC' li^^reby repealed and the following substituted therefor : repealed. " Any peraon who now is or hereafter may become entitled Writs against to issue a writ of execution against goods and chattels may, at or Lands may after the time of issuing the same, issue a writ of execution time as writs against the lands and tenements of the person liable, and deliver against goods, the same to the Sheriff to whom the writ against goods is direct- ed, at or after the time of delivery to him of the writ against Proviso: goods, and either before or after any i*eturn thereof: Provided, lamls not to always, that the Sheriff shall not expose the lands for sale, or sell a year. within less than twelve months from the day on which the writ against the lands is delivered to him." 2. No sale shall be had under any execution against lands until after a return of nidlfi bona, in whole or in part, with res- pect to an execution against goods in the same suit or matter by the same Sherift". When nulla '^- No Sheriff shall make any return of nulla bona, either in bona not to be whole or in part, to any writ against goods until the whole of the goods of the execution debtor in his county have been exhausted. 4. If the amount authorized to be made and levied under the writ against goods be made and levied thereunder, the person issuing the writ against lands shall not be entitled to the expenses thereof, or of any seizure or advertisement thereunder ; and the return to be made by the Sheriff to the writ against lands shall be to the effect that the amount has been so made, and levied, as aforesaid. .5. The said writs against lands and goods shall have the same operation and binding effect as heretofore, and the law applicable heretofore on executions shall continue a])plicable, except so far as variance is requisite, by reason of the enactments hereof. No sale of lands until re- turn of nulla bona against goods. If the debt is realized under writ against goods, no ex- penses allow- ed ngainst lands. Writs to have same binding eflect as here- tofore. Proviso to s. 1. It hiis been held under the old practice when writs were returnable on a day certain that an alias fi. fa. need not fm Sections 1, 2, 3. 323 have a year between the teste and the return day (a) ; and therefore under the present practice, where the Ji. fa. has been twelve months in the sheriff's hands, he can sell under an alias writ, without waiting for the expiry of a further term of twelve months (/>). Although this decision was prior to the Act of 31 Vic, it is apprehended that act makes no change, the language being the same as in the former act, with an inmaterial exception. It would seem also that if lands be ac(piired by a defendant pending the writ, sale can be hjid of them within less than twelve months from acquisition, if the time required for due advertisement be allowed (c). As regards sec. 3 of 31 Vic. ch. 25, the law was inuch to that effect under the Con. Stat, even (>l). Any person it would seem, who is interested in the lands and preju- diced by non-compliance with this section, as for instance a purchaser .,r mortgagee, might apply against a Ji. fa. lands irregular l»y reason of non-compliance with this section (e). It is apjn-ohended however, that non-com- pliance with it wouM be a mere irregularity, and also that if a return of nulla bona though false, were bona ti.de without knowledge by the sheriff or the execution creditor of there being any goods, and after reasonable enquiries made, that such return would sufficiently comply with the spirit of this section (/). Moreover this section a.s regards its effect on sec. 2, would appear to be merely directory. The sheriff cannot under the writ, dispossess the occu- pant (<7),and therefore the purchaser may have to bring eject- ment to gain possession. In such an action, if it l)e against the (hfemlaiit in the original suit, or any one claiming under hliYi, subsequent to the delivery of the Avrit, the purchaser, even though he were the execution creditor, need not prove (a) Nickall v. Crawford, Taylor's Repts. U. C. 277. (6, Campbell v. Delihanty, 24 Q. B. U. C. 236. If) Ruttan V. Levisconte, 16 Q. B. U. C. 495. (rf) Ontario Bank v. Kerby, 16 C. P. U. C. 35 ; Ontario Bank v. Muirhead. 24 Q. B. U. C. 663. (e) See p. 321, n. a. {/) Ontario Bank v. Kerby, same v. Muirhead, supra (g) Doe d. Tiffany v. Miller, 10 Q. p. U, C. per Burns J., pp. «0, 81 ; ante p. 308. Cases wherein 12 months need not elapse before sale. Section .3. WhoniRycom- plitin of non- cnniplittuue with. Effect of t'lilso return of »iu/ia bona. Sheriff cannot dispossess de- fendant. On ejectment by purcliHser, proof re- quired. ft 'A in J' ► IS 324 Fieri Facias against Lands. In ejectment the judgment under which the writ issued (a) ; nor it would ''roof're^"*'' ^^^"'' ^^^^ proceedings requisite to the validity of the quired. issuing the writ, jus that the ,/i. /«. goods issued within a year, or that it was returned "No goods" (6); but if the de- fendant in the ejectment be a stranger, not claiming under or in privity with the execution defendant, then the judg- ment must be shewn, and the issuinjr and return of the writ How far irre- against goods (a). Even though the judgment or the writs Bffeo"apur- when ])ro(lucod should l)e irregular, or apj)ear tct l)e chaser. improperly issued, and such sis would have been set aside on proper motion for that jmrjwse, still it would not follow that therefore a ])urchaser would lose the benetit of his ])urcha,se ; in many cases the purchase has been upheld un- der irregular proceedings, where the writ under which the sale took place was valid on its face, and the prior |)roceed- ings, or the absence of them, not such as to make the writ absolutely void (d) : but in one case, Sir J. Robinson, C J., observed, "there may be defects in a title under a sheriff's sale which when proved would not be fatal to the title, if a stranger had been the purchaser, but which could be urged with success against the phiu>fi(f m the /i. /9 ; lieUn v. Cros- sin, 17 C. P. U. C. loG. Con. St. ch. 22, s. 222, C. h. P. Act. Ch. Arch. Pr. 12 ed. p. 642. {h) Mitchell v. (Jreenwood, ."{ C. P. U. C. 465. (c) Roe V. McNeil 14 C. P. U. C. 424. (dj Miller v. Beaver Association, 14 C. P. IT. C. ."{"JO. (e) Miller v. Beaver Association, snpra. (/) Meneilly v. McKenzie, 3 Err. & App. Rep. 209. (g) Bank of Montreal v. Taylor, 15 C. P. U. C. 107. {h) Doe d. flreenshields v. Garrow, 5 Q. B. U. C. 237 ; Gardiner v. Juson, 2 Err. & 2 App. Rep. 188. 1< til .*M M J.: i V ■k " !i 326 Of Seizure under the Seizure, what is. Ven ex., yihen of the writ during its currency, as by advertisement, even required. though only under another writ, then a sale may be had under it after it has expired (a) ; nor is there any necessity in such case for a ven ex, which is only requisite to compel the sheriff to sell, and as his warrant for so doing, for he would not be justified to in selling under ajifa at a great sacrifice. An advertisement in the Gazette or seizure under one writ is a seizure under all writs then in the sheriff's hands (6). What constitutes a seizure or incej)tion of execution apart from advertising in the Gazette is by no means clear, especi- ally since a recent decision (c). It had been considered that the fact of the sheriff going to the defendant (then residing on the lands in question) and asking him for a list of the lands to be sold under execution, and receiving the informa- tion which did not include the lands in question, which the sheriff was aware belonged to the defendant, and which he afterwards ofl' the land added to the list himself, was suffi- cient before the C. L. P. Act (il). In those cases also are dicta that an advertisement or other acts would be sufficient, and if that be law which wjis so considered in those cases, then on principle, and in reason it would seem that an ad- vertisement i;i a local paper only would be sufficient, as being an act af greater notoriety than what was deemed sufficient in those cases, or than an advertisement in the Gazette. It is somewhat remarkable therefor that it should have been held that an advertisement in a local paper was not sufficient (c), and that such decision should have been based on a (^ase (/) as having decided the question, which would appear to have decided merely that (a) Doe d. Campbell v. Hamilton, E. T., 3 Vic. R. & H. Dig. 403 ; Campbell v. Clench, 1 Q. B. U. C. 287 ; Doe d. Miller v. Tiffany, 5 Q. B. U. a 79 ; Doe d. Tiffany v. Millar, 10 Q. B. U. C. 6.5: Kowe v. Jarvis, 13 C. P. U. C. 495 i Hall v. Goalee, 15 C. P. U. C. 101. (b) Hall V. Goslee, supra. (c) Hazlitt v. Hall, 24 Q. B. U. C. 484. (d) Doe d. Miller v. Tiffany ; Doe d. Tiffany v. Miller, supra, 6 Q. B. U. C. 426, S, C. i see also, Douglass v. Bradford, 3 C. P. U. C. 459. (e) Hazlitt v. Hall, supra. (/) Bank of Montreal v. Munro, 23 Q. B. U. C. 414. Fieri Facias against Lands. 327 a stayed writ had lost priority. Tlu; C L. P. Act, Con. Con. stnt. c. Stat. ch. 22, ,s. 268, does not enact that what was suffi- f^'Jt:,^^^: "' cient before the act should not ho sufficient thereafter, nor that advertisements in the Gazette sliould alone be suf- ficient ; it provides by sec. 268 : 268. The adverti.sement iu the Official Gazette of any lands for sale under a Writ of Execution, during the currency of the Writ, (giving some reasonable definite description of tlie land in such advertisement) shall be deemed a sufficient commencement of the execution to enable the same to be completed by a sale and con- veyance of the lands after the Writ has become returnable. 19 V. c. 43, 8. 188. Since the decision above referred to it may be doubtful whether an actual taking and continuing of possession, or anything short of advertisement in the Gazette would suf- fice. By sec. 269, if a sheriff vacate hi-s office before sale, his Sec. 269, sher- succes.sor is to proceed on the writ, but if after sale, then "^ "^<">t"'g the old sheriff" may execute a conveyance of any lands sold by him while in office (a). Prior to this enactment, if a sheriff* had commenced the execution of a writ, as by seizure or advertisement, and then gone out of office, he could notwithstanding have proceeded to a sale, and liave executed the conveyance to the purchaser, and this even though he might liave left office for some time (b). A sale by the sheriff" is within the Statute of Frauds, Sale within and therefore a conveyance is rc(|uisite as recpiired byp^^!^" that statute, and it should be under the hand and seal of office of the sheriff" {<;). So also a conveyance from the sheriff", was within the and Registry Consolidated Registry Act, and could by priority of re- (o) Miller v. Stitt, 17 C. P. U. C. 559. (6) Per Draper, J., in Burnham v. Daly, II Q. B. U. C. 211 ; Camp- bell V. Clench. 1 Q. B. U. C. 267 ; Doe d, Campbell v. Hamilton, E. T. 3 Vie., R. & H. Dig. 403. (ci Per Burns, J., Deed. Tiffany v. Miller, 10 Q. B. U. C. 81 ; Witham V. Smith, 5 Grant 203: Doe d. Hughes v. Jones, 9 M. & W. 372 ; Mingaye T. Corbett, 14 C. P. U. C. 567. Act. ^1 n J-i • 1 328 Sale by the Sheriff. Sheriff's sale f^istry both defeat a prior conveyance unregistered, and try Act *^"' ^^ defeated by a subse([uent conveyance first registered; thus, under the former ( '(jnsolidatcd Registry Act, if a person should have boughtfroni anotlier, and liave omitted to register the conveyance, and the land should have been sold to a bunajule purchaser under an execution against the vendor, and such ])urchaser should have registered the conveyance from the sheriff, he would gain priority over the former unregistered conveyance (ii). Should the pur- chaser from the sheriff have omitted to register the conveyance to him, and the execution debtor con- veyed to another after the execution of the (conveyance from the sheriff, such latter conveyance would have been j)ost- poned, if the person buying from the execution debtor first registered (6) : but it would seem that if such latter con- veyance were before the execution of the deed from the sheriff, and after the delivery of the writ, it would not, though registered first, have taken })riority over the sheriff's deed : thus in one case a pui'chaser bought at sherift''s sale under execution, in 184-3, but the sheriff did not execute the conveyance till 1853 ; in 1852 the execution debtor conveyed to a second purchaser, who registered, and in- sisted on priority under the Registry Act ; but it was held that the act did not apjjly in such case to enable a purchaser who became such after the sale by the sheriff, and before the conveyance from him to defeat such conveyance or sale, that the lapse of a day between the sale and conveyance would not enable a purchaser from the debtor to defeat the sherifi's sale, so neither would a lapse of ten years ; the sheriff's deed related back, and the wording of the Registry Act was referred to, as enabling subsequent deeds to defeat ]>rior deeds, not prior deeds to defeat subsequent ones, which latter was what the i)urchaser was conteniling for (c). (a) Doe (1. Brennan v. O'Neill, 4 Q. B. U. C. 8 ; Waters v. Shade, 2 Grant, 467 ; Doe d. Hughes v. Jones, 9 M. &W. 377, per Alderson, B. ; Thirkell v. Paterson, 18 Q. B. U. C. 75. (6) Per Draper, C. J., Bruyers v. Knox, 8 C. P. U. C. 624 : Doe d. Hughes V. Jones, 9 M. & W. 377, per Alderson, B. (c) Burnham v. Daly, 11 Q. B. U. C 211. WITHIN THE Registry Act. The terms of the present Registry Act on the subject, 31 Vic. ch. 20, 88. 58, 59, are as follows : 58. Every deed made by a sheriff or oilier officer for arrears of taxes shall be registered within eighteen months after the sale by such sherift' or other officer ; and all deeds of lands sold under process issued fi-om any of the courts of law or equity in Ontario, shall be registered within six months after the sale of .such lands, otherwise the parties respectively claiming und(>r any of such suK's, shall not be deemed to have preserved their priority as against a purchaser in good faith who may have registered his deed prior to the registration of such deed from the sheriff or other officei-. 59. All deeds for lands sold for taxes, or under process of law, before the ])assing of this act, shall be registered within one year after the passing of this act, otherwise the parties respectively claiming under any such sales .shall not be deemed to have pre- served their priority as against a purchaser in good faith who may have acquired priority of registration. A purchaser having notice of a prior sale would nut, it is apprehended, be a pui'chaser in good faith within the meaning of the.se sections, a>jd thus the first unregistered vendee would not recjuire the aid of a court of equity t(t relieve against the registered conveyance. Prior to the act of 13 & 14 Vic. ch. (J3, an unregistered conveyance was not liable to be defeated by a registered conveyance unless the title were a registered title (a) ; thus, an unregistered conveyance from the sherifi' would not before that act have been defeated by a subsequent conveyance from the former owner first registered, unless some conveyance of the land had theretofore been on registry. Section 59 lias no express exception in it to meet the law as it stood prior to 13 & 14 Vic. Under certain circumstances, as misconduct of thesheriti" or fraud, a sale and conveyance by him may be set aside (6) : whatever power a court of common law might have 329 Conveyance OD sale under execution to bo rcgiHlered witliin Hix months fruin anlo. if 8:ilo before tlio net to lie registcruil within ayeiir from its pii8.s- ing; I'uvchnger with notice nut williin the aot. St'C. f)!!, (loCH it upply, if the deed under the old law cnuld not be defeated ? Siile )ind cou- veynnne by Sheritf miky be set ariide. M4 q-\ .?' ' *\ ' in i 1 4 (a) Casey v. Jordan, 5 Qraat 467- (6) McOill T. McGlashan, ti Grant, 324. 42 330 As TO SETTING ASIDE ▲ SALE. BftU and ooo- in such a case (a), still relief can be had more completely in bc^M^'^uidef equity (6) : a court of common law from which the execu- tion has issued has power at leaHt to stay the conveyance after sale ; but on motion for such purpose, the purchaser as well as the sheriff* should be called on to shew cause. In many cases wherein the sheriff and execution creditor has shewn a disregard of the interest of the defendant, whose estate has consequently been sold at a sacrifice, courts of equity have interfered. Where the sheriff offered for sale the interest of the debtor in certain lands, whatever it might be, not stating what it was, although the means for ascertaining were convenient, and it was actually known to the execution creditor and partially known to the sheriff, the sale which was at an under value was set aside (c). A coui't of equity will also decline its assistance, as against fraudulent conveyances, in support of the claim of an exe- cution creditor, a purchaser at slieriff's sale at much le.ss than the value, though the price was lessened by the exe- cution defendant having made the conveyance to defeat the the execution, and by its being oustanding; the proper course being for the creditor to apply to the court before sale (d). But in such case the sheriffs deed is not void, and the estate would pass at law («). Where land is sold under a ven. ex. mere inadequacy of price is not sufficient ground to avoid the sale (/). Effect of stay- If on or after the delivery of the writ to the sheriff', he tu!^*'" "*'*'"" be instructed to wait, or not to proceed till another writ should come to his hands, then the writ is not deemed as in (a) See Bank U. C. v. Miller, Hil. Term 8 Vic, R. & H. Dig. 404; McQiliis V. McDonald, Easter Term, 3 Vic, R. & H. Dig. 404; Bethune V. Corbett, 18 Q. B. U. C. 511, 614, per Robinson, C. J. (b) McOill ▼. McOlashan, 6 Grant, 324 ; Campbell v. Smith, 10 Orant, 206. (c) FitzgibbonT. Dugzan, 11 Grant, 188. See also Jones v. Jones, ir> Grant, 40 ; Bebee t. Beglar, 6 More Indian appeals, 610 ; Palmer's case, 4 Rep. 74, and remarks m the chapter on mortgages as to sale of equi- ties of redemption by the sheriff, and McDonald v. Cameron, 1 3 Grant, 84, in which latter case the whole matter of a sheriff's duty on sale is considered. {d) Kerr v. Bain. II Grant, 423 ; Chalmers t. Piggott, II Grant, 476; Wilson V. Shier, 6 Grant, 630; Malloch t. .flunkett, 9 Grant, 65C. (e) Per ^ten, V. C, Malloch t. Flunkett, supra. ( /) Laing t. Matthews, 14 Grant, 36. tiOD. Execution against Lands. 331 the sheriff's hands to be executed, and is liable to be post- poned to any subsequent writ delivered to him (a). So also great delay unexplained in execution of a writ Delay in eze- which might have been executed is evidence from which a ""''"K- Jury may infer a stay, or a fraudulent connivance with the defendant sufficient to postpone the writ to one subsequent (6). A delay however, of fifteen days in re-delivery to the sheriff of a writ taken to be renewed will not be sufficient to postpone the writ, though before re-delivery a year has expired from the issuing (c). There is a very general impression, among sheriffs at Sheriff'! duty least, tiat no duty is cast on them by law on delivery of a Jl"^''* 1"*'^'" writ against lands, to make any inquiries or ascertain what Innds are liable to satisfy the writ; and that at any rate they can relieve themselves from any responsibility in that respect by asking the creditor or his attorney to point out lands. It is conceived that such is not the law; on the contrary, it has been decided that sheriffs are not relieved from making reasonable enquiries, and that "if sufficient evidence is given to shew that the sheriff' had notice, though not coming from the execution creditor, that the debtor had lamls liable to be taken in execution, or even to put him on enquiry, when by reasonable diligence he might ascer- tain the same fact, that the plaintiff has done enough to ^ustain that part of his case" on an action by him against t he sheriff for not levying, and a false return of ' no lands' (rf). WvH of extent at suit of the Crown. Prior to 14 & 15 Prior to Con. Vic. ch. !), Con. Stat. ch. 7>\ debts by bond to the Crown, if fandl.o?Crown taken pursuant to 33 Hen. 8, ch. 39, bound the lands of the (bond) debi- ni such perHoii, or against any »uV)sequent registeied judgment on the same lands against such person, iiidess a copy of such deed, bond, contract or other instrument, certified by the proper Officer having the custody of the same, had been registered in the offic«f of the CMerk of the f!ourtof Queens Bench in Toronto, before the execu- tion of the deed, conveyance or agreement of such subsequent jnirchaser or niortjigee, or the registry of such sidisequent judg- ment. 14, ir* V. c. 0, ,s. 1. 2. Upon production to such Clerk of a copy of any such deeil, bond, contract or other instrument so certified as aforesaid, h(; shall enter and register the same in a book to V)e kept by him for that purpose, and after such registry all the lands of the person executing such >::'vv.'*. ■V kJ:; How far unre- gistered bonds bind the obli- gor, his heirs Hnd deviseeti, roiunteers or purchasers under execu- tion. This act does not apply to tliose whose Innds are bound virttite offieti; as the crrresponding Imp. act 2 & i> Vi<3. ch. 11, s. 8, does. 29 Vi.:. c asaetD. to Registry of Crown Bonds. judgment is no lien on lands (a), it would seem that, in favor of the Crown, the first .section at least will not apply for the benefit of Judgment creditors. Another question may also arise under sec. 2, viz., whether an unregistered instnmient has any binding efl'eot even against the debtor and his heirs or devisees, or persons claiming under or through him as volunteers or f»urchasers unci T execution. The original act may be looked at to guide ill the construction of the statute which consolidates it {b), but if there oe a variance between the two the lat- ter will prevail (c). The title of the original act is " An act to compel the registration of deeds and instruments creating debts to the Crown ;" the preamble is, " wheren.s it is desirable that all djeds and instruments under seal or of record, w!iereby any debt, duty or obligation has b«en or may be created to Her Majesty or her successors, shall be registei'ed in manner hereafter provided, in order to bind the land of t}w parties executing or affected thereby." This language, couple^ with the fact that the latter part of sec. 2 would be qui* useless unless unregistered instru- ments be held not to bo binding, affords strong argument in favor of that view. In one respect perhaps, the act hardly affords sufficijiit information to purchasers, because it only relates to instru- ments of which a copy can be registered, and as above mentioned, there are persons whose lan'is are bound, though they may not havcgivevi any instruments, viz., those whoso lands are bound under the Stat. Eliz. virtute officii, and those wlio may owe debts on simple contract, if they were known public officers or accountants to the Crown. The Imperial Statute 2 & 3 Vic. ch. 11, s. 8, expressly provides in reference to the Stat. 13 Eliz,, that the name abode, title, &c., name of the oftico, and time of acceptance shall be registered. By the Act ot 29 Vic. ch. 28, s. 28, before treated of, the Crown has no priority on administration of assets. (a) Ante p. 312. (6) Bank of Upper Canaua v. Brougli. 2 Err. &, App. Rep. 101, p»T Draper, C. J.J (c) Con. Stat. ch. 1, e. 9. Lien of Crown Bonds abolished. m Preamble FinaMy, bonds, covenants, or other securities to the Crown lieos Crown, entered into Jifter 1.5th August, 18G6, have no ||,ijgd " greater etfect tlian het\/een subjects by St»it. 29 & 30 Vic. ch. 43, which is as foHows : VIC. 20 it 30, CH. 4.5. An Act to amknd thi-; Law of Uppeii Canada rklatino TO CuowN Debtojis. Assented to loth August, 1866. Whereas by law in Uppei- Canaila, the property real and j)er- soiiiil, iif any pei-son entering into any bonil or covenant or being indebted to tho Crown, is bound by such bond or covenant from ihti date thereof, and from the incurring of such debt ; and wherea.s it i.s desirable that such bonds, covenants and debt.s made or due by a subject to the Crown, should be placed on the Siime footing as if they were made or duo fioui a subject to a subject 'J'lievefore, Hit Majesty, by and witli the advice and consent of the Legi.slative Council and A.sseuibly of Canada, *'nact.s a.s follows : 1, No bond, covenant, or other security, hereafter to be made or entered into by any person to Her Majesty, her heire or suc- cesyoi-s, or to any person on bfihalf of or in trust for Her Majesty, her lieirs or successoi-s, fduill bind tiie real or pvi-scnal property of such person so making and entering into such bond, covenant, or other security, to any further, other or greater extent tiian if such bond, covenant, or other security, had been made or entered into between subject and .subject of Her Majesty. Jj. The real or personal property of any debtor to Her Majesty, her heirs or successors, or to any person in trust for or on behalf of Her Majesty, her heirs or successors, for any debt hereafter contracted, shall be bound only u> the same extent, and in the same manner as the r(;al or personal property of any debtor whe>e a debt is lue from a sulyeet of Her Majesty. 3. The statute chapter live of the Consolidated Statutes for Upper Canada, shall be and tin; .same is he.eby U'pealed, except u.s to such securities .i» are mentioned ia the liist s,eetion of that htatutv, which had been made or entered into before tliii passing of this act. This act, by section 2 proljably, would e.^tcnd to those whose lands are, ao above mentioned bound virtute ojfficii under the act of 13 Elis. f ifl Bond«, &c., to Uie Crown to bind only Huoh property as would he bound in other cases. Property of Grown dt>h»- ornlinundonly as if liue ro n subject Cap. (if Clin. tilHt. U. 0. I'l'jU'lllciJ. fc^KCVptkOU T 'vntl 3n 336 Mortgages. STATUTES. Con. Stat. c. 18, s. 10, and the English 'Baiiknipcty Acts as to reputed ownerahip. •• c. 22, 8S. 257, 258, 259, 2G0 as to sale under execution of the equity of redemption. •' c. 22, s. 2G1 — Seizure of mortgage under execution. <« c. 73 — Right of married woman to rpdempUnn moneys on mortgage to her. ♦' c. 83, s. 10 — Mortgage liy tenum in tail. " c. 87 — Release by oxeciU'Ts — merger — piircha-se by mortgagee of tin- »'(juitjr of redenipti'Mi " c. 88, s. 19 — As to arrears of int^-rcMt. 24 Vic. c. 41, s. G — Amending ('onsolidaU-d Statute, chapter 87. 1*7 •' c. 13— Extending Con. Stat. c. '22 to licii-s, executors and administrators (»f Mortgagor. " " c. 15 — Sale of lands on ex»'Cution against exel;;Ut^ and administrators. 27 ik 28 Vic. c. 31 — The act as to short form of mortgages 31 Vic. c. 20, ss. 60, Gl, G2 — Release of mortgage under the Registiy Act. " " c. 20, ss. G6, G7, 68— Notice— Priority of registry as against equitable interests —Tacking — Consolidat- ing. 'M " c. U — Release of mortgage by married woman. " " c. 10 — Release by executors of mortgagee and power to assign redemption moneys and 'and . Imp. Stat. 14 Geo. 3., c. 78, s. 83 — As to insurance moneys being laid out on the property. It is proposed to treat of the above-naniecl statutes in considering the various clauses of an ordinary mortgage, and at the same time to remark gn other matters of most frequent occurrence, or of chief importance relating to mortgages. In an ordinary mortgage in fee simple, ibllowing the habendum come, Ist, the pioviso for redemption; 2nd, Proviso for Redemption. d37 the covenant for payment ; 3rd, the covenants for title : certain special clauses are frequently introduced to furnish furtlier security and remedy to the mortgagee, as, 4th, a covenant to insure and keep up insurance ; 5th, a power of sale on default; Oth, an attornment clause, or a power of distress; 7th, provisions for redviction or increase of inte- rest acconling to puncttuai payment; and lastly the provi- sion for [)08session by the mortgagor till default. The proviso for redemption is to the etfect that if the The proTiso mortgagor, his heirs, jixecutors, fuiministrators or sissigns, ^?^ redemp- pay the mortgagee, his executors, administrators or assigns the principal moneys and interest on certain days named, the conveyance shall be void ; or as is the better mode, that the nxortgagee, his heirs or assigns shall, at the cost and re- (juest of the mortgagor ifec, re-convey to him, his heirs or assigns. Sometimes though rarely, a ])lacc and hour is named for payment ; a provision that deposit to the credit of the mortgagee &c., in a specified bank, shall be a good payment., may well be inserted, and avoids the inconvenience of a personal leg.il tender to the mortgagee, which he can insist on if within the country. The money should be made payable to the mortgagor and his personal representatives, not to the heirs ; and though on death of the mortgagee the legal estate will de- scend to the latter, still by the act of 32 Vic. ch. 10, here- after referred to, the former can on payment of the whole ' or any part, re-convey the whole or any pait of the lands, or on any arrangement exonerate the whole or any part of the lands, without payment. When the instrument is bailly drawn, much difficulty Change to may .sometimes arise in those ca.ses in which the redem})tion „a„or by clause gives the right of redemption oi- of re-conveyance to worUing of those who would not be entitled to the estate if no mort- gage had been made ; in other words, the question is made to aiise whether the brneficial interest in the property is changed by the proviso and vested in others. It not un- frequently happens that in a mortgage of the propeily of a married woman, the pioviso is for redemption by or re- 43 ■■■ 1 m ' 1 '■ '^ffii M'i 338 Proviso for Redemption. On mortgage by tenant in tail for a free tiolij interest, heirs ynitral entitled to redeem. conveyance to, the husband and his heirs, and the question is whether this amounts to an alteration of the title to the ecjuity of redemption. If the mortgage contain no other evidence of intention to transfer the equitable estate to the husband than a mere proviso as above, it would seem tolerably clear no such transfer would take place {a). It is when the instrument does contain some other evidence by recital or otherwise, not clear or conclusive, that the {greatest difficulty arises. It may be stated generally that the indication of intention from which a change in the title, ultra the mortgage, is to be inferred, nm.st be a strung t)iie. On the one hand, the draughtsman who desires not only to draw a mortgage, but to change the course of title to the equity of redemption, should never omit to insert an appropriate recital, as the best evidence of intention to that effect ; and on the other hand there is no need tf) apprehend that the title to the eqxiity of redemption will be transfer- red, contrary to intention, by its being reserved to the mortgage*!", his hell's, executoi's, administrators or n.ssigns, wlien he is not owner in fee, or by any other ntere want of accurate adapttition of the proviso for redemption to the state of the title (h). The ca,se of a mortgage by tenant in tail for any free- h(tl(l interest (other than jnir autre vie) is by Con. Stat. ch. 83, s. 10, as hereafter explained, an excep- tion to the general rule that the beneficial interest results .vs of the old estate in the absence of evidence of intent to the contrary, for such a mortgage is a Imr to the helr,s in tail to the extent of the estate created, notwith- standing intention expi'ess or implied to the contrary. Thus on a mortgage in fee the equity of redemption will belong to the mortgagor not as tenant in tail but freeeraon as may be entitled by law to receive the money and to discharge such mortgage, in the form J, in the Appendix hereto, or to the like eflect, executed in the presence of one witnes-s, and duly proven by the oath of the subscribing witness thereto, in the same manner as herein is provided for the j)r( of of other instruments effecting lands, shall register the same, a.id every affi- davit attached thereto or endorsed thereon, at full length in its proper order, in the registry book, and luimbering it in like manner as other instruments are required to be registered and numbered, and also by writing in the margin of the register wherein the said mortgage has been registered, words to the fol- lowing effect : — " See certificate purjtorting to be discharge signed by , {naming the person wlu) lias ^.recuted the saim)," and "see registry number of such certificate Book {stating the same according to Uie/act)," and to which marginal entry the registrar or his deputy sliall aflS.K his name, and the same shall be deemed a discharge of such mortgage, and such certificate so registered shall be as valid and effectual in law as a release of such mortgage, and as a convey, ancp to the mortgagor, his heirs, executors, administrators or assigns, or any person lawfully claiming by, through or under him or them, of the original estate of the mortgagor. r> 1 . Tn oise the mortgagee or any assignee of the mortgagee, . ^ releas* (lesires to release or discharge part only of the lands contained in of part only lb art of the lands (/)) ; and surely it re(|uired no s|)ecial legislation to enjoin in ca,se of ])art payment that the amount i)aid should be specified; or to give ability "to release or discharge part of the money;" or, when the in- tention was " to release oi- discharge })art of the lands" to authorize! the mortgagee " to do so by act. Since the statute consolidated by dm. Stat. cli. 73, there ggg \ unne- can be but few cases wlierein, when a married woman is ce»8ary and entitled to mortgage moneys, she is nut so entitled to her separate u.se under that statute. As fai" as the author is aware, it has not been u.sual in ])ractice on ol.taining from a married woman a certificate of di.schariro of mortiratre, to require compliance with Con. Stat. ch. 85 : and noitlu'i where the wonnin is entitled to tlie moneys to her separate use, nor even in the few and exceptional ca-ses where- in she is not, would such compliance a})|)i'ar to have been requisite. Under Con. Stat. ch. 73, she is to " have, hold and enjoy" free from the control and disposition of her husband as fully as if unnuirried. She would be compe- tent to receive, and give a receipt, as a feme .so/c, for Jier moneys, and the form of discharge given by the registry uijunouu. 1. ^ '■ 5 '^ 1 I' r tip IiH eiicroncli- iiient on the righlfl of mar- ried women to ciintrol tlieir separate I'.state. ("on. St. cli. W, (« '.t, an to pitymrnt to .surviving mortKn((i'(>, liiH exccutorH, Ac. 344 .12 Vic. t'li. 10. act is but a recoipt in writing, tlnnigli thoft(;t},'iv((.s it \\'li«'n rcgistcnul, and imt till then, tlic rH'ct t of a ic-cMnvfyanct'. Tho roceijjt then works a rwonveyanm! I>y ojun-ation of law, l»y force of the Registry Art ; in itself it (Iooh not profe.sH to oi)nv(>y. • If tlie view of the author Ite correct, then tlie act has consiilerahly encroaclied on tiie rights given to a married woman hy ('(»n. Stat. ch. 7*1, and prac- tically placed the obtaining of her mortgage moneys inider the control of lier husband. Con. Stat. ch. 90, s. !l,as to payment to the survivor of mortgagees, or the executors or administrators of the sur- vivor tlieir or his assigns is treated of in (Htnsidering that statute. 82 VIC. CH. 10. An Act to makk hkttkii puovision for thk dkai.ino HY EXKCirrORS and AdMINMSTHAToU.S with MoKT(iAUK.S. Absented to llHh Dotemher, 18C8. Whereas it JHOxpudlent to nmko better provision for tlie (leiiliiig l)y Ex(!eutois unci Administrators with Mortyages. Therefore, Iler Majesty, by and with theadvioo and con.seiit of the Legislative Assembly of the Province of Onttirio, enacts Jis follows : — llopealH Con. b The fifth section of the act chaptered 87 of the f Consolidated Stat. cli. 87, Statutes of Up|)er Canada is hereby repealed. 2, When any person entitled to any freehold land by way of niiv RHsiitn or mortgage has departed this life, and his executor or adnunistrator release mort- tor has become entitled to the njoney secured by the mortgage, or elands hits as8entt?d Ut a bequest thereof, or has assigned the mortgage debt, such executor or adnunistrator, if the mortgage money was paid to the testator or intestate in his lifetime, or on pay- ment of the principal money and interest due on the morlL^age, or on receipt of the consideration money for the a.ssignment, may convey, assign, release or discharge the mortgage debt and the legal estate in the land ; and such executor or adnunistrator sliall have the same |K)wer as to any portion of the lands on pay- ment of some part of the mortgage debt, or on any arrangement for exonerating the estate, or any part of the mortgaged lands without payment oi money ; and such conveyance, assignment, re- PoWKIl OF EXF.C'ITTORS AS TO MORTOAOES. 345 loose or tliHchurgo shall bo na efluctuul an if the miiiio Imd been iiiaHtaU>. 'I'his act is iukeii from tin.* n'poult'd .section ut Coii. Stat. ch. S7, which liowcvcr, j^avc no power to iissi^'n the iiiort^a>.;(,M| lands. That statute was franietl in pavt from the repealeil Im|>fi'iai Act of 7 ic S Vic. ch. 7, and the KUi(gestions contained in tlie letter of Mr. Kerr rcgardinjj it {(I). It frequently happened that a mortgaj^ee tlied, and liis personal representatives, or a legatee, hecaine entitled to the mortgage moneys, whilst the legal estate descended to the heir-at-law in the al>senc«( of any disposition thereof by the mortgagee. The heir-at-law thus became trustee for the person entitled to the moneys, and on payment there- of was the party to reeonvey. Con. Stjvt, ch. 87, s. 5, was intended to remedy this inconvenience, but it did nttt go far enougli (b), for it would seem that whilst the statute contemplated the (ra.se of an a.ssignmetit by the executor or administi'ator of the mortgage debt, it gave no j)ower to a.ssign the lands (c), though on payment to th(! assignee of the debt the executor or administrator might apparently reeonvey the legal estate. It would seem that the words "executor or administra- tor" ax'ti tiomina culled iva, and that one of several per- sonal representatives cannot release (c^). Where the mortgage money haw been paid to a creditor who has seized the mortgage under execution against the mortgagee (e), or lia.s garnished the debt, as also in one of the cases contemplated by the act, viz., payment made to the mortgagee him.self, it might perhaps have been advis- able to have made it compulsory on the personal represen- tative to release, unless indeed the responsibility thus thrown on him might be deemed too gi'eat in such cases, (a) See the letter in the appendix. {b) See Ker's letter iu appendix. (C) Robinson v. Byers, 9 Grant, 672 j see however, per Draper, C. J., Hunter v. Farr, 23 Q. B. U. C. 32?. (rf) McPhadden v. Bacon, 13 Grant, 691. (e).See post p. 369. 44 ThixarttKken in part froui forinrr acU. I)«fiol«iioy uf former aclit, gave uo power to assign the land. One of several cannot ro* lease. As to the act being compul- sory in res- pect of release in certain cases. Ai %. ^ n%: .0^ \^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 lllitt illM M 22 2.0 llitt 1.4 III 1.6 V} ^ /}. '^, W*^ e". c^l ' \|, ^"^ 6^ % O ^1^<^ r^^^ f^ 4is v^ ^ I <> 34G Partial Release from a Mortgaqe. The act does not warrant release of part when residue is not of sufficient value, nor a sale or release of part when releasor has notice of a prior sale of another part with an agree- ment by mort- gagor to jiay the mortgage, hut a mort- gagee can still sell under a power in the mortgage, or the act as it ia, could in a court of equity, be taken as compulsory. The power given by this section to release part of the land on payment of part of the debt in no way prevents the application of the rule, that personal representatives, or othens occupying a fiduciary position, must in any such transaction proceed with due caution at their peril and see tltat the value of the security is not prejudiced by a release of part. It may be also where part of the security is re- leased for a manifestly inadequate amount, and the remainder is not sufficient to answer the mortgage debt, that the executor or administrator so releasing would not only be personally responsible, but the release avoided as against the releasee and all claiming under the release with notice as a breach of trust (a). So also where the mortgagor has sold part of the pro- perty, and agreed with the vendor to pay off the mortgage, if the mortgagee release the residue or join with the mort- gagor in an absolute sale of it as free from the mortgage, with notice of the prior sale and agreement, and without the assent of the first vendee, the part so sold will be re- leased from the mortgage; even though the mortgagee, and not the mortgagor, have received the proceeds of the second sale : and this will equally be so if the sale be under a decree in a suit by the mortgagee to which the first vendor is no |)arty (/>). The principle is that as between the mortgagor and the first vendee, the lands unsold become principally and solely liable, and as regards the mortgagee they are in the position of surety for the debt, who, having notice can do nothing to prejudice the right of the owner of lands first sold to have assigned to him on payment of the mortgage debt the lands so principally liable to him. i3ut the mortgagee can sell under a power of sale in his mortgage, for the power is paramount to any right of the vendee. So also where a mortgagor sells part with an m) Davidson Convey. 2 ed. vol. 2, p. 710; Lewin on Trusts, 5 ed. p. 423 7 r , , . (i) Gowland v. Garbett, 13 Grant, 678 ; see also Guthrie v. Shields thereio referred to. Con. Stat. Ch. 87, Purchase by Mortgagee ; Mergeii. 347 agreement to pay off the mortgage, a release by the mort- or release to a gagee to the vendee will not prejudice his security as acn^nst^a^sub- against a purchaser of the equity of redemption who had sequent pur- notice of the prior sale (a). ^ equity with The don. Stat. ch. 87, ss. 1, 2, as amended by 24- Vic. cli. "otice. 41, may here be alluded to. These sections are as follows: Con. Stat, c'li 87, ss. 1 & L'. as to niergt'i' on release or purchase of equity of re- demption. CON STAT. CH. 87, SECS. 1, 2 & 3. 1. Any mortgagee of freehold or leasehold property, oi- any assignee of such mortgagee, may take and receive from the mort- gagor or his assignee, a release of the equity of redem])tion in such property, or may purchase the same under any ))owor of salo in his mortgage, or any judgment or decree, without thereby merging the mortgage debt as against any subsetpieut mortgagtHi (or registered judgment creditor) having a charge on the .same property, 14 & 15 Vic. ch. 45, s. 1. 2. In case any such prior mortgagee or his assignee, take.s ;; release of the equity of redemption of the mortgagor or his assignee in such mortgaged p'"operty, or purchases the same under any power of sale in his mortgage, or any judgment or decree, no subsequent mortgagee or his as.signee or registered judgment creditor, shall be entitled to foreclose or sell such property with- out redeeming or selling subject to the rights of such prior mort- gagee or his assignee, in the same manner as if such prior mortgagee or his assignee had not acquired such equity of redeni}>. tion 14 & 1.5 Vic. ch. 45, s. 2. 3. This act shall not effect any priority or claim whicli any mortgagee or ji'.dgment creditor may have under the registry laws. 14 i 15 Vic. ch 4.5, s. 3. By 24; Vic. ch. 41, sec. 6, the above sections are to be 24 Vic. ch. 41, read and construed as if the words " or registered judjj;- ^'^j^'g^^i, gy or judgment creditor" were omitted ment creditor" and therein. The Con. Stat, applied to prevent merger not only as Con. st.ch.«7, against a mortgagee but also as against a registered judg- "^j v",'ci, '/| ment creditor, and if the act of 24 Vic, ch. 41, had no will not ;.«!/• jic further affected the Con. Stat, than by abolishing registry merger m of judgments, it is probable that the Con. Stat, would have ngHinstexicu- tion creditor, (a) Crawford v. Armour, 13 Grant, 67G. ! i. When prior 'e1 i mortgiigee shall tales re- lease of equity of redemption, &c., subse- 1 ! quent mort- gagee not en- titled to pur- chase or sell 1- property with- out redeeming 1 IbIp ,^ &c. iHdi Prioiity un- ' »HHB der register act not to be 'itt' '^' affected. w « i m 348 CoxV. Stat. Ch. 87. been construed to extend to execution creditors. The act of 24 Vic. s. 6, however enacted that the first and second sections of tlie Con. Stat, should " be read and construed as if the words or registered judf/moit creditor were omit- ted therein." The conse(iuence is that the Con.*Stat. will not per se protect a mortgagt^e buying the equity of re- demption as against a mesne execution creditor. The (juestion apart from the act is pj-esently considered. but mortga- ^ mortLcaffee however, who as such itavs off a prior gee paying a '^ ° ..... -iit ci prior charge charge to protect his title, is entitled to a lien for the IB entitled to j^nfjf^unt, j^j^ against mesne incumbrances (a). liunaH ngaiiiMt ° ^ ' mesne incum- ' The statute seems to ap])ly where the owner of the ranees charge, or mortgagee having the legal estate, acquires the plies, nt.t absolute ownership of the })roperty, not where the owner where eqmta- ^f ^]^g equity of redemption (who in ecpity is still regarded the property as substantially the owner of the property subject to the ''^°*"||!'^ the charges), acquires the charge (6). Cases under the latter charge, but head and the law of merger thereon, will probably more oUhlch^T^o frequently occur on sale by the sheriff under the C. L. P. acquires the Act, where the equity of redemption should be sold subject equitable ^'^ ^^^ mortgages, and the purchaser should pay off the ownership in fivst : decisions on which are hereafter referred to. ^ ' The obscurity of the act has been severely commented on (c), and it has been said it " is not to be extended be-* yond its letter" (, in notes ; Mayhew on Merger, 1 19 et seq.; Fisher on Mortgages, 2 ed. 7h.'), et seq. (d) Elliott V. Jayne, 11 Grant, 414, per Spragge, V. C. post, p. 351 n. /;. (c) Finlayson v. Mills, supra, per Mowat, V. C. ; Emmons v. Crooks, 1 Urant, 167, per Blake, C. '■'ii • I .( 'X- ' IT 'k' ■'»?' w . ^:-.V. ^1: fr '' w m ■ I- ■ ■tn 350 Con. Stat. Ch. 87. the equity buys up a charge, Intention an'-l interest of purchaser govern. Case of pur- chaserof equi- ty of redemp- tion subject to iiicuinhran- ces which purchaser in bound to his vendor to pay off; if paid off will they merge ? which it m3 ; Beatty v. Gooderham, 13 Grant, 317. (d) Elliot V. Jayne, supra. Merger. 351 of the existence of the mortgages, and deemed therefore to xindertake to discharge them both " (d). Moreover, Con. Stat. ch. 22, expres.sly throws on the jnircliaser the liability to \)ay the mortgages, and gives the mortgagor a remedy over agaiiust him in case the mortgagor should pay : if the .se- cond mortgagee sues the mortgagor on Ids covenant to pay, he in turn sues tlie purchaser of the ecpiity of re- demption for indemnity, which leads to svnne circuity of action. • The position and interest of tlie mortgagor also has to be considered on the ([uestion of the merger (Jj). It would seem therefore, in such case that unless there be at the time of .sale tlie assent of the mortifaijor-vendor that his vendee shall be entitled to keep on foot the first mortgage, that it will be merged as against the mesne in- cumbrance of which the vendee of the et^uity of redemj)- tion had notice (c). The case of Flnlayson Y.Mills on the construction of the act and the law of merger generally affords most useful information, and it will be found in the appendix to this treatise. The following remarks of the late Vice Chancellor Esten, in delivering judgment in Blake v. Beaty (d) will also be of service. He says : — ''■ From these authoi'ities we think the rule to be deduced is, that where the charge which has been satisfied is the proper debt of the party paying it, either by force of the original contract by which it was created, or in consequence of the purchase of the estate subject to it, and the stipula- tions accompanying such purchase, or any express or im- plied contract, making it his duty, as between him and the I !■[ n J ;: ■ ^ 1 Oeneral expo- sition of the law in Finlay- son V. Mills. s . '! ; '4 i ■, ■ yji'' - Blake v. Beaty. !t^HB The right to keep paid off' charges on foot. "flail ' ^ *« (a) Woodruff V. Mills, 20 Q. B. U. C. 58, per Robinson, C. J.; Thom- son V. Wilkes, 5 Grant, 594 ; see also Bank of Montreal v. Thompson, 9 Grant, 59, per Esten, V. C. (b) Finlaysoa v. Mills, 11 Grant, 225, per Mowat, V. C, see appendix; Emmons v. Crooks, 1 Grant, 167, per Blake. C, ante p. 349 n. d. {C) McDonald v. Reynolds, 14 Grant, 691 ; Blake v. Beatty, 5 Grant, 359 ; Bank of Montreal v. Thomson, 9 Grant, 59 ; Emmons v. Crooks 1 Grant, 167 per Blake, C; Woodruff v. Mills, 20 Q. B. U.C. 51 ; but see El- liott V. Jayne, 11 Grant, 412, referring to Watts v. Symes, 1 DeG. M. & G. 240; see also Beatty v. Gooderham, 13 Grant, 317. \d) 5 Grant 359. 1, I! ■-f-v , i-lij. m V-iHcIl 352 Merger — Con. Stat. Ch. 87. The right to person from whom he has purchased, to discharge it, he chargcH'on' ^'^"'•ot keep it iilive as a primary charge against any mesne foot. ii»cunibrances, which also it was imposed upon him by the terms, exy)-oss or imjilied, of his contract of purcliase to dis- charg*! ; but if by tlie terms of his contract he was not bound to discluugo the incumbrance in question, or although he M'as bound to discharge that, if he Avas not bound to discharge any mesne incumbrances affecting the same estate, • it would b(! compi?hent to him to maintain the incumbrance he has discliarged as a subsisting charge, in the former case for his reimbursement, and as stauiling in the place of the incinnbi-ancer, in the latter ca.se, for his protection. " A pui'chaser of an equity of redemption may also per- haps stipulate with his vendor, while he enters into an en- gagement to indemnify him against all the incumbrances effecting the estsite, that he shall be at liberty to keej) any incumbi-ance he may discharge on foot as against the sub- se(|uent incixud)rances so as to make his bargain as beneficial as possible. " In all these cases the principle .seems to apply ofviodus et convcntio vincunt legem, and the incumbrancers are sim- ply not permitted to be damnified by the arrangement made' between the contracting parties, which would l)e imjust • while at the same time no necessity exists for placing them lu a better condition than that in which they would other- wise stand. They retain all the remedies they ever had, but acquire no new ones." Ctin a mort- On one important point it is believed there is some con- gagee buy un- ^j^^ ^^ opinion among common law members of the profes- of sale? sion ; viz., whether apart from any question of merger, this statute does jxot warrant a mortgagee in buying himself un- der a })Ower of sale in his mortgage, thereby virtually ob- taining all the benefit and effect of a foreclosure in equity, and occupying at the same time the position both of vendor and vendee. This would be contrary to well established principles breaking in upon which is a strong argument against any interpretation of the statute which would allow it ; still it must be confessed, there was room for question. Purchase by Mortgagee under his Power op Sale. 858 but it seems to have been do-cided that a mortgagee so buy- ing will still continue mortgagee, and liable to be redeemed by the mortgagor on bill for redemption (a). Undoubtedly under Con Stat. ch. 22 s. 259, hereafter alluded to, a mort- gagee may pui'chase for his own sole benefit the equity of redemption of his mortgagor at sheriff 's sale, and that even on an execution in which he is plaintiff, but there the above rule is not offended, for the sheriff a public officer assumed to do his duty, intervenes between the parties, and hei not the mortgagee, conducts the sale, and (on a Ji. fa. at least), cannot sell at a sacrifice, is compelled by statute to give adequ,ate notice, and is bound to proceed with due regard to the interest of the debtor (b) ; moreover, the dis- tinction above alluded to, where the sheriflf intervenes, has been recognized in adjudged cases (c). So far as this statute, ch. 87, enables a mortgagee to receive from the mortgagor a I'elea-se of the equity of redemption, or purchase the same under any judgment, without merging the mortgage debt as against a subsequent mortgagee, there is not so much difficulty ; for in the first place that does not offend against the rule that the mortga- ge^ shall not sell to himself, and for the reasons above given > and next but for the statute the effect might be as above explained, to cause a merger of the legal, by its coalition with the equitable estate, and thus mesne incumbrances would stand first. But when a mortgagee sells under his power of sale, it is not the mere equity of redemption which he sells, but the legal estate in the lands, and the effect and object of the power is to enable him to sell such legal estate free from any equity of redemption. On any sale under the power, the purchaser need care nothing for incum- iion. (a) Watkins v. McEellar, 7 Grant, 584 ; see also post p. 377 as to cir cumstances under which the court will set aside a purchase by mort- gagee of equity of redemption. (b) Henry v. Burness, 8 Grant, 356 ; Bethune v. Corbett, 18 Q. B U. C. 498 ; McGill v. McGlashan, 6 Grant, 324 ; see also ante pp. 329, 330. (c) Stratford v. Twynam, Jacobs, 418 ; McGill v. McGlashan, 6 Grant, 324 ; Mohawk Bank v. Atwater, 2 Paige, 64 ; Woods v. Monell. 1 John. Chan. Ca., 502, American ; see also Mc^innon v. McDonald, 13 Grant, 152. 45 .!i^;ia • I 354 Tho Act may perlmps eon- toiiiplatc the fiase ol'siile by a second niort- gngee. St. 27 Vic. cb. 1 ■'^, ami Con. St, cb. 22. ss. 257, 258, 250, 200, sale by sheriffof equi- ty of roJetnp- tion. The interest of mortgagors may bo cold in' execution. Eflect of sucb such sale. Fl'nf'IIASK I'.V MoRTOAORF, UNDKR TIIS POWF.II OF SALF. hfuncL's HubseqiU'Ut to ix'f,'i,sti'y of tlu; inortgago, liis titlw iitidcr the pow or will l)t' piiraiaount to any such {a) : and so l»y parity of rcasoninf^, if the niortj^agee won? tlie i)uroha.ser (as.suniinghe could sell the legal ostjite tohiuisolf), he would also take freed of the equity of rodemptiou, and paranuiunt to in('um1irancessul)sec[uent to his mortgage : no ijuestion of merger in such a case would arise, for the mortgagee is not selling the ecjuity of redemption, retaining the legal estate, Init the latter, freed of the former, as authorized by the power. Tlie statute seems to assume, that a mortgagee sflling under his power of sale, can and sometimes does, .sell (ho 'Dicre equity of redemption, and is based on that suppo- sition ; for referring to it, it enacts that the mortgagee " niay purchase the same": a.ssuming even that under powers of sale as usually drawn such a sale could be had, it has never happened in practice, at least on behalf of a first mortgagee. Possibly the Legislature contemplated the case of a moi'tgagee, other than the first selling under the power of sale, in which case in one sense it would be a sale of an c([uity of redemption. The provisions of the Con. Stat. ch. 22, C. L. P. Act, and the act of 27 Vic. ch. 13 amending it, as to sale by the sheriff under execution of the equity of redemption of the mortgagor, are as follows : CON. STAT. CH. 22, SECS. 257, 258, 250, 2G0. 257. The .sheriff or other officer to whom any writ of Jieri fuciciH against the lands and tenements of any mortgagor of i-eal estate is directed, may seize or take in execution, sell and convey, (in like manner as any other real estate might be .seized or taken in execution, sold and conveyed) all the legal and equitable iu- ter'^st of such mortgagor in the mortgaged lands and tenements. 12 V.c. 73, s. 1. 258. The effect of such seizure or taking in execution, sale and conveyance, of any such mortgaged lands and tenements shall be to vest in the purchaser, his heirs and assigns, all the legal and (a) Daniels v. Davidson, 9 Grant, 17.3, where a'pnrchaser under a power of sale in a mortgage took paramount to a conveyance made prior even to tho mortgage, but registered alter its registration. ^m Con. Stat. Ch. 22, Sf.cs. 257, 2.58, 2.>*», 200. 865 equitable interest, of the iiiortgiigor therein at (he time the writ wiwi phiccd in the hands of the Hheriff or other officer to wlioni tlie same i.s directed as well as at the time of such sale, and to vest in such purchaser, his heirs and assigns, the same rights as such mortgagor would have had, if such sale had not taken place ; and the purchaser, his heirs and assigns, may pay, remove or satisly, any mortgage, charge, or lien, which at the time oT such sale existed upon the lands or tenements .so sold, in like manner as the mortgagor might have done, and thereupon the purchaser, his heirs and assigns shall acquire the same estate, right and title, as the mortgagor would have acquired, in ca* Witnesses. And such certificate shall be of the like effect, and shall be acted upon by registi'ars and others to the same effect as if the same had been given to the mortgagor, his heirs, executors, admiuistra tors or assigns. 12 V. c. 73, s. 2. 259. Any mortgagee of lands and tenements so sold, or the Mortj^agee heirs or assigns of such mortgagee, (being or not being i)laintifr™'''y Itecome ,„,.,., , , . „ , . . purchfther at or defendant m the judgment whereon the writ ol Jieri facias sheriff's sale. under which such sale takes place ha« issued) may be the pur- chaser at such sale, and shall acquire the same estate, interest and ,'•1 ilfji ' »i I I' :il 1: ' '0*\ liii 95Q 27 Vic. Ch. 13, Section 1. t! lU"! The iiilereui of a mortga- gor in goods mortgiigvd may l)e sold ill ezeculion. rights thereby an any other purchaser ; but in the event of the mortgagee becoming Huch purchuKer, he shall give to the mort- g.igor a release of the mortgage debt, aii;u- gi)r'8 inti'it'^l in cliiitteU runl he sold ? Before 27 Vic. c. 11! equity of reili'uij)tii)ii could not bo Huld in iitiit iigaini^t exe- cutors or assignee of mortgagor. Equity of re- demption hot saleable in parcels; as, if lands arc in several coun- ties; or if equity of re- demption severed. The equity, to be saleable, must exist on .if, •in * : i 358 'Con. Stat. Oh. 22, Section 261. face of the mortgage. Purchaser Ha' ble to incum- brances. Execution creditor on sale should giveproperin- formation as to incumbran- ces, or sale might be set aside. under, and not by reason of collateral facts creating it (a). The purchaser should, by reason of his liability to pay off' iricumbrances (b), ascertain their nature and amount ; on the other hand, the ex 3cution creditor must so. proceed as that, from want of proper information, the sale should not be prejudiced, as in such case the sale might be set aside (c). If he is not aware of the nature and amount of incumbrances, it would be a wise precaution in him to enquire of the execution debtor, giving notice of the object, with a view to weaken the case of the debtor on a bill filed to set aside the sale if he withheld the information. If a mortgagee ])urchase, the mortgage debt will as against the mortgagor and his representatives and persons liable as sureties for the mortgage debt be regarded as satisfied, and to .m action for the debt it would seem the ordinary plea of payment would suffice, though no release under the act had been given (d). The question of merger, and of the right of the purchaser to keep alive satisfied mesne incumbrances has been treated of (e) : other points are treated of in considering sales under executions. Cox. Stat., Ch. 22, Sec. 261. As to seizure 461. The sheritf or other officer, hdvirig the execution of any by sheriff of ^^ j^ oijieri facias against goods sued out of either of the supe- rior Courts of Common Law, or out of any County Court, or of any precept made in pursuance thereof, shall seize any money or bank notes (including any surplus of a former execution against the debtor), and any cheques, bills of exchange, prou.issory notes, bonds, mortgages, specialties or other securities for n.oney, belong- ing to the person against whose eifccts the writ ofjierifacun was Merger, &o. mortgage. (a) Fitzgibbon V. Duggan, 11 Grant, 188; McCabe v. Thomson, (5 Grant, 175. {h) See Pegg v. Metealf, 5 Grant, 628, as to the effect of the sale, and cases ante pp. .JSO, :^ol, 352. (C) Ferguson V. Duggan, 11 Grant, IS''; MeDjnald v. Cameron, 13 Grant, 84 ; Bebec Tokai Sherob v. iielgar, 6 More Indi »n ,App. 510 ; Jones V. Jones 15 Grant, 40 ; and ante j>. 830 ; post r. ,j76, (d) Woodruff V. Mills, 20 Q. B. U. C. 51. i &• Ante p. 347, et seq. Seizure op Mortgage under Execution. S59 issued, and shall pay or deliver to the party who sued out the execution, any money or bank notes so seized, or a sufficient part thereof, and shall hold any such cheques, bills of exchange, pro- missory notes, bonds, specialities or other securities for money, as Money seized a security or securities for the amount by the writ and indorse- *° ^* P"''^ ' ,,,., „i o'*' '0 party u)ent thereon directed to be levied, or so much thereof as has not taking out the been otherwise levied or raised, and such sheriff or other officer execution, may sue in his own name for the recovery of the sums secured thereby, when the time of payment thereof has arrived. 20 Vic. c. 57, s. 22. '11 The corresponding Imperial Act does not extend to mort- gages. Though the Provincial Statute expressly names mortgages as regards authority to seize, and makes no mention of them as regards holding and suing, still this will not preclude the right to hold or sue (a). If the execution creditor cannot through the sheriff seize a mortgage, he can nevertheless attach the mortgage debt. An execution will not bind the interest of the mortgagee from its delivery to the sheriff, but only from seizure of the mortgage (6). The covenant for repayment is not essential to the va- lidity of a mortgage, for it may well be that the land alone is to form the security, and that the mortgagor shall incur no personal liability ; consequently, in the absence of the covenant, or some evidence appai-ent on the face of, or given dehors, the mortgage, that a loan was in fact made or an antecedent debt existed, no action would lie against the mortgagor to recover the amount. In onf case (c) wherein the mortgagee was seeking to recover from the mortgagor, and the covenant was omitted, and there was the usual proviso for redemption and total absence of any evidence to shew a loan or antecedent debt, the consideration in the Interest of mortgagee may be reach- ed by seizing the mortgage, or by attach- ing mortgage debt. Execution binds only from seizure. Covenant for payment, not essential. Obligation to repay if no covenant. ■i< (o) Bank of Upper Canada v. Shickluna, 10 Grant, 167. (6) Smith V. Bernie, 10 C. P. U. C. (c) Hall V. Morley, 8 Q. B. U. C. 584 ; see also Pearman v. Hyland, 22 Q. B. U. C. 202. ■mi ' y, !•• I, ■a 360 Liiuitiition to lecovery of interest. Presumption of payment and reconvey ance. Covenant for Payment, mortgage being express'icl to be money paid by the mort- gagee to the moi-tgagor, the law on the subject is thus laiil clown, " We think it clearly appears that in order to furnish gi'ound for an action at law to compel payment of the mortgage money, there must be something beyond the mere proviso in the deed, which is simply a defeasance and noth- ing more. If there is no engagement expressed to pay the money, there must at least be what Lord Denman speaks of in Yates v. Aston {a), some proof of an advance made at the request of the mortgagor, for the mortgage itself certainly does not import that." The covenant for payment prior to the 29 Vic. ch. 28, sec. 28, gave the mortgagee the benefit of priority over simple contract creditors in administration of assets, and time of bar l)y the Statute of Limitations is extended to twenty years. The covenant should be in favor of the personal not the real representatives of the mortgagee, the former being entitled to the money, though the legal estate would de- scend to the latter. It is collateral to and does not run with the land as a cov^enant for title, but stands on the footing of a chose hi action ; and consequently on an as- signment of the mortgage, the assignee must sue in the name of the mortgagee. Intei'est more than six years over due ceases to be a charge on the land by Con. Stat. ch. 88, sec. 19; but by Con. Stat. ch. 78, sec. 7, the personal remedy by action on the covenant continues for the interest and principal for twenty years (h). Apai't from the Statute of Limitations, after expiry of twenty years non-payment and possession by the moiiigagor, a presumption arises of payment and re-convey- ance of the mortgaged estate to the mortgagor ; but it has been held that the presumption did not exist, where the mortgage deed contained no redemise to the mortgagor and the land was vacant on execution of the deed (c). A place (a) Yutes v. Aston, 4 Q. B. 182. {b) Sinclair v. Jackson, 17 Bea. 405 ; see post p. 386 as to tacking in- terest to principal as against the heir though more than six years overdue, and resisting redemption unless all arrears are paid. (c) Mahar v. Fraser, 17 C. P. U. C. 408, A. Wilson, J., MORTOAQES. 361 of payment is seldom specified, though the so doing, or the giving the right to deposit in some bank to the credit of the mortgagee might in some cases avoid the necessity of per- sonal legal tender to him. The covenants for title are the same as in ordinary pur- Covenants for chase deeds, except that the covenant for quiet enjoyment *'' ®' is made to take effect only after default in payment of the mortgage money. The covenants also are not limited as in ease of an ordinary purchase to the acts pf the grantor : this has been complained of on the ground that the result is after foreclosure or sale under a power of sale in the mortgage, that the mortgagor continues liable more exten- sively on his covenants which run with the land, than if he had sold the estate in the first instance ; no doubt this is so : on the other hand, if through defect in title, the mort- gagee lost the security of the land on recovery by a stran- ger through some defect in title not occasioned by the mortgagor, and the covenants for title were limited to his * acts, the mortgagee might be in a very precarious position in case the day appointed for payment of the principal mone}' were distant ; whereas, if the covenants were general, lu- might sue on them at ojice in such case without waiting for the day appointed for payment, and the measure of damages would be, it is apprehended, the amount of the loan, for the mortgagee is entitled to what he stipulated for, viz., the security of the land, and failing that, to be reinstated and to a retui-n of his money. Insurance policies against loss by fire, or against the death Fir.« insur- of the mortgagor, frequently form a most important part of "*"-' the security in a mortgage ; as where the chief value of the property consists in buildings in the one case, or the mort- gagor should have but a life or limited interest in the pro- perty in the other. Objections are frequently made to lending on property where fire insurance is essential to the sufliciency of the security, This arises from the risk of the policy being void in its inception from improper description of the property insured, or from other inattention to important particulars, 46 m I ^! El*. m 362 Fire Insurance. t)r becoming vitiated after its creation on violations of the conditions by increase of risk or otherwise. The mortga- gee also is frequently put to expense and trouble on a loss happening. In very many cases when a loss occurs, the insurance company is not legally liable, and it is more than piobable that if mortgagees and others insured were now to examine the conditions endorsed on their existing poli- cies, and the facts attendant on and subsequent to the in- surance, they would find that their only security rested on moral obligation, or the fact that the companies know well tliat it is not to their interest to insist on strictly legal ob- jections. On this Lord St. Lemards says (a), " Very few [)olicies against fire are so framed as to render the company legally liable, generally the property is inaccurately de- scribed with reference to the conditions ijnder which you insure. They are framed by the company, who probably are not unwilling to have a legal defence against any claim, as they intend to pay what they deem a just claim, without taking advantage of any technical objection, and to make use of their defence only against what they may believe to be a fraud though they may not be able to prove it." He goes on to mention the difficulty he had in endeavoring person- ally to efi'ect a proper insurance. In practice it is not usual for the mortgagee to enquire into the validity of the insu- rance effected by the mortgagor. There is this distinction between an insurance against l(jss by fire and an insurance on a life, viz., that the latter, Distinction between fire niice • tiuf for- ^^ ''*' <^ontract to pay a fixed sum, and at least where a man mcr a mere insures his own life, quite independent of any question of t'fi"t*of in-"' indenmity or loss consequent on death, whereas the former demnity. is strictly a personal Contract for indemnity to the insured against loss, and does not extend beyond the amount of loss (6). Fire insur- The consequence is, that where the insured absolutely anceceaseaon ., , . i ii t t ^ iv conveyance conveys the property insured, the poucy ceases to be enec- (a) Handy Book, 5 ed., p. 46. {b} Dalby v. India and London Assurance , Company, 15 C. B. 366; Smith Lg. Ca. 5 ed. 233, 239, 249. IN CONNECTION .WITH MORTGAGES. 363 tual, for the insured can suffer no loss as to property, not his ; and in order that in such case, the policy if assigned, should continue effectual, the consent of the insurers should be obtained on the assignment (a). This it will be observed is quite independent of any conditions of the policy, which usually expressly provide that on any transfer of the pro- perty or of the policy, the consent of the insurers shall be obtained and signified in some particular way. As however upon a mortgage, an interest is still left in the mortgagor, a transfer by way of mortgage would not, it would seem, be within the principle above alluded to applicable to absolute transfers, and an action might still be sustained in the name of the mortgagor, unless indeed the conditions of the policy vitiated it on assignment with- out consent (6). Frequently it will be found, the condi- tions of a policy are so worded as in strictness to render ). 'flit; intere.st must bo a pecuniary one, (c.) but every one has an insurable interest in his own life. A policy is based on representations made as to ag(?, health and other material particulars; most policies provide that any erroneous repre.sentation shall vitiate the policy, and in such case the materiality df such representation is not to be considered (d). Wilful misrepresentation or supj)ression, of a material fact, would vitiate the policy aj^art from any express condition to that effect (e). In most in.stances also the policies are liable to be avoided on certain named contingencies, as if the party whose life is insured should travel beyond certain specified limits, &c. The policy being a chose in action is not assignable at chose in action. \^^^^ ^^ ^^ ^^^ gjyg ^j^g assignee a right of action in his own name; any action for the sum insured mu.st be in the name of the in.sured or his personal representatives, even though Misrepresent iition. Tbe policy a (a) Dalby v. India Ins. Co., 15 C. B. 392. 2 Smith, Lg. Ca. 6 ed. 246 overruling Godsall v. Boldero. (6) lb. (c) Von Lindenau v. Desborougb, 8 B. & C, 686. Morland v. Isaac 20 Uenv 389; see further as to insurable interests Bunyon on Life Insu- rance 14. (d) Anderson v. Fitzgerald, 4 H. L. Ca. 484. (e) Beemer v. Anchor Ins. Co., 16 Q. B. U. C. 485, a case of fire policy. IN CONNECTION WITH A MORTGAGE. 369 expressed to be niado with assigns (a) : for the same reason also, as will be presently explained, notice to the insurer of transfer of the policy is all important. From the above remarks may be gathered the matters deserving attention on the assignment of a life policy. As a preliminary step, enquiry should be made of the insurers, as to whether the policy is still subsisting, and whether they have received any notice of any prior transfer. As a general rule the assignee, from difficulty of enquiry into the facts, has to run the risk of the policy being invalid by reason of en-ors, or misrepresentation in the particulars on which it is based. The assignment, if by way of mortgage, may be coupled Form of as- with the grant of the land mortgaged, and the same with ii^°^o^i°oy° regard to the proviso for redemption. It should give power to sue in the names of the personal representatives of the insured, and to give receipts (b) ; the trusts should be de- clared of the moneys to be I'cjeived, being to pay expenses, then the mortgage debt, and the surplus to the mortgagor. The covenants of the mortgagor will be not only to pay requisite premiums, and produce receipts, but not to do or suffer anything whereby the policy or any future policy may be avoided ; that if it becomes voidable he will do all things requisite to restore it ; that if it becomes void he will reinsure in the mortgagee's name; that on default by mortgagor in regard to insurance the mortgagee may insure and pay premiums, and the mortgagor will repay and the expenses, and till re-payment the moneys shall be a charge on the lands and the policy. There should be a power to . • sell or surrender any policy, with the usual clauses exoner- ating the purchaser from seeing as to the regularity of the sale ; the trusts of the insurance money should be declared ; and the mortgagee declared not to be liable for involuntary losses. The frame of some of these trusts and declarations will be referred to hereafter in considering power of sale (a) Carter v. Boehm, 3 Burr. 1905 ; 1 Sm. Lg. Ca. 6 ed. 490, in notes. (i)Brasier v. Hudson, 9 Sim. 1. 47 ml €a i R (b\ Morton v. Wnofla. T.. R. 3 O. B. 658. 0. 358. (6) Morton v. Woods, L. R. 3 Q. B. 658. Hy Right to Distrain. 881 execution by the mortgagees, Blackburn, J., seemed to think it possible, if it were necessary to decide on the effect of non-execution, that the instrument might operate as a conveyance to the mortgagees to the use of the mortgagor for ten years : he agreed however, that the tenancy was at will. • A very recent case (ft) bears as well on the creation r)f relationship of landlord and tenant between mortgagor and mortgagee, as on the efteet of a license givanted by the mortfraffor to distrain for interest in aiTcar as for rent in arrear. The case is of importance from the frequency with which the facts are likely to occur, by reason of the very general adoption of the •forms given by the act. It was an action of replevin, and "the defendants avow- iieirttionship ed in substance that before the said time when, &c., one an,}*"en°n| ' Deivey mortgaged to defendant Kelly certain lands, the said and right of , X • • • r 1 • lU • 1 distress under mortgage containmg a proviso tor making the same void on 07 & og yic payment of the amount secured by a day named, and cove- c._3l, clauses nant for payment, and also covenant for distress, on default in payment, in accordance the terms of clause 15 of schedule 2, 27 & 28 Vic. ch. 31, with an averment that there were due Sl,412.50 for interest, and that default been made, and thereupon defendant Kelly distrained. The second avowry was in all respects similar to the first, with , the excej)tion of an averment that the covenant for distress was a license to take any goods found on the premises, and the plaintiffs claimed the goods under the alleged conveyance thereto from said Dewey subsequently to said mortgage and the accrual of the interest thereunder; and that plaintiff had at the time of said conveyance notice of said mortgage, its covenants, &c." The avowries were demurred to, and were held bad as not shewing "that the mortgage contained a provision that the mortgagor should be permitted to continue in possession of the mortgaged premises, nor that he did occupy in pur- suance of such permission at the time of distress, or at any n^ ■'it. 'I (a) Royal Canadian Bank v. Kelly 19 C. P. U. C. 196. 382 Right to Distrain vnoer Royal Cana- dian Bank v. Kelly. time," which it wiw considered were matters necessary to be averred. By tlie judgment (p. 201) it would appear that in the n account by the debt'i not covering the interest alone, the debtor in the course of time, without adding any ])ay- ment in the meantime will make his creditor his debtor f'c). There is sometimes a provision that if interest be not Provision as punctually paid, the rate shall be increased ; in such case interest. the increased rate will l)e viewed merely as a j)enalt}' against which a court of ecjuity will relieve. On the other hand if the higher rate be named as that at wliicli interest shall be paid with a provi.sion for its reduction on punctual payment, here on default the higher rate can be enforced and no relief had (h). And so also a stii)ulation that if the principal be not paid on the day named, the rate shall be increased is enforcible in equity as well as at law (c). There has now to lie considered the respective jiositions Right of pos- of the mortgagee, mortgagor, and tenants of the mortgagor, '^^'''*'°"- lH)th on demise before and after the mortgage. •« As between mortgagee and mortgagcjr merely, at first Definition of sight it would appear as though there could be no great P°'''""" "^ difficulty in determining their respective rights to pos.scs- iu possession, sion, or in defining the ])osition of a moi'tgagor : it will be ' seen, however that it is a matter of some difficulty. (a) Sir James McGregor v. Gaulin, 4, Q. B. U. C. ;i78. The above is the mode usually adopted by merchants, and there is no doubt tliat « here their transactions are large, they must lose greatly by it. (b) Davidsoc Conveyancing, 2ud cd. vol 2, ,0;55, (C) Waddell v. McColl, 14 Grant, 211. M 888 The Right to Possession. Definition of imsitinn of inorigiiKor in possession. Lord Wensleydale has said (a) " a mortgagor is not in all respects a mere bailiff, he is much like a bailiff; he is not a mere tenant at will ; in fact he can be described merely by saying he is a mortgagor." Lord Demnan has said it is a very dangerous thing to attempt to define the position of a mortgagor. Under the selfsame circumstances a mortga- gor in pcssession has sometimes been termed tenant at suf- ferance, sometimes tenant at will, sometimes tenant at will quodammodo (h). It is therefore dangerous to infer that under certain circumstances a mortgagor in possession has (dl the rights or liabilities of an ordinary tenant at will or at sufferance, merely because in such circumstances in one or more cases he is designated as a tenant of either char- acter. The right to possession as between mortgagee and mort- gagor may be con.sidered under the following heads :— 1. When nothing is said as to possession in the mortgage, or at or after its execution, and no tenancy is created by any implied or express agreement ; here the mortga- fo Dos^session^ S^^'^ right of possession exists from the time of execution of the moi"tgage (c) ; and the mortgagor continuing in possession is in the position of a tenant at sufferance. When mort- 2. If the mortgage is silent as to possession, and the mort- gage silent as gagee either expressly consent to the mortgagor remain- to possession, ? ° . . ^ xi, f , V, +U f I, ^ and mortgagee ing in possession, or the tacts are such that such consent consents to ^^.^j^ |^g implied (d), then the mortgagor cannot be treated mortgagor's i \ /' so , ■ i possession. as a trespasser, or tenant at sufference, and so ejected without demand of possession. The position of a mort- gagor under these circum.stances is that of a tenant at will, both as regards right to possession and the application of the Statute of Limitations. (a) Eitchfield v. Ready, 20 L. J. Ex. 52 ; and see 11 A. & E. 314. (6) See notes to Keech v. Hall, 1 Smith, Lg. Ca. 2 ed. 537. (c) Doc. d. Mowut V. Smith, 8 Q. B. U. C. 13!). (rf) Can such consent bo implied so as to create a tenancy at will from the mere fact of silence by the mortgagee and his knowledge that the mortgagor remains in possession ? See notes to Keech v. Hall, supra ; and Evans v. Elliot, 9 A. & E. 342 ; Royal Canadian Bank v. Kelly, 19 C. P. U. C. 196, per Gwynne, J. Bight of possession between mort gagee and mortgagor. When mort- "W wrr BETWEEN Mortgagor and Mortgagee. 389 3. If nothing appear as to a tenancy or right to pos- session, beyond a covenant by the mortgagor that after default the mortgagee may enter, hold, possess and enjoy, this will not by implication override the effect of the con- veyance which gives an [immediate right of entry to the mortgagee : such a covenant may be regarded only as an ordinary covenant for quiet enjoyment, to take effect after default (a). 4." If the mortgage contain a positive agreement or proviso that till default in payment on certain named days, the mortgagor may remain in possession, this operates as a re-demise to" the mortgagor " for as long as he had time given him to redeem by payment of the mortgage money, imless he make default in any inter- mediate payment," as being an afHrmative agreement by the mortgagee for a definite named time, and th(! mort- gagee's right of entry will accrue only on default {h). n. On default in the last instance the mortgagor becomes tenant at sufferance. (5. If the duration of the intended demise lie un- cei'tain, or couched in the shape only of a ncf/atlve covenant by the mortgagee, it has been said this will not operate as a valid demise (c) : thus a mere covenant by the mortgagee that in case of non-payment on the day named he would not enter till after a month's notice in writing, has been said to be invalid as a demise, on the double ob- jection of want of certainty, and of affirmative language ; and the following passage in Sheppard's Touchstone (8 ed. 272) has been referred to : " If A do but grant and covenant with B, that B shall enjoy such a piece of land for twenty (a) Doe d. Roylance v. Lightfoot, 8 M. & W. fjSS. (b) Wilkinson v. Hall, 3 Bing. N. C. 533; Ford v. Jones, 12 C. ]'. U. C. 358. (c) See the notes to Keech v. Hall, 1 Smith Lg. Ca. 6 ed. p. C)2"> ; see also on the question as to certainty, Ashford v. McNauErhten, 1 1 Q. B. IT n ITl . Tlf.llir.l .. Vf_T'.,..l 1 A l^ T> TT n 4 f\n IT li .r Mere covenant by mortgagor that mortga- gee after de- fault may enter. On default. Possessory right on un- certainty of the term, or mere negative covenant by the mortgagee not to enter 2 ed. p. 14, and cases there referred to ; see also a review of the cases in Royal Canadian Bank v. Kelly, 19 C. P. U. C. 196. Positive agreement that mort- gagor may re- main in pos- session till default. ■■'■ \\ H' la 390 Ukjht to Possession 'r. years, this is a good lease for twenty years : so if A prom- ise to B to suffer him to enjoy such a piece of land for twenty years, this is a good lease for twenty years. So if A license B to enjoy such a piece of land for twenty years, this is a good lease for twenty years. And there- fore it is the common cour.se if a man make a feoff- ment in fee, or other estate, upon condition that if such a thing be or be not done at such a time, that the feoffor, &c., shall I'e-enter, to the end that in this case the feoffor, &c., may have the land, and continue in possession until that time, to make a covenant that he shall hold and take the profits of the land imtil that time; and this covenant in this case will make a good lease for that term ; if the uncertainty of the time, Avhereunto care must be had, do not make it void ;" (Mr. Preston adds : The limitation of a certain term, with a collateral determination on the event, would meet the difficulties of the case) " and therefore if A bargain and sell his land to B on condition to re-enter if he pay him £100 ; and B doth covenant with A that he will not take the profits until default of payment; in this case, howbeit this may be a good covenant, yet it is no good lease (for want, says Mr. Preston, of a more formal contract, and also for want of certainty of time). And if the mortgagee covenant with the mortgagor that he will not take the profits of the land until the day of payment of the money, in this case, albeit the time be certain, yet this is no good lease but a covenant only," (since, says Mi-. Preston, "the words are negative only and not affirmative). The above passage from the Toixchstone was referred tf) in a modern case (a), in which the mortgage named a day for payment, and provided that in case of non-payment, after a month's notice according to the covenant, it was to be lawful for the mortgagee to enter into possession and lease and sell ; and there was a negative covenant by the mortgagee that nomle or lease should be had till after one month's notice, demanding payment of that which at the (a) Doe d. Parsley v. Day, 2 Q. B. 147. ■""r I BETWEEN Mortgagee and Mortgagor. 891 end of that time should be due, and defjiult made at that time : ejectment was brought after the day named, by the mortgagee, no notice or demand of any kind appeared to have been given, and objection was taken on that ground. The court, after (quoting at length from the Touchstone, and stating that " after the day of payment, the time, if any, during which the mortgagor was to hold, was not deter- minate, but altogether uncertain; neither was there any affirmative covenant whatsoever that he .should hold at all ;" considered further, that " the covenant therefore that the mortgagee shall not sell or lease, even if it be construed should not enter, until a month's notice, was a covenant only and no lease ;" and consequently " that there was no re-demise so as to entitle the mortgagor to notice or de- mand of possession, but he was in the same position that mortgagors usually are, viz : liable to be treated as trespassers at the option of the mortgagee." The court in the above case distinguished as to others («), and remarked also as to another case (6), that " it may be questionable whether sufficient attention was jjaid to the point as to the certainty of the time ; at all events it was not decided (m any ground that such certainty was immaterial." 7. If by the operation of an attornment clause, as before Possessory explained, the mortgagor should expressly become tenant [ornlpnt'^'" to the mortgagee, either at will or from year to year, at a rent, then he will have the ordinaiy right to possession (jf any such tenant, except in so for as such right may be qualified by the mortgage itself in giving. right to entry without notice on default in payment, or non-observance of covenants. 8. Those cases where, as in the fourth and seventh On non-exe- instances above, the proviso for possession is valid as a ^oJ.?ea(jee of re-demise by the mortgagee if the mortgage were executed the mortgage by him, but if not so executed, might fail to create the term intended, as not being in compliance with the Statute of Frauds, or Con. Stat., ch. 90. Ia tl (a) Wheeler v. Montefiore, 2 Q. B. 133. (6) 2 Doe d. Lyster v. Goldwiu, 2 Q. B. 143. f 392 The Right to Possession It would seem that where the proviso for possession would give a right to possession exceeding three years, though subject to earlier determination on default by ^the Non-execu- mortgcagor, that non-execution by the mortgagee will tionof mort- ,i • , i • t i , . , gage by mort- ^-'^^se the proviso to be mvalid to create the term, or gagee. right to possession intended (a) ; unless indeed the mort- The term may gage can operate to execute the term by way of use. beexcutedby ~, •. n i J J way 01 use in J^^us it may well be contended that on a mortgage in fee ^r'or°^™°'^'^' ^^ ^^^^ of release or statutory grant, wherein the day for payment should be more than three years from execution of the mortgage, with a proviso for possession by the mortgagor till default, that it might operate to create a use .'or the term in the mortgagee for the mortgagor, which ♦ r statute would execute (6), and as to which the execu- tion by the mortgagee would be immaterial, If however, the : >nveyance should be as is usual, unto and to the use Gi (He : mortgagee, or otherwise there should be a use on a use thua of course no legal estate in the term would be executed (c). Where the term intended to executed in the mortgagor under and assuming, as would seem that where it would exceed three be created cannot be the Statute of Uses, to be the case (d), years, the non-execu- tion by the mortgagee would prevent its taking effect; (a) Swatman v. Ambler, 8 Ex. 72 ; Pitman v. Woodbury 3 Ex. 4 ; Doe V. Lightfoot, 8 M. & W. 553 ; Wilkinson v. Hall, 3 Bing. N. C. 533 • P'ord V. Jones, 12 C. P. U. C. 358. (6) Morton v. Woods, L. R. 3, Q. B. 658, per Blackburn, J.; in argu- ment and judgment, see this case ante p. 380 ; see Simpson v. Hartman, 27 Q. B. U. C. 460, where a mother seised in fee in consideration of five shillings and natural love, granted, bargained, and sold to her daughter and her heirs, to their own use, for ever, " reserving, nevertheless, to my (the grantor's) own use, benefit and behoof, the occupation, rents, issues, and profits of the above granted premises during my natural life." The Court, considered that the fee passed to the grantee. The operation of the Statute of Uses was not alluded to ; and if it had been, it would seem that taking the conveyance to operate by way of grant, (whatever might have been the case if it were to operate as a covenant to stand seized, or by way of bargain and sale), the use in favor of the grantor would still have been a use upon a use, and so unexecuted by the statute, and a mere trust. This case therefore, does not conflict with what ia stated in the text. (c) See Simpson v. Hartman, supra. (d) Ante note a. BETWEEN Mortgagee and Mortgagor. the clause as to possession would still bo evidence of a tenancy at will : and if there be an attornment clause in the mortgage under which the tenant is to pay intcr- e.st as rent, and occxipation subsequently by the mort- gagor, the position of landlord and tenant will be created, and the mortgagee can distrain (a) : nor would it seem to be necessary for such purpose that rent should theretofore have been paid qua rent (b) : probably also, .if rent were paid qua rent, with reference to a year or aliquot part of a year, and there were nothing in the mortgage shewing that a tenancy at will only were intended, a tenancy from year to year would be created (c). If the mortgage be to a married woman (as is now not uncommon since Con. Stat. ch. 73), then it would seem that there should be a certificate of her examination, and that her husband should be a party, as required by Coii. Stat. ch. 85, in order that the clause giving to the mort- gagor right to possession till default, should operate to create a term in his favor, unless as above suggested, the term can be executed by way of use. If the mortgagor be tenant at will to the mortgagee an assignment or sub-lease by the mortgagor does not j^^'i' *). Rightofmort- It not unfre(iuently hajtpens that the mortgagee ]>ennits KdRor to the ^]^^, jnortirairor to receive the rents, and does not in any waA' rents. n n ./ . interfere with the tenancy, and that the tenant omits to pay rent to either, the question then arises, how the mort- gagor (;an enforce payment. It is clear that where there is 110 snhsisthi(f re-demisc to the mortgagor, and the mortga- gee is the reversioner, that the mortgagor is not entitled to sue or distrain in his own name, and so no proceeiiings can be had \mless in the name of the mortgagee : recent eases go to shew that under such circumstances as above, the mort- gagor is " pyesinnptione Jiiriti authorized," " if it should become necessary, to realize the rent by distress, and to distrain for it in the mortgagee's name, and as his bailiff" (of, and under ti.^ ini- pres.sion that he still held th(! mortgage, would h{\ allowed against the assignee. Nor would it make any dift'erence that payments were made, and were unindor.sed as stich on the mortgage, and that the mortgage moneys were not then [)ayahie. Hence the rjeccssity of incpiiry at least, prior to as.signment, and of notice to the mortgagor of any transfer, in ca.se he does not become a party to the assignment. It would seem that under .sec. (iG of the Regis- try Act registry of the assignment would not be notice to the mortgagoi', as that section only constitutes registry of instruments notice' to those claiming nn inlerest subse- quent to such registry'. The assent to the ti'ansfei" where tlie mort; is in possession may be of importance in .some cjv.ses; ...,, as before explained, a mortgagee in j)ossession is liable to account for rents and profits, and chargeable also fr)r loss to the mortgagor's estate through his wilful default, and as he occiipies somewhat the position of a trustee for the mort- gagor, if he assign, without assent of the latter, and deliver possession, he will continue responsible on default by the assignee (c). On an assignment of a mortgage, or on .sale under a power of sale, the only covenant for title to the land that the mortgagee can be required to give is that against his incumbrances. The character of a mortgage of lesusehold i)ropei-ty must depend much on the nature of the lease ; if the rent be of less amount than the annual value of the property, and the (a) McDonough v. Dougherty, 10 Grant, 42; Engerson v. Smith, 9 Grant, 16. {h) Galbraith v. Morrison, 8 Grant, 289. (c) Ante p. 485, u. c. ; 1 Eq. Ca. Ab. 328, pi. 2. ■pr- MoilTdAOK OF LRASEIIOLDS. 399 covctuints binding on the assinjnccs (f<) he not too onerous, then it Im ln'ttcr to have the mortgag«> ])y way of assign- ment tlnin undcrlt'asc. This is advisahh; hecausc' if the nioi-tgjige ho hy way of nndcrli'aso, which leaves a revei'- sioii in th(! niovtgagoi', ht; may jK'vhaps i)y non-olwervance of sonit^ I'ovenant in tlie original lease giving right of re- entry to the lessor, forfeit tlit; lease ; whereas if the mort- gage h(! hy way of assignment of the whole estate of the lessee, no sueh danger is ineui'red. It is manifest also that this danger eonsiderahly depreciates the value of the secu- rity to the mortgagee, as being among other things likely to aHeet the price on any sale under the ])o\ver of sale in the njortgage. If howc^ver the rent be large and the cov- enants binding on the assignees of a burdensome nature, or such as the mortgagee might not wish to assume, as for instance u covenant to repair from which destruction by tire is not excepted, then he ma> have to rest satisfied with an underlease: for if he take an assignment he would during the contiiniance of his estate, be liable for the rent and the performance of such covenants ; and that even though he should never enter (b) : and it would seem even though he should not be entitled to enter ; as where the mortgage should give right to the mortgagor to remain in ])Ossession till default in payment of interest or principal, and the interest should V»e i)unctually paid. Of course the head landlord could distrain on goods on the premises on non-]myment of his rent ; but he might lie by allowing an'ears to accumulate, and ultimately sue the assignee for all arrears due during the time he was assignee (c) : hence the necessity, if the mortgagor is to remain in possession, of providing in the mortgage that he ])ay the rent to the head landlord, and of ascertaining that it be paid. A mortgage by way of sub-lease is usually for the Whole Mortgage by term less a day; this prevents any privity of estate },e- 8"'^"'''''*'^' (a) As to what covenants are binding on assignees. Spencer's ca.se, 1 Smith L?. Ca. G ed 45 ; Western v. Macdennot, L. R. 1 Eq. 499 ; Wilson V. Hart, L. R. 1 Cha. App. 4ti3. Ante p. 5. (6) Jones v. Todd, 22 Q. B. U. C. 37; Cameron v. Todd, ib. 390; 2 Err. & App. Rep. 434. (C) See a case of this nature, note b, supra. 400 Mortgage by Sublease. sublease. Mortgage by tween the mortgagee and the original lessor, so that the former is not liable for rent or on covenants in the original lease. The reversion tliough only of one clay left in the mortgagor exposes the mortgagee to the danger of furfeiture^ and decreases the value of the security as above explainetl ; but the decrease in value may be partially obviateil, as it always should be, by a declaration in the mortgage that the mortgagor his executors, administrators and assigns will on any sale by the mortgagee, &c., under the powei- of sale standi possessed of and interested in the reversion in trust for the purchaser and to assign and dispose of the same a.s he shall direct. After a sale and conveyance of the term to a purchaser, he need not under such a declaration obtain an assignment to himself, because in that case as the term ' and the reversion immediately expectant thereon would meet in the same person, the term though for a longei' period than the reversion would still be merged in it as being a higher estate, and thus the purchaser then stands in the position of assignee of the original lessee, and so liable on covenants running with the land which it was originally intended to avoid by the mortgage being by way of sublease. If therefore the purchaser is unw'illing to as.sume the responsibility of the covenants, and at the ,same time wishes to avoid any dangei- of the mortgagor eonuuit- ting some act which would forfeit the lease, he might obtain a:' assignment to a trustee ibr him ol' the mortgagor's reversion (a). (a) The forms are that the mortgagor shall convey his reversion as the purchaser shall direct, the object being that as mentioned in the text the purchaser may either take an assignment to himself, or avoid liability on the covenants by procuring an assignment to a trustee. It may be said liowever, the purchaser does not thereby escape liability, as he would be bound to indemnify his trustee against loss. Still the pecuniary position of the person selected as trustee might not be such as that he could sufler loss^ and if he suffered no actual loss, he might be satisfied not to call on his cestui qui trust to relieve him. The propriety of such a course it is for the parties adopting it to consider. That such an assignment is not to be; deemed fraudulent, so as to be vacated by the lessor, see Woodfall L. & Tenant, 9 ed. 241. 8 ed. 229; Rowley v. Adams, 4 My & Cr. .O.'M ; The mortgagor might also, if he were the original lessee and so always liable after assignment on his covenants, reasonably object to assign to a person who could not indemnify him against non performance of his L'ovennnts ; but if he isrere an tisaignee, such objection would not hold, as after assignment Lis liability ceases. Equitable Mortgages. 401 The law on the subject of equitable mortgages by deposit Equitable of title deeds depends much on the Registry Acts, and ho"w affected under these the law varies. by registry The act of 29 Vic. ch. 24, had provisions similar to sections j'^/" 29 Vie. c. 24 G7 & G8of 31 Vic. ch. 20, which repealed the former act, gg, g5, 66. the language of which sections is as follows : — Section G7. Priority of registration shall in all cases prevail 31 Vic. c. 20, unless before such prior registration there shall have been actual *^" "'» °':' /.I • . ,1 1 • • 1 1 *^ '" notice noLice of tlie prior instrument by the party claiming under the and registry. prior registration. Section G8. No equitable lien, charge or interest affecting Equitnble land shall be deemed valid in any Court in this Province after this li>ins. &«• act shall come into operation, as against a registered instrument executed by the same party, his heirs or assigns, and tacking shall Tacking, not be allowed in any case to j^revail against the provisions of this act. ' As sec. 68 has been held not to be retrospective or apply to equities subsisting before its enactment (a), it will be requisite to consider the old law in reference to ecpiitable mortgages by deposit of title deeds. Under the law as it existed prior to the act of 29 Vic, an equitable right or interest incapable of registry was not liable to be defeated by mere force of the registry act ; in i'act the case was not within the act (b) : therefore a mort- gage created by mere deposit of title deeds, could not be postponed by mere registry of another instrument. There is however sometimes difficulty in determining how far the equitable mortgage may be incapable of registry sf) as to be within the protection of this lule, in those cases where a written memorandum accompanies the deposit. A distinc- tion has been made between those cases wherein the memo- randum was a wholly executed agreement, and those wl. rein it was executory containing an agreement by the mortgagoi- to do something further towards perfecting the security. («) McDonald v. McDonald, 14 Grant, 133. (b) Mooro V. Bank, B. N. A., 15 Grant, 308, and cases there referred to ; see this case in Appendix. 61 S. 68 not retrospective. The old law- registry act did not apply as against equities in- capable of registry. Case of writ- ten memoran- dum accom- paning equi- table mort- gage by de- posit of title deeds. ,1 I III ^;i 402 Kquitablk Mortgages. The Ibriner might peiliaps require to be registered, but cer- tainly not the latter (a). If the legal estate were acquired by a second mortgagee or purchaser for value without notice, then the equitable mortgage fails. The ipiestiou however arises as to what is notice, whether the absence of the title deeds and of en- How far absence of title deeds is constructive notice of _ _ _ an equitable ([uiry for them is consti'uctive notice, and how far con- de"()1t^under '^t^'^i'^t.ive notice would suffice under the old law to preserve the old law. the priority of the equitable mortgage. Moore V. Bank fj^ ^foorc v. Ihinh of Bi'lfish North America (b) it was B. N A. ' considered that possession, prior to the act of 29 Vic, under a parol contract to ])urchase, there being no wilful or fraudulent abstaining from enquiry, was not sufficient con- structive notice to take the case out of the old registry law in favor of the possessor, notwithstanding decisions in England and Ireland to the contrary. Still it maybe that where a claimant subseciuent to the equitable mortgage, who insists on priority under the old registry law, has made no enciuiry for the title deeds, or received no rea- sonable excuse for their non-production, that subject to the (|uestion before referred to of necessity of registry of the memorandum of deposit, if any, the absence of such en- c|uiry or excuse is constructive notice sufficient to deprive the claimant of the benefit of his prior registry : that such conduct might also bring the case within that class of cases referred to by Mowat, V. C («'), as tantamount to actual notice or positive fraud, and, es])ecially if coupled with other even slight circumstances, that the court would be " satisfied from the evidence that the party charged had designedly abstained from enquiring for the very purpose of avoiding notice " (d). In England this question has (a) Harrison v. Armour, U Grant, 30;i ; Wright v. Stunfield, 27 Bea. 8 : Moore v. Culvcrhouse, 27 13ea. ()3l» ; Su^'. V. & P., 14 ed., 727 : Moore V. Uunk 15. N. A., 15 Grant, If 08, and cases there cited ; see this case in Appondi.x hereto. ( 6 ) 1 i) Grant, 308, see this case in Appendix and cases there cited, as to notice and priorities ; also Chadwick v. Turner, L. R. 1, Ch. App. 310, and Foster v. Ilonll, 1") Grant, 244. (C) Moore v. Uaiik 13. X. A., supra, pp. 318, 319. {d) Jones v. Smith, 1 Hare, 55; Sag. V. & P. 14 ed. pp. 783, 784. 31 Vic. Ch. 20, Sections 07, 68. 403 been expressly decided against the claimant guilty of such laches (a). The next question is, how far the law is varied bj' the The present present act and that of 2f) Vic, which cm this point i^ '"*'S'**'''^ '^'^ , . . I as to mort- identical with the j^resent act : how fnr the ecpiitable gages by de- mortgagee, having no memorandum of deposit capable Qf PO'*i'of«sed8. registry, is deprived of his priority where the person sock- ing to deprive him of it by force (tf thr ;ict has actual notice, or constructive notice of the character before re- ferred to as tantamount to fraud or actual notice ; as for instance, where he should have said on acquiring his inter- est, he would prefer not to be told anything as to the title deeds. Whether also sec. (58 of the ])ivsent act extends . only to registered instruments whereon ralne is given. Sec. 67 would not seem to apj)]y in such case, as the equitable mortgagee has no " instrument " of wliich notice can be had. It has been .said in a recent case (/*) that the questions above referred to " may have hereafter to be carefully considered and to be decided," and tlie author abstains therefore from doing more tlian calling attention to them. It may be urged in tavor of immateriality of notice, that the ])r<)vision in sec. .).'} of the foi'mer registry act (Con. Stat.), expressly saving the )'i;,]its of e([uitable mortgagees, is expuiig(.'d in this act ; that if the doctrine of notice is to prevail, then this section works no change in the law; that in the next prior section (67), "actual notice" is expressly referred to, and that the doctrine of notice- prevailing under the registry law has been I'egretted. (c). As the question extends to all equitable liens, charges and interests, it caruiot fail shoi-tly to receive the light of judi- cial decision. (a) Wormald v. Maitlaud, 13 W. R. 832 ; see also Kc Allen, Irish Rep. 1 E(. 45'): l)ut that mere coiisUuctive notice will not sufliee. and in disapproval of Wormald v. Mailland, see Russell v. Ciishel, Trin. T. 1867, in Ireland, before Rrewstor, C. (i) McDonald V. McDonald, 11 Grant, 133. (C) S>3e R;, Prop. Commissioners 2nd Rjp., Bills, 1830-31, Vol. 2, p. 297, No. Sj; also 2nd Rep. pp. 3.1, 10, and the Imp. Act. 13 & li Vic. eh. 72, fiiunded on t.lic Report ; see also Wvatt v. Rnndell, lH Vcs. 13!), per Sir W. Grant: Vor<\ v. White, 10 Hea.ViO. 12,'!, 121. It fl If ^ 1 V »•» 404 Consolidation. Consolidation of securities, tacking. The following remarks in a recent case [a) will illustrate the law on the .subject of consolidation of securities. " When one gives two mortgages for separate debts on distinct properties, if both mortgages are given to the same person, or become vested in the same person, the rule (independently of the registry law) is, that the mortgagor is not entitled to redeem the one mortgage without also redeeming the other ; so that iti effect, the holder of the two mortgages obtains a security on the property comprised in each mort- gage, not (mly for the debt therein mentioned, but also for the debt mentioned in the other mortgage. This doctrine has been settled by a long series of binding decisions, com- mencing with a very early date ; and the principle on which the doctrine was established was thus stated by the Lord Chancellor in WUlie v. Lanrj (h). ' Every mortgagee when the moT'tgage is })erfected, has acquired an absolute legal estate. Upon what terms can the court proceed to a. re- demption ? By giving the mortgagee the value of his money, its fruit and his costs, and upon these terms only ; for it is obvious injustice to help to the restitution of the pledge, without a full restitution of what it is first pledged for. If a person makes two different mortgages of two different estates, the equity reserved is distinct in each, and the contracts are separate ; yet if the mortgagor would redeem one, he cannot ; because, if you come for equity, you must do equity ; and the general estate being liable for both mortgages, this court will not be an instrument to take illegally from a mortgagee, tluit by which he will be de- frauded of ])Hrt of his debt. If you come to redeem se})a- rately, you come for equity without doing ecjuity ; paying a debt, in lieu of which the mortgagee can hold both your estates until this court interposes (c). Learned judges have occasionally intimated some dislike of the rule {d), (a) Buckler v. Bowman, 12 Grant, 457 ; see also Hyman v. Roots, 10 Grant, P.40 ; Beevov v. Luck; L. R. i Eq. iJH?. (6) 2 Ed. T'J. (c) Vide Fisher on mortgages, sees. 689, 090 ; Tas.sil v. Smith, 2 DpG, & J. 714; Selby v. Pomfret, 1 Johns and Hare, 336. {d) But see Sober v, Kemp, 6 Hare, 158, Tacking. 405 but they have uniformly acknowledged it to be the law of the court " (a). This being so, and every one being presumed to know the law, persons dealing with a mortgagor after both mort- gages have been given, are deemed so to deal "with know- ledge that the two mortgages on the two estates, though then belonging to different mortgages might coalesce, and with knowledge of the possible consequences of their coali- tion" (6). And such persons therefore, by taking a subse- quent conveyance or mortgage of one (»f the properties, take it subject to the chance of the holder of the prior mortgage thereon, imiting with it any mortgage that the mortgagor may theretofore have given on any other ])ro- perty. To be safe, one who negotiates for a subsequent mortgage or purchase of any property, has thus to ascertain not only what prior mortgages there are on sucli pi'operty, but also what security the mortgagor has outstanding on other properties, unless he is himself prepared to buy u]) the prior mortgage on the property respecting which he is negotiating, or can secure himself against such prior mort- gage being parted with by the holder (c). The right to tack seems to be distinct from the right to consolidate (cl), and it may well be that although the for- mer is abolished the latter is not. Under the former registry act, it was held that the right to consolidate continued, notwithstanding the lan- guage of section 56, reciting that tacking had been found productive of injustice, and giving priority according to time of registration ; it was remarked however, that tack- ing was not in express terms abolished. Under the recent act, however, tacking is expressly abolished. ' bt, as ai^ainst the U; Right t3 tack distinct from right to con- solidate. The former abolidhed. ight "o'-o" heirs of the mortgagor, all arrears of intei-est recoverable (a) Treson v. Denie, 2 ('ox, 425: Vint v. Padget, 2 DeG. & J. 613; Tassel v. Smith, ib. 345 ; Hyman v. Koots, 10 Grant, 345. (h) Vint V. Padget, 2 DeG. & .1. C13 ; Beevor v. Luck. IA-. 4 E(i. 537. (c) 1 J. & Hem, 33f); Hyman v. Roots, 10 Grant, 340. (d) Fi8h(!r on Mortgages, p 388 ; Huciiler v. Bowman, 12 Grant, 402, supra. Tacking inte- rest 6 yean overdue. :■:?'' "?• 11 406 27 & 28 Vic.Ch. 31. Preamble. Where words of column one of the second Schedule are employed, the mortgage to have the same effect as if the words in col- umn two were inserted. Mortgiiges lint taking el'- fect under this Act how far valid. Mortgage to include all houses &c., and the rever- sion, and all the estate, &c., of the grantor. on the covenant o? the mortgagor, though more than six years due, is before referred to (a). 27 fO. all arrears of taxes and asHCHsmniilK whatHoever due or payable tjpon or in respect. f)f the said lands, tenements, horoditaments and premises or any l>urt thereof, and of and fi-oni all former conveyances, mortgages, rights, annuities, dobt,s, judgments, exe- cutions and recognizances, anrl of and from all man ner of other charges or incumbrances whatsoever. 0. And also, that from anrl after default sluill happen to be made of or in the payment of the siiid sum of money in the said proviso mentioned or the interest thereof, or any part of such money orinten,-,t orof or in the doing. observing, performing, fuHilling or keeping of some one or more f»f the ju-ovisions, agreements or stipulations in the said above proviso particularly set forth, contrary to the true intent and meaning of these ))resents and of the said proviso, tlien and in every such case the said mortgagor, hi>i heirs and assigns, and all and every other j)erson op persons whosoever, having, or lawfully claiming, or who shall or may have or lawfully claim, any estate, right, title, interest or trust of, in, to, or out of tin? lands, tenements, hereditaments and [)remises hereby conveyed or mentioned or intended so to be with the appitrtenances or any part thereof by, from, un deror in trust for him the said mortgagor, shall and will, from time to time, and at all times thereafter, at the projier costs and charges of the said mortga gagee, his heirs and assigns make, do, sufler and execute, or cause or procure to be made, done, suf- fered and executed, all and every such further and other reasonable act or acts, deed or deeds, devices, conveyances and assurances in the law for the fur- ther, better and more perfectly and absolutely con- veying and assuring the said lands, tenements, hereditaments and premises with the appurte- nances unto the said mortgagee, his heirs and assigns, as by the said mortgagee, his heirs and assigns, or his or their counsel learned in the law, shall or may be lawfully and reasonably devised, advised or re- '■< 1| 412 27 k 28 Vir. Ch. 31, COU'MN ONE 10. And nl8() tliiit the Hiiid inortfjufjor will produce the title deeds «!numerated hereiindoruiid iiilow copies to be tniide at the expense of the tnorfga- gee. 11. And that the said mort- gagor has done no act to incumber the said lands. 12. And that the said mort- COI.UMN TWO. (|iiirt; by means whereof the said land> tco' lents, huiedita- ments and premises here' yotl or mentioned or intended so to be, or a: iit or parcel tl rof, are, is or shall or may be . my wi • impeached, charged, affected or incumbered iii ntle, estate or otherwise howsoever. 12. And also that the said mortgagor or his heirs shall and will forthwith insure, unless already in- AS TO Short Forms of Mortgages. 413 COLFMK ON-e. ;{Bgor will iimure tin; ))uil(Jiii){H on the Hiiid liiiids to tlu! iiinouiil of not less limn currency. 13. And the said mort- gagor doth re- lease to the said mort- gagee all his claims upon the said lands subject to the proviso. COMMM TWO. Miircd, and during tlio continiiuiict' (if this siM;iirity keep iiisiii'cd iigainst 1oh.s or daiiiiig(i by fire, in .such proportions upon each building as may bo rwiuirud by the said tuortgagee, his heirs or assigns, the messuages and buildings erected on the said lands, tenements, heredittimcnts and jtremises hertdty eon veyed or mentioned, or intend(;d so t(j be, in the sum of of lawful incmey of Canada, ut the least, in some insurance oftice, to be approved of by the said mortgagee, his heirs or as- signs, and pay all premiums and sums of money necessary for such purpose, a.s the same shall be- come due, and will on demand assign, transfer, and fleliver over unto the said mortgagee, his heirs, executors, admini.strators or a-ssigns, the policy or |-»olicics of a.ssurance, receipt and receipts thereto appertaining, and if the said mortgagee, his heirs or assigns shall pay any premiums or sums of money for insurance of the said premises or any part thereof, the amount of such payments shall be added to the debt hereby secured and shall bear interest at the same rate from the time of such pay- ments, and shall be payable at the time appointed for the then next en,sHing payment of interest on the said debt. 13. And the said mortgagor hath released, re- mused and forever quitted claim, and by these presents doth release, remise, and forever quit claim unto the .said mortgage*;, his heirs and as- signs, all and all manner of right, title, interest, claim and demand whatsoever, both at law and in equity of, unto and out of the said lands, tene- ments, hereditaments, and premises hereby con- veyed or mentioned, or intended .so to be, and every part and parcel thereof, so as that neither the said mortgagor, his heirs, executors, administrators or assigns, shall or may at any time hereafter have claim, pretend to, challenge or demand the said lands, tenements, hereditaments and premises, or I ii |:!j 414 27 k 28 Vic. Ch. 31, COLUMN ONE. 14. Provided, that the said mortgagee on u?fauit of pay- ment for months, may on notice enter on and lease or sell the said lands. COLUMN TWO. any part thereof, in aiiy maniici* howsoever subject always to the said above proviso ; but the said mortgagee, his heirs or assign.s, and the said lands, tenements, ^hereditaments and premises, subject as aforesaid, shall from henceforth forever hereafter be exonerated and discharged of and from all claims itnd demands whatsoever, which the said mortga- gor, his heirs or a.ssigns might or could have, upon the said mortgagee, his heirs or assigns, in respect of the .said lands, tenements, hereditaments and premises, or upon the said lands, tenements, heredi- taments and premises. 14. I'rovidofl always, and it is hereby declared and agreed \>\ apd between the parties to these presents, that if the said mortgagor, his heirs, ex- ecutors or adiiinistrators shall make default in any payment of the said money or interest or anj- part of either of ^\o same according to the true intent au'i meaning of thess of preparing for and making sah.'s, leases orconveyances as aforesaid, and all other costs and charges, damages and aic- penseswhich thcsaid mortgagee, his heirs, executors, administrators or assigns, shall b(!ar, sustain or be put to for taxes, rent, insurances and repairs, and all other costs, and chax-gea which may be incurred in and about the execution of any of the trusts in I m !■.■ ;iu, 1^ 416 27 & 28 Vic. Ch. 31, COLtJMN ONE. COLUMN TWO. him hereby reposed, and in the next place to pay and satisfy the principal sum of money and inte- rest hereby secured or mentioned or intended so to be, or so much thereof as shall remain due and unsatisfied up to and inclusive of the day whereon the said principal sum shall be paid and satisfied ; and after full payment and satisfaction of all such sums of money and interest as aforesaid, upon this further trust that the said mortgagee, his heii-s, exe- cutors, administrators or assigns, do and ahall pay the surplus, if any, to the said mortgagor, his exe cutors, administrators or assigns, or as he shall direct and appoint, and shall also, in such event, at the re- tjuest, costs and charges in the law of the said mortgagor, his heirs or assigns, convey and assure unto the said mortgagor, his heira or assigns, or to 8uch person or pei-sons as he shall direct and ap- point, all such parts of the said lands, tenements, hereditaments and premises as shall remain unsold for the purposes aforesaid, freed and absolutely dis- charged of and from all estate, lien, charge and in- cumbrance whatsoever by the said mortgagee, his hell's or assigns, in the meantime, so as no person who shall be required to make or execute any such assurances, shall be compelled for the making thei'e- of to go or travel from his usual place of abode ; provided always, and it is hereby further declared and agreed Ijy and between the parties to these presents, that notwithstanding the power of sale, and other the powei-s and provisions contained in these presents, the said mortgagee his heira or as- signs shall have and be entitled to his right of fore- closure of the equity of iiw redemption of the said mortgagor, his heirs and assigns, in the said lands, tenements, hereditaments und premises as fully and etfectually as he might have exercised and enjoyed the same in case the power of sale and the other foi'mer provisos and trusts incident thereto had not been herein contained. AS TO Short Forms of Mortgages. 417 COLUMN ONE. 15. Provided that the mort- gagee may distrain for arrears of interest. (Printed aa amended by 29 Fic. cA. 27.) IC. Provided that in default of the pay- ment of the interest here- by secured, the principal herebysecured shall become payable. COLUMN TWO. 15. And it is further covenanted, declared and agreed by and between the parties to the.se presents, that if the said mortgagor, his heirs, executors or administrators, shall make default in payment of any part of the said interest at any of the days or times hereinbefore limited for the payment thereof, it shall and may be lawful for the said mortgagee, his heirs or assigns, to distrain therefor upon th(^ said lands, tenements, hereditaments and premises, or any part thereof, and by distress warrant, to re- cover by way of rent reserved, as in the case of a de- mise of the said lands, tenements, hereditaments and premises, so much of such interest as shall, from time to time, be, or remain in arrear and uuj)aid, together with all co.sts, charges and expenses at- tending such levy or distress, as in like cases of dis- tre.s3 for rent. 16. Provided always, and it is Ircreby further expressly declared and agreed by and between the parties to these presents, that if any default sliall at any timehapi)en to be made of or in the payment of the interests money hereby secured or men- tioned, or intended .so to be, or any part thereof, tlieii and in such case the principal money hereby secured or mentioned, or intended so to be, and every part thereof, shall forthwith become due and jmyable in like manner and with the like consequences and el" fects to all intents and purposes whatsoever, as if the time herein mentioned for payment of such princi pal money had fully come and expired, but that in such case the said mortgagor, his heirs or assi/^iis shall, on payment of all arrears imder these pre- sents, with lawful costs and charges in that behalf, at any time before any judgment in the premises rtMjovered at law or witliin such time as by the prac tice of equity relief therein could be obtained, !)(• relieved from the consequences of non-payment of so much of the money secured by these presents, or f I il '|i 'J lli'l !;/■■- ■jfi I I-:'! 53 418 27 & 28 Vic. Ch. 31, 17. Provided, that until de- fault of pay- ment the mortgagor shall have quiet posseH- sion of the said lands. COLUMN ONK. COLUMN TWO. mentiuned, or intended so to be, as may not then have become payable by reason of lapse of time. 1 7. And provided also, and it is hereby further expressly declared and agreed by and between the parties to these pi-esente, that until default shall happen to be made of or in the payment of the .said sum of money hereby secured or mentioned, or in- tended so to be, or the interest thereof, or any part of either of the same, or the doing, observing, per- forming, fulfilling or keeping some one or more of the provisions, agreements or stipulations herein set forth, contrary to the true intent and meaning of these presents, it shall and may be lawful to and for the said mortgagor, his heii-s and assigns, peace- ably and quietly to have, hold, use, occupy, posse.-^s and enjoy the said lands, tenements, hereditaments and premises hereby conveyed or mentioned, or intended so to be, with their and every of their appurtenances, and receive and take the rents, issues and profits thereof to his own u.se and bene- fit, without let, suit, hinderance, interruption or denial of or by the said mortgagee, his heira, execu- tors, administrators or assigns, or of or by any other person or persons whomsoever lawfully claiming, or who shall or may lawfully claim by, from, under or in trust for him, her, them or any or eitliei- nl" them. The Act 27 I'i Thi' forms given in the act respecting short forms of mort- «nd 28 Vic. gagt's (27 & 28 Vic. ch. 31) differ occasionally from the most ch. ol, fts to i/»»Tiiiii • abort forms of approved forms in England, and as they are at vananci? moitgagps. ^j^j^ some of the .suggestions heretofore made, it may 1)0 vequLsite to consider them. The statute may be of service to the (haft! I '.an, and save expense in registry, but it is unfortunate that the all-important power of .sale is not in better form, and attention must be paid to one oi* two inconsistencies, which will be presently pointed out. PrecnutioiiM Great care is requisite if the short forms in column one as to vuryiiig g^,Q ^q i^q [^ ^ny Way varied from, to suit particular cir- AS TO Short Forms of Mortgages. 410 cumstances ; the act jmjvides that " parties may introduce into, or annex to any of the forms in the first cohimn any oxpress exceptions from or other express (jualifications thei-eof respectively, and the like exceptions or qualifica- tions shall 1)0 taken to be made from or in the corresponding f<»rnis in the second column"; if therefore the alteration made is not an exception or (pialification within the above clause, then the particular covenant or (;lause will it would seem be without the act, and left to the ordinary meaning of the words used (a). It may be questioned whether th(! act applies to lease- hold interests, for though by a liberal construction the term " real property" in the first clause might include chattels real, if aided by the context in the act, the inference to be ilrawn from the context is the other way. The whole framt^ f)f the statutory form is applicable to a freehold interest oidy ; in clause 4 the word "lands" is made to extend to freehold interests only ; and there is the absen into operation on default of the covenant to insure (to which it does not extend), but only on default in payment of the mortgage moneys, taxes or statute labor^ and " in the meanwhile, though the mortgagee is e(|ually to have power to enter and enjoy the land, yet he nmst content himself with his own title against interruption by strangers there being no covenant by the mortgagor to pro- tect him during thai, period : whereas if he be disturbed after default in the covenant to insure he may have recourse to his remedy on the covenant" (a). Clause 14 is capable |>erhajis of a somewhat similar construction ; at any rate it would seem that on breach of the covenant, the mortfja- gee might eject, though no default were made in payment of the mortgage moneys, taxes or statute labor. Clause t>, boing the covenant for further assurance, is made ci. 9, objec- to opcM-ate only after default ; in this re.siJect it is " olijcc- *'o'>»ble as . ' . . p , *oo limited, tionalile, as it might well happen that some act for further assurance might be re(j[uire). ' Nothing is said in this form as to liow the insuranets moneys that may he jmid on any loss are to he applied (c) ; clause 14, it is true, does ])rovide to a certain extent for ' applicatiftn of the moneys, hut it would not reach the case of insurance moneys I'cceived before default by the mort- gagor, but is apparently confined to the ])osition of the njortgagee after sale under the ])ower. ( 'lause 14 conferring the ])ower ol" sale and imn'iding for CI. 14, the ,.,.., 1 • 1 • 1 f ii power of sale applicatntn of moneys is one wliicli varies nmeh from the ^adly framed. modern approved forms. Tlu' objections will be understood from what has been before explained in treating of the power of sale (d). It eoiiHiets ai)j)arently as regar.^' 7. Th«^ itower 11: ! I,',, •■ il propprty, eiititlea him, on sale oftlio rosidno, to retain the title deed.s to answer his covennnt ; in the absenjt-e of any contract on the subject, it would aeoin he will have to deliver them over to the purchaser of the residue, he can neither retain them or deliver them to the first purchaser. The vendor wculd however, in such a case be entitled to have the cove- nant recited in the conveyance of the residue, or (Midorsed on it, so as to create notice, r.nd mi'.iht fairly require a covenant from the purchaser to perform it: Siigden Vendors, 11 ed. I'M. (a) Ante p. 30:5. (6) See 29 Vic. eh. 28, s. 7, ante p. II. (C, As ti» necessitv for this see ante p. .ICfi. Austin v. Story, 10 Grant, 306. (d) Aute p. T,:]. (t) Ante, p. 120. 424 27 & 28 Vic. Ch. 81, Clause 14. should be given to the peraonal, not to the real roprcsenta- The power of ^j^^^^ ^^^y j^ should especially not be dependant on notice, but the i)rovi.sion as to notice should be by a covenant by by the mortgagee that notice .shall be given ; and tlu; p»u- chaser should be expressly relieved from any necessity as to seeing that notice was given (b). There is no power to the mortgagee to buy in at auction and re-.sell without being responsible for loss or deficiency on re-sule (c) ; or to re- scind or vary any contract of sale that may have been en- tered into : or to sell under special conditions of sale (d), (the latter however may be permissible when the coiulitions are not of a depreciatory character). Thea{)plicati(»n of in- surance monies is not sufficiently provided for (c) ; nor would they be received by the heirs (as assumed by the clause), but by executors, if payable to any representatives of the mortgagee. The surplus of sale should not be made i)ay- able exclusively to the personal re{)re.sentatives, for on .sale after death of the mortgagor, the heirs are entited to the surplus (_/') ; in this respect the form might mislead the mortgagee to his prejudice. There is no clause relieving ji purchaser from seeing that default was made, or notice given, or otherwise as to the validity of the sale ; the im- portance and benefit of which to the mortgagee, and even to the mortgagor, wa.s before alluded to (y). The [)rovision that the giving the power of sale shall not |)rejudice the right to foreclose is unnecessary (/t). It is perha))s to be regi'etted that a better form of power of sale had not been adopted (i). n. b, and (a) Ante p. 373. (6) Ante p. 375. (c) Jarman Byth. Con. by Sweet 3 ed, vol. 5, p. 567, p. 412 ; see also ante p. 375 n. c. (d) As to the object of these provisions, see p. 375 n. c. (e) Ante p. 366. (/) Ante p. 377. {g) Ante p. 365. (h) Jarm. Byth. Conv. by Sweet, 3 ed. vol. 5, p. 108. (I) The very general practice now is to adopt the forms given by tho statute, and in ordinary cases to fill up a printed form of mortgage. This is found to save both time and expense, especially now that all mortgages have to be prepared in duplicate, and registered in full. Where the parties desire to adopt a printed short form under the act, the practice of the author in to add a short proviso, that in case default be made in pay- AS TO Short Forms of Mortoacks. 425 Clause 17. The inconHistency an to right to poHstssHioii be- ci. 17, as to tween this section and sections 7 and 14 has been before possession oonniots alluded to (a). It would seem that this section is not open to the objection of being invalid for the i)uri)f)He intended VIZ. with clauses 7&14. to operate as a redemise to the mortgagor; or of ojicrating further than an creating tenancy at will. The nature of this objection has been fully explained (/>) : it suffices here to say that the argument in favor of the objection would be, that, as the right of possession and demise to the mortgagor is till default in payment of principal, or interest, or in oh- Hervlrif) covenants, the demise is void for uncertainty as to the term of its duration. It is apprehended however, that though such objection would hold good if the right of pos- session w^ere given only till default in observing covenants, and the covenants or any of them were uncertain in their nature as to the time of their performance or of breach, still, as in this section, a ceiiAin day is named for payment of principal, it will operate as a valid demise and creation of a term till that day, subject to be defeated in the mean- time on non-observance of covenants or non-payment of interest (c). 29 VIC, CH. 27. An Act to amend the Act respecting Short Forms of Mortgages in Upper Canada. [Assented to 18th September, 18Co.] Her Majesty, by and with the advice and consent of the Legislative Council and A.sHembly of Canada, enacts as follows : 1. The form of words numbered six in column number one of Schedule 2 of the second schedule of the Act, pabsed at the Session of the Par- ■^*''' ^'^' ^^' ^' _.._„_ ^ ^. ^ c.Slamended. ment of either principal or interest for — — months after the same is pay- able, the power of sale may be acted on without any notice, and that any contract of sale may be varied or rescinded, and the mortgagee, &c., may buy in and resell without being responsible for any loss or deficiency on re- sale. To this may be added, if thought proper, the clause before referred to relieving the purchaser from seeing that the events have happened on which a sale may be had, and as to regularity of the sale. (a) Ante p. 420. (J) Ante p. .389. (c) Ante p. .389; and Koyal Canadian Bank v. Kelly, I'J C. V- U. C. 196, ante p. 383. o4i '•:.!| 42B 29 Vic. Ch, 27. Farther amendment the RAid Schedule. Farther amendment the BAid Sohedule. liument of Canada, held in the twenty-seventh and twenty-eighth years of Her iNliijeHty's Keign, chapter thirty-one, intituled : An Act rexpectirKj Short Formn of Mortgnrjes in Upper Canada, is hereby anietidod, by Hiibstitutinij the word " Mortgagee" for the word *' fJrantco " therein. i. The form of words numbered fourteen in coluiun number of two of the second schwlulo of the English version of the said Act is hereby amended by striking out the word " or " after the word "assigns" in the twenty-third line of such form of words, and substituting therefor the word "of." .'{. The form of words numbered tifteen in column number one of of the second schedule of the said Act, is hereby amended, by substituting the word "mortgagee" for the word '•mortgagor" therein. Memorials as Evidence. 427 MEMORIALS AS EVIDENCE, (a) Tho subject i.s treated of, Ist, as to tlie search requisite t(» let in secondary evidence ; 2nd, iiow far a memorial execu- ted by a grantor is evidence of the niattor.s therein stated ; .'h'd, how far it is evidence if executed by a j^rantee; 4th, the distinction between tho evidence furnished byaniomo- rial in ejectment, and as between a vendor and purchaser, or under the act for quieting titles ; and 5th, as to proof of execution 1st. It frequently happens that secondary evidence of a missing document or title deed i.s rejected in consequence of the insufficiency of the .search for the original. Parties who search for a mi.ssing conveyance with a view to let in secondary evidence should bear in mind that the person entitled to the first immediate estate of freehold is the person entitled to retain the custody of the title deeds as against those entitled to ulterior estates in remainder or reversion ; and that the deeds are presumed to follow th(> title and to go into the custody of those entitled (J)). When tho land descends to real rejn-escntatives, they, and not the personal representatives, are entitled to the deeds, though lor gi'eater certainty a search with tht; latter would be advisable, especially in the case ol" a missing mortgage. The presumption that the deeds follow the title and go to him entitled may be destroyed ; as for instance, by the fact that they covered other lands retained by the vendor (c) ; or that As to search. Owner of first cstiifo of free- hold entitled to tlie custody of title deeds as ngiiioBt tliOHe in remninder. Title deeds presumed to bo in custody of those enti- tled to them, How pre- sumption destroyed. Sale by owner of part. (a) The importance of this subject has induced the author to add this chapter, which in January, 1868, he published in the Upper Cnnada Law Journal. (b) Moriarty v. Grey, 12 Ir. C. L. Rep. 141, per O'Brien, J.; Sug. Vendorc, ch. 11, s. 4j see also Marvin v. Hales, 6 U. C. C. P. 211, post; but see Sug. cb. 11, sec. 4, cl. 23, as to the right to the deeds of the grantee or releasee to uses. (c) Yea V. Field, 2 T. R. 708. 42S Memorials as Evidence. CoTenant to produco by n, fomnr owner, Joint owner'', who entitk-d to title deeds. Search by tlie party to the tiiUBc among his own pa- pera. hov made. some prior om ner on conveyance by him of a portion gave a covenant to produco. Where a vendor on sale of «. part of his land.s retains the deeds and gives a covenant to pro- duce, it does not follow that on conveyance of the residue, the title deeds remain with him to an.swer his covenant to produce ; on the contrary, it would seem that in the absence of stipulation, the vendee of the residue will be entitled to the deeds even agtvinst the prior vendee, and be bound by the covenant to produce as running with the lands (a). A learned Judge whose position before his elevation to the Bench wa.s such as to have given him great practical experi- ence, has expressed his recollection of the practice, however, asfoliows; "I think it used to be the practice, when the owner of a lot of land .sold half of it, to retain the conveyance to himself; and in the event of his selling the other half, t<.» give that conveyance to the purchaser of the second half (h)." This (lirtutn had no reference to the vendor having on the tirst .sale given a covenant to produce, and was by way of suggestion to the pnrties a- .• further seavch for a missijig conveyance, of which .•) evidence other than u memorial signed by the grantee was given. On sale of part of the estate in lots without any stii)ulatiou as^^o the deeils, the holder of the portion of the highest value is* en- titled to the custody, whether seller or pur(.'iia.ser, giving the other a covenant to produce (c). Of joint owners, or tenants in common, euparceners au'l joint tenants, which- ever of them obtain.j jujssession of the deeds is entitled to retain them, and the presumption would be that they would go to the grantee or heir at law of the possessor, except in the case of joint tenants, who.se heir at law would not be entitled. Where the in.strument, if subsisting, should be in posses- sion of the party himself to the cause, who desires to give secondary evidence, the pro'jer course is that he should .search (a) Ante, p. 422, n. a. (b) Wishartv. Cook, 16 Grant, 237. (c) iSug Jen Vendors, ch. 11, s. 4, cl. 4. A -y Memorials as Evidence. 429 with a witness, and that the search should be "so conducted and in sucli places as to afford a reasonable ground for concluding that it was made bona fide, both as regards the witness and as regards the party, by giving and using all possible facilities for making it effectual." If lie should himself have .searched accompanied by a witness, but the witness sliould have made no search, and have accepted the statement of loss of such party as true, the search will not be sufficient (a). It may sometimes be thut as against a person claiming Notice to pro- the freehold mere notice to him to pioduce may suffice, "°*' without evidence of search, on the prasumption above ve- fen-ed to, that the deeds follow the title and are in the pos- session of the party to whom notice is given (6) ; for search would be useless with prior owners when the law would presume th(> title deeds were not with them, but passed from each fti'ior owtiej- to his grantee. Tliat notic(> to produce alone should suffice, there must be nothing to destroy tlie presumption that the deed followed the title, as, for instance, a covenant to produce given by a prior ownei'. On a question of sufficiency of search, and proof of loss to What ia 8i>l- let in secondary evidence.Richards, C. J., in a recent case (c) expressed him.self as follows : " In Reg. v. The Inhabitants of Kenilworth {d), Lord Denman. in reference to a. genera! rule established as to what is established jj.s to what is a sufficient .search to let in secondary evidence said, • I think tikat no geneml rule exists. The tjuestion in every case i.s whether there has been evidence enough to siitisiy the Court before which the trial is Iiail that, to use the words of Baily, J., in Rex. v. Denis, A hoim fide and diligent cietit search. (a) Bratt ". Lee, 7 U. C. C. P. 280. (6) «L«e Marvin v. Curtis, 6 U. C. C. P. 212. (c.) RussoU V Froser, 15 U. C C. P. 380, See also as tciearoh, Ans- ley V. Hreo, 14 U. C. 0. P. 37i ; Gathercole v. Miall. 15 M. k W. n'i ■ Doe d. Padwick v. Wivtcomb, « Ex. f.Ol ; 4 H. I,. CV,. 425, S. C. : Tay lor on Evidence, p. 423, Otb ed. : Smith v. Nevillss- '8 U. C. Q. B. 473 ; Best OD Evidence, 4 ed. 606 -, Martin v. HaleH. 6 U. C, C. P, 20'^ ; Marvin V. Curtis, id. 212; Bratt \. Lto. supra, 7 U. C. C P. 280. {d} 7 Q. B. 642. %^ !! 1 \\ V . y 480 Memorials as Evidence. Whftt u sum- scivcli was made for the instrument where it was likely to cient HCMrci.. ^^ ^-ound. But this is a question much fitter for the Court which tries than for us. They have to determine whether the evidence is satisfactory, whether the search has been bona fide, whether thei-e has been due diligence, and so on. It is a mere waste of time on our part to listen to special pleading on the subject. To what employment shall we be devoted, if such matters are brought before us as matters of law ( The Court below must exercise their own judg- ment as to the roa,sonableness of the search, taking into consideration the nature of the instrument, the time elapse3' iVf/rantor, xmder whonj he claimed, but with whom the defendant who shewed no title umh not in privlfif, after stating that there was not sufficient evidence of .search to flispense with production of the original deeds, thus ex- presses himself: "I have s()metinies thought that vsuch evidence as was offered in this c!use might without danger ho admitted to prove the fact of the conveyance being made which is reci- ted in the memorial, especially as against a defendant who has no title in hiniself ; Init the Legislature has not thought proper to make such evidence admissible without account- ing for non- production of the deed, as is done with respect to bargains and sales enrolled under Stat. 10 Arme, ch. 18, s. 3." Memorial!! na uvidencp. Mi'in. sipncil \>y grantor not /ler se cvi- liiTice iigHinst grniitct', oor iigaiiipt slrAngerii without ac- counting for origiual. (a) As to meinorialH as prhruiry evidence, see 1 Tayl. Ev. 405, 4lh cd. ; White V. Pike, Coo. & Ai. 70, per buahe, C. ^ ; Cathrow v. Eade, 4 DeGex & Sra. 527, per Knight Bruce, V.C. ; Mar n v. Hales, 6 C. P. U. C. '211, per Draper, 0. J. . (6) Jones v. Todd, 22 U. C. Q. B. 53. (c) Smith -. Nevilles, 18 U. C. Q. B. 47 J. ■' il il 432 Memorials as Evidence. Memorial signed by grantor who had but pos- sepsion in law held good se- condary evi- dence Against strangers. Memorial by grant ir not in actual posses- sion, and long possession un- der the alleg- ed deed, the court inferred value given. Where the non-production of the original instrument was .satisfactorily accounted for, a memorial signed by b, grantor who was not shewn to have had more than mere construc- tive possession by force of the conveyance to him, has been held to be evidence not merely against the grantor and all claiming under or in privity with him, but also against third persons not appearing to have any title whatever except a bare ])ossession of insufficient duration to confer a title, as being a statement and act by the party in posses- Kion against his own interest as reputed owner of the land (a). This case is important as shewing that the me- morial is evidence even though the grantor executing it never had more than constructive possession (for the lands were wild lands, and no evidence was given as to posses- sion) ; and that under such circumstances it is evidence even against one not proven to claim in privity with the grantor. In a case in equity ( h) between vendor and pur- chaser on objections that an original deed which apparently could only operate by way of bargain and sale was not forthcoming, and that the memorial signed by the grantor did not shew any valuable consideration to raise the use, the Court (adjudicating both on the law and the facts) ad- mitted the memorial, and from the fact of possession having gone with the alleged deed for sixty years inferred the fact of sufficiency of consideration. There seems moreover to have been no objection on the grounds hereafter alluded to, viz., that the conveyance might have been for life only, or with a shifting use, or in tinist. It is to be observed that here, as in Rus.sell v. Fraser, the alleged gi*antor was not shewn to have had more than constructive possession. The weight of authority is in fiivor of taking a memorial executed by a grantor in possession, actual or eonsti'uctive. and against his interest, as good secondary evidence, evon against strangers, without coiToborative evidence. irt) EiiBsell V. Frader, 15 U. C. C. P. 375, and cases there referrod to; Ciiitlirow V. Eade, 4 DeG. & Sm. 5.31 ; Moriarty v. Grey, 12 Irish C. L. Keji. 12il ; Moulton v. Edmonds, 29 L. J. Ch. ISl ; but see as regards third jiersons D'^e d. Loscombe v. CliflFord, 2 C. & K. 152 ; Hayball v. Shep- herd, 25 U. C. Q. U. 5.36. As to constructive and actual possession, see p. 120, n, a. (i) Thompson v. Millikin, '.' «arant, 359. Memorials as Eviioence. 438 If the memorial, without referring to an antecedent instrument, simply shewed a bargain and sale of the lands made on a certain day, between certain parties, for money paid, the party tendering it might perhaps as a last resource centend that the memorial itself was a good conveyance by way of bargain and sale, aa being per se sufficient to satisfy the Common Law and Statute of Frauds. Formerly a mere bargain or sale for money raised a use, and the bar- gainor held for the use of the bargainee ; the Statute of Uses executed this use, and gave the legal estate bargained for to the bargainee. The Statute of Frauds required writ- ing and the signature of the party creating the estate ; though perhaps a seal only might suffice (a). The Statute of Enrolments, it is true, required that a bargain and sale of a freehold should be by deed indented and enrolled ; but neither enrolment, nor registry to supply enrolment, are required here (6), and a deed poll suffices (c). 3. Many of the principles whereon a memorial signed by a grantor is admissible as evidence of a conveyance by him, do not apply where it is executed by a gi*antej. In the latter case it is a statement, not against, but in support of interest, and by a person not then in possession. Still such a memorial, if coupled with other facts confirmatory of the instrument set out in it, is admissible as parcel of the evi- dence towai'ds pioof A memorial executed by a grantee through whom a per- son claims, coupled with possession taken under the instil- ment to which it relates, and enjoyed for a length of time in a mode such as to preclude the probability of the instru- ment being other than as set forth by the memorial is good evidence, even against strangers, especially if accompanied by other coiToborative facts ; but the mere memorial with- out more would be evidence only against those claiming under or in privity with the grantee. Si : Memorial signed by grantee, Las been held evidence towards proof under certni.n ciroutpi.iances even against strangers, but •:Aii not simply per sc. 1^8 («) Ante, p. 60. (c; Ante p. 91. 55 (6) Ante, p. »1. 434 Memorial ■igned by grantee unnc- oompanted by possession taken under alleged deed, and not other- wise corrobo- rated, insuifi- cient. Memorials as Evidence. On this head a recent case {a) attbvds most useful infor- mation. The plaintiff in ejectment claimed under a deed from one Arnold to one (lou^^h, which he did not produce, and of which ho offered as secondavy evidence a memorial produced from the Registry Office, executed by trough, the alleged grantee, with an affidavit of execution of the origi- nal deed by Arnold endorsed. The following is the judg- ment of the Court, delivered by Hagarty, J. : " No pos.session appeared to have been taken under the alleged conveyance, and the title is now for the fii'st time after a lap.se of 53 years, sought to be established to a valu- able property on this evidence. The plaintiff's proposition may be thus stated, that on a witness proving that he saw a deed apparently answering the description contained in the niemorinl, and its loss with- out further [)roof of hand-writing or genuineness, a niemo- rial in the county registry executed by the grantee only, and proved by an affidavit endoi-.sedofa witness who swore that he saw the conveyance duly signed by the grantor is, in the absence of an}' act done or possession taken, good secondary evidence of the original conveyance;, and that a court and jury should be reasonably satisfied of the fact of such a deed having been duly executed, and th.at the estate duly passed thereunder. The proposition is startling, and can hardly be adopted excejit on the surest basis of reason :ind nuthoi'ity. The fii-st casi.; 1 would refer to is (/>) appealed from the Irish Chancery to the Lords, hS2.j. In 1810 a bill was filed .setting up ii mari'iagt settle- ment executed in 1760, of which a memorial was regis- tered in I7U.'J. Jnmes Scully was alleged to have the/eby covenanted with L}ons, father of the plaintifl" to settle on her (his intended wife) either by deed in his lifetime or by will, one-third of his estate. The memorial was only executed by Lyons the trustee. No deed was executed in gi*antor's lifetime. He died (a) Gough V. McBrido, 10 U. C. C. P. IGt). ib) Scully V. Scully, 10 Irish Eq. Rep. 557. Memorials as Evidence. 485 in 1816, and by his will left a large anntiity to plain- tiff 'in full satisfaction of her clain>s on his property under her marriage articles or otherwise.' She filed a bill asking to have her one-third under tlie articles. The defendant indu*eerove search, and that Mahon haii declared he luid i-ither burned or thrown them away. The defendant admitted that they knew she claimed some right to testator's [iroperty in his life-time, but that she had solemnly assured him that slie would waive all her rights and abide by his will on receiving the annuity of £1,000, and testator on the fsiith thereof made his will. Lord Chancello)- Manners decreed in her favor, and con- sidered the articles proved. In the Lords the case is argued at great length V)y Mr. Sudgen and Sir (.'. Wetherall. Lord Kldon says; 'The ((ucstion in every case of this sort is whether all the testimony taken together offered as second- ary evidence, is or is not sufficient to enable you to say that as you have not the writing itself you will act upon it as if you had it before yf>u, and with an absolute cer- tainty of what these articles contained. It is strongly the inclination of my opinioji that this memorial does contain what were the articles of agreement between the parties' /Vgaiii ht' says : ' There is not a single witness who speaks to conversations lietween ])laintiff and testator, who does tifit characterize him as proposing to hei- a choice of what was in the will or a oiie-lliird of thf property as stated in the articles.' The defendant's counsel admitted in argument, ' that the husband executed an article I cannot deny, for I cannot- deny what tlie will says.' The deeree was affirmed. In 1H87, the case of Pe>jtoii v. McDcrnwtt (a) was deci- flcd l)y Lord Chancellor Plunkett. It was attempted to set up mannage articles executed in 170.3. The Clianccllor \a) 1 Dnirvund Wulsh, ID'^. i4. -, r I SI 4iS6' Memorials as Evidence. says : ' I find possession going along with these articles, Again, I have strong evidence under the will of H. O'Rorke (the settlor), of the existence of these articles, as by a reference to them, the otherwise apparent obscurity and confusion in that will and its limitations are explained and rendered plain.' This was a very peculiar case in its facts. The case of Biygs v. Sadlier, decided in Ireland in 1847 (a), enters very fully into the law on this head, it came before the House of Lords in 1853 (b). A memorial signed only by grantee was recorded in 1746. For one hundred yoars possession had gone in accordance with the facts it recited. The question was whether the original lease, of which it professed to be a memorial, contained a clause for perpetual renewal on the dropping of lives. Many renewals had been made under it from time to time. Pro- ceedings had been taken to enforce a renewal in 1799, and a renewal obtained. Lord St. Leonards says: ' It has been made a great (.ques- tion in reference to the memorial, which is signed only by^^ the party who takes the interest, whether that of itself by its own force shall be considered as binding the estate of the grantor? That is a totally different question from that which is now before your lordships, because here the ques- tion is, whether or not the memorial can be considered as secondary evidence of the contents of the instrument of 1746, and considering the length and nature of the deeds by which it has been recognized, and considering the statute itself under which that memorial was enrolled, and the proof which accompanies that memorial, and bearing in mind too that of course every memorial is signed by the peition who takes the interest, because it is he, and not the grantor, who wants the protection of the register, I certainly am of opinion, and I think the authorities will not impeach that opinion, that this memorial is good secondary' evidence of the contents of the deed of 1746, it being proved upon search, that the deed has actually been lost.' (a) 10 Irish £q. Beports, 522. (6) 4 H. L. 436. Memorials as Evidence. 487 After noticing the formal proof required by the Registry Act, he continues ; ' Then the question is, the deed being lost and the possession having gone for a century, according to that deed, whether or not that memorial is secondary evidence of its contents. I confess I should be ashamed of the law of England if such evidence as that could not be received from necessity as secondary evidence.' In Doe d. Loscombe v. Clifford (a), Alderson, B., rejected the memorial as any seconrtary evidence. He says ' The memorial is only evidence against the persons who register. I think that if there is no clause in the act of parliament, making the memorial evidence, it is only evidence against the personK registering, and those who claim imder them.' See alH<« Wollnston v. Hakewill (6). In Bull(;r N. P. h 254, it is said, ' When possession has gone along with a deed for many years, (the original being lost or destroyed,) an old copy or abstract may be given in evidence without being proved to be true, because in such a case it may be impossible to give better evidence.' «, Lord Redesdale .says, in Bulhn v. Michel (c), 'When a recoi'd is lost from accidental injuries, an inference is al- ways drawn from the secondary evidence of other circum- stances, from which a jury is called upon to presume that of which no direct evidence can be shewn.' In Taylor on Evidence, Sec. 3S{), it is ,s-d persons; but in all these cases the evidence has been .admitted under special circumstances, a.s for instance where parties have been acting for a long period in obedience to the provisions of the sup])osed instnmient or where the deed has been recited or referred to in other documents admissible in the cause.' I am not aware that our Canadian courts have pro- nounced any opinion su})porting the plaintiff's proposition, Ik" I (a) 2 C. & K. 452. (6)3 M. kVr. 297. t(c)4 Dow 325. 488 Memoiiials as Evidence. or at all at variaiu'u from tlio rule to be dedticed from the authoritios abovo referred to. The .solitary fact that fifty years ago a memorial appears fluly regi.stered by Goiigh, the grantee, a{)parently j)roved by a witness a,s referring to a deed, whicli he swears he saw (\\ecuted l)y the grantor, shews to us that Gough then apjtarently asserted title to these premi.scs. The land is not in any remote situation, Imt in York t()wn.ship, close to the capital of Upper Canada. Had the evidence shewn that posscs-sion was taken within any rcjisonable time after, and that Gough and his descendants Jicted as the owners of land in apparent accordance with the title asserted in the Registry Ottice, and to the knowlerlge of the grantor, who allowed long years to elapse without objection, the strong presumpti(»n might be raiscil that the title was as the memorial a.sserts. The (Hmclusion drawn by Pigot, C. B., in Scidfij V. Sctillij, would be applicable : ' I think the inference is so cogent as to be almost irresistible that the po.ssession of the land wjis intluenccd by a contract corres- ponding in ini))ort with that contained in the articles of wliich the document puri)orts to be a memorial.' But when we find th(^ Gough family abstaining for half a century from doing any act to gain ])os.session of valuable land, and late in IS.5I), for the first time, bringing ejectment ^ on a title said to be acHjuired in 1807, the inference to my mind at least 'is so cogent .as to be almost irresistible,' that the claim is utterly lacking in all those evidences of . good faith, and substantial right required by courts of jus- tice in the formal proof of title to landed property. A long undisturbed possession by the Goughs to the knowledge of the alleged gi'antors, who thus acquiesced in the long enjoyment t>f this estate by another, naturally suggests the presumption that such possession is of right. If we found the additional fact that the ]iossessor affected to be the absolute owner, as by conveying to another in fee, &c., &c., it would heighten the presumption. Our minds are first led to the belief that there was a right for all this, and then Ave arc led on to infer from all Memorials as Evidence. 4»9 the circuinHtanccM that the right wan an is set forth in tlio memorial publicly placed on record with all statutable re- quirements, as a formal awsertiun of title by the grantee We thus are led to believe that the long undisturbed possession and acts of ownership were based on this foun- dation of right. Such a conclusion strikes my niiml as analogous to that class of cases in which inferences are drawn from the silence of persons who listen without objection roof of the Ji/a. against lands ; the receipts thereon endorsef 1 by sherifl" # (a) Fields v. Livingstone, 17 U. C. C. P. 15. .^ %.. ^\c<\^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ^° IM 11111^ 1 2.0 1.8 ■40 1.4 IIIIII.6 y] V. e. c). ^>#- O /. / ■^^ Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 V ^v ^9) V Cv -^ N> 6^ -V % '1? % v w <' MP^ 0", Ui ^ i 440 Memorial signed by grantee held sufficient, not- vithatanding errors in it, when corro- borated. Memorials as Evidence. 6th December, 1823; memorandum attached thereto in the sheriff's handwriting figned by him, "Lot 17, Con. 1, Har- wich, sold at sheriff's sale 11th December, 1824, to William McCrea, for £125, sheriff's fees paid by William McCrea ;" the Gazette, and publication therein dated 9th December, 1823, reciting a seizure of the land by the sheriff and notice of sale for 11th December then next; a memorial signed by the grantee, produced by the registrar, registered 17th December, 1820, purporting to be of a conveyance by the sheriff dated 16th December, 1830, in consideration of £125 paid him by McCrea, whereby he granted the land to Mc- Crea, and all the intei'ests of the execution debtor therein ; it was therein stated that the deed was witnessed by two witnesses, gentlemen, residents of the town of Sandwich. This memorial was signed by the grantee, in presence of but one witness. It was also proved that the execution debtor died in 1824, and under an ejectment suit his widow was turned out of possession in 1825 by the deputy sherifl', and possession given to McCrea. The material objections on the question of evidence were, that there was no suffi- cient secondary evidence, that the memorial signed by one witness only was void as such under the Registry Act, that it bore date 20th December, 1830, was registered 17th December, 1830, and the affidavit of execution appeared to have been made 22nd December, 1830. The following is part of the language of the Court on giv- ing judgment : "Are the facts, then, in the present case consistent, and more consistent with the fact of the sheriff having made a deed to McCrea, the purchaser, than with the fact that he did not make one ? The sheriff was commanded by pro- cess to sell the land. He advertised it for sale, and received £125 from McCrea, and, as appears by the sheriff's memo- randum, which is good evidence, because it is an entry in the usual course of business, and against interest, he received this money as the price of this particular lot which McCrea had purchased. It was the sheriff's duty also to have made a deed. Admittedly, however, he did not make it for I !^S Memorials as Evidence. 441 several years aftei- the sale. A memorial, or a document professing to be a memorial, was executed in December, 1830, by the grantee, of what is alleged to have been this paj:ticular deed, and it was registered at that time. Pos- session was not taken under this supposed deed until about eighteen year,-> after the making of it, and about twenty- three years after the actual sale ; but possession has been held for the last eighteen years under this alleged deed, and the defendant now maintains his possession by virtue of it." . , , The Court held that there was sufficient evidence of the conveyance, but they relied on the other facts beyond the memorial, and it is probable that if they had been wanting the evidence would not have sufficed (a). It is to be re- marked that the' subscribing witnesses were not called, nor any reason given why they were not. , There would seem to be some danger in allowing mere length of possession and dealing with the property to be sufficient corroboi'ative evidence whereon to adopt as evi- dence of a conveyance in fee simple absolute a memorial executed by a grantee. Take the case of a conveyance to such grantee for life only; or of agi'ant to uses to the use of some person in fee, but with a shifting use over ; or of a devise in fee with an executory devise over on the happen- ing of an event, and a memorial thereof executed by the grantee, referring to an instrument in fee simple absolute. Here, the life tenant, or first taker, might have destroyed the instrument (to the custody of which he is entitled) (b), and have conveyed in fee simple absolute, and the property have passed in fee bond fide through various hands during the life of tenant for life, or before the event whereon the shifting use or executory devise over is to take effect, for fifty years or more, and the possession and dealing with the property have thus been consistent with right of posses- sion, and with the conveyance in fee as set out in the (a) See Wishart v. Cook, 15 Grant, 237, a case between vendor and vendee. (6) See ante, p. 472. 56 ^ Danger of al- lowing mere length of pos- session, and dealing (vitb the property and memorial signed by grantee to be deemed suffi- cient evidence of a convey- ance in fee absolute. m2 Memorials as Evidence. Mere length of possession seems not suf- ficiently cor- roborative of a memorial signed by grantee that the convey- ance was in fee, memorial. The reversioner, or other person entitled," or his heirs, are not supposed to enquire till their right ac- crues, and when it does, they have to contend against evi- dence offered of the fraudulent memorial, and the possession and dealing said to be consistently Avith it. Again, those entitled on the death of the life tenant, or on the event happening whereon their right accrued, might have been under disability. It might be urged that it may always be assumed that a false memorial as above suggested could not be registered, on the ground that the registrar, as a public officer, would be presumed not to register the in- strument if incorrect. It is known, however, that practi- cally, this assumption affords no safeguard, that as a general rule the registrars are quite incapable of placing a con- struction on an obscure will, or on any but the most com- mon instruments, and are unwilling to incur the risk of declining to register on the ground of a supposed variance. Moreover, until i*ecent Registry Acts, it was not necessary to set out in the memorial the quantity of estate, i. e., the interest, conveyed, and therefore it was held that a memo- rial var3dng from the original in that respect, and so regis- tered, was not defectively i-egistered (a). The registrars therefore may not have felt themselves bound to see whether a memorial set out truly in accordance with the instrument matters which the"" acts did not I'equire to be set out ; or to reject the memorial if they found in such matters any variance. The evidence therefore affbi'ded by the mere fact of registry is, it may pei-haps be urged, not so strong in regard to those all-impoi-tant particular which need not have been set forth as to those which must. The cases when examined hardly go the length of shew- ing that mere length of possession though for considerable time, under an alleged gi'ant in fee, coupled with a memorial executed by the gi'antee, is sufficient evidence against those not claiming under or in privity with the grantee. There are either other facts which lead to the belief of, or are (a) Lessee McDonell v. Murphy, 2 Fox & Smith, 304 in notis ; Mill v. Hill, 3 H. L. Ca. 828 ; Wyatt v. Barwell, 19 Ves. 435. Memorials as Evidence. 443 Mill V. confirmatory of, the instrument ; or, if mere length of pos- session alone has been considered sufficient, it has been in cases other than on a question of whether the conveyance was in fm simple absolute to the gi-antee, and where Ihe possession had was quite inconsistent with the instrument being otherwise than as set out in the memorial. It has been above pointed out that there may have been posses- sion for fifty years or more under a conveyance or will alleged by the grantee or devisee to have been in fee, which possesion was quite consistent with a lesser or conditional estate only having in fact passed. If mere length of possession in those claiming vmder the if so however, memorial executed by 'a grantee is to be the only circum- ioBsessiop"" stance corroborative of the memorial, as evidence of a con- only should veyance in fee as therein stated, the question at once arises ^" °^' what length of possession is reipiired. Considering the cases above alluded to of a life estate only being in fact granted, and of limitations by way of shifting use, or by executory devise, and of disabilities, it may be said that the only safe guide would be that length of possession which the courts have established as that ft'om which a title must be shewn to a purchaser, namely, sixty years. The rule is based on grounds applicable to the present ques- tion. The ordinary duration of human life is assumed to be sixty years : taking, therefore, as the root of title a con- veyance sixty years old, from some one shewn to have been then in possession, but whose title is not otherwise shewn, and conveyances thence in a proper chain of title to the vendor, there is good reason to beUeve he has good title. It is fair to assume the grantor in the first conveyance was of age when he conveyed : taking him to be then only twenty-one, and to have died at the age of sixty, the right of those in remainder or reversion then accrued ; twenty years would in ordinary circumstances bar them, and thug the sixty years' possession would confer a title, but only barely so. ft will be observed, however, that after all the safety of the purchaser of the title under these circumstances would 444 Memorials as Evidence. Ab between vendor nnd purchaser and under the act to quiet titles stricter evi- •dencc re- quired tlinn in ojectmi'nt. Conveyancer's evidence, ^ligher evi- dence requir- ed than would sustain nn ejectment. rest more on the Statute of Limitations, than on the pre- sumption that the conveyance is in fee simple absolute. 4. As betvi^een vendor and purchaser, and under the Act for Quieting Titles, stricter evidence is required than in ejectment, which is not final in its consequences, and in which the mere tempoi-ary right to possession as between only the claimant and the defendant is in i.ssue. It is evi- dent that though the admission of a grantor by a memorial, or otherwise, that he conveyed in fee, should be evidence whereon a claimant in ejectment may establish mere j^rimrf facie right to possession, it is quite consistent with isucii admission that the conveyance is on tinist, or subject to bo defeated on payment of money, by a shifting use, or the like matters, which in ejectment the claimant is not re- quired to negative, but of which a purchaser must have evidence. ^ As between vendor and purchaser, and under the Act for Quieting Titles, the foUoAving remarks from Hubback on Succession, pt. 1, ch. 3, p. 02, apply : — " In weighing the insufficiency of evidence, the practice of conveyancers is more strict; in determining its admissibility, more lax than that of Courts of Justice. The former seems to be an eflect of the diflference in the position of the parties ; the latter, of the difference in the powers and fimctions of those by whom the evidence is judged. The purchaser in honajide transactions, by the mere possession of his pur- chase money, shews and offers to pass an indisputable title to it ; whilst the title to land not appearing by jiossession, he cannot have the same assurance of the vendor's right to the equivalent bargained foi-. This much seems to be set- tled ; that higher evidence is necessary than such as would merely prevail in ejectment. There are erroneous judg- ments upon defective or unsound evidence which may be cured by another ejectment; but if the doubts upon a title should after completion ripen into defects, the purchaser may find it impossible to regain the position which he held before the contract. What Lord Eldon observed of legiti- macy seems to be true of any other matter of fact expressly Memorials as Evidence. 445 or impliedly alleged on the abstract ; that a jury may col- », lect the fact from circumstances, and yet the Court would not compel a purchaser to take the title merely because there was such verdict. The Court will weigh whether the doubt is so reasonable and fair that the property is left on his hands not marketable. The nile applies generally to presumptions of fact, which conveyancers are slower of raising than Courts of Justice. Thus a seven years' ab- sence without tidings, though it prevails as evidence of death in ejectment, is clearly insufficient as between vendor and purchaser. Besides the greater difficulty of retracting an erroneous step, there exists another cause of difference from forensic practice, the more extensive office of convey- ancer's evidence, which is to afford reasonable satisfaction to the purchaser, that the title is good against all the world, and not merely like that of evidence in litigation, that it is sufficient to prevail against certain contending parties. ]n this particular, a vendor's evidence resembles that of a claimant of peerage ; it is not to shew a better or preferable title relatively to any other, but to prove that the title is certainly and exclusively in the party asserting it. Again, conveyancers' evidence is for the most pai't necessarily ex parte ; a vendor may therefore be required to furnish evidence which would be elicited by adverse proceedings, to prove or disprove facts, which, if he were a party litigant, it would be the business of his opponent to negative or establish. The heir in ejectment, either by or against him, or as a pai*ty to a suit in equity, need not adduce proof that his ancestor died intestate, it resting with his adversary to prove the affirmative fact of a, will, if there is one." The execution of a memorial wliich is receivable in evi- Execution of rience need not be proved Avhen more than thii'tv years old ™«™oriai, , , "^ "^ how proved. (a) ; and it would seem that where a foundation is laid by search or otherwise for the admission of the contents of a memorial as evidence, and when requisite, sufficient corro- (a) Doc Maclem v. TurnbuU, 5 Q. B. U. C. 129. ifj 446 Aesult of the authorities. Distinction between the admisBibility and the weight of the evidence. Memorials as Evidencb. borating circumstances or privity shewn, that such memo- rial, though not thirty years old, produced from the registry ' office, need t ot be proved ; and that a copy certified by the registrar tus such, is also admissible without proof of execu- tion of the original, or of the instrument to which the origi- nal relates («). It is difficult to gather any very definite principle from the csises. So for as the ordinary principles of evidence apply, it appears difficult to escape from the conclusion of Alderson B., in Loscombe v. Clifford, that " if there is no clause in the Act of Parliament making the memorial evi- dence, it is only evidence against the persons registering and those who claim under them ;" and indeed this seems to be assumed as the rule in Taylor on Evidence, sec. 389, (before quoted,) where the author observes " That in all ctises where the evidence has been admitted against third persons, it has been under some special circumstances "; (drawing no distinction between such memorials as have been executed by the grantor and those which have been executed by the grantee). Perhaps, however, this may not be the rule when the memorial is executed by the grantor, and is in reality against his interest, and not as in the case of Jones v. Todd, where the gra.ntor was in fact getting rid of a damnosa hrereditcis,' und when the memorial waa sought to be used against the grantee : though in strictness to ren- der the evidence admissible on this ground, it would of course be essential that the grantor should be proved to be dead at the time the evidence is tendered. When the memorial is executed by the grantee it seem admitted on all hands, (and the same rule must apply, where though exe- cuted by the grantor, it is not in reality against his interest) that it is not necessarily, or in all cases, secondary evidence. And here the distinction must be borne in mind between the admissibility and the weight of the evidence. It seems in the cases in which such evidence has been admitted, that (a) Marvin v. Hales, 6 U. C. C. P. 211 ; Lynch v. O'Hara, 4U. C. C. P. 267 1 Buller N. P 255 ; see also Doe d. Prince v. Girty, 9 U, C- Q. B. 41 ; Con. Stat. Can. ch. 80 ; .31 Vic. ch, 20, ss. 21, 51, Memorials as Evidence. the memorials have been rather treated as ])art of a chain of circiimstances given in evidence towards proof of the alleged deed, than as secondary evidence in themselves ; and the decisions in effect appear to be, that from the existence of such a memorial coupled with the other |)roof, the exis- - tence of such a deed may be presumed ; in other words, that there may be circumstantial secondary evidence, and that such a memorial may form a link. The remarks of Lord Eldon in Scully v. Scully, are in accordance with this view — " The question, he observes, in every case of this sort is, whether all the testimony taken together, offered as secondary evidence, is or is not sufficient to enable you to say, that as you have not the writing be- fore you, you will act upon it as if you had it before you, and with an absolute certainty of what that writing con- tained." And the observations of Lord St. Leonards in Saddlier v. Briggs, point in the same direction. It may be observed that most of the English cases in which the memorials have been admitted, have been cases in Equity, in which the Court were judges, both of law and fact, of the admissibility and weight of the evidence (a). Viewed in this light, the effect of a memorial, and the attendant circumstances, become a question rather of fact than of law, and its probative effect in each oase will depend, to use the words of Lord Eldon, upon whether upon all facts taken together the Court, or the jury under the direction of the Court, can say they will act upon the alleged writing as il' they had it before them. And this would seem not only to be the only way of reconciling the cases, but the »jnly logical way in which such a memorial can be held to have any probative effect whatever. It is certainly not very logical to say, that the question, whether a memorial is in itself secondary evidence, should depend upon whether from other circumstances, it appears probable that the result of such evidence is true ; while by treating it as merely a link in the chain of circumstances, this apparent difficulty is obviated. (a) See Thompson t. Milliken, 9 Grant, 359 supra. 447 :i^ ua Memorials as Evidence. i Bearing in mintl the distinction above let'erred to as re- gards the evidence requisite in ejectment, and between vendor and purchaser^ or under the Act for Quieting Titles, and that in the two latter oases negative evidence beyond the membrial is requisite to displace possible existence ol" matters which is not sot forth in it, and of which therefore it affords no evidence, the result on the whole appears to be — 1st. That a memorial executed by either grantor or grantee is undoubtedly, secondary, if not primary evidence, against all persons claiming under the person executing. 2nd. That when executed by the gi-antor, in possession, actual or constructive, and really against his intei-est, it i.s probably evidence against third persons. 3rd. That if executed by the gi'antoi', when not in poses- .sion, or by the grantee, and not against the interest of the party executing, it is not in itself secondary evidence, but may with other circumstances form a link in the chain of circumstantial evidence, proving as secondary evidence, the existence of a deed. APPENDIX. FiNLAYSON V. MILL8. [11 Grant, p. 218.] * Merger. The bill in this cause was filed by Hugh Finlayson, J. McQuaig, and Isaac Buchanan, against Samuel Mills, J. Buchan, Williani Freeland and Alexander Spottiswoode, setting forth that in June, 1856, Spottiswoode agreed to sell certain lands in the township of Blenheim, to Currie, Buchan, and Freeland, and for £2,5U0, part of the purchase mouey, a mortgage was to be given, but which had mt, owing to a dispute as to the terms been executed, although the deed to them had been executed and delivered by Spottiswoode, when on the 2nd July 1857, he assij^ned all his estate to the plaintiffs, for the benefit of his creditors ; that Mills claimed to be a creditor of Spottiswoode, to the amount of £1,130, as bein^ a balance due him on the dissolution of a partnership which had at one time existed between him and Spottiswoode. and which had been dissolved in August, 1856, and to secure which Spottiswoode executed an instrument in May, 1857, creating a mortgage on part of the premises, to secure payment of the sum io due him : that subsequently and in the year 1859, Mills, without the consftiit of Spottiswoode or plaintiffs, pur- chased from Buchan, Freeland and Currie, their interest in the property conveyed to them, and agreed to assume their position, as to the contract with Spotiiswoode, and indemnify them against the unpaid purchase money. The plaintiffs submitted that under the circumstances they, aa assignees of Spottiswoode, had a first lien on the property for the unpaid purchase money, to the extent of the difference between the £2,500, due by Buchan, Freeland, and Currie, in respect of their purchase, and the £1,130 due to Mills, and the bill prayed relief accordingly. The defendant Mills answered the bill, setting up that it bad been with the consent of the trustees that he had effected the purchase, the inten- tion being that he should hold the land freed of the vendor's lien, in discharge of the sum so due him by Spottiswoode, the lands having become so depreciated in value as not to be worth that amount. SpRAaoE, V. C. — The facts, so far as they are material to the case, are shortly these. The defendant Spottiswoode, in June, 1 856, conveyed with other lands the north halves of lots 19 and 20, in the 6th concession Blenheim, to Currie, Buchan, and Freeland, a portion of the purchase money was paid, and a large sum, a little under or over £2,000; remained unpaid. The 57 • H 11. Appendix. plaititifld ullcgc that a mortgage was to have been given to secure this balance, but this is not proved, and no mortgo,ge was given. Spottis- woodo wftH a vendor, having a lien for unpaid purchase money. Ill February, 18.57, Currio assigned to his co-purchasers his interest in the purchased property. In May of the same year, Spottiswoode, being indebted to the defendant Mills in the sum of £1,1.30, assigned to him all his right, title, interest and property, in the north halves of lots 19 and 20 to secure that sum. The sale to Currie, Buchan, and Freeland, and the fact of a portion of the purchase money remoining unpaid, are recited in the assignment. In July of the same year, Spottiswoode a.ssigncd all his real and personal estate to the plaintiSs, for the benefit of his creditors. The position of the parties, so far, appears to be this : Spottiswoode assigns his vendor's lien first to Mills, to secure his debt to him for a less amount than the unpaid purchase money, and then assigns generally to the plaintiffs, which carried to the plaintiffs the right to receive the balance of the unpaid purchase money. The next :;i.iterial fact is, that Mills purchased from Buchan and Freeland the land itself, whether the halves of 19 and 20, or the whole of the land sold by Spottiswoode, does not seem to me to be material. He had previously commenced a suit in this court against Buchan, and Freeland and Spottiswoode, and the plaintiffs in this suit ; and that suit was compromised by the convey- ance of the land b) Buchan and Freeland to Mills — no money passed upon this sale. Mills in his answer says, that the lands had so fallen in value that they were not worth the amount of his debt against Spottis- woode : that Buchan, Freeland, and Spottiswoode were all insolvent, and that the plaintiffs, as he is informed by his solicitor, had notice of the proposed compromise, and acquiesced therein. The consideration is not more definitely stated. Mills, and Buchan, and Freeland differ as to whether Mills was to indemnify them against the claim of the assignees of Spottiswoode for the balance of purchase money, beyond the amount due to Mills himself; but however that may be. Mills became and is the owner of the land upon which the vendor's lien existed ; and this bill is filed to enforce that lien. Mills claims to be a mortgagee, within the statute 14 and 15 Vic. ch. 45. He claims that he is first mortgagee, and that plaintiffs are assignees of a second mortgagee, or of one who stands in that position, and that his acquiring what, for this purpose, we must call the equity of redemption, does not postpone him. I am of opini(m that Mills does not come within the protection of the statute. To make it apply, there must be two mortgages, each forming a charge upon the same property. If Spottiswoode were a mortgagee, there would be two mortgages in one sense, a mortgage to him and a mortgage by him to Mills, but they would not be two mortgages within the act. Mills would not be a prior mortgagee, but a derivative mort- gagee ; and there would be only one mortgage, in the sense in which the I It Appendix. m. »ct treats of mortgages ; and au nssignmenl of that one mortgage. All that can be said is, that the assignment gave the assignee a right to receive u portion of the mortgage money, in priority to the right of the mortgagee to receive any portion of it. Whether the provisions of the act might properly have been made to apply to such a case it is not for me to say, but I cannot so read the act us to apply thrm to it. But in fact, there is in this cose no mortgage ut all within the meaning of the act, but an assignment of an eciuity, and Mills wus not u mort- gagee of freehold or leasehold property within the act. The title in the Consolidated Statutes, " An act respecting mortgages of real estate," and the whole tenor of the act, shew this. I incline to think that the proper conclusion as to the purchase is, that the consideration was the unpaid purchase money, and if so, the case is clear. The whole was due to Spottiswoode ; he pledged a portion of it to Mills ; Mills has the land and cannot claim to retain out of the purchase money more than the portion of it due to himself; as to the difference, unless he accounts for it to the vendor, he has both the land, and so much of the purchase money. Apart from the act, the plaintiff's case, as against Mills, is that they, the plaintiflf's, have a vendor's lien upon certain real estate of which Mills became the owner with notice of the vendor's lien ; and whatever may have been the consideration, as between Mills and thu original purchasers, the plaintiffs cannot be affected thereby unless assenting parties to some arrangement whereby their lien should be extinguished. There is no evidence of this; all that there is in the way of evidence is that one of the plaintiffs, as trustee of Spottiswoode, approved of the proposed com- promise of the suit, a suit to which he with his co-assignees were parties. VanKouohnet, C— The words in the deed of the first of March 1859, reciting that the conveyance to Mills was in satisfaction of his debt, and he last written words, dispose of the question of intention, even if that twere to govern to the full extent contended for by Mr. Blake. These words leave no doubt as to the contract of the parties, from which the intention must be gathered. I agree with my brother Spragge in his judgment, that the statute relating to the purchase of equities of redemption does not apply to this case. [For the application and comprehension of much of the la-v in portions of the following judgment of Mowat, V. C, the facts of the case will perhaps be less complex by regarding them according to what Spragge, V. C, in his judgment states to be the contention of the defendant Mills. For this purpose Mills may be regarded as first mortgagee, the plaintiffs as second mortgagees, and Mills may be considered as having purchased the equity of redemption of Currie, Buchan, and Freeland, the mort- gagors, since a vendor's lien operates as an equitable quasi-mortgage. — Ed.] IV. Appendix. MowAT, V. C — Some question was raised as to •whether, according to the bill, the legal estate in the property in question passfd to Currie, Buchan, and Freeland, But however this may be, there is no doubt that these persons, from the time of their purchase from Spottiswoode until they transferred their interest to Mills, were at all events, equi- table owners of the property; that Spottiswoode had a lien or charge upon it for the unpaid purchase money ; that the effect of his mortgage to Mills was to give Mills a first charge for his debt, and to make Spottis- woode's claim for the balance a second charge ; that Mills, having thus thfc first charge, took from Currie & Co., the owners of the estate, in equity if not at law, a release of their equity of redemption ; and that, by means either of the mortgage from Spottiswoode or of the deed from Currie & Co, Mills obtained the legal estate. Prima facie, according to English law, the effect of these dealings of Mills undoubtedly was to merge his charge in the estate, and to leave the balance due Spottiswoode the only incumbrance on the property, as the decree pronounced it to be. Lord St. Leonards, in Garnett v. Arm- strong (a) states the English rule thus: "The cases establish that if you, with a prior incumbrance, buy the estate which is subject to a sub- sequent incumbrance, you let in the second incumbrance to the injury of your first incumbrance ; that in fact you lose your incumbrance." Counsel for Mills did not dispute this general rule, but they contended that the doctrine of merger, as so laid down, depends on intention ; that Mills had no intention to merge his debt when he rigreed for or accepted the release of Currie & Co.'s equity ; and that, at all events, the Act respecting mortgages (22 Vic. ch. 87), protects and keeps alive the charge of Mills, notwithstanding his purchase. We were referred to Mayhew on Merger, 119 €< seq. ; Tudor's Leading Cases, 845 etseq, ; and Fisher on Mortgages, 312 et seq., for the cases which establish that it is the intention of the party taking the equity of redemption that governs ; and this certainly is so, where the party becomes owner of the estate by inheritance or devise. In that case it is for such party alone to determine whether he will keep alive the charge, or will allow it to merge ; no one can claim a right to interfere with his wish. The question generally arises between his real and personal representatives after his death ; for if there is no merger, his personal representatives are entitled to the debt ; and if it merges, the heir takes the estate free from the debt. In such a controversy, if it appears that the party expressed an intention as to the merging, or keeping alive of the charge, effect is given to such intention. If there is no express evidence of intention either way, an intention gathered from his acts will do. In case nis in- tention does not appear, either by express evidence or by hisfrts, the merger will not take place if there is any other large incumbranc 3 on the ' (a) 2 C. & L. 449. Appendix. V. property : for as in that case it may with some probability be assumed to have been for his interest that the charge should remain on foot, as a protection against the other incumbrance, his intention is assumed to have been in accordance with his probable interest. If the other incum- brance is extremely small, as compared with the value of the property, so that he cannot reasonably be supposed to have had any interest in keeping alive his own charge as a protection against it, the intention to keep it alive is not presumed, and the merger takes place (a). So where there is no evidence of an expressed intention either way, and no other incum- brance on the property, and it is therefore a matter of iridifference to the owner whether the charge subsists or not, a merger takes place. But where the owner of a charge becomes the owner of the estate, not by devise or inheritance, but by bargain and purchase, the cate is some- what diflFerent. Here it may not be the wish, or expressed intention, or interest, of such owner alone, that is material ; the interest of the debtor, whose estate he has acquired, it material also. But no doubt, if the contract between them contains an express stipulation, or mani- fests a clear intention by both parties, that the charge should be kept alive, notwithstanding the purchase, this may be done. Whatever doubt on this point existed formerly, none exists now (6). In Cooper v. Cart- wright (c) Sir W. Page Wood laid it down as now clear that, " in the ordinary case of a sale of a mortgaged estate, if the mortgagee and the mortgagor concurred in desiring to have the mortgage kept on foot, they would be entitled to have the contract for purchase performed in the way they wished." Accordingly the learned Vice-Chancelior proceeded to shew that the terms of the contract shewed conclusively that the mort- gage in question was to be kept alive, and added : "Therefore the case is precisely the same as if the plaintiff [the vendee] and Cartwright [the original mortgagor] had both come to the vendors [Cartwright's assignees in bankruptcy] and said that they concurred in desiring that the mort- gages should be kept alive. The only possible question that can arise is one of form as to the mode in which the assignees are to be discharged from the mortgage debts." No doubt also as the law now stands, if the contract contains no express stipulation on the subject, the vendee has a right, as against the vendor, while the contract remains in fieri, to have it carried out in such a form that a merger may be avoided, provided he takes care that the vendor is effectually discharged from the debt ; for to use again the language of Sir W. Page Wood in the case already quoted : '• It is a matter of pure indifference to the vendor whether his debt is actually discharged, or whether he is personally discharged from all personal liability with respect to it,'' and the question is merely one of "con- :: ?1 (a) Richards v. Kichardg, Johns, 764. (6) Bailey v. Richard«on. 9 H. 784 ; Watta v. Symes, I DeO. McN. & 0. ?40. («) Johnson, 68S. Vl. Appendix. venience to the purchaser, not involving any matter of substance affect- ing the vendor," who is not permitted " to raise objections to the form of the conveyance." In the present case, the defendant Mills does not allege in his answer that there was any contract on this point either way ; and the only evi- dence about it is that of his own attorney, who says no more than that it was no part of the agreement that Mills should pay oS" Spottiswoode. But neither was it, so far as we are informed, a part of the agreement that Mills should not pay him ofiF; or that Spottiswoode should be paid by Currie & Co. ; or that they should obtain a release from Spottis- woode or his assignees; or that Spottiswoode or his assignees should give such a release. In the absence of any agreement on the subject, the legal implication is that Mills, as the purchaser of the equity of re- demption, should pay Spottiswoode's claim (a). The omission to make any express stipulation may have been from a knowledge of this legal implication, and in reliance on it ; or it may have been in ignorance of it, and from want of thought | but as to this there is no evidence, nor do I say that in this case such evidence would be material. But though there was no express agreement, can the intention, and therefore an agreement, be made out by implication from the form of the instruments by which the bargain was carried out ? There were but two documents : the deed of release from Currie & Co. to Mills, and a bond of indemnity from Mills to Currie individually against Spottiswoode's claim. Buchan and Freeland say, that they too, were to have had a bond of indemnity ; but this is denied by Mills, and there is no evidence of it. These instruments do not appear to have been hastily prepared or executed. The deed of release alone has been produced. It was drawn by Mill's solicitor, and was sent to Mr. Freeland, the solicitor for Buchan and Freeland. Mr. Freeland added a description of some other lands, and got the deeds executed by his clients and Currie. Mill's solicitor received the deed (executed) on the 12th of April, 1859, subject to the costs Mills had agreed to pay. It was subsequently accepted by Mills, after a conversation with his solicitor about the addititional description which Mr. Freeland hnd introduced ; and was registered by Mills on the 5th of November. This deed is expressed to be made, "in consideration of the settlement of a suit" of foreclosure " between the present parties" to the deed, "and others, and in satisfaction of a certain lien or claim of £1,1.S0 and interest, which Mills had on the property;" and the releaise is declared to be subject, as to all the lands described in it, to the lien and interest of Alexander Spottiswoode therein. In view of all this language, I think that the deed, instead of affording evidence of an intention to maintain the charge, contains the clearest intimation of an intention to destroy it ; for what Mills has to make out is in effect, that (a) Barry v. Harding, 1 J. * I.a. T. 48.^. Appendix. Vll. the release was not to be a satisfaction of the debt, and that Mills was to take, not subject to Spottiswoode's interest, but free from it. The parol evidence contains nothing that forbids the conclusion which is to be drawn from the deed. On the contrary, Mr. Mill's solicitor ex- pressly states in his evidence, that " it was part of the agreement that Buchan and Freeland were not afterwards to be liable to Mills." The same witness informs us it was part of the agreement, " that in order to induce Currie to join in the conveyance. Mills should execute to him a bond to indemnify him against any claim that the assignees of Spotliswoode might make against him." It is not alleged that Buchan and Freeland were to indemnify Mills against this liability, and the effect of the bond would therefore be that Currie might at any time afterwards compel Mills to pay Spottiswoode or his assignees, in order to free Currie from his liubility : Ranelagh v. Hayes (a), Lee v. Rook {b), Pember v. Mathers (c) ; or Currie might, if he chose, pay the whole debt himself, and sue Mills for it on his bond of indemnity. Under all these circumstances, I do not see how it is possible for a court to hold that Spottiswoode's debt to Mills still subsists, and that the plaintiffs must pay it or lose their own share of the purchase money. The argument from the Consolidated Statute respecting mortgages (22 Victoria, ch. 87) remains to be considered. It is urged that tbis statute entitles Mills to insist on his debt nowithstanding his purchase. But I cannot so read the act. I cannot suppose that the act was intended to put it out of the power of parties to give priority to a subsequent in- cumbance. The object of the legislature rather waa, I apprehend, to prevent a merger of the debt \y the operation of any technical rule where such a result would contravene the intention of the parties, and not to prevent a merger where a merger is necessary to give effect to the intention of the parties. At the time of the passing of the act, the provisions of which now form this chapter of the Consolidated Statutes, some legislative enactment for this purpose was, no doubt, supposed to be necessary. In Toulmin v. Steere (d), Sir William Grant had cited two cases, which he said were " direct authorities to shew that one pur- chasing an equity of redemption cannot set up a piior mortgage of his own, nor consequently, a mortgage which he has got in, against su'ise- quent incumbrances of which he had notice." Mr. Fisher, in his book on Mortgages, page 445, understands this case as having laid down " that the purchaser of an equity of redemption cannot keep up a charge for his own benefit." So Mr. Mayhew in his book on Merger (1861), after stating that '' a purchaser of an equity of redemption may now, by paying o6F the first mortgage out of the purchase money, and shewing an intention to do so, stand in the mortgagee's place against the nnxt 'M li I (o) 1 Vem, 189. (6) Moi-seley, 318. (c) 1 B. C. C. 03. (d) 3 Mer. 210. 't '. II !i \ it III viii. Appendix. incumbrancer," adds: "The case of Toulmin v. Steere was considered an authority against this position" (a). Yet, before the passage of our act, Toulmin 7. Steere had been almost uniformly recognized as an authority in equity ; and in this court two cases had occurred, in the year 1850, which were decided on the doctrine of merger (6) ; and the court had in both cases found it necessary to give effect to the doctrine under circumstances of great hardship to the defendants. The Act in question was passed soon afterwards (August, 1851), and provides, by the 1st section, that a purchase of the equity of redemption may be made by a mortgagee without merging his debt j and by the 2nd section, that in such case a subsequent mortgagee cannot foreclose or sell " without redeeming or selling, subject to the rights of the prior mort- gagee." Any doubt as to the validity or effect of such a transaction in this country was therefore removed. The course of judicial decision appears to have done the same thing, or nearly the same thing, in England, since the passing of our statute. It was in December, 1851, that Watts v. Symes (c) was decided. In that case Lord Justice Knight Bruce, after quoting Sir William Grant's language, in Toulmin v. Steere said : " With the greatest deference to the authority of that eminent Judge, I always doubted, and still doubt, whether the cases mentioned by him go that length." The notice that the purchaser had of the incumbrance, to which Sir William Grant gave priority, was constructive notice only ; and the prior mortgagee joined in the purchase deed and conveyed the legal estate to the use of the purchasers. In Phillips v. Gutteridge {d (1859), there were two mort- gages for £300 and £400 respectively, on separate leasehold properties. The mortgagor died, charging both parties with an annuity. His execu- tor agreed with Catherine Phillips that she should pay off the two mortgages, and lend the executors £500 more. She did so, and the mortgagees and executors joined in a new mortgage to her for the £1200. Nothing was done therefore on which an argument could be founded for keeping alive the mortgages beyond what appeared in Toulmin v. Steere; yet it was held, first by V. C. Stuart, and afterwards by the Lords Justices, that there was no merger. Lord Justice Knight Bruce said : " The conveyance may not have been perfect, but there can be no doubt as to the intention of all parties to preserve the priority of the charges of £300 and £400 (e)." The law of the court, both under the statute and independently of the statute therefore now is, that a mortgagee may take a release of the equity of redemption without merging his debt ; but I think that in this case Mills has not done so ; that on the one hand, we have no evidence (a) See Dart on Vendors, to the same eSfecl, p. 590, 3rd ed. (6) Emmans v. Crooks, ante vol. I. p. 169 ; Myers v. Harrison, ante vol. I. p. 449. (c) 1 DeG. JIcN. & 0. 240. (U) 4 DeG. &. J. 531. (e) Vide also Bailey v. Bichardaou, 9 Hare, 734 (1862) ; Cooper v. Cortwright, Johns, m. -■WaHH(nR0«MW^V ffmmmng^f^^fvm Appendix. £r. whatever that he was not content to merge liis debt in the estate ho was acquiring, and that on the other hand, we cannot give the natural and fair effect to the express bargain between the parties, or to the intention which it manifests, without holding that the debt of Mills is extinguished and that the plaintiff's claim is the only charge on the property (a). 1 think the decree should be affirmed. Moore v. The Bank of British North America. 15 Grant, p. 308. Registry law — Constructive notice. Ill eaae of an uiiregistercil interest of a date antecedont to the Kbgistry Act uf 18GS, and not founded upon a deed or conveyance which was capable of registration, constructive notice is sufficient notice against a subsequent registered conveyance ; and pos.session of the property by tlie party having such unregistered interest is sufficient constructive notice for this purjiosc. The Court of Cliancery in this country having frequently lield constructive notice of an unregistered interest to be insufficient wliere such unregistered interest was founded on an instnimcnt capable of registration, and the want of actual notice was nut wilful or fraudulent, this rule will continue to bo acted on, until the different doctrine lately held by V. C. Stuart in England, and Mr. Justice Lynch in Ireland, is adopted in Appeal either in England or here. This cause was originally heard before the Chancellor, at Brantford, and came on for re-hearing before the two Vice-Chancellors, on the decree pronounced by his Lordship. The facts out of which the case arose are fully stated in the judgment. The cases cited are with others, mentioned in the judgment of the Court, which was delivered by MowAT, V. C. — This cause was re-heard before ray brother Spragge and myself, in the absence of the Chancellor, before my brother Spragge went to England in 1866, and the incessant pressure of new business since his return has prevented our disposing of the case until now (21st April, 1868). The plaintiff claims certain land, comprising fifty acres, under a parol contract made by the plaintiff for the purchase thereof from the defen- dant .Thomas Moore. The facts are not disputed. The plaintiff came to this country, with his family, in the fall of 1850, and in September of that year agreed for the purchase of the land in question for $150, and some work which he was to do for the vendor on the adjoining lot. About half the land was cleared. The plaintiff paid the i^l 50 by October, 1851. Immediately after the purchase the plaintiff went into possession, and has been in possession and has cultivated the land ever since. By the fall of 1855 he had cleared the greater part of what had been in wood (o) WoodrufI v. MUU, 20 U. C. y. B. 68. 1 1 ■ 11 lis 58 X. Appendix. when he bought ; and in 1857 he built a house on the property, in which he and his family have ever since lived. lie is described in the evidence as an illiterate man; as being able to read print, but not to read writing: and he is stated not to take a newspaper. The vendor was his brother. The vendor does not appear to have himself got a conveyance of the lot until 2rjth June, 1855. On the 13th April, 1857, he mortgaged the lot of which the fifty acres in question formed part, to John Ilaight Cornell and Samuel Palmer Cornell; and they, on the 25th May, 186.3, assigned this mortgage to the defendants the Bank of British North America. The defendants were before this assignees of certain judgments recov- ered against Thomas Moore ; and on the 19th of June, 18G0, they filed a bill against him and the mortgagees mentioned, and certain other judg- ment creditors of Moore, praying for liberty to redeem the prior incum- brances, and for a sale of the land in question, and of other lands of the debtor. Under this bill the Bank became the purchasers ; and on the 14th July, 186.3, Thomas Moore executed to them a conveyance in pur- suance of the sale. Some time afterwards the Bank commenced an action of ejectment against the plaintiff; and on the 14th September, 1865, the plaintiff filed the present bill to restrain the action, and for the specific performance of his contract. The cause came on to be heard before the Chancellor, at Brantford, on the 6th November, 1865, when a decree was made dismissing the plaintiff's bill. The following is the note made by his lordship of his judgment : — "Whatever opinion I may have indivii lally entertained on this question, I learned from both my brother Judges (a), shortly after entering upon my duties as Chancellor, that it was considered as settled law in this Court, that constructive notice — such as that by possession, &c. — did not avail against a registered title. My brother Spragge still considers that to bo the view on which the Court has acted in such a case. This being so. I think I should dismiss the bill with costs, leaving it to the plaintiff to seek for a different declaration of the law either on re-hearing or appeal." It appears that the impression his lordship thus had at the moment, of what had theretofore been held, was not quite correct. It had thereto- fore been su[)posed that constructive notice of an unregistered deed which was capable of registration did not avail against a registered deed ; but no such doctrine had been laid down where the unregistered claim was not founded on an instrument capable of registration. On the contrary, in ihat class of cases, it had been distinctly held in this country as well aa in England, that the Registry Act did not apply, and that constructive notice was as effectual as in other cases ; and this appears to have been his lordship's own view of what was the correct principle. There was no express proof that at or before the time of the execution of the mortgage or the deed, the mortgagees or the Bank had actual (a) Eaten and Spragge V. CC. Appendix. xl. notice of the sale to the plaintiff; but as the plaintiff was in possession of the ])roperty, Ihe mort^^agees and the Ba,]ik, prima facie, took sul)joi:t to the plaintiff's right. On this point it is only necessary to refer to Holmes •V. Penny (a) in Appeal, in which the rule was laid down by the Lord Justice Knight Bruce in these words : "I apprehend that by the law of England, when a man is of right and de facto in the possession of a cor- poreal hereditament, he is entitled to impute knowledge of that posses- sion to all who deal fur any interest in the property conflictinif or incon- si.stent with the title oi alleged title under which he is in iiossessioii, or which he has a right to connect with his possession of the property. It is equally a part of the law of the country, as I understand it, that a man who knows, or cannot be heard to deny that he knows, another to be in the possession of certain property, cannot for any civil purpose, as against him at least, be heard to deny having thereby notice of the title, or alleged title, under which, or in respect of which, the former is and claims to be in that possession." The same thing was held by my l)rother Spragge in Gray v. Cowcher. The consequence of this rule is, that per- sons dealing for land should ascertain whether the vendor or rnort;,'agor is in possession, and if not, whether the person in possession has or claims any title ; and this imposes no unreasonable burden. A purchaser or mortgagee may fairly be expected and required to make some examinn tion of the property he bargains for: and possession being a fact patont to everybody, the danger of its being falsely asserted is greatly less than of actual and express notice of au unregistered claim being falsely alleged. The Registry Act in force at the time of the plaintiff's purchase was 9th Victpria, chapter .34 (184C), the 6th section of which corresponds with the 44th section of the Act in the Upper Cunada Consolidated Sta- tutes (6j and is that on which the contention of the defendants proceeds. By these enactments, as against a subsequent purchaser or mortgagee who has registered a memorial of his deed or conveyance, every prior unregistered "deed or conveyance " was made void : and the settled con- struction of this enactment in England and in this country is, that it does not affect any equitable right or interest which cannot bo registered, but renders void such deeds and conveyances only as are capable of registra- tion. This as Vice-Chancellor Sir W. Pa'j;e Wood observed in Neve v. Pennell (c), "might indeed, introduce the mischief intended to be reme- died in another form ; but it was one which the machinery furnished by the Act cannot meet ; which is not the case where there exists a docu- ment capable of being placed on the register." . In this country the mis- chief is prevented in future cases (d) by the Registry Act of 18G5 (c), which provides broadly that no (unregistered) equitable interest shall be (a) 8 D. M. 4 O 580. ((•) 2H. iiM.lST. {6)Ch. 80p. 801. ((/) Mat'doimld v. .MaaUmnld, 14 Gr. 13.!. (e) 29 Vif. ch. 24, nco. C«, Xll. Appendix. I '>« valid 'against a registered instrument executed by the same party, his heirs, or assigns." I have said that the settled construction of the enactment, as it previ- ously stood, was that it did not affect equitable rights which were incapa- ble of registration. Thus, in Sumpter v. Cooper (a) Lord Tenterden, speaking for himself and the rest of the Court of Queen's Bench, used this language : "As to the Statute of Anne (b) we think it cannot be held to apply to the case of an equitable mortgage. It refers only to the registration of deeds ; and where there is merely a lien or equitable mortgage created by the deposit of deeds, there is no instrument to be registered ;" and when the point is referred to in the English Equity Reports, the only question is, whether the unregistered claim is under an instrument capable of registration (c). In Ireland, the point does not appear to have been quite so well settled. In Buckley v. Lanauze (d), which was a, case of a will, it was distinctly recognized, Lord Plunkett observing : " The Registry Act has no applica- tion, inasmuch as under the Irish Registry Act the registry of a will is not provided for, and it is not therefore, a case between a registered and an unregistered title ;" and " the ordinary rule of constructive notice is to be applied." In re Driscoll's estate (e), the learned Judge in giving judg- ment, said: ''A considerable portion of the argument before me was on the question, whether an equitable mortgage, by deposit of title deeds on a parol contract, is postponed to a subsequent registered actual mortgage. The first is manifestly incapable of registration; and if such a transaction creates an equitable security, it would seem somewhat hard to hold that, while it is incapable of receiving aid or protection from the Registration Acts, it is liable to be defeated by their operation. To establish the priority of a security created by such deposit over a subsequent mortgage, could scarcely be considered a hardship on a puisne mortgagee who must take his security without obtaining the usual indicia of title. It is not necessary that I should now decide this point, for it does not arise on my previous ruling ; but for a time it seemed to me to arise, and during the arrfument I intimated an opinion rather favorable to the view that the registry of the subsequent mortgage should not give it priority." In that case the case in the Court of Queen's Bench (/) and that in the 13th Irish Common Law (g') were cited to the learned Judge ; and also a case of Rice v. O'Connor (A), where it had been said that possession under a parol contract partly performed, was not notice as against a registered title. That view is directly opposed to Ilolmes v. Penny (i) ; but (a) 2 B. &Ad. 220. ((») ^ Anne, ch. 20, sec. 1. (f) Scrafton v. yuinccy, 2 Ves. Sr. 413 ; Wright v. Stanflclil, 27 Beav. 8 ; Moore v. CuJ- vcrhouse, lb. 639 ; Neve v. PenncU, 2 H. & 31. 170 ; Holmes v. Penny, 8 D. M. & G. 572 (d) L. & G. t. Plunkett, 341 ; see also O'Connur v. .Stephens, 13 Ir. C. L. 68. (c) Irish Kcpts. 1 Eq. 288, (/) Sumpter v. Cooper, 2 B. & Ad. 223. to) O'Connor v. Stephens, 13 Ir. C. L. 63. (ft) 11 Ir. Ch. 610 ; 8. C. 12 lb. 424. (OSD.M. &a.S72. Appendix. xiu. neither Holmes v. Penny nor any of the other cases T have referred to was cited to the Court; and the point, in the view taken in appeal of the other facts of the case (a), was not material. In this Court the authorities arc very clear. The very point was de- cided in McMaster v. Phipps {h). There Chancellor Blake, speaking of the Registry Act then in force, observed: "It settles the priority be- tween conflicting deeds or instruments (if that be the correct construction) which admit of registration, but it does not aftect to deal with equitable rights which do not arise upon any deed or written instrument, and as to which therefore, the provisions of the Registry laws are wholly inappli- cable. The language and scope of the Act shew that equities of this sort were not in the contemplation of the Legislature ; and indeed, as to them, legislative interference was wholly unnecessary, for a purchaser for value without notice was always protected, and I have already shewn that a purchase with notice is not within the Act at all." V. C. Estcn said : " I think that equities of this nature are not extinguished by impli- cation — they arc certainly not expressly avoided — as against a registered title, by the Registry Act, and that the case of equitable mortgages is only mentioned exempli gratia" (c). This has been assumed to bo the law ever since (d). In the Bank of Montreal v. Baker (e), the present Chan- cellor observed of the document there m question: "If by reason of its being treated merely as a parol instrument it could not bo registered, then we are of opinion that the registered judgment could not prevail against it, as in such case the Registry Act as to it could have no application;" and his lordship referred to McMaster v. Phipps, and Sumpter v. Cooper as authorities for this statement of the law. It was contended for the plaintiff that the cpiostion I have been consid- ering was not open to the defendants, as they had not shewn that the title prior to the plaintiff's contract was a registered title. This objection was was not taken at the hearing before the Chancellor, and on the contrary, it appears from the Chancellor's notes, to which wo have referred, that the facts were admitted by the plaintiff, and that the effect of them alone was argued. I have therefore assumed that the defendants had a right to raise the point on the re-hearing. If the plaintifl" had claimed under an instrument capable of registration, the case would have been open to some difficulty, as the Court here, be- fore the decision of the Lords Justices in ilolmes v. Penny {/), had held that possession was not sufficient notice of such an inttrunient as against a ifegistered deed (g) ; and there are decisions of the Irish Courts to the (a) 12 Ir. Cli. 424. (b) 5 Gr. 258. (c) lb. 201. (d) See Burgess v. Howell, 8 Gr. 37 ; 5Ic(Juestieii v. €:iini>l)Cll, S Gr. 24.5 ; Cherry v. Mor- ton, lb. 407 ; McCrum v. Crawford, 9 Gr. 340 ; Uohsoii v. Cari)eutcr, 11 Gr. 203 ; Harrison V. Armour, lb. 303. (c) 9 Gr. 299. (/ ) 8 D. Jl. & G. 572. (S) Waters v. Shatlo, 2 Gr. 404 ; Ferrass v. .McDonald, 6 Gr. ;!10 ; .McCnini v. (.'rawfonl 9 Or. 340. I i I XIV. Appendix. same eil'ect (a). There are also general observations in the report! of tbia Court, to the efTect that constructive notice of an instrument capable of registration is not sufficient against a registered deed (h) — which has not, in so many words, been held or said in any English case I have seen, though the doctrine, subject to the exceptions 1 shall mention, seemed implied in or fairly inferrible from the strong language used in some early cases, as to the kind of notice necessary to sustain a claim against a registered deed. Thus, in Hino v. Dodd (c) it was said, that the "proof must be extremely clear ;" that " apparent fraud, or clear and undoubted notice, would bo a proper ground for relief, but suspicion of notice — though a strong suspicion — is not sufficient," &c. In Jolland v. Stain- bridge (d) Lord Alvanley said : "It must be satisfactorily proved that the person who registers the subsequent deed must have known exactly the situation of the persons having the prior deed, and knowing that ; regis- tered in order to defraud them of that titfe he knew at the time was in them." In the later case of Wyatt v. Barwell (e). Sir William Grant stated the doctrine of the Court to have been this : " We cannot permit fraud to prevail ; and it shall only be in cases where the notice is so clearly proved as to make it fraudulent in the purchaser to take and register a conveyance in prejudice to the known title of another, that we will suS'er the registered deed to bo effected. * * It is only by actual notice, clearly proved, that a registered conveyance can bo postponed. Even a lis pendens is not deemed notice for that purpose (/)." On the other hand, in Sheldon v. Cox {g), which was a case under the Registry law. Lord Nottingham said: "There is no difference between personal and constructive notice, in its consequences, except as to guilt : if there was, it would be very inconvenient and notice would be avoided in every case by employing an agent. The Statute [of Queen Anne was intended only to protect purchasers against secret conveyances, but does not prevent their being affected with notice in the same manner as if that Statute had not been made." The reporter has added a query, whether the case was well considered. Again, in Ford v. White (h), the strong language of the earlier cases was thus explained or modified: "I have been referred," said the Master of the Rolls, "to several cases to shew that there should be clear evidence of notice. That is so ; but all that is meant is, that the notice proved in this, as in all other cases, must be sufficient to satisfy the Court, and- then it must be acted on. If the evi- dence be doubtful, tht Court will either order an enquiry or direct an (rt) In ro Uimiiestcr, 9 Ir, Ch. 410 ; Clark v. Armstrong, 10 Ir. Ch. 263 ; Rico v. O'Connor, 11 Ir. Ch. 510 ; 12 Ir. Ch. 437. (6) Fomiss V. McDonald, 5 Or. 312 ; Baldwin v. Dnignan, 6 Or. at p. 60S ; Graham v. Chalmers, Gr. 241 ; SIcCrum v. Crawford, 9 Gr. 340. (c) 2 Atk. 275. (d) 3 Ves. 485. (c) 19 Ves. 439. (/) See also Wallace v. Tlic .Marquis of Donegal, 1 Dr. & Wal. 488; Bushel v. Bushel, 1 Sch. & h., 100. ((ht hia brother would protect him and save tlio pro- perty. It is manifest that these facts do not afford the 8li;xhto»t (ground for the arjruinfnt of there havin^f been an acquiesencp within the autho- rities on that subject. I think there must bu a decree for the apecific performance of the con- tract. Reference to the Master to inquiio whether the conHidoration husbeen fully poid ; and if not, what is due to the iiluiiitilf in respect thereof, and the Master is to chttr;,'e the pluintilF with the value in money, of any work which tlic the plaintilf has not performed, and is still liable to ])erform. Just allowances to all parties. DefendHiits the Bank to pay the costs of the plaintiff, less the amount (if anythin;:) which the plaintilf is still liable for. Should the balance be in plaintiff's favour, or on payment of the balance if agaiist him, conveyance to be executed. Letter frovi H. Bellenden Ker, Esq., addressed to the Lord Chancellor. "Mt LoHii, In compliance with your Lordship's direction, I have, iu conjunction with Mr. Hayes and Mr. Christie, revised the act passed in the last session •for simplifying the Transfer of Property (a^' Though most of the various objects which that act embraces are of a practical and beneficial character, aud ought to be included in any comprehensive scheme for ameliorating the law of property, yet the apparent inexpediency of some of its provisions, except, perhaps, as parts of such a scheme, and the con- fessedly imperfect frame of others, induce us to recommend, as the clearest and safest course, that the act should be wholly repealed, and the Clauses of which the policy is unexceptionable be re-enacted in a dif- ferent form. We are quite sensible of the dilKculty and danger attending any attempt at legislation on detached points of a complicated system, espe- cially where the proposed changes tend to contradict principles on which that system is based ; and we have, therefore, approached the subject not without considerable diffidence. The conviction that such partial remedies cannot be too cautiously applied, has induced us to review the act with the intention, first, of confining it to points which may safely admit of being thus separately treated, and, secondly, of legislating upon 69 (a) 7 * 8 Vic. ch. 76. XVUl. Appendix. those points with greater accuracy and perspicuity. But, although we have prepared the bill now submitted to your Lordship, after the merits and defects of the existing act had been amply discussed by the Profession, it is yet very possible that we may have failed, either to select for omis- sion the objectionable portions only, or to enhance, by [ilterations in arrangement and expression, the practical value of the rest. The result, indeed, of some recent statutes has shewn that the most elaborate enact- ments differ from the least accurate only in the degree of help which they require from judicial exposition. There are two sections of the Transfer Act which it is proposed alto- gether to omit : — Ist. The ninth section, enabling the executor or administrator of a mortgagee to convey the legal estate outstanding in his real represen- tative. 2ndly. The tenth section, enabling trustees and others to give dis- charges for moneys. 1st. As regards the ninth section, which provides for the conveyance of a mortgaged estate by the executor or administrator of the mortgagee, the design is good ; but it is so imperfectly carried out by the very limited terms of the enactment, that practically the power is attended with very little real advantage. It is necessary, for the purposes of title, to ascer- tain that possession has not been taken, that no action or suit is pending, and that the legal estate is vested in the real representative of the mortgagee ; for a mere negative allegation of these facts in the deed of conveyance would not satisfy a purchaser. But it is obvious that the necessity of proving these facts, and particularly the fact of the legal estate being vested in the real representative, (the very difficulty often being that the heir is unknown), destroys, in a great measure, the utility of the enactment. The clause, besides, authorizes a conveyance only on actual payment to the executor or administrator of the whole debt ; — not extending to a conveyance on part payment or a conveyance under any arrangement for exonerating the whole or part of the lands without pay- ment, nor to cases where the money has been paid in the mortgagee's lifetime, or the executor has received the money at a former period, or has assented to a bequest of, or has assigned the debt. And, moreover, as the power — a bare statutory authority — is not conferred on the proving executor alone, it might be considered (though not, we think, on a just view of the provision) necessary to its due execution, that an executor who had not proved, or had even renounced the probate, should join — a possible construction, which would not only narrow still further the range of the power, but probably implicate many titles depending on the con- trary assumption. Another more material objection arises from the want of a precise definition of what shall, for the purposes of the act, be tcnsidered as falling within the term 'mortgage,' — a term which, taken ' Appendix. XIX. according to its strict legal acceptation, would exclude a large proportion of the transactions comprehended under the popular meaning of that term, and clearly within the mischief sought to be remedied by the clause in question. Such a definition should, therefore, be given as would extend the benefit of the enactment to all cases where, according to the rules of a court of equity, a i)arty is entitled to call for a conveyance of any properly, pledged dr charged as a security for money, on satisfaction of the debt : whether the security be in the form of a mortgage, to which the right of foreclosure is incident, or ot a conveyance to the creditor or his trustee u])on trust to sell, or in any other form whatever. Some method, loo, more satisfactory than the use of such terms as ' his exe- cutor or administratior,' should be devised for ascertaining the person by whom, in every possible state of circumstances, the act is to be performed ; for it is only by the expression of a rule of law in general and comprehen- sive terms, that there can be any reasonable hope of attaining completeness or certainty. Then, as regards the principle involved in this section of the act, if it be fit that a mortgagee's executor or administrator (who, after being paid in full, has no further interest in the matter, and who, as he might, bo it observed, have recovered the debt although unable to make or procure a re-convcyauce of the estate, may refuse to exercise the statutory power, vested in him as a mere instrument for the conve- nience of others) should be enabled by his act to denude the heir or devisee of the legal estate and vest it in the mortgagor or his nominee, it must a fortiori be fit that the unpaid executor or administrator should be enabled to command the legal estate/or the purposes of the security and the better administration of that portion of the assets of his testator or intestate. It can hardly be contended that the equity of the executor or administrator to have the full benefit of the unsatisfied and forfeited mortgage is not as strong and as urgent, at least, as the equity of the mortgagor to have the full benefit of the redemption. In each case the same principle applies ; and that principle, fairly carried out, would require that every i)ersou entitled to call for the legal estate should be enal)led to obtain it with as little difficulty and expense as may be consis- tent with safety to the rights of parties, and with the maintenance of the distinction between the jurisdictions of law and equity. In the actual state of the law, there are three modes by which a party equitably enti- tled may get in the legal estate : — 1st. By obtaining — often at a great expense — often on impe.-fact evidence, which leaves the title open to question — a conveyance from the party in whom the estate is actually vested, if competent and willing to convey it. 2ndly. In certain cases of incapacity, absence, or refusal, by the still more costly remedy of an order of the Court of Chancery, made on a summary application by peti- tion, pursuant to the acts relating to infant trustees, &c. ; but which appiicaiiou involves a reference to the Master, with all its consequences. 3rdly. In cases not within those acts, ^which are crippled by many unne- zx. Appendix. cessary exceptions), at a still greater expense, hj means of a suit in equity regularly instituted. Now all the cases to which the above acts extend fall within the principle of the power in question enabling the executor or administrator of a mortgagee to convey ; and that principle once admitted should be adopted to its fullest extent, unless it can be shewn that its general adoption would be productive of inconvenience. But if the general power were so framed as to make its exercise de- pendant on the fact of the right in equity to call for the legal estate being really in the party who makes the disposition, no undue advantage would be obtained, while the title would be relieved from the necessity which at present exists of proving that the legal estate is vested in the party by whom (or by whose substitute) it is assumed to be conveyed. Having arrived at the conclusion that a free, yet well considered application of the principle already admitted by the Legislature is of the very essence of a wise and just amendment of the law of real property, no attempt has been made to tit the existing clause to the particular case at which it is aimed. If, however, it should be deemed expedient to make a partial application of th« principle — to amend the law by engrafting upon it an anomalous provision — the ninth section of the Transfer Act may be so modified as to attain more perfectly the very limited objects of its framers. Though these observations are applied to outstanding legal fees, yet the mischief extends to outstanding terms of years, which, notwithstanding all the remonstrances of the Profession and the practical examples af- forded by every railway act of the summary abatement of those nuisances, remain to this day a fertile source of expense, difficulty and delay in the deduction of titles to real estate (a). 2ndly, As regards the tenth section, which enacts that the payment to, and the receipt of, any person to whom any money shall be payable, on any express or implied trust, shall be a discharge, it is conceived that it never could have been in the contemplation of the framers of the act to render in equity the receipt of the person entitled at law under every trust whatsoever (whether merely implied or otherwise) an effectual dis- charge to the party paying. The effect of this new rule, if carried to its fullest extent, would be to alter essentially one of the most important principles of a c^-urt of equity. It is conceived that the rule was intended to remedy an inconvenience of a much narrower extent. In equity the person beneficially entitled is the person to concur in directing the pay- ment to the trustee, except where the cestui que trust is unascertained or incompetent, or where there is some trust shewing that the trustee was to have the money at his disposal for a particular purpose, (as that of le-investment, .^c), or where there is an express declaration absolving the person paying from seeing to the disjjosition of the money. The (a) A remedy bu, bowever, been since attempted by the late act 8 A Vic. c. 112. I Appendix. xxi. rules as to the liability of a party paying money to a trustee, without the concurrence of the cestui que trust, to see the money duly applied, have varied, and are not yet precisely defined. To avoid any question, it has been usual to accompany a trust for sale, &c., with a declaration that the receipt of the trustee shall be a sufficient discharge. This oc- casionally is omitted, and thence a difficulty may arise, either in ascer- taining whether the party paying is or is not bound to see to the ultimate disposition of the money, or in procuring the concurrence of the party entitled, who may be abroad, &c. The evil goes to this extent only ; but the remedy is far more extensive, and is one which a very slight conside- ration will shew the danger of adopting. There can be no question but that it would be desirable to supply a fit remedy, by carefully ascertaining the state of the law as regards any discrepancies or uncertainties, and removing them ; and so to extend the rule as to obviate all practical inconvenience. Perhaps a rule which, with some modifications, should give every trustee having an express power to sell or raise money an authority to give a recei[)t for it, would be advisable. And such a rule would be consistent with the JJOth Order in Chancery, which renders it unnecessary to make the cestui que trusts parties to a suit where there are trustees competent to sell and give receipts ; but if the clause as it stands in the act were to remain, it would of necessity lead to an alteration of the practice ; and in all cases where there was a trustee of money, under any trust direct or implied, it would become unnecessary to make the persons interested parties. The remainder of the section refers to the receipts of the survivors of mortgagees being effectual dis- charges. Similar objections apply to this branch of the clause. Trustees often lend money on mortgage, and take the security to themselves as joint tenants, not noticing the trusts in the deed ; but generally there is inserted a declaration that the receipt of the survivor shall be a discharge — thus negativing the equitable tenancy in common. When this declara- tion is omitted, and a trustee dies, it bocotnes necessary to shew the trust of the money, and the power of the surviving trustees to give a receipt for it ; and this evidence becomes part of the mortgagor's title. It was to remove this inconvenience that the clause was framed ; but it goes far be- yond the evil in question, by making the receipts of the survivor of all mortgagees who are at law joint tenants sufficient. Now in practice, many persons, not trustees, &c., take securities in joint tenancy; and it would seem very inexpedient thus to repeal generally the salutary equitable rule as regards these securities, and to allow the survivor t^ possess him- self of the whole funds, without the concurrence of the representatives of the other equitable tenant in common. Supposing, however, that this part of the clause is retained, the exjiression of the rule in the statute be- ing inaccurate, it would requi e considerable alteraiion. As these two sections involve great and extended alterations of the law, without supplying any complete or careful expression of the rules, it XXll. Appendix. has been thought necessary to explain at length the reasons for omitting them from the proposed bill (a). Ill the preparation of this bill very little more has been attempted than a re-enactment, in terms more precise and apt, of the clauses of the existing act. If it had not been considered expedient to confine the present bill to a re-enactment of the clauses of that act, except as above stated, and if there had been sufi[icient time, it is conceived that much advantage might have been derived from enactments which would remove many of the inconveniences arising from the present state of the law relating to the transfer of property. There are many points in addition to those relating to outstanding legal estates already adverted to, as to which enactments might be framed calculated to effect a great diminution of expense in tracing titles. The whole law relating to judgments is very confused and obscure ; and the law relating to covenants might be altered with advantage. A reference to the reports of the Real Property Com- missioners will fully prove that much yet remains to be done towards simplifying the transfer of, and removing various difficulties relating to the evidence of the title to real property. It is now proposed to add some observations on the remaining provi- sions of the Transfer Act, and some explanation of the views with which the provisions intended to be substituted by the proposed bill have been framed. As to sect. 2 of the Transfer Act, and also of the proposed bill. An oversight, to which we think undue importance has been attached, has rendered this clause a nullity for practical purposes. A doubt existed whether a lease or bargain and sale for a year, on which a release is founded, is chargeable with progressive stamp duty. The better opinion probably is that the duty is not chargeable, but it had become the general practice to pay the progressive stamp duty. By the Act of the fourth of Victoria, cap. 21, dispensing with a lease for a year, it was pro- vided that the release should be chargeable with the lease-for-a-year stamp duty, (other than the progressive duty), thus giving a kind of leg- islative sanction to the practice which had obtained. By the second section of the act of last session, a deed, which, without more, was there- by made to operate as a conveyance of the immediate freehold in land, was charged 'with the same stamp duty as would have been chargeable if such conveyance had been made by lease and release.' It was suggested, but we think erroneously, that this enactment required that the progres- sive duty which would have been chargeable on a lease for a year was chargeable upon the deed deriving its validity from the act ; and this having been generally adopted, while there was no measure of the amount of such duty, (which depended on the length of an instrument which did not exist), (a) The " bill " here referred to is now the Act 8 & 9 Vict. c. 109. Appendix. XXlll. it has become the general practice to entirely abandon this clause of the act, and accordingly conveyances to which it would have been applicable are now made under the Lease and Release Act of the fourth of Victoria. This section has been the subject of much criticism and discussion ; and it must be admitted that it is not conceived or expressed with that atten- tion to principle and that exactness which ought to characterize an enactment on the subject to which it relates. When it is said that * any person may convey by any deed, without livery of seisin or inrolment, or a prior lease,' it seems to be assumed that there is in law some stan- daid instrument by which, with the addition qf any of the above conco- mitants, the immediate freehold in lands may be conveyed ; but there is in fact, no such instrument in law. There are (besides a covenant to stand seised) three several assurances adapted to convey it, viz., feoff- ment, bargain and sale inrolled, and lease and release, all founded on different principles, differing in their modus operandi, and having an important difference in their effects. If the deed of conveyance estab- lished by the Transfer Act bo a new statutory assurance, which is neither a feoffment, nor a bargain and sale, nor a lease and release, it is merely nugatory to provide that such assurance shall be effectual ' without livery of seisin, inrolment, or prior lease,' for the forms or solemnities in ques- tion have not the slightest signilicance with reference to such a convey- ance ; while if, on the other hand, it be considered that the framers did not intend to introduce any new assurance, but only to exempt the exist- ing assurances from useless and troublesome forms, the inattention to principle in the structure of the section is equally apparent ; for it is not clear that it would not be necessary to attribute to the assurance the character either of a feoffment without livery, or a bargain and sale with- out inrolment, or a release without a lease for a year, and there seem to be no means of ascertaining to which of the three kinds of assurance the conveyance under the act would belong. The only point on which the act can be pronounced clear is, that the assurance, if a bargain and sale, shall operate by transmutation of possession, that is, have the like effect in transferring the legal seisin as a common law assurance would have had, contravening in this respect an established construction of the Sta- tute of Uses, withoui any other necessity than that Which is imposed by the foim of the enactment. A further objection is, that it seems to be assumed that livery of seisin has the same reference to a charter of feoff- ment which enrolment has to a bargain and sale, the fact being that livery of seisin is the essence of a feoffment of which the charter is only the evidence, while the bargain and sale is the assurance to tlie efficacy of which the form o* inrolment was made necessary by a subsequent statute. The general object of sect. 2 of the proposed bill is the same with that of the corresponding section of the Transfer Act ; namely, to give to all freehold lands in possession the capacity of being transferred without any of those forms or solemnities which occasion expense and trouble, but M XXIV. Appendix. have no essential connexion with the act of transfer. A large class of freehold hereditaments is, by the existing law, and has, from the remot- est antiquity, been invested with this capacity, to the extent of being transferable by tlio observance only of those forms or solemnities which are included in the execution of an ordinary deed. The hereditaments so circumstanced are technically said to lie in grunt, while the heredita- ments to which the law has hitherto denied the capucity of being trans- ferred by deed are technically said to lie in livery. It has never been proposed that thn cliiss of property with which this section deals should be mude transferable by n^iy mode less formal than a deed. We have therefore considered that the most direct and the most simple means of obtaining the object proposed is, to impart to corporeal hereditaments, that is, to hereditaments which lie in livery only, the capacity of being transferred by deed, by providing that, 'as regards the conveyance of the immediate freehold thereof,' they 'shall be deemed to lie in grant as well as in livery.' The effect of the clause will be to render a reference to the Lease and Release Act of the 4 & f) Vic. c. L'l, unnecessary in the case of corporeal hereditaments in England, and to dispense with a refer- ence to or recital of a lease for a year in the case of corporeal heredita- ments in Ireland. As to sects. ."5 and 4 of the Transfer Act, and sect. 3 of the proposed bill. The third section of the bill consolidates the third and fourth sections of the act, and extends the requirement of a deed to the case of a feoflF- ment. It is apprehended that when the solemnity of a deed was required for the transactions to which these sections apply, the case of a feoffment was not advisedly omitted. An exception is necessarily introduced as to a customary feoffment by an infant. As the cases of such feoffment are local and rare, and the power of making them at all of doubtful expediency, and at variance with the policy of the general law, it did not seem advis- able to remove the personal incapacity of the infant so as to enable him to make a deed. The power for an infant of a certain age to make a feoffment exists only under the custom of gavelkind ; and should any change be made in the law on this subject, it would perhaps be better to take away the power of making such feoffments, than to attempt improve- ments in the mode of making them. As to sees. G and 7 of the Transfer Act, and sec. 4 of the proposed bill. The fourth section of the bill consolidates the sixth and seventh sections of the act. The omission from the act of the word 'give' (which has the like effect in implying a warranty or covenant m law, or indeed a surer effect for that purpose than the word ' grant') was probably an oversight. The like observation applies to the omission of ' partition,' which is, to a considerable extent, in the same prediciiment, with respect to the implication of a warranty or condition in law, as an exchange. The doctrine is not so prominently called into notice in the case of par- tition as in the case of exchange, because in the great majority of instances, Appexdix. XXV. the undivided share which a co-tenant gives up in one portion of the land is held under the same title with the undivided share which he retains in the portion which he takes in severalty ; and thus, in dealing with pro- perty taken in severalty on a partition, the investigation of the title to the undivided share given up occasions no additional expense or trouble, being in fact involved in the investigation of the title to the undivided share retained. But though the practical inconvenitnce of the implied condition is less in the case of partition than in the case of exchange, yet, as the inconvenience is the same in kind, and the principle identical, it would be absurd in a legislative measure to provide for the one case and to omit the other. It is perhaps unnecessary to observe that the seventh section of the act, which declares ' that no assurance shall create any estate by wrong, or have any other effect than the same would have if it were to take effect as a release, surrender, grant, lease, bargain and sale, or cove- nant to stand seised,' has been understood by some persons to deny effect to an assurance made by way of appointment, and consequently that this construction has occasioned some alarm to parties having powers of ap- pointment equivalent, in point of dominion, to the fee, but having no power of alienation otherwise than by an exercise of their power. As to sect. 1 1 of the Transfer Act, and sect. 5 of the proposed bill. The first branch of the eleventh section of the act, declaring ' that it shall not be necessary in any cose to have a deed indented,' appears open to the objection of ambiguity ; as, first, it may mean that the act or cere- mony of indenting need not be performed on the material on which the intended instrument is written, &c., and this meaning is in accordance with the marginal note, but then such note is not part of the act, and cannot be used to construe it; or, secondly, it may be merely descriptive and mean that it shall not be necessary in any case to have an iudenture. The terms descriptive of an indenture in the Statute of Inrolments (27 Henry 8, c. 16) are, ' a writing indented, sealed, and inrolled in,' &c. It must be borne in mind that the mode of conveyance by bargain and sale inrolled has not been expressly abolished. Now, suppose the true con- struction of this enactment to be the construction first suggested, and 80 to render the act of indenting unnecessary, then the bargain and sale will necessarily be a writing sealed and enrolled according to the Statute of Inrolments, also signed in those cases in which signature hus been ren- dered necessary, but not subjected to the act or ceremony of indenting ; on the other hand, suppose the other construction of this enactment to be the correct one, viz., that it shall not be necessary in any case to have an indenture, then this enactment is virtually an abolition of the mode of conveyance by bargain and sale, for the enactment is negative, and the form of a statutable bargain and sale of a freehold interest would be un- ascertnined and unascertainable. The second branch of the eleventh section of the act declares that otiy person not being a party to any deed ['not party to any deed whataoevef is the literal expression, though 60 XXVI. Appendix. obviously not the re&l meaning] may take an immediate benefit under it [there really is not anything to which this pronoun it relates], in the same manner as he might under a deed-poll. The few wot ds interposed and bracketed in the preceding statement indicate some terms and expressions which are very open to critical objection, though not unintelligible. But the real and strong objection to this second branch of the eleventh section is, that it has not been framed with sufficient regard to the qualities of precision and caution. The general rule intended to be thereby varied may be stated thus ; viz : < that a person cannot, under an indenture pur- porting to be between parties, be immediate grantee or be a covenantee, unless such person be expressly named among the parties.' The defect in- tended to be cured was the omission to name the immediate grantee or the covenantee among the parties to the indenture, and the most obvious and sure mode was to enact that the deed should operate in regard to him as if he had been named among the parties ; but the enactment in question gives the indenture effect by reference to a deed-poll Now the effect of the indenture, supposing that every person intended to be immediate grantee or to be covenantee had been properly named among the parties, either would be the same as the effect of a deed-poll, with respect to the imme- diate grant or the covenant in question, or else would be different. If the same, then there is a useless circuity of language and thought ; but if different in any possible case, then there is error. It is sufficient to men- tion the subject of estoppel as one in which the effect of an indenture differs from the effect of a deed-poll. We propose by the fifth section of the bill to effect, in a manner which we hope to be both clear and safe, only that which we suppose to have been the real meaning of the eleventh section of the act. As to sect. 5 of the Transfer Act, and sect. 6 of the proposed bill. The sixth section of the bill differs (besides the difference in form) from the fifth section of the act in the following particulars : — Personal chat- tels are omitted, because contingent interests in such chattels, being almost invariably equitable, are already assignable in the only way in which, from the nature of the subjects, they are susceptible of assign- ment. In fact there seems to be no subject upon which an enactment giving a power to assign a legal contingent interest in personal chattels could operate. Had the case been otherwise, we should not have con- sidered it consistent with exact or methodical legislation to mix up a detached point as to personal chattels in an act relating to the transfer of real estates. With respect to married women the existing act makes no' distinct provision, and the general enactment, that any person may convey, &c., ' by deed,' could not have been intended to enable married women to convey contingent interests without an observance of the pro- visions respecting conveyances by married women of the Statute for the Abolition of Fines and Recoveries. We consider that a question might arise whether married women are inclnded under this section, and if Appendix. XXVll. included whether their conveyances would not be effectual without a com- pliance with the provisions of the above statute. We have therefore directed in express terms that dispositions by married women under the sixth section of the proposed bill should conform to those provisions. As the proposed enactment would not upon any reasonable construction extend to the expectancies of heirs apparent or next of kin, or hoped-for advantages from unexecuted instruments or the wills of living persons, we have abstained from making an express exception of these matters ; the addition of the exception would necessarily render obscure the mean- ing of the positive enactment, while we think that no obscurity will exist unless introduced by this needless addition. We are not sure that we see the object of the provision in the fifth section of the act, that no chose in action shall be assignable at law. Such a qualification is unnecessary in the enactment which we propose to substitute, and indeed would be wholly irrelevant. As the twenty-second section of the Statute (4 & r> Will. 4, e. 92) for the Abolition of Fines and Recoveries in Ireland has provided, in terms somewhat diflFerent, for the conveyance of contingent interests, we have deemed it advisable to confine the sixth section of the proposed bill to England. The terms of the enactment for Ireland have not been pursued, because it appears to be so framed as to enable the original taker of a contingent interest to convey it, but not to confer on his assignee a similar power. It is not, perhaps, clear that the fifth section of the Transfer Act is not open to the same objection. As to sect. 12 of the Transfer Act, and sect. 9 of the proposed bill. This section of the act is even less perfectly expressed than any of the other sections. The case (one of not unfrequent occurrence) of the merger of the reversion in a particular estate which is itself subsequently merged is omitted. And while the benefit arising from the obligations of the lessee are annexed to the estate for the time being expectant on the lease, notwithstanding the merger of the particular reversion originally expectant thereon, there is no corresponding annexation to the same estate of the obligations of the lessor. These omissions would have ren- dered the repeal of this particular section necessary, even had no other alteration in the act been required. The language of the section seems to be taken, to a considerable extent, from the act of the 32 Hen. 8, c. 34 ; but a degree of inaccuracy pervades the whole, for which it is diflScult to account. The section begins by speaking of ' a lease ;' subsequently the same interest is called ' his lease, demise, or grant,' being the language of the act of Henry VIII. It is provided, that the person entitled to the estate into (in) which a reversion shall merge shall enjoy the like advan- tage, &c., aga'nst the ' lessee, his heirs, successors, executors, administra- tors and assigns, for non-payment of rent, &c., contained ' in his lease, demise, or grant, against the lesaee, farmer, or grantee, his heirs, suc- cessors, executors, administrators, and assigns,' the latter words, 'lessee, farmer,' &c., (being again the language of the act of Hen. VIII.) xxvm. Appekdix. relating precise! j to the same subject before expressed by the single word ' lessee,' and being moroorer a repetition. But the words are not merely a repetition, — a mere surplusage in point of expression, — nor are they as innoxious as two wholly irrelevant lines inserted at random would be ; for the omission of the words the 'lessee, his heirs,' &c , would have made the words in italics significant, if not correct, and the omission of the words in italics would ako have left the clause comparatively right. But the insertion of both, while one must be rejected before the clause becomes even language, and the expression of each in words wholly differing though manifestly intended to relate to the same subject, and the absence of any guide to shew which is to be rejected, produce a degree of embar- rassment which would alone furnish a reasonable excuse for the repeal of this section. As to sect. 13 of the Transfer Act. It is not clear what the effect would be of the provision that the act should not extend to ' any act or thing executed or done before the Ist of January, one thousand eight hundred and forty-five,' and there is little doubt that these words would be the source of much discussion ; but the provision that the act shall not extend to any ' estate, right or interest created before the 1st of January, one thousand eight hundred and forty-five, has already received a practical ex- position in the generally adopted opinion, that the act has no application to any estate tail, estate for life, or other particular estate, or to any lease existing at the commencement of the act, or, so far as the power of alienation is concerned, to any contingent or future interest created before that date. This is wholly unreasonable ; and an undistinguishing with- drawal from the presumable benefits of the act of a large class of interests which have the first claim to be attended to in any legislative measure, could not have been intended ; and even had no other alteration been required, yet in this particular an amendment of the act would have been absolutely necessary. I have the honour to remain Tour Lordship's obedient servant, '' H. BELLENDEN KER." "Lincolm'b Inn, 28th April, 1846." ^ I i^ INDEX. ACTION, RIGHT OF, To recover land without right of entry, 72, When assignable, 74, 75, •' devisable, 75. •« releaseable, 74. ADMINISTRATOR— 5e* Executor. Suit against to recover the estate, -when barred, 87. ADVANCEMENT.— iSee Descent under Stat, of Victoria. Should be enquired as to, on purchase from co-heir, 192. Under Stat, of Distributions, 194. AGENT, Authority to convey, lease, surrender, &c., 60. Of vendor, suppressing deeds, incumbrances, &c,, liability, Zl, Li, m. APPORTIONMENT Of condition of re-entry, 9, 10.— S«« Condition. " rent, 10. •• rent charge, 14. APPOINTMENT, UNDER POWER OF, How maybe executed and attested, 14. Defective execution of aided, 14. Power to appoint and fee may subsist in same person, -JJ4, note, Stat. 29 Vic. as to execution, does not extend to co««nM to exer- To defeat dower. 234, note. [c'se, 14. To defeat executions, 234, note. ASSESSMENT.— See Taxes. ASSETS.— -S<« EXECUTOK.— DlBTRIBCTIOK. ASSIGNS, How far bound by covenant relating to the land, 399, n. a.—Stt [ylaaenoa. How far bound by covenant not to assign without leave, S—t.—See [^Addenda, ASSIGN, Covenant not to, what is breach of, 4, 6, G.—See Addtnda. Index. ASSIGNMENT Of a term, cannot be to tako effect infutnro, 62. Of obosea in action, &c., notice of should be given, 370. Of lease, when to be in writing, 67, 68. " " by deed, 63, 68. " by act of law no breach of covenant not to assign, 4, 8.— Of personalty to assignor and another, 19, 20. [See Addtnda. Of reversionary interests in personalty, notice of should be given, 870. When may be construed a lease, 62. — Stt Addenda. ATTAINDER, Effect of at common law, 1C3. Operation of Prov. Statutes andof 7 Anne, 164. Not to prevent tracing descent, 162, 163. ATTESTATION.— 5« Witness, Will, Appointment. BARGAIN AND SALE. Contingent interests cacnot be conveyed by, 92. Corporation raiiy convey by, 87, 88. Disadvantages of, 49, 50. Incorporeal hereditament cannot be created hy, 02. Leasehold interests cannot be conveyed by, 92. Legislation, provincial, as to, 91. May be by deed poll, 91. May operate as, by conveyance of another nature, 61, 101. May operate as conveyance of another nature, 51. Operation of at corj. law and under Stat, of U.scs, 89, 90. Need not be enrolled, 89. The consideration requisite, 91, 92. CESTUI QUE TRUST, Interest of, when saleable under^i. /a., .315. CHAMPERTY, 75. CH0SE3 IN ACTION, Assignment, necessity for notice of, 370. Of married woman, power of disposal of, 275, 274. CONDITION, Apportionment of, on severance cf reversion, allowed, quoad rent [only, 9, 10. Broken, right of entry for, when assignable, 72, 9. — Hee Addenda. Destroyed on severance of reversion, except as to rent, 10. Preserved on grant of the whole land for part of the reversion, 9. Entirety and destruction of, at common law, 2. How revived on destruction, 3. Effect of license, not to observe. 1, 2. Effect of waiver of breach of, 7, 9. — See Addenda. CONSANGUINITY, 117, 184, 189, 190. CONSOLIDATED STATUTES, In construing, former Acta may be referred to 86. " " reference should be had to Interpretation Act 86. Index. XXZl. CONTINGENT INTEREST.— 5m PoMiBtnTv.— Exiootobt Intibht. Ai to (lower, wlien nssignnble, &c , C9, 70. An to teniincy by tlio curtesy, whon assignable, 70, 71. > Distinotion between, and future and vested interests, and poi- • [sibilities, 00, 07. To tenancy in tail, power to dispose of, 77. Operation of Con. Stat. oh. 90, as to conveyance of, 70. When aBNi(fniible by Con. Stnt, oh. 90 : Ou, 00, 70, 70, 85, 80. " assignable in Equity, 70. t " deviHable, 77. " not assignable at com. law, 06, 78, 76. " rcleasnblp, 70. ■* Haleablo under execution, OG. CONTINGENT REMAINDER.— AV* CoNTtNOENT Intbrbst. Existingbetwcen, i!0 May, 1849, and '2 Aug., 1851, indestructible, 78- Operation of Con. Stnt. ch. 90, s. 0. as to, 78, 79. CONVEYANCES, SHORT FORM OF, ACT AS TO, 93. Danger of varying tlio forms in, 102, 103. Effect of adopting, as to pussing the estate, 99, 100. Effect of striking out the words " notwithstanding any act," 103. Mistake in Act as to, in using word grant, 100. " " " *' consequence of, 101. What is exception or qualification in covenants in, lO-. CO-PARCENERS.— 5« Pabckneks. CO-PARCENARY, Descent in, abolished, 191. CORPORATION, Effect of Con. Stat. ch. 90, as to uses declared on bargain and sale by, May convey by bargain and sale, 87, 88, [88, 89. Not within Stat, of Uses, 87. When could become seized to uses, 87, 88. COVENANT.— Sm Conpition.— Insurance. Effect of license, not to observe, 1, 2. Effect of waiver of breach of, 7, 9. Executor's liability on, for rent &c. in a lease ; contingent claims; [how avoided. — See Exkcutob. For title, dnraages under, 103. " in mortgages damages, if title defective, 301. Implied, excluded by express covenant, 83. In short forms of conveyances, danger of varying, 103. " " " what is exception or qualification in, [103. " •" " effect of striking out the words, "not- [ withstanding any act" in covenants in, 103. To repair, discrepancy in Act as to short leases, 110. To pay taxes, in Act as to short leases, 110. Not to assign, in Act as to short leases, defective, 113. " " without leave, who bound by, 4. 5, 0. — See Addenda. Relating to land, how far assigns bound by 899, n. a. — See Addenda. " " when assigns of lessor entitled to benefit of, 72, 9. [See Addenda. tivMjCt^^Ji j .ZXXll. Index. CROWN, Accountants, lands of certain, bound virtute officii, 332, Bonda, formerly bound lands, from date, 331. " required registry to bind lands, 333. •' unregistered, how far they bind against defendant's heirs, devisees, volunteers or ex "Uors, 334. Debts, lien of, abolished, except as to persons bound virtut: officii, 335. Pebts, no priority in administrating assets, 36. Simple contract debts, 332. Speciality debts, effect on land, 332. DEEDS, Custody of, search for, &c. — See Title Dkeds. * CURTESY, Possibility of tenancy iu, when assignable, 70. 71, notes b, d. [2C6, n. d. Tenancy by, preserved under Con. Stat, ch, 73, 277, 285. When xo'uded by conveyance to separate use, 273. Whether right thereto will pass on conveyance by husband and wife [invalid as to the wife, 2G&, 2G6. DESCENT AT COMMON LAW, As to the half and whole blood, 134—137. Between brothers, immediate, 136. Consanguinity, computation of degrees of, 118, 134. 117. Difference between tracing from person last seised, and person last [entitled, 126, 146. First purchaser, who is 132. Half-blood excluded, 134, 137. Heirs, when ancestor could by his conveyance cause them to take by [purchase, and not by descent, 162, 163. In case of feudum novum vl antiquum, 132, Inheritojce lineally descends, 120. Seisin in law ,nnd seisin in deed under Stat, of Uses, 120 n. a. Seisin, necessity for, 120, 125. Males preferred to females, 129, 138. Per stirpes, lineal descendants represent ancestor, 130, Primogeniture. 130. In coparcenary, 130. Of remainders and reversions, 127. Purchase, taking by, 124, 128, 162, 132. " " none on conveyance to uses revesting estate as [before, 128. " when ancestor could cause heir to take by, 152. To collateral relations, 131. Explanation of table of descent, 139. ' •• UNDER STAT. OF WM. Between brothers and sisters not immediate, 155. Difference between tracing from person last entitled, and from him [from whom he inherited, 146. " *« " " person last seised, and person last [entitled not seised 146, 126. Half-blood to take next after whole blood. 159. Heir, proof of entry by, not requisite, 149. " taking by devise, 149. " taking by conveyance from ancestor, 149, 152. " *' under limitations to heirs of ancestor, 160, 162, 158. r. Index. xxxin. lieirs, I 334. f«', 835. |). d. last Descent under the Act of Wm. — Continued. Lineal descendants who have inherited from purchasing ancestor. " " " " [how descent to be traced, 147. Lineal ancestor may take, 155. Male preferred to female ancestors, luG. Mother of more remote male paternal ancestor to take before mother [of less remote, 15(5. Purchaser, descent to bo traced from, 144. '• who is, 144. " presumed to be him last entitled. 145. heir taking as, 149, 150, 152, 153. " UNDER THE ACT OF VICTORIA. Based on the Civil Law and Statute of Distributions, 16G. Copied from Act of New York, !67. Stat, of Distributions and this Act, comparison between, 20G. Does not include estates tail, 108. " " " vested in trustees, 19J. Includes esta' ) cf a mortgagee. — See Addenda. " pur autre vie, 201 . Advancement, by settlement, &c., 101. " " " in case of /'«r/((7/ intestacy, 193. " " " " grandchildren, 193. " difference between, uudc this Act and Stat, of Dis- [tributions, 194. Half blood, right of, 187, 189, n. a, 190. " " peculiarity in case of ancestral estates, 188. Ancestor, the word not used in the Stat, in its strict sense, 188. Blood relationship, 189 n. a., 190. ('(>-piircenary, descent in, abolished, 191 Partition on descent, 200, 201. Preemption on partition, 200, 201. Purchase from co lu;ir, enquiry should bo made wliethcr ho has [been advanced, 192. Seisin not requisite in the ancestor, 108. Tenancy in common, estate descends in, to two or moie, 191. To descendants, 171, 172, 173. Where estate has come on the part of the father or mother, 174, 178, [170. '• " is ance.jtral, but the intestate has conveyed to his own [use, 17G. Where no descendmits, and father and mother alive, 177, 178. " " " and father dead or cannot take, 180. " " " and no father or mother, 181. " " " " " or brothers or sisters, [183, 185, 18C. Summary of descent under, 202. DEFEASANCE. Deed of, reviving condition of re-entry on its destruction, 3. " " " " on severance of reversion, 10. DEVISE.— 5« Will. or contingent interests, 77. Of executory inteve>t.-^, 77. Of possibilities, 71 . Of rights of eutr,v, 74. 61 XXXIV. Index. DEVISEE, In trust may sell or mortp;ageto pay charges, 16. Purchase from, when valid against testator's creditors, 313, 314. DISSEISIN —5c« Entry, IIiqut of. DISTRIBUTION.— S«« Executoh. Of personal estate of intestate, 204. DIVORCE. See Marriage. DOWER, Abolition of certain kinds of, 212. Acknowledgment and certificate, 237, 338, 240. " " informal cured, 237, 238, 24t», Admeasurement on writ of assignment, 250. Ailuitery, forfeiture by, 216. Aliennge, 210. Annuity in lieu of, 217, 250. Appointment power of, to defeat dower. See Conveyance, infra. • Airears of, 236, 243,247. Assignment of right of, 67, 70, 237. Barred by deed, how, 212. Bequest iu lieu of, 235. Certificate of examination. &c., abolished? 240. Contract to purchase by hu.shand, 224. " to sell before marriage, 221, 225. Conveyance on sale, and reconveyance by wav of mortgage, 220. " " with shifting use to vendor on default in paying purcha.se money, to defeat dower of wife of purchaser, 220. » to uses to bar, old form. 218, 232. " " present form, 233, 234, n, h. Costs, 249, 252, 253. Damnges for detention of, 236, 343, 247. Devise in lieu of, 23 J. Disseisin of husband during coverture, 212, 21 H. Equitable estates, 212, 222. Equity of redemption, 223. Examination on release abolished ? 240. Exchange, 222. Execution, 249. Forfeiture by feoffment in fee, &c., 227. Imnrovements, 247, n. a., 250. .Joint tenancy, 221. *, Jointure, a bar, 228. " " in case of infants, 230, 232. Lease outstanding, 219. Limitation, statutes of, bar by, 235, 236. Marriage, to qualify to take in, 214, and notes. Mines and the like, 220. Moneys to be converted into land, 225, Mortgagee, husband having been, 221. " " " and equity of redemption extinct, Partnerfhip property, 220. [221. Pleading election to take in lieu of, 235. Procedure under the Dower Act, 241 et seq. Purchaser, who is, within the Act of 32 Vic, 240. \ li Index. XXXV. mg DowEE — Continued. Redeem, right of widow to, and be reimbursed redemption moiley, [223, 224. Release by deed, and acknowledgment, &c., 240, 237, 288. " " in case of lands of former husband, 2!37. Remainder dependent on life estate, 218. Right of entry in the husband, 212, 218. Right of, when assignable and saleable under execution, 09, 70. Seisin, in the husband of estate of inheritance in possession. 217, Seisin transitory in the husband, 219. [218, 219. Settlement on marriage, when at bar, 229. " " " in case of infants, 230, 232. Tenancy in common, 221. Term outstanding, 219. Title deeds, detention of, a bar, 227. Trustee, husband having been, 221. Waste, 22(3, n. a. 241. Wild lands, right to clear, 226, n. a ; 241. EASEMENTS, Right to under Act as to short forms of leases, 110. ECCLESIASTICAL LAW, Assumed by the legislature to be in force here, 216. Not intioduced by settlement of a colony, 2 1 5. EJECTMENT, Proof in, required by purchaser under execution, 323, 326. ELEGIT, By Stat. Westminster, 301. > Effect of, 801, 302. In force in Ontiirio, 302, 312. Its t ffect to defeat a sale between its teste and delivery to Sheriff, S12. Relates to its teste, 312. ENTRY, RIGHT OF, Distinguished from right of action, 72. " " " for condition broken, 72. For condition broken, when assignable, 72, 73. If devisable? 74. • On disseisin, 05, 72. " not assignable at common law, with some exceptions, 73. " relensiible, 73. " when assignable under Con. Stat. ch. 90.— Go, CO, 85,80. " when saleable under execution, 315, 310, G5. Pretended, sale of, penal offence, 74. EQUITY OF REDEMPTION.— 5ee Moktgagb, Mergek. EQUITY TO A SETTLEMENT, 274. ESCHEAT.— ^ee Attainder. For want of heirs at com. law, 120. ESTATE TAIL— See Tenant in tail. Descent of, 209. E pectant heir no power to convey, 77. XXXVl. Index. EVIDENCE. ~5«c Memorial, Title Deeds, Witnbss. Of marriage, 214. Recitals in conveyance by Sheriff, how far good, 325. Required by purchaser iu execution to eject, 323, :^25. EXCHANGE, At common law, 60. Implied warranty of title on, 56-82, Nature of, 65, To be by deed, 53, 60. EXECUTION.— 5ee Fi. Fa., Elegit, Extent. EXECUT0RS.~5ee Mortgage, Advice, application to the court for, 38. Assign without leave, covenant not to, when bound by, 5. Cliiininnt against, how compelled to sue, 30. (■Jlnims ngiiinst after partial distribution, 33-34. Claims ngainst to be paid pari passu, 35, 307, n. c. Distribution of assets after notice under 29 Vic, oh. 28, 32-35. " " notwithstanding liability on a lease, 27-30. " " " " rent charge, 30. " " under decree of the Court, 33. Execution against, how issuable, 309. Liability on contingent liabilities, 2h. " " " pi otection against, 32. " for debts of which no notice, 28 " " " protection against, 32. Limitation to suit for legacy when he has become trustee of it, 38. Notice by, under 20 Vic. ch. 28, that he disputes claim, 36. Pleadings, in suits against, to reach lands, 307. Power to sell or mortgage to pay debts or legacies, &c., 17. Release on assignment of mortgage by. — See xMortoaob. Relief from covenants in lease, 27-30. " rent charge, 30-32. Remedy against legatees to refund, 29. Retainer, right of, 3(). Suit or judgment ngainst, has it priority over debts not sued for? Trustee, when he becomes, 38. [35, 307, n. c. EXECUTORY INTEREST.— 5'«e Contingent Interkst— Possibilitt. Definition of, Gtj, 67. When vested or contingent, 07. EXONERATION, In case of leaseholds mortgaged, 45. In case of vendors lien, 45. None in favor of heir or devisee as to mortgage, except in case of Evidence of intention as to, 46, 47. [leaseholda, 44-47. ^Vhere the charge is indefinite, 46 EXTENT.— 5'ee Crown Bonds, 331, FEOFFMENT, At common law, 52. " " eflFect of, 53. To be by deed, 52. To have no tortious effect, 52. Works no forfeiture, 53, m Index, XXXVll. FIERI FACIAS AGAINST GOODS.— 5e« also Fi Fa. against Lands. 303. Annuity for years, saleable under, 304, 311. Binds from delivery to ,«herifiF as against purchasers, 304. " " teste ns against defendant and his executors, &c., 304, [313. '• though defendant die before it issues, if on the same day, 313. Cestui qui trust, interest of not saleable, 315. Elstate estate pur auter vie, 303. Lessees interest, part of, not saleable, 304. " " on sale of, sheriff cannot dispossess, 303. Pre-emption of the fee in a lease for years not saleable under, 304. Sale under, within Registry Act and statute of frauds, 327, 328. FIERI FACIAS AGAINST LANDS, Amendment, when allowed, 325. Appointment, exercise of may defeat execution ngainst appointor, [234. note, 317. Binds from teste as against defendant and his heirs. 304, 311, 313. " " delivery to sheriff as against purchasers. 311, 3 13. " though defendant die before it issues, if on same dny, 313. " from delivery as against subsequent execution creditor first [filing a bill to enforce his equitable lien, 313. Cestui que trust, interest of, when saleable, 316. Contingent interests saleable, 75, 316. Conveyance by sheriff within Registry Act. 327, 328, 329. " " Statute ff Frauds, 327. " " may be set aside on improper sale, 329, 330. " " recitals in. how far evidence, 326. Created by 5 Geo. 2, c. 7, 304, 3f'0. Dispossess defendant, sheriff cannot, 323. Dissei.see, right of saleable, 74, 315. Delay in executing evidence of fraid, 331. " renewal, 331. Devisee, purchaser frpm in good faith, not defeated by subsequent [execution for debt of testator, 313. Dower, right oi widow not saleable, 314. " right of, if husband alive, saleable, 314. Eject defendant, sheriff cannot, 323. Ejectment by purchaser, proof required, 323, 325. Equitable interests, how reaehed in equity, 318, 319. Equity of redemption, sale of. — See Moktqaoes. Evidence by sheriff's deed, and in ejectment, 323, 326. Extecutors, suits against, sales under, confirmed, 30G. " •' pleadings, 307. " " y/. /a. how issuable, 309. Expiry, 325. " sale can be had after, if seizure before, 325. Goods and lands, could not formerly be joined one writ; how far [irregular, 320. " " writs against, can now issue together, 321, 322. Heir, purchaser from in good faith, not defeated by subsequent exe- [cution for debt of ancestor, 313, 314. Husband's interest in lands of the wife, when saleable, 315. Irregularities, how far affect a purchaser under, 324. " in, who can move against, 320, 321, 323. " what are, 324 n. d. Issuing of, may be at the time of issuing ^/f no goods formerly required before writ against lands, 320. " .i' "> goods not to be made till all goods exhausted, 322, 323. J. v^rsii •: iv f'-eehold saleable, 315. Rights ■, r (. .vy. ■ ben saleable, 74, 315. » Sale by sheriff, his duty as to conduct of, 330, n. c. " " may be set aside if improper, 329. 330. " can be had after expiry, if seizure before, 325. " not to be within less than twelve mouths from delivery of writ, [322, 323. " " ♦.ill after return of no goods, 322, 323. " in certain cases may be within twelve months, 323. " before return of no goods, who may complain of, 323. " when sheriff vacates office, 327. " within Statute of Frauds, 327. " within Registry Acts, 327, 328, 329. Seizure, a sati.«faction pro tanto, 321. " before, warrants sale after expiry, 325. " what is sufficient, 326, 327. '■ under one writ, a seizure under all, 326. Settinff aside sale, and conveyance on improper sale, 329, 330. Sheriff's deed, recitals in, bow far evidence, 325. '« within Stat, of Frauds and Registry Acta, 327, 328, 329. Stay of execution tantamount to withdrawal as to other writs, 330. Trust estate of cestui que trust saleable, 315. " " " not saleable if trusts complex, 315, " " " " in leaseholds, 315. Vendor's interest, doubtful if saleable, 314. Ven. ex., when requisite, and object of, 326. " sale under not set aside for mere inadequacy of price, 330. FORFEITURE, For not insuring, relief against, 11. FRAUDS, STATUTE OF, Language of first four sections, 56. " " " effect of, 67, 58. Signing not requisite under, if instrument sealed, 60, 61. Index. XXXIX. GIVE, The word implies warranfy of title in certain cases, 83. GRANT, At common law, 49. Corporeal tenements to lie in, 49. Implies no warranty, 82. Operates as a common law conveyance as regards uses declared, 51). Operation of the word as a release, surrender, &c., 61, 101. When it can operate as such, or as a bargain and sale, how it does [operate, 51. Word used in mistake in act as to short forms of conveyances, 100. HALF-BLOOD, 134, 137, 159, 187, 189, 190. HEIR, Purchase from co-heir, enquiry should be made as to advancement [having been made by ancestor, 192. ti " when valid against ancestor's creditors, 813, 814. HOTCHPOT.— i'«e Advanckment. HUSBAND.— 5e« Married Woman.— Curtesy. Interest at common law in lands of the wife, 273. „ 11 11 •' " when saleable under [execution, 315. INSURANCE LIFE.— 5fe Moutoace. INSURANCE, FIRE.— See .Mortoace. Lessor or mortgagee entitled to informal, 11. Relief ftgainst breach of covenant as to, II. Parchascr of lease protected against breach of covenant for, 12. INTEREST ON MONEY.— 5m MoRTaAOE. How adviseable to calculate, 387, n, a. JOINT TENANCY, As to trustees and executors, 165. Intention to create mu' ' iipear, 185. _ ^e.r Presumed at common law, as against tenancy in common, 16u. No survivorship in case of loan on mortgage, 165. " " partnership, 165. When inferred, 166. JUDGMENT, As lien on lands abolished, 312. Dooketting of, 311. Effect of, as to lien on lands, 310. 312. Registry of, and effect, &c,, 316, 318, 319, note. , LEASE, When to be by deed, 53, When a present demise, or mere agreement, o8. See Adamda. When void as such, how far it governs if lessee enter. 59, 60. u " yet proper lease may be decreed, 60. •« " tenancy from year to year created on p.ayment [of rent, 59. % F^ xl. Index. I (1 « M « l» « Lease — Continued. Agent, authority to, to grant surrender, &c., 60. At conimon law, 56. If sealed, is signing requisite ? 60,61. Short forms of. Act as to, 100. " " in respect of casements, 110. discrepancy in covenants to repair, 110. covenant to pay taxes, too extensive, IIC. " that lessor may enter lO view [repairs, 112. " •' " not 10 assign, not extensive [enough, 113. Under statute of frauds, 57. LEASE AND RELEASE, 50. LICENSE, Not to observe covenant or condition in lease, 1. LIMITATIONS, . Statutes of, as to dower, 235, 236. " as to interest, 360. LEASEHOLD, Mortgage of, when to be by assignment or under lease, 398. •' by assignment. 399. «' by sub-lease. 400. MARRIAGE, Distinction between void and voidable, 215. Ecclesiastical law not introduced by settlement of a colony, 215. " " supposed to be in force here, 21C. Entitled to privilege of necessity, and by cohabitation, 214, n. e. Evidence of, 214. Good where celebrated, good everywhere, 214, n. c. " " " exception to, 215. The acts relating thereto, evidence, &c., 214 n. a, 210. Voidable not questionable after the death of either piirty, 216. AVhen or how voidable, 214, 215. With deceased wife's sister, 215. MARRIED WOMAN, Certificate of examination, 256, 258, 260, 270. " " ^n'ma/dfiV evidence, 258, 204. Certificates, erroneous, remedied, 268. Conveyance by, 255. Examination, 258, 260. Husband's estate passing, where deed invalid as to the wife, 265, 266. " covenants for title, " " " 207. " interest at common law in lands of the wife, 273. " " " " in clioses in action of the wife, 274, " conveyance of his com. law right during coverture. 70, [273, 278. " •' " possibility ns tennnt by the curtesy. [70, 71. notrs h, d " interest in wife's seporato estate, under Con. Siat. c 73, [not subject to his debts during her life, 285. Joint execution by husband and wife, what is, 250, 257. '< " examination on day of, 256. Power of attorney, execution under, 267, 258. Index. xli ve Mariiied Woman — Continued. Separate use as lo property under Con. Stat. ob. 73, 271. Equity to a settlement, 274. Clioses in action wliat power to convey, 21!}. Legal estate, on conveying. Con. Stat. c. 85 to bo complied with, 277, [270, 280. Equitable estate, on conveyance of, when examination requisite, [279, 280. Contract, power to, 278. See Addenda. Personalty, what power to dispose of, 278, 275. Reversionary interests in realty to be converted into personalty, what power to dispose of, 274, 275, 270. Will, power to dispose by, 281. " " " to grandchildren, 283, •' " " by an infant, 283. " how executed, 282. " witnesses to, necessity for credibility of, 283. Personalty of, distribution of, in case of intestacy, 285. Courtesy, estate by, of the husband, 272, 284. Mortgage to, validity of redemise in, without examination, 393. " release of, 343, 344. MEMORIAL.— See also Title Deeds. When primary evidence, 431, n. a. By grantor, when and how far secondary evidence, 431 et seq. 440. By grantee, " " " 433 et seq. 440. Danger of taking as evidence, though corroborated by possession, [441, 443. As evidence between vendor ond purchaser, 444. " under Act for Quieting Titles, 444. " among Conveyancers, 444. Execution of, bow proved, 445. Distinction^betweeu its admissibility, and its weight, [as evidence, 446. Result of authorities as to evidence, 440. MEROER. — See also Mortgages. Charges paid off, right to keep on foot unmorged, 350, 351. Of reversion on a lease, preservation of right to rents, &c., on sub- [lease, 80, 81, 82. Rules against, apart from Con. Stat. ch. 87 : 349, 350, 351. Mortgagee's right to lien for charges paid off, 348. Purchaser of equity of redemption, his right to keep on foot paid off [charges, 350, 351. Con. Stat. ch. 87 as to Mortgagee buying the equity without mer- Fger, 347. " " not to be extended beyond its letter, 348. " " contemplates a sale by a second mortgagee, 354 " " does not apply where the equitable owner acquires [the charge, 348. " " " as against a mesne execution, 347. " " " cases of non-application of, 348. " " similarity between, and recent English decisions, [349. ' " " mortgagee buying under his power of sale still [remains mortgagee, 362, 354. Ch. 22, S9. 2.")8, 259, 200, right of purchaser of equity of redemption [at sheriff's sale to keep on foot prior charges, 350, 351. 62 ■■■'•:§ 4 I \ II 1 I xlii. Index. 41 • i MORTGAGES.— 5m MEnoEn, Fi. Fa. MoHTOAaEEs. Acts as to abort forms of, 400, 418, 445. " " " Joes not extoiul to leaseholds, 419. defocta in the forms, 420 et seq. distress clause in, elleot of 379, 381. Assignment by oxcoutora of the lands and redemption moneys, 846. " of, necessity that mortgagor should join in or assent, [397, 398. '* subject to equities subsisting between mortgagee [and mortgagor, 397. covenants for title on, 398. by niortgiiKeo in possession without consent of mortgagDr, liability to occount for rents, Ac, [thereafter, 398. Attornment clause to create a tenancy, how framed, 379, 380. " *' " " effect of, 391. Consolidation of several, 404, 405. Covenant for rc-piiynient not essential, 359. ♦' •' in absence of, the remedy for the money, 369. <• " a chose in action, 300 " " title, diimagcs if title defective, 301. Distress. See Attornment clause. " right to miiUe under mere grant of Ihe right, 879, " clause in 27 and 28, Vic. c. 31, cl 15, effect of, 379, 381. Equitable, by deposit of deeds, 401, 403 ; See Notick. " " " registry laws ns to, 401, 403, Equity of redemption in goods, sale of tiy Sheriff, 356. •• " in leaseholds, doubtful if saleable under fi. fa. [357. in lands, sale of under fi. fa, 354, 356. not saleable under li. fa. before 27 Vic. e. 13, unless in suit against mortgagor, 357. not saleable in suit against executors and [assigns of mortgagor, 357. " inp arcels by various Sheriffs, [357. " «' one Sheriff, 857, " if severed by conveyance by th« [raortgagor,357. " if two mortgages outstanding in [different hands, 357. " unless shewn on face of the [mortgoge, 357, 368. «• " purchaser of from Shsriff liable to pay all [incumbrances, 358, n. b. *• " ' " deemed on purchase to deduct [from price the amount of in- [cumbrances, 850. *• " purchase of by mortgagee under pressure, [set aside, 377. •• " sold at Sheriff's sale without proper informa- [tion, sale set aside, 358, 830. •' *• how sold at Sheriff's sale, mode of sale, &c., [358, 330. Fi. fa. binds mortgage only from seizure, 359. Insurance, fire, remarks of Lord St. Leonard's on frequency of [defects in the insurance, 362. " " mcro contract to indemnify to extent of loss, 362. If It It Index. xliii. of MOBTOAOES — Continued. Insurance, firo, ccasos on ahsoluto nsHigiimcnt by insured of sulyect. [of iiisuiMiioi! witliDUt consent, \Wi. *' (loos not const; on the tiicru niortf^nne of property, 363 " notion on policy, must bo in mime of insuroil, 303. '♦ coveunnt to keep up, form of, .'iO.! •' intermin receipt for, invalid except in equity, unless [under neiil, .'i(!4. " '• moneys on, when to bo npplied on mortgage debt, [3(if), 3t')(i. " " " when to bo applied to reinstute tiie pro- [perty, 305, 300. " " covenant to keep up, or insure, run with the land, 305. [n. b. 300. " '• right of niortgngeo to insure, and ohnrgo mortgagor, [885. Insurance, life, not a mere contract to indemnify, and valid though tho insured have no interest at time of death, 308. •• •' the interest roriuisito in tho life, at tho time of [insurance, 308. «' " misrepresentation, wlien it vitiates, 308. '* " not as.signable nt law, 308. " " formofasssignmcnt of, coupled with a mortgage, 309. " " notice of assignment of, necessity for, 370. Interest overdue six years censes to bo a charge on the land, 300. " " may be tackeil to principal as against the heir [of mortgagor if liable on covenant, 380. •* •• resi»^ting redemption unless paid, 380. " '• liability for on covenants continues for [twenty years, 300. " how advisable to calculate, 380. " increase of on default in payment, when allowed, 387. Leaseholds, when mortgage of should bo by sub-lease, or assignment, [3'.;8, 3'ja. " mortgage of by sub-lease, how drawn, 309, 400, Merger of. See Title, Merokr. Notice, registry laws as to, 3'J8, 401, 403. " constructive, by possession, absence of title deeds, &c., 402, [403, n. «. Sec AnDENOA. Payment of, to surviving mortgagee or his executors, 83, 84, n. d. " mortgage nudieys, presumption of, 300. Power of sale, 372. Sec Meuobr. *' *' should extend to assigns, 373. " " assigns cannot exercise, unless named in, 373. " " should not be conditional on notice given, 373. " " notice of intent to exercise, 373, 374. " " " " " how given, 374. " " form of, 373, 375, 424. n. i. " " how to be exercised, 375. " " if improperly exercised, sale set aside, 370. *' " mortgagee purcliasing under, 352, 353, 370. " •' second mortgagee may buy on sale by first mort- [gagce, 377. See Addenda. " " surplus proceeds of sale under, how to be npplied, 377. " " " " right to garnish, 378. " " mortgngco buying under his power of sale still [remains mortgagee, 352, 354. " " in Act as to short forms of ^lortgagCB badly framed, 423. xliv. M 1ni)i;.\. it'ldAilH.s— Cvnlinueif. I'oHsusMioii, not iiilviMiililo, iiiorlniifroo hIiiiiiM IiiK(!, ;!M'). " uiui'l(;uj;uu in, liiil)ility tlicroun, I!K'), o'.lH. " " wimt churgUM iilluwvil agiiinst niorlciiRor. [I'.sr), ;i80. " niortfjiij^or in, dufinitidn of position of, ItHH, ;tHl, n. b. " right to, iiH ))(!twL'i'ii iiiortniinor uml niortgtigcc, IJi^S, iWi'l. " " of niortgiigor on non-uxuoution of niortgairo by [mortgiigee, !!iil, ;{'.)2. •• " wliPii inortgago is to a niiirriuil woniiin, with [roiiomiso by licr, and no cxainination, liDli. *• " of tenant of mortgagor on demi.su after the mort- [gago, [m, -Ml. " " " before the mortgage, 3'JO. Redemption, proviso for, •Vol. " " changing the title and riglit to redeem, 337. '• on mortgago by tenant in tail, right of, 339. Redemise to mortgagor, when valid, 380, 301, 3'.I2. Re-conveyunce, presumption of, to mortgagor, 300. Release under Registry Act, 330. " " " no effect till registered, 311. " '• " " unless mortgage registered, 341. " " " " unless assignment, if any regis- [tered, 341. " " " should not bo executed before registry [of mortgage, 841. '• " " action on, if releasor not entitled, 342 " " " by married women, 343, 344. " by executors, 344, 34i), 34(). •' " one of several cannot, 345. •• " could not formerly ossiyii the land, 345. " " partial, should not bo given so as to prcju- [diuo the remaining security, 340. " of part, should not bo given with notice of prior sale by [mortgagor of another part, 340. " " may be given to a purchaser thereof entitled to [indemnity against the mortgage, 347. Rent. See Tenant. Sale. See Powkr op Sale, Meuoer, Equity of Redemption. Seizure of by Sheriff, 358, -— " only bound from, by fi. fa., not from delivery, 369. Tacking, 405. ♦' interest six years overdue to principal, 386. Taxes, mortgagee may purchase estate at sale for, 377. , Tenant of mortgagor, on demise after the mortgage, 303. 305. " " " what acts of the niortga- [geo absolve him from [liability to the mortga- [gor, 395. " " •• how he becomes tenant to [the mortgagee, 894. " " on demise before mortgage, right of mortgagor [or mortgagee to the rents, 304, 306, 396. Tenant in tail, mortgage by, effect of on the entail, 338. MORTGAQEE.— Sm Mortgage, Merger, Fi. Fa. May buy estate at sale for taxes, 377. " " by first mortgagee, 377 ; /See 4rf«/!, 392, IIUm. Ru< • I <( It it tl it li II II II 8. 5...149. 8. 6...150. 8. 7...162. 8. 8. ..149. 8. 9...150. 8. 10...20, 164. 8. 11...287. 8. 12...289. 8. 13...290. 8. 14...142. 8. 16... 141. 8. 16...142. 83. 17, 18...155. 88. 19, 20...156. B. 21 ...159. 88. 22, 23...167. 8. 24...171. 63 1. Index. SxATUTEg treated ot— Continued. See alio Statutes cited. Con. Stat. Upper Canada oh. 88, 8s. 25, 26...n2. 8. 27. ..177. « It II II 11 ii II II II II II II II «i II II II II •i II II II II II II II II II II II II II II lication to court for advice, 38. Indemnity clause in 39 Vic. c. 28, 40. " " '« " " not to be relied on, 41, 42, 43. Liability for co-trustee, &c., 41, 42, 43, n. b. Receipts of when to be discharges for money paid to, 83, 85. Money paid to, necessity for seeing to application, 83, 84. Payment must be to all trustees, 84. USES, STATUTE OF, Language of section 1, 90. Effect of, 90, Possession by force of, nature of, 120, n. a, 125. Index. liii. t, VENDOR.— ft* MoETOAOB, Sale. Conuealing deeds, incumbrances, &c., 21, 22, 23. Sale with Icnowlcdgo of defect under special condition precluding in- WAIVER, [vestigation, 24. of covenant or condition. eflFect of, 7-9. Act of 29 Vic. does not include implied waiver, 8. WASTE, Clearing wild lands, 22C, note. WILD LANDS, Dower out of, 241. Right of tenant for life to clear, 220, n. a. WILL — See Devise. Power to devise by, at common law, and under 32 H. 8, 281. After acquired freeholds may pass by, after March, 1834, 287, 293. " " leaseholds and personalty may pass by, at common [law. 288. Indefinite bequest of " all my leaseholds," when after acquired pass [before 32 Vic. c. 8, 288. Devise of " all my real estate " would not pass after acquired free- [holds before 32 Vic. c. 8, 289. Estate, when all of devisor passes by, ^89. Fee simple, enlargement to, by imposition of a charge, 290. " *' on gift over on death under certain age, [290. " " " " " under certain age, with- Execution of, 290. [out issue, 290. •' when presumed to have been duly had, 292. " valid under joint provisions of the acts of Charles and [William, though good under neither singly, 291. Witnesses to, 290. Attestation to, 290. " need not shew requisite formalities complied with, 292. Married woman, will of. See Married Woman. Death, will speaks from, on death after January 1, 18C8, 293. " " at common law as to personalty, except [leaseholds, 288. Residuary devise will not carry subject matter of a devise that fails, [293, 294. Lapsed devise, subject of, will not pass under residuary devise, 293, [295. Infant, will of, invalid as to realty, though he die after majority, 294. Revocation by marriage, 295. " none by alter.itiou of circumstances, 29G, 297. " by conveyance, none to extent of interest disposable at [death, 290, 298. " by conveyance under the old laws, 297. " partial, by mortgage or mere charge, 297. " by contnict to convey, 297. • " " " " when contract abandoned, 297, 298. '• how only it can take place, 299. Contract to purchase, lands contracted for pass by devise, 298. " to sell revokes prior devise, 297. WITNESS. — See Will, Appointment, Evidence. Not essential to a deed, 01. When party to a suit is the witness to instrument under which ho [claims, 01. liv. Addenda. ADDENDA. pp. 4. 6, 6. — On the covenant against aHsignnient without leave, that assignees in law are not bound though assigns are named, and that their assigns are bound, if assigns are named ; see Winter v. Dumerque, 12 J. N. S. 720, Ex. Chamber. P. 58. — As to an instrument operating as a lease or as a mere agreement for a lease, see Davidson Convey, vol. 6, p, 6, and cases there cited. PP. 9, 72.— Tliat a proviso for re-entry in a lease in case the lessee should be convicted of an offence against the game laws, does not run with the rever- sion, see Stevens v. Copp, L. R. 4 Ex. 20, but see per Kelly, C. B. As to covenants with a vendor of portions of lands against building thereon run- ning with the land retained in favor of the grantees thereof, Western v. Macdermot, L. K. 1 Eq. 449. See further as to covenants not running with the land at Law, and yet being binding in Equity if notice had of tlie covenant ; Wilson v. Hart, L. K. 1 Cha. App. 463. P. 191.— It is conceived that in case of death of a mortgagee, he would not, at Law at least, be so far regarded as a trustee as to prevent the application of the Statute of Victoria, and descent by primogeniture, and that in this respect Equity would follow the Law. P. 325.— The present practice of the Court of Chancery, under the Act for Quieting Titles, is to require that the existence of an execution in the Sheriff's hands should be negatived for a period of thirty days [before the petition, from which it may be inferred that a delay to redeliver for that period would be an abandonment. P. 377.— That a second mortgagee, though his mortgage be on trust to sell, may purchase irredeemably on a sale by a prior mortgagee, see Kirk wood v. Thompson 13 W. R. 495, 1052, 11 Jur. N, S. 385, S. C. PP. 401, 402, 403. — That possession is constructive notice ; Gray v. Coucher, 15 Grant, 419. That however constructive notice by possession will not pre- vail against registered instrument under the Registry Act of 31 Vic, see Sherboneau v. Jeffs, 15 Grant, 674. P. 278. — A married woman, who was residuary legatee to her separate use under Con. Stat. ch. 73, held bound by her authority to the executors, with her husband's assent, to take land in payment of a debt due the testator ; and semble even without the husband's assent ; McCargar v. McKinnon, 15 Grant, 361. PP. 223, 224. — That a wife having joined with her husband in a mortgage, is not entitled in case of ' deficiency of assets on his death, to have the estate exonerated as against simple contract creditors to let in dower ; White v. Jicitedo, 15 Grant, 549, overruling Sheppard v. Sheppard, 14 Grant, 174 ; K