ft ll,?M*Ulf UVt" i-i V i!.AlBI.E0IE if.ii '. mm ST-TilOMRDS UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY \ r \l5t ralNTED BY WILLIAM BLACKWOOD .VND SOXS, EDINBUBQH. CONTENTS. INTHODUCTORY LETTER. LETTER IL OF BALKS AND PDRCUA8BS. l>a^e Differcnco lictwoen Law (iml Equity — Piirtiiil Kxocution of a Con- tract — Purcltusor's liviuedy whore tho Title is bad LETTER III. 8ALBB AND l'URCHASE8— Con/in«*(/. Effect of the Contract — revokes a Will — Option t4u»ch«ili>ping of Lives, &c. — Purchase by ^' wn Palate — Fire Insumncc — Timber, Fix- ''■ ~ iJiiildings, Drains, Fences, Supports, Lights, Working uf Mines — Water 38 LETTER VIIL BALES AND PURCHASES— Conimuerf. tfivinK Notice to Tnistcc— Purclia.se wth Notice of another's Right Implio — Advowaon — Liphts, 20 Years — as Easements — Ri^'liU of Common, kc, 30 Ycjirs 00 Years- Nature of Enjoy- ment — Diwibilitics, Tenancy for Life — linitv of Possession — Hiirhts of Way, Water, &c.— 20 Years— 40 'i'ears— Conditions —What Time reckons— User — Non-user — Conclusion 187 INTRODUCTION. Note to page 61. The provision in 16 & 17 Vict., o. 117, referred to in p. 61, for merging land-tax, was repealed by the 19 & 20 Vict., c. 80, sect. 3, for the future ; so that the above provision operates only on pur- chases of land-tax between the 20th August 1853 and the 29th July 1856. plunged into a lawsuit, which a slight previous know- ledge might happily have prevented. It is, unquestion- ably, a matter of profound regret, that so large a proportion of contracts respecting estates should lead to litigation. It is equally to be regretted that, how- ever desirous the man of property may be to understand the effect of his daily contracts, there is no source to which he can apply for the desired information. You ask me to remove the cause of your complaint, and in viii «(>NTKN1> LKTTEH XXV. CilURCU I'ATBONAOE-LIOHTO— BASEMENTS, &C. ACyUIBED BY TIME. Page C'hurvh Patronncv — Advowton — Li^rl'tJ*. '20 Years — na Easements— I! ' • • ' • .Sec, 3(1 Yours fiO Years- Nature of Jliijoy- I Tonaiiiy for Life — Unitv of Possession — I, . it«r, &c.— '2<> Years — 40 V ears — Conditions - Wkit liiuv; rwckoiis— User — Non-user — Conclusion 187 INTRODUCTION. LETTER I. You complain to me that, although utterly ignorant of law, you are constantly compelled to exercise your own judgment on legal points : that you cannot always have your solicitor at your elbow ; and yet a contract for the sale, purchase, or lease of an estate, a loan, or, perhaps, even an agreement to make a settlement on a child's marriage, must be entered into at once ; and it is not until you have gone too far to retreat that you learn what errors you have committed : that you are even at a loss in giving instructions for your will, and wholly incapable of making the most simjile one for yourself : that you cannot readily comprehend your solicitor when you seek his advice : that, in a word, you have been plunged into a lawsuit, which a slight previous know- ledge might happHy have prevented. It is, unquestion- ably, a matter of profound regret, that so large a proportion of contracts respecting estates should lead to litigation. It is equally to be regretted that, how- ever desirous the man of property may be to understand the effect of his daily contracts, there is no source to which he can apply for the desired information. You ask me to remove the cause of your complaint, and in A 2 IXTRODUmON. particular to point out the precautions to which you shouM attend in soUino;, buying, mortgaging, leasing, settling, and devising i-states. You express, besides, a desire to know something in a popular way of the nature of the different interests in property, and of the mutual rights of yourself and your wife, and your power over your children, which would lead me to introduce the new law of divorce to your notice. You further ask me to give you some general hints as to your conduct in the character of a trustee or executor, Avhich may keep you from hann. In short, you want, in the form of familiar letters, what is now so much in vogue, a work upon an interesting subject calculated " for the million," whom I should be but too happy to assist : such a work, whilst it imparts knowledge, may, perchance, beguile a few hours in a railway carriage. I have in my youth and in my manhood written much for the learned in the law ; why should I not, at the close of my career, \vrite somewhat for the unlearned ? This I shidl proceed to do concisely, and without encumbering my pages with many technical phrases. I must prendse, tliat I shall say little which is not warranted by decided cases ; but I shall not burden you with references to them, as they lie scattered in many a bulky volume to which you have not access. DISTINCTION BETWEEN LAW AND EQUITY. LETTEE 11. To enable you to understand some terms which I must necessarily use in speaking of the remedy for breach of contract, I must explain the difference between law and equity. It is peculiar to the constitution of this country, that the law on the same case is frequently administered differently by different courts ; and that not from a contrary exposition of the same rules. It must soimd oddly to a foreigner, that on one side of Westminster Hall a man shall recover an estate without argument, on account of the clearness of his title ; and that on the other side of the HaU his adversary shall, with equal facility, recover back the estate. In all other countries, if we except America, which adopted in a great measure our laws, the law is tempered with eqiuty ; and the same grounds rule the same case in all the courts of justice. The division of our law into what is termed legal and equitable, arose partly from necessity and partly from the desire of the ecclesiastics of former times to usurp a control over the common-law courts. Our legal judges heretofore adhered so strictly to techni- cal rules, although frequently subversive of substantial justice, that the Chancellors interfered, and moderated the rigour of the law according, as it is termed, to equity and good conscience. The judges in equity soon found it necessary, like the common-law judges, to adhere to the decisions of their predecessors ; whence it has inevitably happened, that there are settled and inviolable rules of equity, which require to be moderated t FUSION OF LAW AND EQUITY. by the 1-ulcs of gtKxl conscience, as much as ever the most rigorous jui«l inflixiMe rule of law did before the Clmiuilloi-s int(ri)().sele them to perform the duties which now devolve upon the Courts of Chanceiy. Whether such a measure is desirable, I must leave it to the authorities to decide. America has been referred to as a great example of the benefits of the fusion of law and equity. ]5ut there were great complaints in that country against the mode in which equity was administered; and I do not undi-rstand that law and equity have been united there, although now the same judge administers both law and equity, sitting alternately as a common-law or an equity judge, as occasion may require, just as our Court of Exchequer formerly exercised both jurisdic- tions. We should always bear in mind that it is not a question whether, as an abstract proposition, we shoidd sever law and equity, but it is whether, now that they have been severed for centuries, it is wise to unite them generally. Many powers may with gi-eat advantage be extended to both jurisdictions, which now or formerly were confined to one. The essential diflerence l^etween law and equity, as it aft'ects the subject upon which I am writing, consists in this, that equity will give you the thing itself for which you have contracted ; whereas the law can only give you SALES AND PUECHASES : EEMEDIES. 5 a pecuniary compensation for the dishonesty of the other party in not fulfilling his contract. Thus, if you were to sell your estate to your neighboiu- Tompson, and were afterwards, dislikino; the baro-ain, to refuse to con- vey it to him, he would have it in his election to proceed against you either at law or in equity. If he resolved to proceed at law, he would bring an action against you for the recovery of damages for breach of contract, and a jury would decide the amount of the damages which you ought to pay ; but still you would retain the estate in the same manner as if you had never contracted to sell it. But if he wished to have the estate itself, he would file a bill in equity against you, for what is termed a specific performance, or a performance in specie, and the court would not, like a com^t of law, in effect, let you off the contract on payment of damages, but would compel you to convey the estate itself to the pm^chaser upon his paying the purchase-money to you. But of coiu-se, as the court compels you to perform the agreement, there are no damages to pay. This equity is founded upon the principle, that the court considers that as actually performed which is agreed to be done ; so that the instant after you have entered into a contract to sell an estate, the court considers the estate as belonging to the purchaser, and the piu'chase-money as belonging to you, and so vice versa. The terms specific performance, and action for breach of contract, will now, I hope, be familiar to you. I shall frequently be compelled to use them in the course of my correspondence. The remedy in equity, I must remark, is open to a seller as well as a buyer, although a seller merely wants the purchase-money ; so that if a vendor woidd prefer getting rid of the property, and receiving the whole of the purchase-money, to keeping the estate, and taking f, SALES AND PURCHASES. his chance of the amount of damages at law, he may i|)|>ly to njuity for a specific luTforniance. Hut e»[uity will not inttifcre in every case. A man ;ictin<; without j,'oo(l faith cannot require the extraor- . Unary ai.l of the court, l)ut will be left to bis remedy at law, where his ])ad conduct will have its full opera- tion with a jury. And in many cases equity will not interfere, although the applicant or plaintiff, as be is calle«l, has acted bond fide; for instance, where the estate has by surprise or mistake been sold at an mider- value. Thus, where the Irnown agent of the seller bid for the estiite at an auction on behalf of the purchaser, and other persons present, thinking that he was bidding as a i)utfer on the i)art of the seller, were deterred from bidding, the court, on the ground of surprise, refused to interfere against the seller, who resisted the sale. Equity also looks to the sul)stantial intention of the parties, whereas the courts of law adhere more strictly to tlie letter of the contract. Thus, if an estate is described in a particular of sale to be in good repair, and it turns out to be in bad repair, the seller cannot enforce the contract at law ; but equity, if the purchaser is not in want of immediate possession, so that there is time to do the repairs before possession is essential to him, will comjiel him to take the house upon being allowed a sufficient sum to repair it : if a man sell a leasehold estate, as having 70 years to ran, and the term is only 68, the purchaser will in equity be decreed to take the estate with an abatement ; at law, the con- tract cannot be enforced by the vendor : again, if the time is stii>ulated for the peiformance of the contract, that stipulation is of the essence of the contract at law ; whereas in edescription. But although you misrepresent the nature of the pro- jierty, yet the purchaser cannot be relieved if he bought with full knowledge of the actual state of it : thus, if you describe an estate to be in a ring-fence, and the buyer knew that it was intersected by other lands ; or you warrant a house to be in perfect repair, and he knew that it was without a roof or w^indows, he cannot in either case object that the property does not agree with the description of it. But it would not be safe to rely upon the purchaser's knowledge in opposition to your own statement. If you were to state that a house was in good repair, knowing that it had the diy rot, and were not to communicate CONCEALED ENCUMBEANCES. — FALSEHOODS. 17 this fact to the purchaser, and the state of the house was not perfectly visible to everybody, you could not enforce the contract, although the purchaser might take the property if he pleased, with a compensation for its defective state. The same rules apply to encumbrances on the estate, and defects in the title to it, as to defects in the estate itself. You must either deliver to the purchaser the instrument by which the encumbrances were created, or on which the defects arise, or you must acquaint him with the facts, if they do not appear on the title-deeds. If you neglect this, you are guilty of a direct fraud, which the purchaser, however vigilant, has no means of dis- covering. And if your attorney keep back any encum- brance, he as well as you will be answerable for the fraud. Thus I have told you what truths you must disclose. I shall now tell you what falsehoods you may utter in regard to yom' estate. In the first place, you may falsely praise, or, as it is vulgarly termed, puff' your property ; for om' law, following the civil law, holds that a pur- chaser ought not to rely upon vague expressions uttered by a vendor at random in praise of his projjerty. And it has even been decided, that no relief lies against a vendor for having affirmed, contrarily to truth, that a person bid a particular sum for the estate, although the buyer was thereby induced to purchase it, and was de- ceived in the value. So you may affirm the estate to be of any value which you choose to name, for it is deemed a pm'chaser's own folly to credit a bare assertion like this. Besides, value consists in judgment and estimation, in which many men differ. Again, you may, with mipunity, describe your land as uncommonly rich water meadow, although it is imper- B 1 8 MISREPRESENTATION. — PUFF. IVctly wiitoreiL In selling an advowsonyou may, in like manner, sUite that an avoiclance of the living is likely to (KTur soon. So where a renewable interest is sold, and a fine nn renewal is payable, the .seller may state it to be a small fine, although it is of considerable amount. Such statements are cautions to purchasers to inquira So mere puff", as that a house is fit for a re.spectable famOy, is entitled to no weight ; but you must not, in answer to inquiries, assert, contraiy to the fact, that your house is not damp. You are not bound to inform the purchaser, that u]tun the tenant's complaint, the full amoimt of rent has not been paid ; nor are you bound to tell him what offtTs have jtreviously been made to you ; for a conceal- ment, to be material, must be of something that the party concealing was boimd to state. But you must disclose any right of s]»orting over the estate, or any right of conmion over it, or any right to dig for mines upon it, or the liability to repair the chancel of a church, or the like. And you may not refer a purchaser to an agent who is ignorant of circujustances affecting the property of which you yourself are aware. If your agent should be guilty of fi-audulent representation, or a fraudulent concealment, you would be liable. If you should affirm that the estate was valued, by persons of judgment, at a gi'eater price than it actually was, and the purchaser act upon such misrepresentation, you could not enforce the contract in equity. Nor can you with impunity misstate the quantum of rent paid for the estate, liecause that is a circumstance within youi' own knowledge : the purchaser may have no other source of information ; or your tenants, if he were to apply to them, might condjine with you, and so misinform and cheat hira. And the purchaser will have a remedy against you for the fraud, although he did not depend upon your statement, but inquired further. PARTICULARS AND CONDITIONS OF SALE. 19 What I have hitherto said applies mostly to your own conduct. I have still a few cautions to give you in regard to those things which must be performed by your agents. Although it is the usual practice, yet you should never permit the particulars and conditions of sale to be prepared by an auctioneer. Auctioneers know nothing of the title, and continual disputes arise from their mis- statements. When a man has an estate to sell he generally goes first to an auctioneer ; but I advise you to go to an attorney. I may, however, caution you against allowing your attorney to frame unusual condi- tions, throwing upon the purchaser expenses which, according to the general practice, ought to be borne by the seller, and compelling him to accept such a title as he would not be bound to accept under a common con- tract. It may be necessary to provide for special circum- stances ; but rely upon it that judicious buyers do not attend an auction where improper conditions of sale have been issued ; and I advise you, in the character of a purchaser, never to do so without sufficient cause. If the estate which you intend to sell has been in your family for a length of time, or the title has not been recently investigated, it would be prudent to have an abstract of it submitted to counsel in the first instance. This will enable you to clear up any objec- tion which occurs, before you enter into a contract for sale of the estate. By this precaution you will pievent any delay on yom- part which might impede the com- pletion of the sale by the time stipulated ; and you will, in many cases, avoid the expense necessarily attending tedious discussions of a title. Another advantage of this measure is, that if there should be any defect in the title which cannot be cured, it will be known only to your own agents and counsel. It is, believe me, of the 'JO ATTESTED COPIES. — DEPOSIT. Utmost importance to keep defects in your title from the kni)wliil;^e of persons not concerned for you. It has froipuntly happened, that persons concerned for pur- chasers have connnunicated fatal defects in a vendor's title to the jjcrson interested in taking advantage of them, l»y which many titles have been disturbed It would be useless to state to you what provisions should be contained in the jiarticulars and conditions of sUc. They must be prei)arfd by your solicitor. I may, however, observe, that the nature of the property should be coircctly stated, and tl.at where the estate is held under the same title, and sold in lots, some provision siiould be made as to the expense of copies of deeds, to which all the purchasers would otherwise be entitled at your expense ; a bunU-n that has freipiently considerably reduced the amount of the purchase-money. Where the (le])osit is directed to be paid to the auc- tioneer, he is entitled to retain it until the contract is completed, without paying interest for it, because he is lonsidered as a stakeholder or dcpositaiy. To obviate this, wliere the sum is large, it may be providelood 1)etwcen you will fix the estate in the child, although illegitimate, for his own benefit ; nor can you defeat his claim by any subsequent declaration of your intention. The same rule applies to a purchase in the name of your wife, or of a grandchild, if its parent is dead. But all purchases of this kind are open to much objection. If you intend the conveyance to be for the party's own benefit, it should be expressly declared to be so on the face of it. If, on the contrary, you mean it to be in trust for yourself, the trust should be declared by the deed, or you should take a declara- tion of trust by a separate instrument. If you and another })urchase lands, and advance the money in equ;d portions, and take a conveyance to your- selves and your heirs, the survivor will take the whole estate ; for the purchase would be considered to be made by you jointly of the chance of survivorship, which may happen to the one of you as well as the other. But where the proportions of the money are not equal, and this appears in the deed itself, the rule is otherwise, and the survivor will ha a trustee for the representatives of the other, in proportion to the sums which you severally advanced. However, even where the money is advanced equally, you should never take a conveyance in this way ; JOINT PURCHASES. 37 but the estate should be conveyed to you and the other purchaser in moieties. There is no relying on the joint- tenancy : the other party may defeat it by a secret deed, which, if you survive, will be produced, and his heir will be entitled to his share ; whereas, if he survive, he will keep it back, and claim the whole estate. I must still observe, that in all cases of joint under- taking or partnership, although the estate will belong to the survivor at law, yet in equity he will be a trustee as to the share of the deceased partner for his representa- tives ; so that if you and another were to take a building- lease jointly, and lay out money in erecting houses on the land, the survivor would be compelled to assign a moiety of it to the representatives of the deceased. If you and another are in treaty for the purchase of an estate, and you agree to desist, and permit him to go on with the intended purchase upon his promising to let you have a part of the estate, you should require a written agreement from him ; for it seems, that although he should get the estate, he would not be bound by a mere parol or verbal agreement to convey part of it to you. 88 WRITTEN CONTRACTS. — LETTERS. LETTER VII. The present Letter concerns you both as a Buyer and Seller. Generally sjieakino-, a written agreement is essential to a valid contract for the sale or purchase of an estate. Tills is required by the statute of 29 Car. II., cap. 3, u.sually called the Statute of Frauds ; and it must be signeil by the party whom you wish to be bound by it, or his agent, to whom a verbal authority for that pur- po.se will be sufficient ; and the agreement must distinctly contain all the terms, such as the names of the parties, the estate to be sold, and the consideration to be given for it ; nothing can be supplied by parol evidence. There are, indeed, some exceptions to this rule in equity — If the party resisting the contract admit the agree- ment, and do not claim the benefit of the statute, or if he have acted fraudulently, equity will compel the fulfil- ment of the agreement, although merely verbal, and not reduced to writing, and signed by the parties. As an instance of what is deemed a sufficient fraud to enable equity to reheve, I may obsei-ve, that if you were ver- bally to sell me an estate, and I in performance of part of the agreement were to lay out money in repairs, you could not afterwards resist my claim to a conveyance of the estate. Letters which have passed between parties have fre- quently been held to amount to an agreement ; there- fore, in writing about the sale or purchase of an estate. LETTERS. — ACCEPTANCE OF OFFER. 39 you should always cautiously declare your offer or pro- posal not to be final, lest the other party should entrap you, against your intention, into a binding contract. If upon a treaty for sale of your estate, you should write a letter to the person wishing to buy it, stating that if you part with it, it shall be upon such and such terms (specifying them), and such person, upon receipt of the letter, accept the terms mentioned in it, your letter will be deemed equivalent to an agreement. So, if you are in company, and make offers of a bargain, and then write them down and sign them, and the other party — that is, the person to whom the offer is made — take them up and prefer his bill against you, the proposal will be binding on you. But if it appears that, on being submitted to any person for acceptance, he had hastily snatched it up, and refused you a copy of it, or if, from other circumstances, fraud in procuring it may be inferred, it seems, that in case of an action, it would be left to the jury to say, whether you intended it at first to be a valid agreement on your part, or as only containing proposals in writing, subject to future revision ; and if the aid of equity be sought, these circumstances would have equal weight with the Court. In every case it must be considered whether the note or correspondence import a concluded agreement : if it amount merely to treaty, it will not sustain an action or suit, and a letter must, hke a regular agreement, con- tain all the terms. And the answer must be a simple acceptance, without introducing any new stipulation or any exception. If the answer were, for example, an offer of a less sum, the original offer woidd no longer be bmding, and the other party could not revive it by sub- mitting to pay the price at which the offer was made. An offer to sell may be recalled or modified at any time 40 LETTERS BY POST. — RECEIPTS, ETC. before it is accepted, and an olTcr to i)urfl)ase may, of course, in like manner, be recalled or modified. Al- though the offer is left open for the acceptance of the other party for a period named — for exam])le, fourteen days — yet it may be retracted at any time before the fourteen days, if the other party have not already ac- cepted it. If the acceptance is sent by letter by post, it vnl\ be binding on the ^^Titer, although the other party do not receive it till the day following. If even the writer were to die on the same day after lie had posted his letter, the acceptance would be binding, it seems, on his representatives. A receipt for the purchase-money, if it contain the terms, will be a sufficient agreement. And even a letter to your attorney, stating the terms, and directing him to cany the agreement into execution. Mill have the same operation. It is not, however, sufficient that a person present at the making of the agreement reduced it into writing, unless it was sigiied by the parties ; nor is the delivery of rent-rolls, particulars of the estate, abstracts of title, &c. on the treaty for sale, equivalent to an agreement ; neither is it sufficient that both parties verbally direct an attorney to prepare the conveyance : with the excep- tions before alluded to, there must be an agreement signed by the party to be charged; that is, by the party against whom relief is sought ; for if you sign an agreement to sell or buy an estate, the other party acting bond fide may proceed against you, although he himself never signed it. You should always require the party with whom you deal to sign when you do. I may observe, that the price to be paid for the estate is not weighed in very nice scales. As the rule now stands, the consideration must, indeed, be grossly inade- INSUFFICIENT PKICE. — HEIE. 41 quate or unreasonable to enable equity to refuse its aid ; and at law, unless it is merely fraudulent and nominal, the amount of the consideration would not prevent the party benefited from recovering damages for a breach of the contract by the other party. But fraud is an excep- tion to every ride. A case arose, where an agreement was made for sale of land at a halfpenny per square yard. The price was in all about £500 ; the real value i?2000. The purchaser went out to an attorney, got him to cal- culate the amount, and desired him not to tell the vendor how little it was ; then carried the agreement to the vendor, and prevailed on him to sign it immediately. The desire of concealment was considered such a fraud as would avoid the transaction, because parties to a contract are supposed, in equity, to treat for what they think a fair price. But I must remark, that the case of an heir selling his expectancy stands on its own grounds, and very slight circumstances will enable equity to set aside the contract. It has been laid down, that the heir of a family, dealing for an expectancy in that family, shall be distinguished from ordinary cases, and an uncon- scionable bargain made with him shall not only be looked upon as oppressive in the particular instance, and therefore avoided ; but as pernicious in principle, and therefore repressed. There are two powerful reasons why sales of reversions by heirs should be discounte- nanced ; the one, that it opens a door to taking an undue advantage of an heir being in distressed and ne- cessitous circumstances, which may, perhaps, be deemed a private reason ; the other is founded on pubhc policy, in order to prevent an heir from shaking off his father's authority, and feeding his extravagancies by disposing of the family estate. 42 Ai;l!ITKAT()K.S. — INVESTMENT OF DEPOSIT. But a hiniit fide ]iurchase at an auction, of a reversion, cannot iinw !»»■ imjieaelied. Never leave the ])rice to be fixed by sui-veyors or arbi- trator ; for if they refuse to value the estate, or disagi-ee in the valuation, you cannot enforce the performance of the contract. This, however, is not the case where it is merely agreed that the estate shall be taken at a fair valuation, without specifying the mode in which it shall be made. But even this mode is objectionable. If upon the purchase of an estate you pay a deposit, and afterwards Ijccome entitled to a return of it, because the seller cannot make a title, you would not be com- pelled to take any stock in which he may have thought proper to invest it without your consent. And your assent will not, it seems, be implied from notice having been given to you of the investment, to which you did not rei)ly. It would not, however, be prudent to be silent in such a case. Where the deposit is considerable, and it is probable that the purchase may not be com- pleted for a long time, it is for the benefit of both parties to enter into an arrangement for an investment of the deposit, so as to make it productive of interest. You cannot, as a purchaser, because delays arise, deposit your money at a private banker's, or in the Bank of England, or convert it into stock at the risk of the seller ; notwithstanding such a deposit, the principal will remain entirely at your own risk ; nor is it material that you gave the vendor notice of the deposit, unless he took the risk on himself, by agreeing to accept it as a payment. And as he would not be bound, without his ex])ress assent, by a deposit, he could not, unless he had bound himself, claim any benefit by a rise in the funds. So if you sell out stock to answer the purchase- money, and the title prove bad, without any fraud in the INTEEEST. 43 seller, and then you re-purcliase at a loss, you are not entitled to any allowance on that account, for you had a chance of gaining as well as losing by fluctuation in the price of the stock. Continual disputes arise as to interest. The pur- chaser is entitled to the profits of the estate from the time fixed upon for completing the contract, whether he does or does not take possession of the estate ; and as from that time the money belongs to the vendor, the purchaser will be compelled to pay interest for it if it be not paid at the day. Upon this rule, no difficulty could ever arise if the purchase-money were not frequently lying dead ; in which case it becomes a question upon whom the loss of interest shall fall. The loss must be borne by the party by whom the delay has been occa- sioned. It seems, however, that although the delay is with the seller, and the money is lying ready, and with- out interest being made by it, yet notice should be given to him that the money is lying dead, because otherwise there is no equality — the one knows the estate is pro- ducing interest, the other does not know that the money does not produce interest ; and in all cases, where a purchaser resists the payment of interest, he must show that the money was lying dead, and bond fide appro- priated to answer the purchase. But I would advise you never to let your money lie dead ; you can at least lay it out in Exchequer bills ; and, somehow or other, each party invariably insists that the other has occa- sioned the delay. It has become usual to stipulate, upon a sale by auc- tion, that if the purchase is not completed at the time appointed, from whatever cause, the purchaser shall pay interest on the purchase-money. The true mean- ing of this condition has led to much difference of 44 RATK OF INTEREST. — TIMBER opinion oji tlic equity bench. It may be considered to ai»l)ly to delays caused l)y tlie state of the title, or other c;iu.ses, although the purchaser himself is in no respect in fault, but it would Jiot enalde the seller wilfully to delay the completion of the contract, or to be grossly negligent, and yet to claim interest during the delay. Interest is not payable until the principal is payable, and that is not payable until it is seen whether the contract can be completed. If, therefore, a long delay take place in the completion of a contract, but the lien which the law gives to the vendor, on the estate sold for the purchase-money, has been kept on foot by acknow- ledgment, interest will be payable on the purchase- money for the whole time it ought to be paid under the contract, notvsdthstanding the Act of Parliament to vvliich, in Letter XXII., I shall draw your attention, by which interest on such a lien could not in general be recovered for more than six years. In the case of timber on an estate to be taken at a valuation, interest on the purchase-money will only com- mence from the valuation, although the interest on the purchase-money for the estate itself may be carried a great way back, because surveyors always value timber according to its present state ; and the augmented value of the timber by growth is an equivalent for the interest from the time of the contract to the making of the valuation. The usual rate of interest allowed in equity is four per cent ; but in some few cases the Court has given five, because that was the current interest of money ; and to give only four was holding out an inducement to persons to delay the completion of contracts. However, the general rule confines the rate to four per cent. I may here observe, that as the estate belongs to the INSURANCE. — IlRE. 45 purchaser from the time of the contract, he is entitled to any benefit which may accrue, and must bear any loss which may happen to it before the conveyance. If a house is even burned down, yet the purchaser must pay for it, although the seller permit the insurance to expire without giving him notice. You should, therefore, upon entering into an agreement to buy a house, provide for the insurance of it till the completion of the contract.* Again, if you agree to buy an estate held for lives, and all the lives drop the next day, still you must pay your money. On the other hand, if you purchase a reversion subject to an estate for life, you will be entitled to a conveyance at the original price, although the estate has fallen into possession by the death of the tenant for life. In all these respects our law agrees with the civil law. If you buy an estate in consideration of an annuity which you are to pay to the seller for life, and he die before the estate is conveyed to you, or even before a payment of the annuity become due, yet you will be * A word of ad\dce about your Fire Insurance. Very few policies against fire are so framed as to render the company legally liable. Generally the property is inaccurately described with reference to the conditions under 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, although they may not be able to prove it. But do not rely upon the moral feelings of the directors. Ascertain that your house falls strictly within the conditions. Even having the surveyor of the company to look over your house before the insurance, will not save you, unless your policy is correct. To illus- trate this, I will tell you what happened to myself. I have two houses in different parts of the country, both of which open from a drawing- room by a glass-door into a conservatory. The one I had insured, for a good many years, from the time I built it ; the other I had insured, for a few years, from the time I bought it, in the same office, when a partial fire broke out in the latter, and I was then told by the office — a highly respectable one — that my policy was void, as the opening to the conserva- tory rendered it hazardous, and if so, of course both policies had been 46 LIFE ANNTHTY. — TBIBER. — FIXTURES. entitled to a conveyance of the estate without in fact payiiiii for it. But in a case of this kind, if a payment of the annuity bocoine due before the conveyance is exe- cuted, you should cautiously pay it on the very day ; for a neglect on your ]>art would, it seems, bar your right to the estate if the seller should afterwards die before it is conveyed to you. I may here remark, that if a man by mistake purchase from another an estate to which he himself is entitled, he may recover back the money which he paid for it. Questions sometimes arise upon a sale as to timber and fixtures. A contlition that a purchaser shall pay for the timber on the estate will include trees considered as timber, according to the custom of the country, although not strictly timber ; and where the purchaser is to pay for timber-Uke trees, even pollards may be considered to fall within the condition. As to fixtures, where nothing is said about them, common fixtures would pass to the purchaser imder the common conveyance, without void from their commencement. I was prepared to try the question, and ultimately the objection was withdrawn, and my loss was paid for. Upon renewing my policy, with some alterations, I actually had some difficulty with the clerk of the company to induce, or rather to force him, to add to the description the fact, that the drawing-rooms opened through glass-doors into conservatories. In treating, at a later period, for a policy with another company, I required them to send their sur- veyor to look at the house ; and the stoves and everything to which objec- tion could be taken were sho\vn to him. The company then prepared the policy, and made it subject to the report made to them by their surveyor, referring to it by date. This report I never saw, and the objectionable stoves, &c., were not noticed. Of course I had the refer- ence tt)U a Purchase. Whore you purchase any equitable right, of which imnu'tliate possession cannot be had — for instance, money in the funds, standing in the names of trustees, in trust for a father, for life, and after his decease for his son ; and you buy the son's interest during the liither's life-time, you shoidd, previously to completing the contract, inquire of the trustee, in whom the pro- jierty is vested, whether he has had notice of any encum- Immce. If the trustee make a false representation, equity would compel him to make good the loss which you may sustain in consequence of the fraudulent state- ment. When the contract is completed you should give notice of the sale to the trustee. The notice would cer- tainly affect his conscience, so as to make him liable in equity should he transfer the property to any subse- quent purchaser ; and would also give you a preferable title to any former purchaser or encumbrancer who had neglected the same precaution. The safest course, how- ever, is to prevail u})on the trustee, if you can, to join in the assigmnent to you, or, if he decline to join, to allow you to endorse on his settlement a memorandum of the assignment to yon. If you shoukl purchase, with notice of the claim of another, although he has not a conveyance, and you {letually procure the estate to be conveyed to you, yet you will be bound in equity by the notice ; for it is a NOTICE TO PUECHASER. 51 general rale in equity that a purchaser with notice is bound to the same extent, and in the same manner, as the person was of whom he purchased. I will give you an instance of this : You know that I have lent Tomp- son <£'1000, and that he has agreed to secure it by a mortgage upon his estate. Now this gives me merely an equity, that is, a right to call upon him in a court of equity to execute a mortgage to me. TiU that is done the entire ownership at law remains in him. If you should purchase the estate from him before the mort- gage is executed, without notice of my loan, you would hold the estate discharged from it ; for by the conveyance you would get the legal estate, and by the contract the equitable estate ; so that having both law and equity on your side, you would prevail over me who have equity only. For it is a rule, never departed from, that a bond fide purchaser for a valuable consideration, and without notice, shall not be affected in equity. This has been carried so far, that a purchaser has been allowed to take advantage of a deed relating to the estate, wliicli he stole out of a window by means of a ladder. I could hardly, however, advise you to be so bold at the present day. But m my case, as you have notice of the loan, you would be bound by it, although you procure the legal estate, and equity would accordingly compel you to execute a mort- gage to me pursuant to Tompson's agreement. In all these cases, therefore, you should stop your hand. Notice, I must observe, before payment of all the purchase -money, although it be secured, and the con- veyance actually executed, or before the execution of the conveyance, notwithstandmg that the money be paid, is equivalent to notice before the contract. It is not necessary that you should have express notice ; for instance, in my case it is not essential that 52 NOTICK T(1 PURCnASER's ATTORNEY. y«ni should a(>tiially st'c an0 BONDS OF RESIGNATION. — LAND-TAX. rclitfious dutii's. 80 that you might make it a condition that he shoukl keep the buildings in repair, and that he sliould resign upon notice, in order that one of your infant sons might be ])resented to the benefice. But the rigiil rule was again established in the House of Lords ; in consequence of which an Act of Parliament was passed (9 Geo. IV., c. O-i), which validates engage- ments thereafter to be made for resignation, to the in- tent that any one person, or one of two persons to be sjx'cially named, shall be presented, but which engage- ment is to be entered into before the presentation or appointment of the party entering into it. And it is [trovided, that where two persons are named, they shall l)e, either l)y l)lood or marriage, an uncle, son, grandson, l)rother, nephew or grand-nephew of the patron, or of any married woman whose husband in her right shall be the patron. And certain regulations are enjoined as to the execution and deposit of the deed, in order to prevent fraud. I do not think it necessaiy to point out to you the fwing for the difterent qualities of the tenui'es, the (.hsi-rvations. generally speaking, already made as to free- hold estates, apply to cojjyholds. -And now by statute * j.rnvision has been made for converting copyholds into freeholds, and either the co})yholder or the lord may now, after an admittance, taking place on or after 1st of July 1853, compel the other to enfranchise, so that, in due time, the copyhold tenure will be altogether extinguished, but the tenant cannot require enfranchisement until after payment of the fine and fees. The enfranchisement will not affect the right of either party to the mines and minerals in the lands enfranchised, or in any other lands, and the tenant will still be entitled to his former com- monable rights, although he has obtained the freehold of his land. AVhere heiiots are, by custom, payable to the lord in respect of any freehold or customaiy land, at any time after any such heriot should be due (on or after the 1st of July 1853), power was given to the lord, or the tenant, to require and compel the extinguishment of all claim to heriots, and the enfranchisement of the land in the same way as if the land were copyhold. The statute, of course, contauis full provisions for assessing the com- pensation or pmchase monies. I must, however, refer you to the Act for the various important provisions in it. If, as lord of the manor, you are about to enfranchise other men's copyholds, or, as a copyholder, to obtain the enfranchisement of your own, you should peruse the Act itself * 15 & IG Vict., c. 51, and later statutes. wife's rights in husband's property. 67 LETTEE XL I NOW propose to call your attention to your Wife's Eights in your Property. Your marriage having taken place since the 1st January 1834, your wife will find her ancient right to dower out of your estates of inheritance both enlarged and ciu-tailed by recent legislation. She is no longer hampered by former distinctions between legal and equitable estates ; but will be entitled to her dower when the whole legal fee is vested in you, or you have (whether wholly equitable, or j)artly legal, or partly equitable) what is equal to an estate of inheritance, so that if you were to contract to buy an estate, your wife, as between you and your heirs, at yom^ death, would be entitled to dower. On the other hand, the wife's dower is placed wholly in the power of the husband. His ab- solute disposition in his hfetime, or by his will, excludes her altogether. So his contracts and charges in his life- time, or by his will, will bind her, and he may, by the deed conveying an estate to him, cause it to be declared that his widow shall not be entitled to dower out of such land, for it is not necessary that he himself should exe- cute the deed, or he may bar her right by his declaration in any other deed, or in his will, either generally or par- tially. If you give your wife any property by your will, pray take the trouble to state whether you mean it to be in bar of dower or not. Such a precaution may prevent a lawsuit. As to your personal estate undisposed of at your death, of course you know that if there is no issue of the 68 husband's rights in nian-iafrc, your widow will take half of it, and if there is, oue-third only. Now, as to your rights in your wife's property. Upon your marriage, you take in effect, for the joint lives of yourself and your wife, all her real estates. If you have i.ssue born alive, you will become tenant by the curtesy initiate, as it is termed, of the parts of which she has the inheritance, and upon her death, in your lifetime, your estate, by the curtesy, wiU take effect for your life. In effect from the birth of a live child, you are tenant for life of the property. But there is reason to doubt whe- ther this right by curtesy extends to estates which have descended to your wife. This depends upon the legisla- tive alteration in the law of descent, with which I will not perplex you. Her chattels real — that is, leases — you can dispose of as you think proper. If you do not dis- pose of them in yom- lifetime, they will survive to her, but a partial disposition of them Ijy you in your lifetime would bind her. You cannot, however, give them away from her by wiU. If you survive her, youi' right to them would be absolute. If even her interest in a chattel real be reversionary or contingent only, yet you may sell it, for it has been decided as clear that the wife's contingent legal interest in a term may be sold by the husband, and that there is no difference between the legal interests and the trusts of the term, and therefore your right to sell would prevaO, although the legal interest in the lease was in trustees, and your wife had only a reversionary or contingent interest. Whatever you can possess yourself of, or, as the law terms it, reduce into possession, and actually do so, will be your own ; for example, if she have any stock standing in her name, you can transfer it into your own name, or into any other person's. Ready money, plate, furniture, jewels, and the like, all vest in HIS "wtfe's property. 69 you without any act on your part, and you can dispose of them as you think proper ; they are personal chattels in possession. Plate deposited at a banker's would, in like manner, belong to you. But to prevent any ques- tion if there is any balance in her name at a banker's, and you wish to make it your own, you had better j^lace it at once, as you have a right to do, in your own name. If any debts are owing to her, you can recover them, and a payment of them to her after the marriage would not bind you. If your wife is entitled to any chose in action, as it is called, that is, personal property not in possession, you must wait till it falls into possession, or if you assign it, and she survives you before it falls into possession, your assignment will not bind her ; the property will survive to her, and you cannot dispose of it by your will. If there is any personal property in the names of trus- tees in which your wife is entitled to a present interest, but which you cannot obtain without the order of a court of equity, she may, if not sufficiently provided for, claim a settlement out of it for herself and her children, and you would take the surplus, and she might herself resort to the Court in order to obtain a settlement out of the fund. If any further personal fortune come to her in the names of trustees, she may, in like manner, claim a settlement out of it, or a fm-ther settlement, even if one was made on your marriage, unless it amounted to a purchase by you of all yom- wife's future acquisitions. The propor- tion of the fund to be settled on the wife and children in these cases must depend on the position and circum- stances of herself and her husband, but the courts are inclined to behave with liberality towards her, and, in extreme cases, would even settle the whole of the fund on her. But she may waive her equity to a settlement 70 HUSBAND AND WIFE S POWER Upon a ]irivate examination l>y tlu' Court apart from her husband. If your wife is tenant for life, or in fee of an estate, she and you can, by deed acknowledged by her, as re- quired by Act of Parliament * sell or dispose of, or settle it a.s you both think proper ; and if she is tenant in tail, you may together bar the estate tail, and remainders over, and acquire and dispose of the fee-simple as you choose ; Vnit she is to acknowledge the deed, which must be enroUed, and she must be examined separately as to her consent, her age, and capacity to understand the act she is performing. She may, ])y deed acknowledged by her, with your concurrence, dispose of any other interests in land, and destroy or release any powers given to her. And, in certain cases of incapacity on the part of her husband to execute a deed, &c., or where they live separate by nmtual consent, or by sentence of divorce, the Court of Common Pleas is authorised to dispense with the hus- band's concurrence in the dispositionof the wife's property. I must yet give you some information about the rights of property in married women. Both real and personal estate may be settled upon a woman for her separate use, so as wholly to exclude any right of the hus- band, and such a provision generally enables the woman, although married, to dispose of it by alienation ; but this may be, and frequently is, guarded against by an express clause against anticipation, Avhich, during the marriage, effectually prevents any alienation of the fund. A -snfe having a separate estate cannot be compelled to contribute to the family wants, or to maintain her chil- dren. Although a married woman with her husband can convey or transfer all her interests in real property, yet neither she nor her husband can deprive her of any • 3 & 4 Will. IV., c. 74. OVER HEE PEOPEETY. 71 interest provided for her out of mere personal estate — funded j^roperty for example — to take effect on her hus- band's death. So that if you provide a portion for your daughter on her marriage, and settle it on the husband for life, and then on your daughter for life, and then to the children, you may feel assured that your daughter will benefit by your bounty on her husband's death. Many attempts have been made in Parliament to take away this security, and to enable the husband and wife to sell her life interest, and so strip the woman of the provision made for her. These attempts have hitherto been successfully resisted, but a partial measure has just been carried, providing that married women may, by deed acknowledged in manner required hy the Act, with their husband's concurrence, dispose of eveiy future or reversionary interest to which the woman, or her husband in her right, shall be entitled in any personal estate under any instrument made after the 21st December 1857, and relinquish or release any power she has, or her right or equity to a settlement out of any personal estate ; but this power does not extend to any reversionary in- terest which she is restricted from alienating, nor does it enable her to dispose of any interest in personal estate settled upon her hy any settlement, or agreement for a settlement, made on the occasion of her marriage.^ There is reason to fear that the next step will be an attempt to repeal the exception, and make the power of alienation extend to all interests. Such a power would lead to constant disputes between husband and wife. Upon any pressure, the husband woidd call upon her to sell her reversion to assist him, and creditors knowing of the settlement and of the power of alienation, would refuse to show any indulgence unless the wife pledged * 20 & 21 Vict., c. 57. 72 wifk's re\t:rstonary interests. licr reversion for lier Im.sbaiur.s debts. Many a woman, anxiously ])rovicled for by an ati'ectionate father, would be left penniless at her husband's death, when probably lier father was no longer alive to assist her. The Act must give great satisfaction to purchasers of reversions, and particularly to companies expressly formed for the purchase of reversionary interests. In making any pro- vision for your daughter by your will, you can guard against the operation of the Act by making the provision inalienable. Of course the observation applies only to annuities, or interests for life, or interests in reversion. NEW COUET OF DIVORCE. 73 LETTER XIL As you desire to know something of the new law of Divorce, and as it affects the rights of property, I will now comply with your wish. A new court, with high judicial officers, is created to adjudicate on divorce and matrimonial causes in England.* Judicial separation is a new term introduced for the old divorce a mensd et thoro. Either the husband or the wife may obtain a judicial separation on the ground of adultery, or cruelty, or desertion with- out cause for two years or upwards. And such separa- tion, or restitution of conjugal rights, may be granted by the Court, or by a Judge of Assize, or counsel named in the commission, and appointed by him ; but any order by a Judge of Assize or counsel may be re- viewed by appeal to the Judge Ordinary of the Court. Decrees for judicial separation may, for sufficient cause, be reversed by the Court when obtained in the absence of the party applying. The Court can direct the husband to pay alimony — that is, an allowance to the wife for her support ; and if he do not pay it, he may be sued for necessaries sup- plied to her. She becomes, after the judicial separation, and whilst it continues, a fefiie sole, a single woman, with respect to property of every description which she * 20 & 21 Vict., c. 85. It is to come into operation on such daj% not sooner than the 1st January 1858, as Her Majesty in Council shall ajjpomt. 74 JUDICIAL SEPARATION AND may acqiiiro, or whicli may devolve upon her ; and if she die intestate, it will j^o as if her husband had been then dead. In case of re-coliabitation, the property will continue to be her separate estate, unless some agree- ment in writiiiii be made between them whilst separate. During the sei)aration she may, as a single woman, enter into contracts, and sue and be sued, and her husband will not be liable for her debts or acts. But they may execute any joint power given to them. I must post- pone for a moment stating the other incidents of a judicial separation, whilst I point out to you the cases in which the marriage may 1)8 dissolved ; and here you will obseiTe that for well-considered reasons the reme- dies are not reciprocal. The hu.sband may obtain a divorce dissolving the marriage upon the simple fact of Ills wife's adultery. The wife can obtain such a divorce only where the husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of foul crimes — for which I must refer you to the statute, and the insertion of which I endeavoured in vain to keep out of the statute — or of adulteiy coupled with such cruelty as would have entitled her to a divorce a mensci et thoro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards. If the case is proved, and the Court shall not find that the petitioner has been m any manner accessory to or con- niving at the adultery of the other party to the marriage, or has condoned (or forgiven) the adultery, or that there is collusion with either of the respondents, the mar- riage is to be dissolved by decree. But the Court is not bound to pronounce such decree (observe, it is not said that the Court may not) if it shall find that the peti- tioner has, during the marriage, been guilty of adultery, or of unreasonable delay in seeking redress, or of cruelty DIVORCES BETWEEN HUSBAND AND WIFE. 75 towards the other j^arty, or has deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct as has conduced to the adultery. This provision, therefore, applies equally to the husband and wife. The petition will be dismissed if the petitioner has been accessory or conniving at the adultery of the other party, or has condoned (or forgiven) the adultery, or there is collusion with either of the respondents. The Court has power to make interim orders for pay- ment of alimony for the wife, and ultimately to suspend the divorce until the husband has made a proper provision for her. The husband must, it seems, in every case make the alleged adulterer a co-respondent to his petition, unless the Court excuse him. The wife, in applying for a dissolution of the marriage, may be ordered to make the person with whom the husband is alleged to have com- mitted adidtery a respondent. Any of the parties may insist upon having the contested matters of fact tried by a jury. In every case, the petitioner must by affidavit verify the facts so far as he or she is able to do so, and deny collusion. And the Court may examine the peti- tioner — husband or wife — on oath ; but they are not bound to answer any question tending to show that he or she has been guilty of adultery. There are some important remedies applicable to all cases. As to children, the Coui't may make such interim or final orders as it may deem just, with respect to their custody, maintenance, and education, and may direct them to be made wards of the Com-t of Chancery. This is interfering with a strong hand with the parental rights of the father. Where the wife is the guilty 76 CHILDREN : RIGHT TO MARRY AGAIN. party, tho Court may order a settlement of her property, cither in jiossession or reversion, for the benefit of the innocint jiarty, and of the ehihlren of the marriage, or any of them. This is as powerful an inteiference with the wife's right of property. When a decree for dissolving the marriage has become final, the respective parties may marry again as if the prior marriage had been dissolved by death. But no clergyman of the United Chuich of England and Ireland is compellable to marry any person whose foiiner mar- riage has been tlissolved on the ground of his or her adultery. But in case of his refusal, when but for such refusal the persons would be entitled to have the service ])erformed in his church or chapel, the minister is to j)ermit the marriage to be solemnised in his church or chapel by any other minister in holy orders entitled to officiate within the diocese. The right to marrj' again couJd not in my opinion have been denied to the parties, although it was strongly opposed, and is stiU objected to by a body of the clergy. The desire not to impose upon the clergy a duty which might be contrary to their conscientious feelings, induced the Legislature to excuse those who objected from performing the marriage ceremony, thus making a law which of course was not deemed inconsistent with the laws of God or man, and yet excusing the clergy who were to give effect to it from obeying it — a dangerous precedent, and the exemption has not given satisfaction to the class in whose favom- it was introduced. The substitute pro- vided, where a clergyman declines to officiate, is well calculated to lead to disunion between neighbouring clergymen, and ought, as it appears to me, never to have found its place in our statute law. A remedy has been provided for the heartless cases of DESEKTION OF WIFE BY HUSBAND. 77 desertion by a husband of his wife, and then returning only to rob her of her miserable earnings — and this has been made general, so as to include cases where the deserted wife has, by her literaiy talents for example, acquired considerable property during the desertion. This protection covers all her earnings and property acquired since the desertion, as if she were a single woman, and binds her husband and his creditors, and any person claiming under hiin. It is to be granted by a police magistrate, if she is resident in a metropolitan district, or, if she is resident in the country, by justices in petty sessions, or in either case by the Court of Divorce. It is requu-ed to be shown that the desertion was without reasonable cause, and that she is maintain- ing herself by her own industry. The order may be reviewed or may be appealed from, but if disobeyed, the wife may recover the specific property, and also double its value. Whilst the order for protection continues, the wife is to be considered as invested with the same rights, and as subject to the same liabilities, as if she had obtained a decree of judicial separation. Finally, on tliis head, the action of crim. con., that disgrace to the nation, has been abolished ; but, by an unpardonable mistake in legislation, this is accomplished in words only, whilst in effect — indeed in words equally plain — a similar right of action is given to the husband, , through the instrumentality of the Court, but to be tried by a jury like the old action, in the case of a petition for either a dissolution or a judicial separation, or even limited to the object of damages only ; and the wife is also to be served with the petition, unless the Court order otherwise — thus really increasing the evil ; for a divorce formerly coidd not in general be obtained without damages had been recovered, and that circumstance was 78 ACTION OF CRIM. CON. always relied \ip(m as an excuse for the husband's demand of a jtccuniar)^ compensation, Avhercas now he may go for damaj^'cs, although he profess an intention not to a.sk for a divorce. The damages, however, are not to belong to the husband, but the Court is to direct in what manner they are to be applied, and to dhrect that the whole or any part shall be settled for the benefit of the children (if any) of the marriage, or as a provision for the maintenance of the wife, and the adulterer may be fixed with the costs of the proceedings in the Court of Divorce. AH were ultimately agreed that the old action should be fliscontinued, and none proposed that the adulterer should not pay in the shape of damages, but many wished no part beyond the expenses to go to the husband, but rather that it should fall into the Consolidated Fund. The measure, as it stands, was not passed without a severe struggle. It is not carefully framed, and is wholly inconsistent with the general enactment abolishing the action. A man may now recover damages for his wife's infidelity wdthout seeking for a divorce, but may continue to live with her upon the damages recovered from her paramour, which may be settled upon her or upon the children ! Even when a divorce is obtained, the damages may be settled upon the chilibx'n of the marriage, and the father may live with his clnhb-en, whilst they are maintained and educated Avith the price of their mother's dishonoui- ! It may well 1)0 doubted whether this is an improvement of the old law, and whether we have freed omselves from the reproach of foreign nations — that we consider a money payment as the proper consolation to a husband whose wife has proved unfaitliful to him. You are aware that, independently of the Act, husband and wife may, by mutual agreement, live separate and AiiKEEMENT FOE SEPAKATION, 79 apart under a deed mtli formal stipulations as to main- tenance, the contracting of debt by the wife, against which some relative usually covenants to indemnify the husband, and other usual stipulations ; but such a deed does not in law dissolve the marriage, and the restitution of marital rights would be enforced if souo;ht for. Our law forbids any provision to be made, either before or after the marriage, for a future sej^aration between hus- band and ^\afe. It was attempted in the late Act to make a separation by consent of husband and wife as operative as a divorce a mensd et thoro, or what is now termed a judicial separation ; but it did not succeed. 80 mother's right to access, etc. to children. LETTER XIIL You have already seen that the Court of Divorce has power over thecliiUren of the marriage where a judicial separation or a divorce takes place. But this is not the only instance in which a father's power over his children is interfered with. A remedy is afforded by statute* to mothers where their huslxmds deny them access to their infant children, or withhold from them the care of those under seven years of age. The authority is given to the Court of Chancery, who, on the mother's petition, may, as well in the father's lifetime or after his decease, as against the guardian appointed by him, make such order as may seem fit for the access of the mother to such infants at such times, and subject to such regula- tions as may be deemed just and convenient; and if such infants are under seven years of age, to order them to be delivered to and to remain in the custody of the mother until attaining such age, subject to such regula- tions as shall be deemed convenient and just ; but these provisions do not extend to a mother against whom aart of liis family until they attain the age of sixteen, or until the death of their mother. An atttinpt was maile, but Avas defeated, to carry this much furtluT, by making a woman who survived her husband liable to provide for his children by a former marriage. A niairii'd woman, although having separate estate, and living apart from her husband, cannot, as we have seen, be compelk'd to contri])ute towards the mainte- nance of the children, unless there has been a judicial .sejiaration or divorce. Lastly, I must tell you that, if you enter upon an estate belonging to any of your children, you will be considered as entering as his guardian, and you will be accountable for the rents received by you. Therefore your possession would not be deemed adverse to your child's right ; and consequently, if you withheld the pos- session, the child would in any view have twenty years within which to recover his property from you after he attained twenty-one. But indeed the Courts would not pennit any guardian entering as such afterwards to set up a title by non-claim against his ward. A person in possession of an infant's estate at the death of his father or other ancestor, claiming adversely, can, how- ever, only be dispossessed by the common process at law. CAUTIONS ON LOANS ON MORTGAGE. 85 LETTER XIV. Mortgages are the next subject to whicli I shall direct your attention, A mortgage is a security for money lent. The bor- rower is styled the Mortgagor, the lender the Mortgagee. If you lend money on mortgage, you should take care to have a good title and property in pledge of sufficient value, and a borrower of character, for, however good the security, if he be a bad paymaster you will find it difficult to obtain your interest regularly. The title will, of course, be investigated by counsel, and you must depend on the judgment of others as to value. In several instances, solicitors have had to indemnify their clients for having lent their money on insufficient security. But this can hardly happen except in small loans on houses, or so-called ground-rents, or the like. A solicitor is, of course, not answerable for the value of the estate pledged, unless he render himself liable by his conduct, for it does not fall within his province to value estates. You are not likely to advance money on mort- gage to speculative builders, or the holders of house property. It is not usual to lend more than two-thirds of the value of the property. Never advance money upon a second mortgage that is subject to a prior mort- gage in another person. It is not a satisfactory security, and you may be compelled to redeem or pay off' the first mortgage, or actually lose your own security. If you do advance money on mortgage of buildings, take care to have them insured in your name. If, however, they are SI', FORGERY OF MORTGAGE DEEDS. k'a.sc'hi)ltl, you should a.scertaiu that such an assurance, if the only ono, would not be a forfeiture of the lease umltT which tiny arc held. Pay till' money yourself to the mortgagee, and see the deed executed. Do not pay the money to the person bringing the deed, although executed and the receipt signed, unless by the written authority of the borrower ; for the mere possession of the deed by the solicitor or agent, will give him no authority to receive the money. It is not safe in all cases to rely on mortgages a[»parently duly executed, and brought to you by the regular man of l)usiness of the borrower, to whom it has been de- livered by your solicitor to get it executed by his client the bon-ower. Unhappily, I have known more instances than one of forged mortgages having been delivered to an unsu.specting lender. In one case, the lender and his solicitors were assembled, waiting for the mortgage deed, which was to be brought duly executed by the solicitor of the suppo.sed borrower, who was confined to his bed by illness; and at length tired with waiting, a messenger was just being despatched to the supposed borrower's house, when the solicitor, who had evidently been delayed in concocting the forged deed and its attestations, arrived with the deed executed and attested, and received the money. He escaped detection at the moment, but ultimately left the countiy. The lender, of course, lost his money. Tliese instances wUl make you cautious, but wiU not lead you to suspect men of character and reputa- tion. It is advisable to keep your own securities in your own deed-box at home, for the same jjersons who forged mortgages forged also transfers of mortgages, and de- livered up the deods to the new lender; an act which was facilitated by the possession of the mortgage deed. The forger, of course, continued to pay interest regularly CAUTIONS ON BOKEOWING ON MOETGAGE. 87 to the first lender. In one remarkable case the agent acted for two persons, and he actually mortgaged the property of one to the other by a forged instrument, and although he and these two persons frequently dined to- gether, the forgery was not discovered till the guilty party was wholly ruined. The lender did not like to talk about the mortgage, and was not called upon to do so, as the interest was regularly paid by the agent, and the supposed borrower was, of course, silent on the sub- ject. Upon a mortgage the title is, of course, investi- gated by the lender's counsel, and the mortgage is pre- pared by his solicitor, but all the expenses are paid by the borrower. But you may borrow as well as lend. As a borrower, bear in mind that you will have to pay all the expenses of the loan, and that in case you do not pay the interest regularly, the mortgagee may compel payment of the principal and interest. You will always be in danger of the mortgagee calling in the money, and thus putting you to the expense of obtaining money elsewhere to pay him off, and of making a transfer of the mortgage to the new lender. You should inquire whether the lender is likely to want his money, or is in the habit of changing his securities. To avoid this danger, it is sometimes stipulated that the lender shall not call in the money for a given number of years, provided the interest is regu- larly paid ; but in that case the lender will probably require an obligation from the borrower not to pay the mortgage off within that period. The statutes against usuiy, which prohibited the reserving or taking more interest than £5 per cent per annum, are repealed, so that you may take for your money whatever amount of interest you can get. It is useless now to consider the policy of the measure. Theo- 88 INTEREST, retiailly no one can deny that the rate of interest should he left to hv retaliated by the lender and borrower, but exj)erienee convinced many j)er.s(ni.s that a total repeal of the usuiy laws was not a safe measure. Wliilst the prohibitittn lasted, 5 per cent was popularly called the natural rate of interest. Habit and the general market rate of interest still induce capitalists to advance money on j^ood mortgages, as a penuanent investment at 5 per cent Under the old law you could not prospectively make uiterest principal, so as to carry interest ; therefore a stipidation in a mortgage-deed that every quarter's interest in an-ear should become principal, and carry interest, would have been void. But as there is no restriction on the amount of interest which may be re- ceived, such a stipulation would, I suppose, now be held valid. But a liberal lender would hardly require such a pro\'ision, and none but a needy borrower would submit to it. The relation of mortgagor and mortgagee should always be one of fair dealing and confidence. After the interest has become due, it of course may, by a regular charge of the mortgagor, be converted into principal, and made to carry interest. And this has been often done when a considerable arrear of interest had accrued. A day is always named for payment of the principal, and in the mean time for payment of the interest. If either the interest or the principal be not paid at the day, the mortgagee (the lender) may at any time recover it, but the mortgagor (the borrower) cannot compel the mortgagee to receive it witliout first giving him six calendar months' notice of his intention to pay it off. If he make a regular tender of the money on the day on which the notice expires, although the lender refuse to accept it, yet interest will no longer nm : but to stop the interest, a regular tender must be made on the pre- cise day. POWEE OF MOETGAGOE AND OF M0RTGAC4EE. 89 In advancing money on mortgage, the estate is regu- larly transferred by conveyance to the lender, but is made redeemable on repayment of the money and inte- rest. The mortgagee takes the absolute interest in the estate at law ; but in equity the mortgagor is still owner of the estate to all intents and purposes. He may settle or devise the estate in the same manner as if he had not mortgaged it ; and if he devise it before the mortgage, his prior disposition will, subject to the mortgage, still remain good, nor will a re-conveyance to him upon pay- ing off the money affect the validity of the will. In mortgages of copyholds it is not usual for the mort- gagee to be admitted. The owner may devise the estate whether the mortgagee is or is not admitted. Formerly a copyholder could not devise his estate without a sur- render to his will ; but this is now rendered mmecessary, as I shall hereafter explain to you. So the mortgagor may sell the estate, and pay off the mortgage out of the purchase-money ; or he may sell it subject to the mortgage ; but a purchaser in the latter case should either require the mortgagee's concur- rence, or should be satisfied that the account stated by the mortgagor alone is correct, and should give notice to the mortgagee of the sale immediately after it is com- pleted. A man buying an estate subject to a mortgage is without any express stipulation bound to indemnify the seller against the debt. A mortgagor cannot after a mortgage make a lease binding on the mortgagee. The mortgagee may at any time evict a tenant holding under such a lease ; but he may absolutely confirm it in regular form, or he may bind himself partially by his acts ; for examjDle, receiving the rent from the lessee, in which case the latter would be considered tenant from year to year under the mort- gagee, and could not be evicted without a regular notice 90 POWERS OF MORTGAGEE. to (piit, l>ut tlio loase woiiM not be confirmed. The remedy of the tenant on eviction would be against the mortjiuiior. It is always stiimlated in mortgages, that until default shall be made in payment of the money the mortgagor shall quietly enjoy the estate. After default has been made the mortgagee may obtain possession of the estate, but although he becomes owner of the estate at law, yet he cannot without an abi^olutc necessity nuike a lease of the lands which will biml the mortgagor; and as in these cases the ])ro])erty is considered a mere security for the debt which belongs to the })ersonal estate, although the estate descend to the heir of the mortgagee, yet he will be a mere trustee for the executor. In order to pre- vent the difHculty of oljtaining a conveyance from an heir-at-law, who may be an infant, or a married woman, or may be out of the kingdom, the mortgagee may expressly devise the estates vested in him by way of mortgage to trustees, with a declaration that the mort- gage-money shall be considered as personal estate. If a mortgagee in possession wish the estate to vest in his devisee for his own benefit, he should expressly devise it to him for his own use, and not trust to its passing imder a general devise of all his real estate ; but it would still be liable to the mortgagor's right to redeem, although the money would belong to the devisee. Ample pro- vision, however, is now made for obtaining a transfer of mortgage and trust-estates from representatives or per- sons incompetent to act.* A mortgagor, even after default in payment of the money, is not liable to account to the mortgagee for the rents duruig the time which he has been suffered to remain in possession. * 13 & 11 Vict., c. GO ; lo & 16 Vict.,c. 55. VOTING : MOETGAGEE IN POSSESSION. 91 A mortgagor may vote at an election notwitlistanding the mortgage, unless the mortgagee be in the actual pos- session or receipt of the rents of the estate, in which case the latter is entitled to vote ; * but the mortgagor, although in possession, must be entitled to a sufficient qualijfication beyond the interest payable on the mort- gage. A mortgagee can take possession if he please, but he should either leave the mortgagor in possession or take possession himself; for if he give notice to the tenants not to pay their rents to the mortgagor, and do not him- self receive them, and any loss is sustained in conse- quence of the notice, he will be liable to make it good. A mortgagee in possession should keep regular accounts, for he is liable to account to the mortgagor for the jjro- fits which he has, or might have, received, without fraud or wilful neglect : he is answerable for wilful neglect, although not guilty of actual fraud ; for instance, if the mortgagee turns out a sufficient tenant, and having notice that the estate was under-let, takes a new tenant, another substantial person offering more. But in gene- ral, if the mortgagor knows that the estate is under-let, he ought to give notice of that circumstance to the mortgagee, and to afford his advice and aid for the pur- pose of making the estate as productive as possible. A mortgagee in possession may, if necessary, appoint a bailiff and receiver, and charge the estate with their salaries ; but if he choose to take the trouble on himself he cannot charge for it, not even formerly, if the mort- gagor agreed to make him any allowance, for that would have been to give him something beyond his principal and interest ; but now such an agreement would proba- * 6 Vict., c.'lS. For the property qualification of a member, see 1 & 2 Vict, c. 48. 92 WASTE BY MORTGAGEE — ADVOWSON. l)ly l)C Ik'M to 111' binding. A mortgagee may always stipulate tor a icrcivfr on his original loan to be paid by the mortgagor. The mortgagee cannot justify committing waste on the estate unless the security is defective, and in that case the waste must be productive of money, which must be apj)lied in relief of the estate ; nor can he enter upon any speculation at the risk of the mortgagor ; therefore, if he ojieu a mine or quarry, he must do it at his oyrti risk, and yet the profit from it would be brought into the account jigainst him. He need only keep the estate in necessary repair, and of course he can re])ay himself out of the rents ; and if he increase the interest in the estate, as by renewing the lives, where the estate is held upon lives, he will be entitled to be repaid the sum advanced, with interest, which will be considered as an additional charge on the estate. Generally speaking, a mortgagee of an advowson can- not present to it, because it would be illegal to sell the presentation. The mortgagee, therefore, as he cannot bring the presentation into the account, must present the nominee of the mortgagor. But where the mortgage is absolute, equity will not restrain the mortgagee from presenting, unless the mortgagor will pay off the mort- gage-money at a short day ; for it may be that the mortgagor will not redeem, and in that case the presenta- tion belongs to the mortgagee. It has always been laid down that neither the mort- gagor nor the mortgagee can, by any adverse act, bar the right of the other. But it was decided in the great case of Lord Cholmondeley v. Lord Clinton, that twenty years' adverse possession, by a person claiming the equity of redemption, will bar the rightful owner. If a man with a bad title make a mortgage, and afterwards, by any MOETGAGOE BAERED BY TIME. 93 means, acquire a good title, he must confirm the mort- gage. So if he obtain an increased interest in the estate, as a renewal of a lease, it will be considered as a graft upon the original stock, and be liable to the mortgage. And, by a parity of reason, if the mortgagee acquire a renewed interest in the mortgaged estate, it will, subject to the mortgage, be in trust for the mortgagor. Now, by statute law,* if a mortgagee is allowed to remain twenty years in possession, or in receipt of the rents, without account, the mortgagor is barred of all his right in the estate, for after that period equity cannot assist hmi in redeeming the estate ; and there is no saving for disabilities, although before the late Act equity, in analogy to the law, allowed ten years after the removal of the disability, where the mortgagor was under any disability to prosecute his claim. But if in the mean time an acknowledgment of the title of the mortgagor, or of his right of redemption, shall have been given to the mortgagor, or some person claiming his estate, or to his agent, signed by the mort- gagee or the person claiming through him, or there has been a payment of any part of the money or interest,t then the time will not run on, but still the suit must be brought within twenty years next after the last of such acknowledgments, or the last of such payments (as the case may he). There are special provisions where there are several mortgagors or mortiragees in regard to ae- knowledgments. The statute law has made this differ- ence, that that which before the statute was a sufficient declaration by word of mouth, must now be in writing, and signed by the mortgagee, or the person clauning under him. The acknowledgment may be made out by * 3 & 4 Will. IV., c. 27 ; 7 Will. IV., and 1 Vict., c. 28. t 7 Will. IV., and 1 Vict., c. 28. 94 MORTOACE BAERED BY TIME. letters or deeds, Init a mere transfer of a mortgage, sub- ject to the e(|uity of redemiition, will not amount to an acknowledgment. On the other hand, if the mortgagor is allowed to re- main twenty years in possession Avithout any acknow- ledgment or payment of any })art of the principal or interest, the mortgagee will lose his security. No action or suit can be brought to recover any money secured by mortgage but within twenty years next after a piesent right to receive it has accrued to some person capable of uivinii' a discharge for it, unless in the mean time some part of the money or interest has been paid, or some acknowledgment of the right to it shall be given in wilting, signed by the mortgagor or his agent, to the mortgagee or his agent ; the time will run from the last of the payments or acknowledgments, if more than one. And there is, it seems, the same restriction upon an action or suit to recover the land as there is upon • an action or suit for the recovery of the money. Whether, therefore, you are a mortgagor or a mortgagee, you must be vigilant, or you may lose your property. As you are tenant for life under your settlement, and happen also to have vested in you a mortgage binding the inheritance, your right to the money secured by the mortgage -will not be aflfected by time running against you during your life, for yours is the hand both to receive and pay. K a mortgagee wUl not re-convey upon payment of the principal and interest, and costs, and the right to redeem is still open, the mortgagor may by a bill in equity compel a redemption. On the other hand, if the mortgagee is desirous either to obtain back his money, or to have the estate discharged of any right of redemption, he may file a bill against the mortgagor for what is FOEECLOSUEE. — SALE. — SECOND MOETGAGE. 95 termed n foreclosure, and the mortgagor will be decreed to pay the money and interest at a day named, or to stand foreclosed of all right to redeem the estate. After such a decree is perfected, if default is made in pay- ment of the money, the mortgagee becomes absolute owner of the estate. But equity will be anxious not to hastily foreclose the mortgagor ; and therefore, under proper circumstances, the time limited for payment of the money will be enlarged more than once, if there is a fau- prospect of the mortgagor being able to repay the money. This is frequently a great hardship on the mortgagee, but the rule is not extended to a bill by the mortgagor for redemption ; the time there will not be enlarged. A more effectual remedy for a mortgagee is now fur- nished by statute.* The Court may, upon the request of the mortgagee, or of any subsequent encumbrancer, or of the mortgagor, direct a sale of the property instead of a foreclosure. But if any other party apply except the mortgagee, his consent must he obtained, or the party applying must deposit in Court a reasonable sum, to be fixed by the Court, for the purpose of securing the per- formance of such terms as the Court may impose on such party. If the mortgagee in such a suit is allowed to bid for the estate, he will not be allowed to conduct the sale. If a man make a second mortgage without giving the second mortgagee notice of the first mortgage, or if he make a mortgage after having otherwise encumbered the estate, and do not, within six months after notice given to him by the mortgagee, pay ofi" the encumbrances, he will, by a legislative provision, be barred of all equity of redemption, or right to redeem the estate.-f A mortgage is assignable, and the concurrence of the * 15 & 16 Vict, c. 86. t 4 & 5 Will. III., c. 16. OG TRANSFER OF MORTGAGE. — POWER OF SALE. iuortf;a!ior in tlie transfer is not actually necessary. But I advise you never to accept such a transfer without the mortgagor's concurrence, for an assignee will take subject to the real state of the account between the mortgagor ami mortgagee, and therefore he should be well satisfied that the account is correct, if he dispense with the mort- gagor's concurrence. The mortgagee alone cannot charge more money, he cannot increase the principal, he cannot make the interest principal. An assignee of a mortgage is entitled to the whole sum due, although he buy it at a less price. If a mortgagee is in possession, he should be careful to whom he assigns his mortgage without the concurrence of the mortgagor, for it has been considered that, if the assignee of the mortgage were insolvent, the original mortgagee would be answerable for the rents re- ceived, as well after as before he assioned his mortgage. I must now draw your attention to the modem mode of introducing into mortgages a power to the mortgagee to sell, in case of default, for a certain specified time, to pay either the interest or principal secured. This is an im- portant security to the mortgagee, as it enables him, in the event provided for, absolutely to sell the property, and to pay himself his piincipal, interest, and costs, -without having recourse to a court of equity or a court of law to get the money repaid, or the estate itself secured to him ; but as he is in the nature of a trustee of the power of sale, he cannot himself buy the estate, nor can any one for him at the sale, although by auction. This power, if the deed so provide, may be exercised by the mortgagee without the mortgagor's concurrence : and if the mortgao-ee act fairly, he will be the person to decide upon the time and the conditions of sale ; but he should not fix upon an milikely day to attract bidders for the former, nor intro- MOETGAGES PAYABLE BY HEIR OR DEVISEE. 97 duce unusual stipulations in the latter. A mortgagee who sells imder the power, cannot charge more than the expenses usually allowed to a trustee, and this even where he is an auctioneer, and he or the firm to which he be- longs sells the estate by auction. Before proceeding to a sale the mortgagee should carefully ascertain that the event has taken place, upon the happening of which he has a right to sell. If trustees have a simple power to mortgage, they cannot give to a mortgagee a power to sell the property. Lastly, I must inform you, that the law has lately been altered as to the right of your heir or devisee to have a mortgage on your estate paid ofi" out of yom* personal estate ;* for if you do not by your will or other docu- ment signify a contrary or other intention, your heir or devisee will not be entitled to have the mortgage paid out of your personal estate, or any other real estate of yours. This, however, does not affect the mortgagee. Your heir or devisee will still be entitled to requn"e the purchase-money to be paid out of your personal estate, for any estate which you have contracted, but not paid for at the time of your death. * 17 & 18 Vict., c. 113, ajiplies only to persons dying after 31st Decem- ber 1854, and does not api^ly to any will or document made before 1st January 1855. 98 LEASES TO BE BY DEED. LETTER XV. It now comes in order to give yon a few instructions as to Leases. "WTiat I have to say on this head will lie in a narrow compass. Leases not exceedincr three years from the time of making them, whereupon the reserved rent amounts to two-thirds of the improved value, may be granted by parol, or word of mouth ; but all other leases must be in writing, according to the provisions of the Statute of Frauds which I have before mentioned, and so must an a/jreement for a lease, however .«jhort the term ; although here, as in the ease of purchases, equity vnW, in some instances, for which I refer you to Letter VII., enforce even a parol agreement to grant a lease. To this, how- ever, a party should not trust. By a recent statute,* leases required by law to be in writing are made void at law unless made by deed. Therefore, as with the exception of lea.ses not exceeding three years at a rent equal to two-thirds of the value, all leases must have been made in writing, noiv they must be made by deed; and assignments and surrenders of leases (not being of a copyhold interest) are equally required to be by deed. There are exceptions which would only puzzle you if I were to attempt to explain them. It will be sufficient for you to know that you cannot safely grant or accept a lease, or an assigimient, or surrender of one, without a deed. This alteration of the law has led to much embarrass- ♦ 8 & 9 Vict., c. 106. AGEEEMENT FOR A LEASE. 99 ment. The judges felt the difficulty of holding a lease in writing, but not by deed, to be altogether void, and consequently decided that, although such a lease is void under the statute, yet it so far regulates the holding, that it creates a tenancy from year to year, and terminable by half a year's notice ; and if the tenure endure for the term attempted to be created by the void lease, the tenant may be evicted at the end of the term without any notice to quit. If an agi'eement, not by deed, for a lease for a term of years, to begin at a future day, were made, and it were to be construed to be a lease, it would of course be void under the statute, and the intended tenant could not force the landlord to give him possession at the time when the lease was to commence, for he would be entitled to possession only on a tenancy for the years agreed upon, and that tenancy never commenced; but it was said that the party might proceed upon the agreement to grant such a lease. This will show you the difficulty which may arise upon an informal agreement since the statute ; for before the statute, if the writing, not under seal, was held to be a lease and not an agTcement, still it was in favour of the intention, as collected from the in- strument, and it did operate as a lease ; but now in a like case, the intention, as collected, does not create the lease, but destroys the instrument. An agreement for a lease, like an agreement for pur- chase, must contain the names of the parties, the consider- ation — viz. the rent, and also the property to be demised, and for what term. The parties must sign the agreement by themselves or their agents, in Kke manner as an agreement for a purchase. And the caution which I before gave you, in regard to wiiting letters about the sale or purchase of an estate, applies equally to leases. I 100 AGREEMENT FOR A LEASE. must observe, that notliing can be added to an agreement of tliis kind l)y parol or verbal evidence : you cannot, for instance, if the agreement is silent on that head, show that the tenant agreed verbally to pay the land-tax. Tlie parties must stand or fall by the written agreement. Therefore, whatever the tenns are upon which you agree, you must reduce them to ■wiiting. If you should ever be imder the necessity of entering ■into an agreement to grant a lease, without the assistance of your solicitor, insert an express declaration that it is meant to be an agreement, and not an actual lease. It has frequently happened, that what was intended by the parties as an agreement only, has been construed to be a lease, by which means the tenant has evaded the condi- tions which would have been imposed on him if a regular lease had been granted. The law is not altered by the recent statute to which I have before referred.* ^Vhat before the statute would have been a lease, although in form an agreement, will still be so construed, although, if not made by deed, the consequence may be, as I have already sho^ni to you, that it will be void at law. It is highly desirable that agreements for leases should contain a minute of the covenants to be entered into by the tenant. Disputes frequently arise as to the covenants to which the landlord is entitled. If you wish your tenant not to part with a lease without your consent, you should stipulate by the agreement that a proper clause for that purpose shall be contained in the lease, because you cannot insist upon such a restraint imless it is bar- gained for. If you agi-ee to grant a building-lease, the tenant must engage by the lease to insure the property, although the * 8 & 9 Vict., c. 106. INSURANCE : OPTION TO RENEW. 101 agreement was silent on that head ; but the rule is other- wise as to tenants at a full rent, or, as we term it, a rack- rent. K, therefore, you mean that a tenant at rack-rent shall insure at his own costs, you must make him agree to do so by the contract. If you omit this, the lease must be so framed as to exempt him from making good accidents by fire. But even in this case you are not bound to insure ; and although the house should be burned down, yet the tenant must continue to pay the rent : so that each bears his burden ; you lose your house, and the tenant loses his rent during the term. If, however, you have insured, although not bound to do so, and received the money, you cannot compel payment of the rent if you decline to lay out the money in re- building. It is material, however, to observe, that what- ever may have been the agreement, unless the tenant is exempted by the lease from making good accidents by fire, he must, under the common covenants to repair, rebuild the house if it is burned down. If you agree to grant a man a lease, and he after- wards says that he is merely a trustee for an insolvent who claims the lease, you are not bound to grant it. It may be useful to state that if you grant, or even agree to grant, a lease, to hold for seven or fourteen, or any other nmnber of years, in the alternative, the option to determine the lease at the end of the first term men- tioned is in the tenant, and not in you ; therefore, if this is not your intention, you should expressly provide by the agreement, or lease, that the option shall be in you as well as the tenant. You should always, before granting a lease, consider what interest you have in the estate. If you are merely tenant for life, without a power of leasing, you must not grant a lease beyond your own life. If you have only a 102 LEASES UNDER POWERS : FINE. jimvei' to grant a lease, which is the case with every man wliosc property is settled on his family, you should coiiuminicate that circumstance to your solicitor, and furnish liiiii witli a copy of the power, because a very sliuht deviation from it may render the lease void, by which you may not only ruin your innocent tenant, hut may, by the covenant which you must enter into •with hhn, for quiet enjopnent of the land, subject your estate to make good his loss in case he is evicted by the person entitled to the estate after your death. This has too frequently happened. A painful instance occurred in the year 1778. Sir John Astley and his vnfe settled her estate to certain uses, with a power of leasing to Sir John. They then, under a power in the settlement, gave the estate, after theu* deaths, to Lord Tankerville. Sir John granted a lease under his power, and died. Lord Tankerville, when he came into posses- sion, took advantage of a defect in the lease, and turned out the tenant, who recovered his loss out of Sir John's estate, under a covenant entered into by him for quiet enjoyment ; so that his property suffered severely by the act of the person to whom he had joined, with his wife, in giving the estate. If you are restrained by your power from taking a fine Oil granting a lease, you must not accept any sum whatever from the tenant. But, although you are re- quired to reserve the best rent which can be obtained, yet you are not compellable to take the highest actual offer for a lease provided you act bond fide, and reserve a proper rent, because in the choice of a tenant there are many things to be regarded besides the mere amount of the rent offered. There shoidd, however, be some strong pmdential reason to induce you to grant a lease to one at a lower rent than is offered by another. EQUITABLE RELIEF TO A LESSEE. 103 You may exercise a power of leasing for your own benefit. For this purpose you must procure some per- son as your trustee, to become bound for the rent, &c. For if a proj)er person is legally bound to pay the rent and perform the covenants, it is unimportant to the person succeeding to the estate that the beneficial in- terest belongs to another. The person to whom the lease is granted should execute a deed, declarmg him to be a trustee for you. I have only one other caution to give you as to leases. Carefully avoid comprising in the same lease, at an entire rent, property, some your own, and some over which you have merely a power ; such a lease would be void as to the property comprised in the power. A court of equity will, by force of its own jurisdiction, support a bond fide lease granted under a power which is merely erroneous in form or ceremonies. And the Legisla- ture has recently carried the right to relief much further ;* for now where, in an intended exercise of a power of leasing, a lease has been, or shall be granted, which, by reason of any deviation from the terms of the power, shall be invalid against the remainder-man, and the lessee has entered under it, it is to be considered as a contract for a lease, with such variations as may be necessary in order to comply with the terms of the power ; but the tenant cannot obtain any variation of his lease where the person in remainder is willing to confirm the lease without variation ; and where any person is competent to confirm an invalid lease without variation, the lessee can be compelled to accept such confirmation. The statutes, however, greatly favour the lessee, for he can compel a new lease to be granted to him with the neces- * 12 & 13 Vict., c. 26 ; 13 & 14 Vict., c. 17. 1 01 ACCEPTANCE OF RENT. — LEASE IN ANTICIPATION. snry variations, whilst the landlord has no power to compel him to accept such a lease. It is further provided that the acceptance of rent under any such invalid lease shall, as against the person acceptiiiL' it, amount to a confirmation of the lease ; but to hind himself he must, upon or before the acceptance of the rent, sign some receipt, memorandum, or note in writing, confirming such lease, and then the acceptance of the rent will render it complete. It sometimes happens that, under a misapprehension, a teiumt for life grants a lease by vii'tue of a power be- fore he is properly in possession as tenant for life, and the statute renders such a lease valid if the person granting it shaU continue to be entitled to the estate after the time when he might have granted such a lease. COUET OF CHANCEKY MAY AUTHORISE LEASES. 105 LETTEE XVI. Where powers beneficial to all persons who could claim under a settlement were not contained in the deed or will strictly settling the estate, Parhament was in the habit, but with great caution, of supplying the omission ; but now, to save the expense and delay of resorting to the Legislature, provisions have been made* which ought to be known by every owner of a settled estate in the kingdom The provisions apply to Ireland as well as to England. You must be content with an outline of them. The Court of Chancery is empowered from time to time to authorise leases of the whole or any part of any settled estates, or of any rights over or affecting them for any purpose whatsoever, whether involving waste or not, upon the conditions imposed by the Act — viz.. Every lease is to take effect in possession or within 1 year, and for terms not exceeding 21 years for an agricidtural or occupation lease. 40 years for water, water-mills, way-leaves, &c., or other easements. 99 years for a building-lease, or, in this instance, if authorised by custom, for a longer term. The best rent, without a fine, is to be reserved half- yearly, or often er, with special provisions as to mmerals and the interests therein of remainder-men. The lease is not to authorise the felling of trees except where necessary for the buildings or works authorised by the lease. * 19 & 20 Vict, c. 120. 1 06 LEASES TJNDEB THE AUTHORITY The lease is to be by deed, and the lessee is to execute a omntorpart ; and there is to be a condition for re-entry if tlie rt'Ut is 28 days in arrear, and such other covenants jis the Couit shall diiect. The Court may authorise prelunuiaiy contracts, and the terms may be varied in the leases. The lessees may surrender the leases, and new leases may be granted of the property sui-rendered. The Court is to direct who are to be the lessors. The Act then provides by whom ajiplication may be made to the Court, and with whose consent, with other imjMtrtunt provisions; but most of these provisions apply equally to sales under the Act, to which I propose to call your attention in my next Letter, and I do not therefore add them here. I will afi&x an asterisk to such of them as refer to leases, and thus put you in possession whilst I avoid a repetition of them.* The Act, then, provides that every person in posses- sion of any settled estate for his life, or years determin- able with his life, or for any gTcater interest in his own right or in right of his wife (unless there is an express declaration to the contrary in the settlement), and also any person entitled in possession to any unsettled estate as tenant by the curtesy, or in dower, or in right of a ■wife seised in fee, without any application to the Court of Chancery [pray observe this] may lease the estate (except the principal mansion and the demesnes and lands usually occupied vn\\\ it) for 21 years ; but this power only extends to settlements made after the 1st of November 1856. The lease under this last power must be made to take effect in possession and by deed, and at rack-rent without * P. 115. OF THE COUET OF CHANCEEY. 107 a fine, which rent will go with the estate. The lease must not be made dispunishable of waste, and must con- tain a covenant to pay the rent, and such other usual and proper covenants as the lessor shall think fit, and a right of re-entry on non-payment for 28 days of the rent, and on non-observance of any of the covenants in the lease. A counterpart of the lease is to be executed by the lessee, but the execution of the lease by the lessor is made evi- dence that a counterpart of it has been duly executed by the lessee. There are two important j)owers in the statute — one relates exclusively to leases, the other is general — which may properly find their place in this Letter. I. The Court is authorised, where it shall be deemed expedient, to vest any general powers of leasing any settled estates either in the existing trustees of the settle- ment or in any other persons, and may impose any con- ditions as to consents or otherwise on the exercise of such powers, and may also authorise the insertion of provisions for the appointment of new trustees for the purpose of exercising such powers of leasing. II. The Court, with a due regard to the interests of all parties, may direct that any part of any settled estate be laid out for streets, roads, paths, squares, gardens, or other open spaces, sewers, drains, or water-courses, either to be dedicated to the public or not, and the Court may direct the parts so laid out to remain vested in the trustees, or to be vested in any other trustees, and with provisions for the appointment of new trustees, as shall be deemed advisable. I may now mention to you that rents received upon a lease by a tenant in fee, or for life, or gTanted under a 1 OS SHORT FORMS OF LEASES. j)Owcr, and all other rents becoming due at fixed periods under any instrument, are, upon the death of any person interested in such rents, or on the determination by any other means of his interest, made apportionable in favour of such person or his personal representatives, unless it shall be expressly stipidated that no apportionment shall take j)l;ice.* I shall conclude this Letter by informing you that there is an Act of Parliament-f- which, if you express your lease to be made in pursuance of it, enables you to adopt a few words to which an extended meaning is given by the Act : the object was to facilitate the granting of leases by shortening of them, but like its twin brother, an Act for Shortening Conveyances,J it has not, I believe, been resorted to in practice. * 4 & 5 Will. IV., c. 22. t 8 & 9 Vict, c. 124. 4: 8 & 9 Vict., c. 119. AGKEEMENT FOE A SETTLEMENT : FRAUD. 109 LETTER XVII. The subject for the present Letter is the Settlement of your Estates. I may premise that the Statute of Frauds, to which I have so often referred you, requires agreements made upon consideration of marriage to be in wiiting, and signed by the party to be charged therewith, or his ascent. A letter, however, is considered a sufficient agreement, if it contain the terms, and amount to an offer. In one case a man wrote a letter, signifying his assent to the marriage of his daughter, and that he would give her i^lSOO ; and afterwards, by another letter, upon a further treaty concerning the marriage, he receded from the proposals of his letter. And at some time afterward he declared that he would agree to what was propounded in. his first letter. It was held that this letter was a sufficient promise in writing ; and that the last declaration had set up again the terms in the first letter. Reliance, however, should never be placed on a mere letter. Equity will, in some cases, relieve a party on the ground of fraud, although there is not a valid agree- ment. A man of the name of Halfpenny, upon a treaty for the marriage of his daughter, signed a wiiting, com- prising the terms of the agreement ; and afterwards designing to elude the force of it, and get loose from his agreement, ordered his daughter to put on a good humour, and get the intended husband to deliver up the WTitmg, and then to marry hini, which she accordingly 110 NATURE OF A COMMON ditl ; aTid Halfpenny stood at the comer of a street to see them go l)y to be married, and afteiward refused to perform the agreement. He was, liowever, compelled by equity to do so ; although while the case was before the (.'ourt he walked backwards and foi-wards, calling out to the jut any i)ers()n who.se consent to the application ou;,'ht to have heen and was not obtained. * The Court lias power to order the costs to be a charge on the estates, or to be raised by sale or mortgage of them, or out of the rents. * The powers given by the Act, and applications to the ( "(nu't and con.sents, may be exercised by guardians for infants, l)y conmiittees for lunatics, and by assignees of bankruitts or insolvents ; but the special direction of the Court is required in the cases of infants, or lunatics tenants in tail. * Tlie usual provision is made for the separate exami- nation of a married woman applymg or consenting ; but although she is restrained from anticipation by the settlenient, yet the Court may exercise any of its powers, and it is ununportant that she is an infant. There is a proviso, that estates rendered inalienable by Act of Parliament, or where the reversion is in the Crown, shall not be sold or leased beyond twenty-one years. And there is a saving of the rights of lords of manors. I have only to add, that no one is compellable to make or consent to any application to the Court, or to exercise any powers, whether to lease or to sell. A desire has often been shown, not merely to improve the law (»f real pro])erty, but unnecessarily to alter it, and to admit only simple settlements after the fashion of tlie Code Napole(jn. But the present plan of a strict .settlement in this country is free from all objection. It does not ])lace land extra commercium, but within rea.sonable limits enables the o^^^ler to transmit it to all his posterity ; and from its very nature leads to succes- sive settlements, which alone have kept many estates EXPLAINED AND DEFENDED. 119 ill the same families. Our law allows no dispositions which tend to a perpetuity, nor can we attach any con- dition to our gifts which are against public policy ; for example, you could not limit an estate to one in fee upon condition to be void if he cultivated his arable land, and there are other instances which were brought forward in the great Bridgewater case in the House of Lords. We have substituted for fines and recoveries another simple but deliberate form ; have protected contingent remainders without the elaborate machinery formerly resorted to ; and have at once enlarged the testamentary power, and altered the law of revocation by subsequent disposition. These improvements, and the disposition to curb the rising desire to evade the wholesome rule of law as to perpetuities, have struck at the root of the leading evils in the law of property. The common law was evaded, because mankind, in spite of legal restrictions, will settle their property on their j)os- terity and relations in succession. The rule as now established is open to no inconvenience. If we look at the frame of a common marriage-settlement, we shall find it strictly jDrovide for all the issue of the marriage, and yet not suspend, beyond a reasonable period, the power of alienation. The estate, as I have before stated, is limited to the husband for life ; then the wife, if she survive him, is to have a rent-charge for life ; and sub- ject to that, the estate is to go (1.) to the first and other sous successively in tail male ; remainder (2.) to the first and other sons successively in tail general ; re- mainder (3.) to the first and other daughters in tail general, or, if you will, to all the daughters as tenants in common in tail general, with cross - remainders in tail general, with remainder to the settlor in fee, and portions are provided for the yomiger childi'en. Now 1 20 MARRIAGE SETTLEMENTS umler such a settlement the father enjoys the whole estate for his life without control ; upon his death the sons, and their issue male after them, take in succes- sion, and then the issue female of the sons are let into the enjoyment ; and if they fail, the dauy till' inability of the father to make any re-settlement without his son's consent, is also an important result of such a settlement. It would not be endured that a son sliduld be allowed, living liis father, to dispose of the family estate without his ftither's consent, although limited to him, subject to his father's life-interest. The present system leaves the son the full property during his father's lifetime, for the purposes of transmission by descent, and assures to him, as far as is practicable, the enjoyment of the estate when in the regular course it devolves upon him in possession. It restrains his wanton alienation of it from the family before he knows its value ; but as he can, with his father's concurrence, acquire the fee and make a new settlement, few, indeed, are the instances in which the mutual interests of the father and son do not lead to an equitable adjustment of their rights, when the proper time for a new disposition arrives. It is objected that these purposes are effected by a conifilicated and an expensive machinery ; but whoever complained of the complex movements in a well-finished watch ? We admire the connection of its parts depend- ing on each other, and all necessary to form the combina- tion which produces the desired results. Why then should we conq^lain of a well-digested settlement? Its length is occasioned by the multiplicity of its provisions, most of which will, and every one may, be brought into action : the ab.sence of a single one may tend to great expense and inconvenience. Settlements, as they are now framed, are the result of the improvements of centuries ; they meet the wishes and wants of mankind. EXPLAINED AND DEFENDED. 123 and are open to no sensible inconvenience ; and yet we are required at once to discard them for ever. The attempt to shorten conveyances by legislative enact- ments has been proved to be hopeless ; it must be left to the good sense and honour of the conveyancers ; for if you were to render it unlawful to adopt any other than a prescribed form of grant, yet a long deed might always be made by unnecessary recitals of the previous title. There were forms necessary for unfettering a freehold estate which have been abolished ; but upon a close inspection we shall find how great a debt we owe to our ancestors at the bar, and on the bench, for the very forms of which we complained ; they were all invented to obviate the injustice of prior statutes and laws, and have led to the system under which we have flourished. They are now no longer necessary. The benefits have been retained without the ceremony, which had become use- less and expensive : we are more enlightened, and feared not to do that directly, which our ancestors could only accomplish indirectly ; and therefore we were all agreed that the substance should be retained, and that we should arrive at it by a cheap and direct road instead of an expensive and crooked way. Let us never confound substances with forms ; and because we do not approve of the trappings, sacrifice the noble animal whom they encumber, but do not adorn. In executing the powers vested in you by your settle- ment you must always be guided by good faith : if under a power to lease at rack or full rent, without taking a fine or premium, you accept a bonus, you com- mit a fraud on the power, and your lease wUl accord- 12\ TENANT FOR LIFE RESTRAINED in;,'ly bo void ; if you exercise a power to jointure your wife with a stipulation that slie .shall join with you in sceurinji your tlebts on her jointure, the appointment will he vi»icL Nor must you abuse your authority. If you have a jtower to sell settled estates, and to lay out tlu' moiu'y in the ])urchase of other estate.s, although tluTi' is a direction in the .settlement that until a pur- chase is found the money shall be laid out in the funds, yet the intent of the power is, that one estate .shall be sold only f(^r the purpose of laying out the money in the purchase of another. Therefore you cannot sell the estate in order to keep the purchase -money out at interest, for that would increase your income at the ex- pense of the capital. It would, it is true, give you a larger per-centage ; but the same money probably would not at a distance of time purchase an estate of the same value a.s that which you sold. In some instances equity will restrain rights given by a settlement with which you may conceive they ought not to interfere. Under your marriage settlement you are tenant for life, without impeachment of waste, or, in other words, you are not punishable for committing waste, and consequently you may legally cut down as much timber on the estate as you please. But still equity will not suffer you to cut down any trees which are an ornament, or afford shelter to the mansion-house, or to any of the buildings on the estate, or which grow for ornament in any of the vistas, avenues, walks, plea- sure-grounds, or plantations on the estate. Nor can you justify the act, by having yourself planted even millions of trees on the estate subsequently to the settlement ; therefore, if a man making a settlement really mean to reserve power to cut whatever timber he please, whether it afford ornament, or shelter, or not, the intention FEOM COMMITTING WASTE. 125 should be expressly declared in the settlement. The power which the courts of equity have assumed to restrain the exercise of the right which the words " without impeachment of waste " confer at law, is a power which one cannot but lament they should possess. The Court can, in general, only judge of the ornament or shelter afforded by the trees from the affidavits in the cause. Men are but too ready to support the cause of their principal, without always considering sufficiently the justice of it. Affidavits flatly contradicting each other are in these cases almost invariably made by the agents of the different parties. This facility of restrain- ing a tenant for life from exercismg his legal right foments and irritates domestic strife, makes the son the shameless antagonist of his parent in an open court of justice, and fixes into eternal enmity that disagreement which concihation might happily have effaced. If such a proceeding wound the peace of a parent in the evening of his days, how severe a punishment does the child inflict on himself ! To save a few perishable trees, he preserves, while they last, a monument of Ms want of filial duty ; he keeps a signal to remind his own children of the duty which they owe to him. Equity will also restrain a tenant for life, although without impeachment of waste, from defacing or pulling down the mansion-house. This was done in the year 1716, in Lord Bernard's case. He had almost totally defaced the mansion-house, by pulling down great part of it, and was going on entirely to ruin it, whereupon the Court not only enjoined him not to proceed farther, but compelled him to rebuild, and put it in the same plight and condition it was at the time of his entry thereon. Where money to any considerable amount is settled, a 1 jr, ILLUSORY APPOINTMENTS. power sliould be reserved of laying it out in land to be ro-sold when convenient, and in the mean time to be treated as money. In money settlements, generally, and sometimes even in settlements of real estate, a power is reserved to the jMirent to appoint the property to all or such of the iiit the projtortions amonost the children, he cannot exclude any ; eveiy one must have a share ; but he may now give to any a share merely nominal. * The Act which made what were termed illusory ap- ])ointinents, that is, ajjjjointments of nominal sums, good in equity, as they always were at law, proceeded upon this principle, that as the power reipiired every one to have a share, the donee of the power could not properly exclude any, although he might give what he pleased — Is., for ex- ample, to one or more. Of course, where the power is to appoint to any exclu.sively, he may give all to one ; as in substance he may under the former power. But still in this, as in all other cases, the power must not be abused. An apjxtintment cannot be made to a child under any stipulation for the parent's benefit ; for example, that he .shall jf)in in a sale of the estate, although the child may, after the appointment, if he think fit, join with his father in selling the estate, and the transaction cannot be im- ]>eached if the money is fairly paid to the father and son. So if you have a power to api^oint any sum to any of your '•hildren, at what age you please, you cannot appoint it to a sickly child under age, in order that upon his death you may get it as his administrator. Almost any instrument, however infomial, upon which the intention clearly appears, Avill be deemed in equity a good execution of a power of jointuring, or of appointing • 1 Will. IV., c. 46. HOTCHPOT : COVENANT TO SETTLE. 127 property to your children ; but such difficulties arise in these cases that I cannot too much impress upon you the necessity of never doing any act in relation to estates over which you have only a power, without first applying to your sohcitor. Where a power is given to appoint a fund amongst children, and the property is given to them in default of appointment, it is mostly declared that no child shall take a share of any part unappointed, without biinging his appointed share into hotchpot — which word hotch- pot, our famous judge Littleton, with great gravity, tells us is, in English, a pudding. The object of this provi- sion is to compel a child, to whom part is appointed, to bring his appointed share into the general fund, if he is desirous to take a share of the part unaiopointed. Thus, suppose there be two children, and the fund to be artiality do rise so high, and he will make a difiference, he must do it directly, absolutely, and by a gift siurendering all his own right aud interest ; he must give out and out ; he must not exercise his power by an act which is to take effect, not against his own interest, but only at a time when his own interest -will cease. He cannot, for instance, give property in his lifetime to one child, reserving the inte- rest to himself, for such a gift is, in fact, testamentary, and in fraud of his agreement. If after you have disposed of an estate by will you make a settlement of it, under which the estate is still vested in you, subject to the interest given to others, generally speaking, it will not now be necessary to re- execute your will. Partial interests may be created, so as not to aftect the operation of a prior will as to the in- terest left in the settlor, if there are proper general words in the will to pass it; but you should inquire whether the conveyance renders a re-puljlication of your wUl neces- sary, or, perhaps, it woidd be better to re-publish your will without inquiry. Tlie operation of your Avill in .such a case will be exjdained to you in Letter XIX. I have still to di-aw your attention to a recent Act of Parliament, of gi-eat importance, which would have led to mucli mischief if the Court had not properly come to the determination that it had power to consider the pro- l»riety of the marriage. INFANTS SETTLEMENT. — SUCCESSION DUTY. 129 Tliis Act* makes it lawful for every infant, ui^on or in contemplation of marriage, with the sanction of the Court of Chancery, in a summary way, to make a binding settle- ment or contract for one of all, or any part of his real and personal estate, or of property over which he has any power of appointment. But this is not to extend to powers, of which it is declared (by tlie instrument creat- ing them), that they shall not be exercised by an infant. The Act gives the same power to a female infant, but the male must not be under the age of twenty years, or the female under the age of seventeen years. The policy of the Act in giving this power to a young man between twenty and twenty-one may be doubted. But if any appointment under a power, or any disen- tailing assurance, as it is termed — that is, the mode appointed by law to enable a tenant in tail to dispose of the fee which I have explained to you in Letter X. — shall have been executed by any infant tenant in taU under the Act, and such infant shall afterwards die under age, such appointment, or disentailing assurance, will become absolutely void. This was quite right. I must conclude by reminding you of the Succession Duty Act,-f which has deprived property of half its charms : it is as if a blight had fallen on the fair fields of England. Every man had the right to keep his parclmients — his sheepskins — in his own box, in his own house : no one had a right to pry into the contents of his settlements. Now eveiy man's settlement must be open to the tax office and to the Government of the day, ever on the watch for a new succession, in order to levy a new duty. If, for example, a stipend is provided for an old * 18 & 19 Vict., c. 43. t 16 & 17 Vict., c. 51. I 180 SUCCESSION DUTY. servant who diis, as even annuitants some time must, that eivatcs a suctession, and the person entitled to the pr(»jK'ity has to pay duty for his new enjoyment. You cannot, when liable to duty, cut trees on your estate beyond the value of i?10 a-year, without giving notice to the tax officer, and paying duty. Mr Pitt, in the plenitude of his power, was foiled in bis attempt to in- troduce a much milder imjiost on successions than is fixerovisi(iii for your wife, to state whether you mean it to lie in lieu of ilower. If you have given your chihhen legacies by your will, and afterwards advance i)Ortions with them on their marriage, you should declare by a codicil whether they are still to be entitled to the legacies. If you have advanced them in your lifetime, and then make any j)rovision for them by your will, you should declare whether you mean it t(j be in addition to the advances. So if you have i^iven a legacy by your will, and you afterwards give another to the same person by a codicil, you should declare whether or not you mean him to have both. In giving instructions, where you wish your estate to remain in your family, state to your solicitor, whether you mean your sons' daughters to be preferred to your own or not, and whether your sons' daughters are to be preferred to your daughters' sons, and so on ; and also state what powers you wi.sh them to have — as to lease, jointure, grant ])ortions for younger children, sell and exchange ; and if you do not intend them to exercise the powers given to tenants for life generally by the Legis- lature (which I have referred to in Letters XVI. and XVII.), state so distinctly. Never in your will say generally that your debts shall be paid, but declare out of what fund they are to be ]»aid ; nor leave it in doubt, if it should become neces- .saiy to sell your property to pay them, by whom the sale is to be made. The Legislature has saved you from the danger of ".sinning in your grave,"* by not pro- viding for the paynient of your debts ; for now all your property, both freehold and copyhold, which you shall • 3 & 4 Will, and Mary, c. 14; I Will. IV., c. 47 ; 3 & 4 Will. IV., c. 104. INSTRUCTIONS FOR WILL. 133 not by your will charge with or devise subject to your debts, and of course all your personal estate, will be liable at your death to all your debts — by simple con- tract as well as by specialty. I am somewhat unwilling to give you any instructions for making your will, "without the assistance of your professional adviser ; and I would particularly warn you against the use of printed forms, which have misled many men. They are as dangerous as the country schoolmaster or the vestry clerk. It is quite shocking to reflect upon the litigation which has been occasioned by men making their own wills, or employing incom- petent persons to do so. To save a few guineas in their lifetime, men leave behhid them a will which it may cost hundreds of pounds to have expounded by the Courts before the various claimants will desist from litigation. Looking at this as a simple money transaction, lawyers might well be in despair if every man's will were pre- pared by a competent person. To put ofl" making your will, until the hand of death is upon you, evinces either cowardice, or a shameful neglect of your temiDoral con- cerns. Lest, however, such a moment should arrive, I must arm you in some measure against it. If you wish to tie up your property in your family you really must not make your own will. It were better to die without a will, than to make one which will only waste your estate in litigation to discover its meaning. The words " children," " issue," " heirs of the body," or " heirs," sometimes operate to give the parent the entire disposition of the estate, although the testator did not mean any such thing. They are seldom used by a man who makes his own will without leading to a lawsuit. And now an operation has been given to like words by the new statute, which I could not explam to you with- 134 CONDITIONAL GIFTS. out you possessed more knowledge of law than I give you credit for* It were useless for nie to attempt to show you how to make a strict settlement of your ]n-o- perty, and therefore I will not try. I could, without difficulty, run over the names of many judges and lawyers t)f note, whose wills made by themselves have been set aside, or construed so as to defeat every in- tention which they ever had. It is not even a profound knowledge of law which will ca]>acitate a man to make liis own will, unless he has been in the habit of making the wills of others. Besides, notwithstanding that fees are ]iurely honoraiy, yet it is almost proverbial that a lawyer never does anything well for which he is not fee'd. Lord Mansfield told a story of himself, that feeling this influence, he once, when about to attend to some pro- fessional business of his o^\ni, took several giuneas out of his pur.se, and put them into his waistcoat pocket, as a fee for his labour. Always avoid, and particularly when you make your own will, conditional gifts and devises over in particidar events. It is the folly of most testators to contemplate a great many events for which they too often inadequately ])rovide. You give me a horse, " and if I die," you give it to my son. Here a question at once arises, when the death is to happen — Generally ? In your lifetime, or in my son's ? Pray avoid this ; and if you must give a thing over, after you have given the entire interest to one, state precisely in what event, and if depending upon the (hath of the first legatee, whether you mean a death in your lifetime, or in the lifetime of the legatee over : And I nuist tell you, that where you have given the al)solute interest, you ought not to make any gift over which will not take effect in a life, or lives, who shall be • 1 Vict., c. 26. MODE OF EXECUTING ■ WILL. 135 in existence at your death. The rule goes somewhat farther, but I would not advise you, without advice, to go beyond the line which I have marked out ; and, indeed, without advice you wiU be more bold than wise to go even so far. Where a man has a large family to provide for, it is often advisable to direct all his property to be turned into money, out of which he may order his debts and lega- cies to be first paid, and the residue to be laid out at inte- rest in the names of trustees, for the benefit of his famUy. Sometimes a man making his own will omits to name executors, which causes much trouble and considerable expense after his death. As regards the will itself, the all-important point is to comply with the new statutes m the mode of executing your wnU.* Formerly there was a wide distinction be- tween real and personal estate, for a devise of the former required three witnesses, while to a bequest of the latter no witness was required. Now, whatever is the nature of the property, two witnesses are required to every will or codicil. Every testamentary instrument is in this respect placed on the same footing. The first altera- tion of the law made hundreds of vdlls void ; they were, when attempted to be proved, carried away in baskets- ful as valueless, simply because the testator's name was directed to be signed at the foot or end of the will, and upon this slight foundation it was decided, that if there was somewhat more room than enough for the signature between the end of the will and the actual signature, the will was void, so that at last it rather required a car- penter to measure the distance in each case than a judge to decide upon the application of the Act. This great reproach to the law has been removed by * I Vict., c. 26 ; 15 Vict., c. 24. 1. •',(•, IK.W A WILL SHOULD BE EXECUTED. ail act fi»r wliicli T am responsible, and it would be diffi- cult now for a man to plac-e his sii;nature so as to render his will void, for it will lie valid if the signature be so placed at or after, or following or under, or beside or opposite, to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will. And it will not be affected by any of the trifling circumstances which are enumerated, upon which men's wills had been set aside, and the enumeration of these circumstances is not to restrict the generality of the enactment ; which clause has been overlooked by a leanied person, who laments in print that the circum- stances should have been enumerated, lest any Tuay have been omitted. The Act has put an end to all ditiiculty. But although the signature is properly placed, yet any disposition or direction which is underneath, or which follows the signature, will be inoperative, nor of course ^^^ll the signature render valid any disposition or direc- tion inserted after the signature shall be made. But not to trouble you with nice distinctions, I advise you to make your will in the following manner : — Take care that if written on several separate sheets of paper, they are all fastened together, and that the pages are numbered. Sign your name at the bottom of each sheet, and state at the end of your will of how many pages your will consists. If there are any erasures or interlineations put your initials in the margin opposite to them, and notice them in the attestation. The attestation should be already written at the end of the Avill, and may be in this f(»rm : — " Signed liy the above-named testator, in the presence of us present at the same tinrie, who have hereunto signed (Mir names as witnesses thereto, in the presence of the HOW A WILL SHOULD BE EXECUTED. 137 said testator, and in the presence of each other [the words interlined in the 4th line of the 3d page having been first added, and the erasures in the 7th and 8th lines in page 6 having been first made."] The two persons intended to be the witnesses should be called in, and told that you desire them to \vitness your will, and then you should sign your name in their presence, and desire them each to look at the signature. Your signature should follow your will, but should pre- cede the signatm^es of the witnesses, for if you were to sign after they have signed, your will would be void. Wlien, therefore, you have signed, they should sign their names and residences at the foot of the attestation. You will observe, that according to the attestation, neither of the witnesses, although he has signed the attestation, should leave the room until the other witness has signed also. Remember that they must both sign in your pre- sence, and therefore yoii should not allow them to go into another room to sign, or even into any recess, or any other part of the same room, where it is possible that you might not be able to see them sign. If, there- fore, you do not choose them to sign after you at the same table or desk, have a table placed close to you be- fore they come into the room, so as to create no con- fusion, at which they can and ought to sign before leav- ing the room. If you were to send your servant, who happened to be one of your intended witnesses, out of the room even for a table, he must leave the room before you sign. If after your death a question were to arise upon the fact of your having signed in the presence of both of the witnesses present at the same time, the man would of course admit that he left the room before you did sign, and then imagine what reliance would be placed upon that fact in cross-examination, and in the l.'S HOW THE TESTATOR AND WITNESSES luUlrcss U) tiie juiy. The precaution which I recommend would jiU'vent this ditticulty from arising. Evt-n if you are ill and confined to your bed, you should have a table ready at your bedside at which the witncssi-s should siuii after you, and you should not turn your back ujioii thoni whilst they are signing. These simple precautions will render it impossible to impeach your will for want of its due execution. Tiie actual law is, that no will shall be valid " unless it shall be in wi'iting, and signed at the foot or end thereof by the testator, or by some other jJerson in his presence, and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator ; but no form of attesta- tion shall be necessary." And the words, " at the foot or end," have been explained and extended by a later Act in the manner to which I have already referred, so as to render valid any common mode of signing a will. You ^^•ill ol)serv"e, therefore, that if you cannot sign your name yom-self, some other person may do so for you in your presence, and by your direction, but this should be noticed in the attestation. It will be no objection that the person signing for you is also one of the attesting witnesses. It has been decided, that where a person signed for the testator, but in his own name, stating it to be for the testator, and by his direction, the signature was a good one. You might, if you could not write, or did not choose to do so, sign by your X or mark, and so may the witnesses, if they cannot write ; but to sign by a mark when you can wTite would be an act of folly, and if you can avoid it, do not have marks- men for witnesses. Although one of the witnesses is SHOULD SIGN THE WILL.— RE-EXECUTION. 139 unable to write, yet the other cannot sign for him ; but in such a case the other witness may guide the hand of the witness unable to AViite, so as to enable him to write his name. It would, however, be more advisable to let a marksman affix his mark. A husband cannot sign for his wife where they are the witnesses. A witness cannot, by going over his signature with a diy pen, give effect to it as a new sig- nature ; nor can he, by adding a further description to liis place of residence mentioned in his original signa- tm^e, give a new effect to that signatm'e. You should attend to this if you have occasion to re-execute your will, and should requh-e the witnesses to re-write their names as witnesses to the re-execution. I will presently explain to you the object of a re-execution of your will. The initials of the testator and of the former witnesses have been deemed sufficient to give eff'ect to interlinea- tions made in a will where they were opposite to the interlineations ; but I recommend you in such a case to have all the names written at length. I have shown to you that there must be two witnesses to your will ; but you may have more if you please, although I advise you to be content with two. But although a witness cannot give effect to his sig- nature by recognition, yet you will have observed that you, the maker of the will, may if you please sign your name in the absence of the witnesses, provided you acknowledge your signature, not merely the will, in their presence. But the witnesses should see that the will is signed by you. Pray attend to this : if you do not sign in their presence, point out your signature carefully to them, although you need not tell them that it is your will, but it is better to do so. If you were purposely to fold your vrill so as to conceal all its con- 140 TKSTIMONY OF THE "WTTNESSES. tents and the attestation clause, and the witnesses were not to see you sign nor see your signature, the will would be void, although you acknowledged the paper to he your will before the witnesses. But even gestures by a testator, intimating that he lias siirned the will, and wishes the witnesses to attest it, liave been held sufficient where they saw the signa- ture. A will, however, will not be set aside simply \i\um the infirm or confused recollection of witnesses. Their want of recollection where the will, on the face of it, is pntperly executed, will not have much weight. At a distance of time, persons not accustomed to witness the execution of instruments, forget nearly all that passed ; tlierefore defective memory alone in witnesses cannot be allowed to overturn a will. The Court mu.st first be satisfied that the will was not duly executed, and wliere the negative is not established, the affirma- tive must be held to be proved. Where a will was properly signed on the face of it, and two servants attested it, and the testatrix was writing when the first of tliem went into the room, although neither of them knew it was a will, or saw the testatrix sign, and she did not acknowledge her signature, yet as the paper was open, and they might have seen it, the will was establislied. If the witnesses disagree, and the one against the will is discredited, the evidence of the other, with corroborating circumstances, would support the will. If you follow the plain directions which I have given you, no .such question could arise. I have advised you to keep both of the witnesses present until they have both signed the attestation. This is not required by the statute, and after some doubt, it appears to be settled that it is not necessaiy, although I think it highly expedient, for it will impress WHO SHOULD BE WITNESSES. 141 the matter more upon their minds ; but do not fall into an error on this head. You must sign or acknowledge your signature in the presence of the two witnesses present at the same time, according to the very words of the statute. I have furnished you with a formal attestation, which will save both delay and expense in the proof of your will after your death ; but although the statute requires the witnesses to attest and subscribe the will, yet it declares that no form of attestation shall be necessary, so that no attestation clause whatever is required. If the witnesses sign as such, that is sufficient. The word " witnesses," for example, prefixed to their names at the end of the will, would be a compliance with the law. The Act protects you against the incompetency of the witnesses to prove the execution of your will ; so that although they may have been guilty of crimes, for example, which would formerly have excluded their evidence in common cases, yet that would not render your will invalid.* You would not, of course, if you were aware of it, allow persons of bad chai'acter to wit- ness your will. Creditors or executors may prove a will to which they are attesting witnesses ; but no person to whom you give a legacy, or to whose wife or husband you give one, should be a witness to your will ; for although the testimony of such a witness would be good, the legacy to him or her, or to his or her wife or husband, would be void. I have advised you not to lose sight of the witnesses mitil they have signed the attestation : on no account allow til em to take the will out of the room where you are to sign it, or even to sign it in any part of the room where you cannot see them. The decisions on this * See further, 6 & 7 Vict., c. 85. ; 14 & 15 Vict., c. 99. 112 CODICILS. — WILL MADE AT INTERVALS. head reflect no credit on the law of England. It is, however, .sufficient if the witnesses sign where you might see them ; it is not necessary to prove that you actually did see them. I have endeavoured, but in vain, to prevail upon Parliament to place the law upon this subject upon a better footing. Even in the case of a blind man, he is treated as if he could see, for the witnesses must sign where, if he enjoyed the organs of sight, he could see them ! In one case, where a lady went to her attorney's office to execute her mil, but executed it in her carriage in the jn-esence of the witnesses, who then returned into the office to attest it, the validity of the will was established, because the carriage was accidentally put back to the window of the office, through which, it was sworn by a person in the carriage, the lady might see what passed — that is, the witnesses signing the attestation. In another case of this natm^e, there was an unseemly contest between the Court of Chancery and the juries who had to try the validity of a will of a noble Duke, which depended upon the question whether the testator could see the witnesses who signed in an adjoining room. Two juries found in favom- of the will, and yet the Court directed a third trial. If you add a codicil to your will, you should call it a codicil, and should execute it, and have it attested, just as if it were an original will. Remember that you cannot give a single additional legacy without once more going through these ceremonies. Do not make your will at intervals. If you do you must execute what you have written every time you leave off, and it must be attested just as if it were a full disposition, if you mean to give effect to it, although you should die before you finish your will. If you were to wnite several testamentary instruments on the same WHEEE EE-EXECUTION OF WILL NECESSAEY. 143 sheet of paper, and sign them both, and the witnesses were actnally witnesses to the signature to both, yet if they signed an attestation at the end of the first instru- ment, that would not render the second operative. If you obliterate, interline, or make any other altera- tion m your will after it is executed, you must re-execute your will in like manner as if it were an original will ; but it is only necessary that you should " sign your name, and the witnesses subscribe theirs in the margm, or on some other part of the will opj)osite or near to such alteration, or at the foot or end of, or opposite to, a memorandum, referrmg to such alteration, and written at the end or some other part of the will." If you neglect this direction, the alteration will not have any eiSect, except so far as the words or effect of the will before such alteration shall not be apparent ; for if the obliteration is effectual, of course the disposition in the will as it originally stood cannot be made out ; and where the intention is simply to revoke, and not to sub- stitute another legacy for that given by the will, no evidence can be admitted to show what the words really were ; but expert jjersons may be employed, and magnify- ing glasses may be used in order to make out the words. Generally speaking, any alteration should be made by a regular codicil, and not by obliteration or interhnea- tion. If there are any interlineations in your will unattested, it will be presumed that they were made after the execution of your will, and they consequently will be inoperative, although parol evidence may be received to show that they were made before the will was executed. A codicil duly executed will make the will speak as of the date of the codicil, unless a contrary intention appears. So a will or a codicil not duly executed may be rendered 1 1 1 OPERATION OF CODICILS. — POWER. valul by a later codicil duly executed, and referring clearly to it, or in such a manner a.s to show the inten- tion; therefore, if you were to begin your codicil, "This is a codicil to my last will," and there was only one will, those words would set up the will although not duly executed But if you had several wills and codicils in your possession, and some were duly executed and some were not, and by a codicil duly executed you were expressly to confinn all your wills and codicils, this codicil woiUd only confinn those which were duly exe- cuted ; for they by themselves would satisfy the strict meaning of the words. This was decided in a contest for large legacies under dispositions by the late Marquess of Hertford. No doubt a harsh constniction ; but without perplexing you with other instances of a strict construc- tion on this head, this may serve to point out to you how carefid you should be in refening carefully to any miexe- cuted testamentaiy papers wliich you desii-e to render valid. Although by a codicil, duly executed, you may set up a prior will, not duly executed, yet you cannot by a will, though duly executed, give validity to any future codicil you may make not duly executed. I may observe to you, that if you have a power to dis- pose of any property hy your will, which means a right to give it to another, although the property itself does not belong to you, and the wUl is required to be executed by you in a particular manner, or in the presence of a par- ticular number of witnesses, or nothing is said on the subject, you must execute your will in exercise of the power precisely in the same mode as if you were dis- posing of your own property, and it is not necessary to observe the mode of execution required by the power itself. WILLS BY MAERIED WOMEISr OR INFANTS. 145 I shall wind up this long letter by informing you that your wife cannot make a will miless of property settled to her separate use, or which she has power to dispose of by will, or of personal property with your consent, nor can any of your children make a will, as they are aU under the age of twenty-one years ; although, until the late Act, an infant might have disposed by will of his personal estate. 146 REVOCATION OF WILLS LETTER XIX. I NOW propose to infonii you how you may revoke your will, or revive it after you liave revoked it ; and my observations will apply to codicils as well as to wills. Your will, then, may be revoked by another will or codicil executed in the maimer I have already pointed out, or by some writing declaring an intention to revoke it, and which nmst be executed in like manner ; or by the burning, tearing, or othei-wise destroying the same, by yourself, or by some person in your presence and by your direction, with the intention of revoking the same. As there must be an intention to revoke, if a testator, whilst of unsound mind, were to destroy his will, probate would be granted of the draft of the will ; and destruction of the will by accident or mistake, if clearly proved, woidd not defeat the gifts, if the contents of the will could be shown. A man's will duly executed was found at his death with the signature of his name erased, but with another like signature just below where the origuial signature stood, and no explanation could be furnished, but the will was supported, as it was considered that the erasure was not made by the testator with an intention to revoke his will You nmst be content with these instances. But then you may revoke your will by burning, tear- ing, or otherwise destroying it, which enactment excludes the mode which was sanctioned by the former law, of cancellation, or striking the will through with a pen ; therefore crossing out your name or the names of the witnesses is not a revocation. BY BURNING, ETC., OE MARRIAGE. 147 But burning, tearing out, or cutting out your name from the will would be a revocation, for your will could not operate without your signature. The whole will would be destroyed by the removal of your signature. A will written in pencd would be destroyed by removing the words by india-rubber ; even obliteration may amount to a revocation, as where the testator obliterates his name so that it cannot be made out, or if he erases it in like manner with an intention to revoke. If, however, you intend to revoke your will, the safer way is wholly to destroy it. And if you have executed two parts of your will, take care and destroy both, although the destruction of one part G LAPSE. — ESTATE TAIL. the value of the residue, whether more or less, then of course my observations would not apply. By the new law, an estate in fee will pass to a devisee without words of inheritance, just as a personal chattel will. If you give a man a horse, he takes it as his ;il)s(ilute ])roi)erty; and now, if you give him a house, lie will take all youi- interest in it without any further words, unless a contrary intention appear by your will. To prevent such a constniction, you should still, as of old, give the house to the devisee, his heirs and assigns, where you mean him to take the fee. If you intend him to take it for life only, you should not give it to him generally, but expressly foi' his life ; and if you wish the devisee for life to have a power to cut timber, add, " without imjieachment of waste." If you give a country house, carefully sj)ecify what closes or lands you mean to go with it. If you give an annuity charged on your real estate, you must still add words of inheritance to the gift ; for example, " to him, his heirs and assigns," if you intend the devisee to take it beyond his life. I must still bring two more provisions of the new law to your notice. Formerly, if you had devised your estate, for example, to one and the heir.s-male of his body, which, as I have explained to you in Letter X., would create an estate in tail-male, and the devisee had died in your lifetime, the devise would have lapsed or failed altogether, although he left male issue living at his death. This never could be the intention, and it is now happily j^revented. Therefore, where a contraiy intention does not appear by the will, a devise of an estate tail wiU, although the devisee die in the testator's LAPSE. — GIFT TO CHILDKEN, ETC. 157 lifetime, take effect as if his death had hapj)ened imme- diately after the testator's death, or, in other words, his issue, who would be inheritable under such entail, accord- ing to the words, will take the estate as tenant in tail. The other provision is, that if you should give, by your will, any real or personal estate to any of your children or grandchildren, for any interest which will not determine at or before the death of such child or grandchild, and he or she shall die in your lifetime leav- ing issue, and any such issue shall be living at your death, the gift will not lapse, but will take effect, as if the death of the child or grandchild had happened immediately after your death, and therefore will form part, according to its quality, of the real or personal estate of the deceased child or grandchild. But this will not be so, if a contrary intention appear by the will You should therefore consider whether you mean your gift to your children, and your children's children, to take effect if they die in your lifetime ; and if you do not, you must say so. The provision, you will observe, does not apply to gifts which are not to endure beyond the life of the legatee ; for of course in those cases there is an end of the gift whenever the legatee dies, whether before or after you. But keep in mind that the general gift in your will to your child, for example, will belong to him if you leave it unrevoked, and will pass by his will although he die in your lifetime, and will not belong to the children whose existence at your death prevented the legacy from lapsing. The Act* which abolishes the old jurisdiction, and establishes a new Court of Probate, with District Courts and a limited jurisdiction in the County Courts, provides not only for the custody of your will after your death, * 20 & 21 Vict., c. 77. l.'iS DEPOSITORY FOR WILLS. liut directs that convenient depositories shall be pro- vided, under tlie control of the Court, for all such wills of living- persons as shall be deposited therein for safe custody ; and that all persons may deposit their wills, in such depository, upon payment of such fees and under such regulations as the Judge of the Court shall by order direct. If you are likely, from time to time, to alter your ■\\dll, I shoidd advise you not to deposit it in this depository. If I were a devisee of a living testator, I should like to hear that the will was in the new depository. The expense and difficulty attending tlic getting a will out of this custody, would deter many men from capriciously altering their donations. CREATION OF TRUSTS. 159 LETTER XXI. Theee are few social questions of more importance than that which is the subject of this Letter — the relation between trustees and their cestuis que trust, as they are termed, or the persons for whom they are trustees. Pro- perty could not be enjoyed in the Wiiy in which we, hus- band and wife, parents and children, succeed to it, unless men could be prevailed upon to assimie the office and undertake the duty of trustees. It is a true act of friend- ship to accept an onerous trust. In the creation of a trust, the person whose property is to be the subject of it, has to weigh well how far he can confide in the inte- grity of the proposed trustee — more especially where stock or railway shares, for example, are to be transferred into his name ; and to guard as well against dishonesty as against death, or an inability or unwiUingness to con- tinue a trustee, more than one is generally appointed, with a power, in case of necessity, of appomting a new one. On the other hand, the proposed trustee has to reflect upon the liabilities which he will incur. The harsh rules of equity in making him answerable as for a breach of trust, where he has acted with perfect good faith, and according to the best of his judgment, although not strictly according to the trust, or perhaps not in accordance with some rule of equity of which he was ignorant, and upon which his trust-deed would not en- lighten him, are calculated to alarm him ; he may well hesitate, for he can hardly have lived long in society without meeting with some family whose prospects in life have been destroyed by an iimocent error of the 160 CONDUCT OF BENEFICIAL OWNER. head of the liouse in the execution of a trust. He will find, too, that unless his cestuis que trust are, after the creation of the trust, more reasonable than the generality of mankind, they will want to deal with the trust - pro])erty as if it belonged to them absolutely, and not merely as bound by the trust. Some men, although only tenants of life of the fund, desire to si)eculate with tlie trust-money or stock, just as if it were not .settled ; and if the trustee refuse to allow this, a coolness ensues between the parties, which threatens to sever the friendship between them. On the other hand, if the trustee allow this perpetual dealing with the trust-fund, although it may be strictly legal, it places the fund, and consequently himself, in constant danger. The money must be intrusted to bioker.s, agents, bankers, solicitors, and may inconsiderately, or unavoidably, be left in their hands for too long a period, or may be impro- perly retained, or even wasted or misappropriated by them, and then would arise the question of the liability of the trustee. He may be a great sufferer in the execu- tion of his trust, but he cannot be a gainer, for equity wiU not allow a trustee to pay himself for his trouble, or in any manner to derive any benefit from the funds with which he is intrusted. And Parliament has prohibited him from voting in respect of his trust-estate, and vested the right in the cestui que trust in actual possession, or in the receipt of the rents, though he may receive them through the hands of the trustee.* Such considerations as these make prudent men hesitate to accept the office of a trustee ; yet every man of property, in his turn, requires the offices of a friend, and thus relatives and friends are constantly in a manner forced to become trustees. But there is a growing disinclination to accept • 6 Vict., c. 18. This was quite right, but it illustrates the manner in which every benefit is denied to a trustee. PAYMENT OF TEUSTEES. 161 the office, and several modes of avoiding the difficulty have been suggested or attempted. One plan is, that a trustee shall be paid for his services, and then it is said that he cannot object to the Uabilities which he will incur. Now this is altogether repugnant to our habits and feelings. The office is to be filled by a friend with whom we can communicate freely and confidentially, as with one who feels an interest in our family and its prospects. A paid trustee would stand in a difierent character, and the money allowed to him, in many Distances, would find its way into the pockets of an agent. We should have to deal with him at arm's-length. We should dread his visits, or his journey to town, know- ing that they would be charged for ; every letter would form an item in a bill. A per-centage on the fund, which would be a heavy tax in all cases, would be accepted, in many without any feehng of responsibility to perform the duties of the office. If a man is to be paid, it must be for the duty actually performed, and that would ren- der it necessary to make it a matter of charge and ac- count. What man of right feeling would accept the office upon such terms ? Undoubtedly there are men who, if payment were the rule, would make a trade of the office, and, like other tradesmen, endeavour to attract custom to their own mill. To meet these objections, it was proposed by the South Sea Company, upon its dissolution, and also by a private company, to obtain powers from Parliament to enable them to carry on the business of trustees and executors, for which, of course, they were to be paid. They were defeated in this attempt. The trade of a Trustee ! The business of an Executor ! Fancy it written over a shop- door. If established, of course, the most rigid construc- tion would be put upon trusts, so as to render the com- L 162 rUBUC COMPANIES. — TRUSTEES, pany safe, witli constant references to counsel at the ex- pense (if the parties. Expense ■would be certain — benefits doubtful. Property would be promptly accepted, but not parted with without hesitation and rigid examina- tion of proofs, leading to delay, and not unfrcquently to a Chancery suit, the costs of whicli would undoubtedly fall on tlie claimants. Looking at the ordinary iides of equity in regard to the disposition of trust-funds, such a company could not exist without daily committing breaches of trust — for example, if £1000 three per cents of yours were to be transferred to them upon certain trusts, that sum would be added to their other like stock ; there would be no earmark ; the Bank would take no cosTiisance of the trusts ; and all the stock of the com- pany would stand in their name as one fund, although it might be composed of sums belonging separately to one hundred different families. When, therefore, they made any sale, no one could distinguish whether it was yours or another man's stock Their own accounts would be kept separately, but that would not affect the actual dealing with the funds. Again, if £1000 in money were paid to the company upon trust to be invested, although it might in due time be invested, yet in the mean time it would be paid into their bankers, and form part of their general cash, and would unavoidably be used for their benefit ; yet no private trustee could venture thus to deal with his trust-monies. But although these projects did not succeed, yet a private company of high character has been formed for the purpose of exe- cuting trusts and executorships, but limited. Such associations are not only open to aU the objections which I have pointed out, but their limited liability would deter a prudent man from intrusting them with his for- tune. A private trustee is liable to the extent of all his PUNISHMENT OF FEATJDULENT TEUSTEES. 163 means for any loss to the fund by his mismanagement, or breach of trust. And the examples of failures of joint-stock bauldng companies, even where the share- holders are liable to the full extent of their means, are too recent and alarming not to make men hesitate to rely upon any company as their trustees or executors. How, then, you will probably ask, can we best support this important relation with safety to both parties. Par- liament has made fraudulent trustees answerable crimiti- ally for their acts. As the bill was originally framed, I could not have agreed to it, as it appeared to me to expose honest trustees to new dangers ; but as it ultimately passed, I supported it willingly, and I can assure you that neither you nor any other trustee acting with common honesty need fear its provisions. But, ac the same time, while we punish dishonest trustees, we ought to relieve honest trustees from such of the rules in equity as press too hardly upon them. This I attempted to do last session, and the bill for that purpose passed the House of Lords, but was postponed in the House of Commons at the end of the session : no doubt that or some better measm-e for the relief of trustees will be passed in this session. I will by-and-by explain these measures to you. With these, and common precautions, I hope that the rela- tion of trustee and cestui que trust may still be main- tained without danger to the former, and with safety and benefit to the latter. But I shall conclude this Letter with some advice how to avoid the dangers to which a trusteeship or executor- ship may expose you. Now, first, as to the trusts which you have already accepted. Without alarming your friends for whom you are a trustee, quietly look into the trusts, which you can generally manage without the aid of a solicitor, and see that the funds are secured and in- 164 OVERPAYMENTS TO vested accoi-ding to the trusts, and that you are not pay- ing more to a tenant for life than he is entitled to under the trust. This hitter point is all-important, for it fre- quently happens that a trustee incurs a serious loss by paying to a tenant for life a larger income than equity would allow him. If, therefore, you are paying to any tenant for life the rent of a leasehold estate, or interest upon any fmid yielding more than 3 per cent, ascertain that the leasehold ought to remain unsold, and the rent paid to the tenant for life, and that the funded property or money othei'wise secured ought to remain in its present investment, and the interest paid to him. If the fund is a 3 per cent stock, you may safely go on paying the in- terest to the tenant for life without inquiry ; for a 3 per cent stock is that which a comt of equity always selects and approves of. I wiU show you the danger to which you may be exposed in paying a large rate of interest to a tenant for life. An officer in the East Indies advanced .£'2000 to the Company on one of its loans at 10 per cent, re- deemable at the end of ten years : he returned shortly aftei-wards to England, and ordered his interest on the d(?2000 to be paid to him in London, which he had power to do ; he died in a short time, having bequeathed his property to a trustee to convert it into money and invest it in the usual way, and to pay the interest to his wife for life ; and, after her death, to pay the principal to another lady. After his death, the tmstee, finding the fund not payable for some years to come, although it might have been sold, followed the testator's example, and, leaving the money midisturbed, paid the 10 per cent to the tenant for life. In 1813 the loan was paid off by the Company, and the money was invested by the trustee in the 3 per cents, and it so happened, by a fall TENANT FOE LIFE. 165 in the funds, that with the money the trustee was enabled to purchase ^£'826 stock beyond what would have been obtained had the trustee, as he ought in strictness to have done, sold the loan at the end of a year after the tes- tator's death, and then invested the money : so that, in consequence of his neglect, the fund was increased by upwards of ^800 stock. In 1820 the lady, then entitled to the fund, who had not before taken the trouble to inquire about the fund, filed a bill against the trustee for a breach of trust, and he was decreed to pay to her all that he had paid to the tenant for life beyond 3 per cent on the loan, amounting to upwards of .^'lOOO, and the Court positively refused to allow him to set off" the £826 stock, the benefit which she obtained in con- sequence of the very act — viz. the delay in converting the fund, of which she complained. You will no doubt think this not very equitable, and one object of my bill is to prevent such an act of injustice ; but this case will serve to show you the danger to which, as a trustee, you are exposed, if you do not convert property in due time. Do not lay out your trust-money on mortgage, unless you have power to do so ; for if you do, and there should be a loss, you might be made responsible. The usual mode of authorising a loan on mortgage is to empower the investment of it "on real securities." Consider yourself always responsible for the receipt or payment of the trust-money. See, therefore, that the money is paid to the right hand, and in like manner, when paid off, receive it yourself Upon advancing money upon mortgage, personally pay the money to the mortgagor, and see the deed properly executed ; when it is paid off, attend and receive the money at the time of executing the reconveyance. There is danger in executing the deed and signing the receipt without at the same time receiv- H\Ct SAFETY OF TRUST-MONEY. ing the money. This precaution will no doubt give you trouble, but it may preserve you and your family from litigation and licavy loss. You will be safe if, pending a transaction for the investment of the money, you pay it to regular bankers, though they should fail ; but never pay tnist-money into your general account, but to a separate account, as trustee ; and be scrupulous in drawing upon that account for the trust only. You would expose yourself to liability to interest or profit if you used the money as your own. Never allow the money to be received, or, if that can- not be avoided, to be retained by brokers, agents, or soli- citors. If you have a co-trustee who is a solicitor, unless you repose confidence in him, you should, upon lend- ing the money upon any security, employ a solicitor of your own. It is only the other day that one trustee sold the trust-stock and gave the money to his co-trustee, a solicitor, to invest upon a mortgage to be obtained from a client of the co-trustee's ; the laitQT fraudulently obtained a mortgage to both for the money from the client, and the mortgage was set aside as against both the trustees, so that the honest trustee had been a party to an act by which the money was lost. You may be safe in allomng your co-trustee to receive the trust-money, if you join in the receipt of it only for the sake of con- formity, but it is dangerous to do so, and it is always better to have it paid into a banker's you can rely upon in your joint names. If you permit your co-trustee to receive it, you must look sharply after it, for you will not be absolved from seeing that it is in due time applied according to the trusts. Where one of three trustees was a solicitor, and acted in the trust as solicitor for himself and the other trustees, and was allowed to receive the purchase-money for an estate which they sold, and for ACTING UNDEE COUNSEL S OPINION. 167 which they all gave a receipt, it was held that the solici- tor received the money, not in that character, but in the character of trustee. In a case of real difficulty, you should be careful how you act under counsel's opinion, for if you are wrongly advised, and act accordingly, you will be responsible. And now, as I shall explain to you in my next and last Letter on this subject, you may in a summary, and com- paratively with former proceedings, an inexpensive mode, obtain the opinion of the Court of Chancery on the rights of the parties. Following literally the words of your trust will not always be safe : for instance, although you were empowered to lend the trust-money on real or personal security, and are declared not to be responsible for any loss, yet it would not be safe to lend the money to a trader, and of course not to any one in doubtful cir- cumstances, to your knowledge. It is desirable also that you should ascertain that the securities vested in you have had legal validity given to them as far as you can insure it. Upon a marriage, a mother assigned an unregistered judgment to a trustee for her daughter for life, and the judgment had remained unregistered about a year and a half before it was thus assigned ; now to give full effect to the judgment, it ought to have been registered. The trustee naturally left the security as he found it, and a loss having been sustained by the non-registry of it, he was compelled to make it good. This shows the necessity of requiring, when you accept a trust, all the securities vested in you to have every legal validity given to them of wliicli their nature admits. Of this you cannot be a judge, but you should impress the necessity of this step on your solicitor. The advice which I have given to you in your charac- ter of a trustee will apply equally to your conduct in the I (18 FUNERAL EXPENSES. office of an executor. But in tlie latter character, you must 1)0 careful in your expenditure on the funeral, for if you are not careful, and the assets run short, you may iiave to pay the greater portion of them yourself. You should, of course, see whether the testator has himself iriven directions in his will about the nature or expense of his funeral, which should be complied with as far as his projxTty will justify a compliance vnth his wishes. You should be careful not to leave any money outstanding upon personal security — note of hand or bond — for although the testator himself lent it upon that security, and so let it remain, yet it will be your duty to enforce payment of it : nor can you justify neglecting to bring an action for a debt where there is a probability of its being paid. You shoiild see that rents to which, as executor, you are entitled, are duly brought into your account : you cannot excuse yourself by allowing one of the cestuis que trust to act as collector. It is not my object to point out to you how the assets or property of the testator are to be disposed of, for all that I could explain to you within the compass of my undertaking is sufficiently known to you, and to all men ; and for anything beyond that, you must necessarily act under legal advice. But there is one difficulty to which I must advert. When the debts are all paid, as far as you can ascertain by advertisements and inquiries, the legatees or next of kin will require the residue to be paid to them. You will, of course, be entitled to an indemnity against any demand which still binds you ; for example, future rent under a lease to the testator. But you will be liable to any creditor who remains unpaid, although you advertised fully, and he brought in no claim until after you had paid over the residue to the legatees or next of kin. You may have PAYMENT BY EXECUTOR OF EESIDUE. 169 done all that the Court of Chancery would itself do, if a bill were filed to have the assets administered by the Court, in which case payment, with the sanction of the Court, to the legatees or next of kin, would free you from all liability to any unpaid creditors ; and yet the Court, if you act on your own authority, will compel you to pay the unpaid creditors. This, as the law stands, renders it necessary that you should, where there is any reason to suj)pose that there are any outstanding debts, either act under the direction of the Court, or require a satisfactory indemnity from the persons to whom you pay the residue. I have only to caution you not to pay any money to any person under a power of attorney from the person entitled to receive it from you, until you are satisfied that he is alive when you make the payment, which, no doubt, it will often be difficult if not impossible to prove. But if he should have died before you pay the money, you may be compelled to repay it : for this, however, I hope to find a remedy. Where a pecuniary or residuary legatee is abroad, an executor or administrator may pay the legacy or residue, after deducting the duty, into the Bank, with the privity of the accountant-general of the Court of Chancery, by whom it wiU be invested in the 3 per cents for the legatee, who may obtain it upon a summary application to the Coiurt of Chancery.* Or a receipt for it may be signed abroad, and stamped, within twenty-one days after it is received in this country, -f- and can then be acted upon by arrangement between the parties. * 36 Geo. III., c. 52. t 48 Geo. III., c. 149. 170 PUNISHMENT OP LETTER XXII. I HAVE already told you that a legislative power has been i^iveTi to our criminal couits to punish fraudulent trustees. The enactment is, " that if any person, being a trustee for the benefit, either wholly or partially, of some other person, or for any public or charitaV)le pur- pose, shall, ivith intent to defraud, convert or appropriate the same, or any part thereof, to or for his own use or purposes, or shall, ivith intent aforesaid, otherwise dis- pose of or destroy such property, or any part thereof, he shall be guilty of a misdemeanour;" but no prosecution for the offence is to be commenced without the sanction of the Attorney-General, or, if the office be vacant, of the Solicitor-General* If any civil proceeding shall have been first taken against the trustee, then no person who shall have taken such civil proceeding can commence any prosecution under the Act, without the sanction of the comt or judge before whom it has been laid or shall be pending. This provision applies only to a trustee on some ex- press trust created by some deed, will, or instrument in writing ; but it includes the heir and personal represen- tative of any such trustee, and also all executors and administrators, liquidators under the Joint Stock Cora- ])anies Act, and all assignees in bankruptcy and in- solvency. Tlie jpropeHy protected by the Act includes every * This seems to be the meaning of the statute, but it is obscurely worded. FRAUDULENT TEUSTEES. 171 description of real and personal property, goods, raw or other materials, money, debts, and legacies, and all deeds and instruments relating to the right to any property, or giving a right to receive any money or goods, and also includes not only such real and personal property as may have been the original subject of a trust, but also any real or personal property into which the same may have been converted or exchanged, and the proceeds thereof, and anything acquired by such proceeds. The same guilt is attached to any banker, merchant, broker, or agent intrusted for safe custody with the pro- perty of any other person, who shall, with intent to de- fraud, sell, negotiate, transfer, pledge, or in any manner convert or appropriate to or for his own use such pro- perty, or any part thereof In like manner, any person intrusted with any power of attorney for the sale or transfer of any property, who shall fraudulently sell or transfer, or otherwise convert such property, or any part thereof, to his own use or benefit, will be guilty of a misdemeanour. And any person receiving any chattel, money, or valuable security, which shall have been so fraudulently disposed of, as to render the party disposing thereof guilty of a misdemeanour under the Act, hioiving the same to have been so fraudulently disposed of will be guilty of a misdemeanour. Tlie punishment of a guilty person is at the discretion of the Court — penal servitude for three years, or such other punishment by imprisonment for not more than two years, with or without hard labour, or by fine, as the Court shall award. Persons are bound in all civil courts to answer fully, and make a complete discovery ; but their answers cannot be used against them in proceedings to pmiish them 172 PAYMENT BY TRUSTEES OF FUND under the Act. No legal or equitable remedies against the WTongdocr are to be impeached by his conviction, or any proceeding under the Act ; but his conviction cajinot be received in any action or suit against him ; nor will any agreement by, or security given by, any trustee, having for its object the restoration or repay- ment of any trust-property misappropriated, be preju- diced by the Act. This important statute cannot be too generally circu- lated. Whilst it inflicts a severe punishment on a fraudulent tnistee, it miards against a malicious or un- founded prosecution, and enables all men to prosecute any banker, merchant, broker, attorney, or agent who shall act fraudulently with regard to tmst projierty. There are other important provisions, relating principally to directors, &c. of corporations and public companies, over which they would do well " to ponder and pause," but which are not jiertinent to the objects of this cor- respondence. On the other hand, Parliament has provided for the relief of trustees where they are desirous of being relieved from the responsibility of administering their trust- funds.* Under this provision all trustees, executors, administrators, or other persons, or the major part of them, may, in a smnmary manner, and without filing a bill, pay the trust-moneys, or transfer the funds into the Court of Chancery ; and the Court is empowered in a summaiy way to direct the application of the money or funds upon the application of the parties entitled. But the Court may, if they deem it necessary, direct a suit to be instituted for the administration of the trusts. Power is given to the Court to enable the majority/ of the trustees, &c. to pay or transfer the money or funds * 10 & n Vict., c. 96 ; 12 & 13 Vict, c. 74. INTO THE COTJET OF CHANCEEY. 173 into Court, if, upon a petition presented under the Act, it shall appear that for any reason the concurrence of the others of them cannot be had. If the relief thus aflForded to a trustee should be abused, the Court has power to visit him with costs. No one who has accepted a trust should wantonly resort to this mode of getting rid of it. When the fund is paid into Court, the trustee has no longer any power over it ; and although he might have withheld the fund until his accounts were settled, yet after payment of it into Court, he cannot obtain an order to stop the pay- ment of it to the person entitled, although the latter intends to file a bill against the trustee for an account beyond the money paid into Court. If the trustee act properly, he will be entitled to his costs ; of course he is entitled to have his accounts settled, and a release or discharge given to him. If that is refused, or there is any dispute between the parties entitled to the fund, or the like, he may safely pay it into Court under the Act. Where there is a dispute as to the amount due to him, and he pays what he considers the right sum into Court, he does so at the peril of costs, and of having a bill filed against him by his cestui que trust for an account. The trustee may himself file a bill for an account and a release, although this is a step which is seldom necessary or advisable. By another Act* executors and administrators, and trustees, are empowered to join with all other parties interested in taking the opinion of the Cornet of Equity on a special case stated, and in acting upon the decree of the Court, without the property being administered by the Court. This provision was well calculated to save expense and time, but it has of late not been much * 13 & 14 Vict., c. 35. 174 SPECIAL CASE. — CHARITIES. resorted to, inasmuch as all parties must concur in the case as stated, and they are seldom agreed upon the facts. And the Court is authorised, upon the application of executors or administrators, after the lapse of a year from the death of the deceased, by motion or petition, of course, to take an account of the debts, and to provide for the payment of contingent debts ; and when any other debts found to l)e due are paid, the executors or administrators are absolved from all further liability. Tliis at the time was a great boon,. as it enabled execu- tors and administrators in a summary way to ascertain whether tliere were any outstanding liabilities, without giving to the Court the power to administer the estate ; but it is not so important now that the regidar proceed- ings in the Court of (Jhancery are rendered so much more simple than they were. In regard to the Charities of which you are a trustee, I must refer you to the statutes for the better adminis- tration of Charitable Trusts,* where you will see what acts you may do under the authority of the Board of Coimidssioners, and what control they have over you. There is an important provision which enables trustees of any charity to apply to the Board for their opinion, advice, or direction respecting the charity, or the pro- perty, or any question or dispute relating to it. The opinion or advice is to be in writing, signed by two or more of the Commissioners, and sealed with the seal of the Commission. If you act according to this opinion or advice, you will be deemed to have acted according to your trust as far as respects your own responsibility ; but the Act wUl not indemnify you if you were to be guilty of any fraud, or wilful concealment or misrepre- sentation, in obtaining such opinion or advice. • 16 & 17 Vict., c. 137 ; 18 & 19 Vict., c. 124. PROPOSED BELIEF TO TEtTSTEES. 175 It remains only for me to state to you the heads of the Bill for the Relief of Trustees, to which I have al- ready referred, and which, or a better bill, will no doubt pass this session. The proposed enactments are — that, I. Where uj^on a breach of trust (the trustee, &c. acting with good faith) there is both a profit and a loss on the transaction, the one is to be set off against the other. The necessity for this provision is shown by the decision in the case which I have already stated to you (p. 1 64<). II. Payments and acts by any trustee, executor, or administrator, under a power of attorney, are to be valid, although the person who gave the power was dead at the time of the payment or act, provided the trustee, &c. was ignorant of the death, III. Investments under the opinion of one of the Con- veyancing Counsel will render the trustee, &c. safe. IV. Gross negligence only to charge a trustee, &c. for neglect, where a testator has not directed the act to be done, although by the rules of equity it ought to have been done. V. Trustee, &c. not to be liable for omitting to sue for a debt where there was reason to believe the action would have been useless. VI. Trustee, &c. not to be liable for omission to sue on any bond or other personal security where the testa- tor lent the money and did not call it in, unless required to do so by the persons entitled to the money. VII. Provision for releasing executors and adminis- trators from liabilities to rents and covenants under leases. VIII. Executors and administrators to be indemnified where they have acted in the distribution of the assets, as the Court would have done if a bill had been filed. 176 PROPOSED RELIEF TO TRUSTEES. IX. Trustees, executors, and administrators, authorised in a sunnnary way to apply for and act upon the advice of a judge in equity on any question respecting the management or administration of the trust property or the assets of any testator. X. But no breach of trust or duty is to be protected where the trustee, executor, or administrator, either directly or indirectly, derives from the act or matter con- stituting such breach of trust any personal benefit. If any of these provisions should pass into a law, you will not have much difficulty in ascertaining from which of the dangers pointed out in my last Letter you will be relieved in your character of a trustee. TITLE ACQUIEED BY POSSESSION. 177 LETTER XXIII. Yor are aware, no doubt, that no real property, lands or houses, can pass otherwise than by grant by deed for money, or for some good consideration, blood or friend- ship for example, for you may convey away your estate to whom you please ; or by descent or devise, whereas mere personal property will pass by delivery from hand to hand. But yet there is a mode in which a man may acquire real property without paying for it or receiving it as a gift, or inheriting it by descent. This, at first sight, may appear singular to you. It is by what I may call adverse possession, which now is a possession by a person not the owner during a certain number of years without acknowledgment of the right of the real owner, and yet not necessarily in oj^en defiance of him. In aU times, great weight has been given to long-continued possession, in order to put a period to litigation. With us, the periods and nature of the possession depend alto- gether on acts of the Legislature,* and now even charities may be bound by nonclaim. Constant claims are set up to the estates of other men by poor and ignorant, and sometimes by crafty persons, although generally the latter support the claims of the former, where they think they can work upon the creduhty of mankind. Some remarkable instances of fraudulent claims which have happened in recent times wUl recur to your me- mory. I call yom- recollection to them in order to guard you against such frauds ; for these claims, when specious * 3 & 4 Will. IV., c. 27. M 178 TWENTY years' POSSESSION A TITLE. ones, are made the subject of bargains and wagers in the city, and the ehiiniants held up as persons who have been stri])i)ed of tlieir rights by the wealthy, and are deserving of public sympathy. I have myself seen an office open for a considerable period in a great thoroughfare in the immediate vicinity of Westmmster Hall, for the sale of shares in an estate claimed by a person Avho, to meet the expenses of law pi-oceedlngs, was willing to allow sub- scribers to participate largely in the profits of the estate when acquired. Great numbers of persons were cheated by this scheme, which wui> clearly an illegal one. And, in point of fact, to my knowledge, the right to the estate in question had, long before this sale of shares in it, been the subject of litigation, and had been adjudged to be- long to persons whose right to it could not be disputed by further litigation. You will quickly see how im- possible it is that any really stale claim can succeed. When the time has arrived that bars the remedy, the right of the clamiant out of possession is actually ex- tinguished, and even the rights of the Crown may be extinguished by continued possession.* The common remedy is now by the action of eject- ment, which shnple remedy is a great relief to the subject, and the common time for asserting the right of action is 20 years. The claimant's remedy, therefore, will be barred by mere possession by another, without payment of rent or acknowledgment, if his right of entry accrued above 20 years before the ejectment. If the right oi entvy first belongs to you ; for example, if you are in possession of the property, or in receipt of the profits, and discontinue such possession or receipt, the 20 years will begin to run from such discontinuance. Where there has been no possession or receipt under a • 9 Geo. III., c, 16, English Act ; 48 Geo. III., c. 47, Irish Act. WHEN THE TIME BEGINS TO EUN. 179 conveyance of the possession, the time riiiis from the period when the grantee became entitled to possession under the deed. If the right does not first accrue to you, but to some person through whom you cUiim, time will in like manner run from the period when the right first accrued to such person : for example, if your father had been in possession or in receipt of the property or rent, and had discontinued such possession, and then died, leaving you his heir, time would run against you from the period of such discontinuance by your father ; and so in like cases. If your father had been in possession at his death, and had left you his heir, and a stranger entered, time would run against you from your father's death. If a rent or an annuity be left to you by will, and you neglect to receive it, 20 years will bar you, counting from the period when you first had a right to distrain for it. If you were entitled in remainder — for example, if by will jjroperty were given to one for hfe, and after his death to you, time will not run against you until your remainder became an estate in possession by the death of the tenant for life. Upon this head there are very nice distinctions, with which I will not perplex you. You should be told that the term discontinuance of possession means an abandonment of possession by one person, followed hy the actual possession of another person, otherwise there would be no person in whose favom' tune would run ; therefore, for example, if you were to sell part of your estate, reserving the unopened mines with a right of entry, 20 years' neglect would not bar you, but you might exercise your right at any period. 180 POSSESSION BY TENANTS. Where the person in possession is a tenant, and holds witliout regard to his hmtllord, the law applies itself to various cases. 1. Tenancy at will, as it is tenned, for example, a purchaser let into possession before obtainmg his conveyance and paying the purchase-money ; time runs at the determination of the tenancy, or at the cxjuration of one year after the commencement of the tenancy, when it is to be deemed to have determined. 2. When the tenancy is from year to year, or other period, without a lease in writing, your right of entry as landlord would accnie at the end of the first of such years, or at the last receipt of rent (which shall last happen), and from that period time might run against you if yoii neglected your claim as a landlord. 3. Where the tenancy is under a lease in writing at i^20 or upwards rent, and a wrongful claimant of the reversion receives it, and no pajmient of rent is afteiwards made to you as the rightful landlord, your right would be held to accnie when the rent was first received by the third party, and no new right would vest in you on the determination of the lease ; so that by mere neglect to receive your rent, and another person stepping in and receiving it, you would be barred of all relief at the end of 20 years. Mere non-pa)Tnent of rent, however, will not bar you, nor will this law apply to a lease upon which no rent is reserved. So that in such cases you would be entitled to recover at the end of the lease. The Act of ParHament does not extend this provision to other leases in ^vritLng ; therefore, when the rent is under i?20 a-year, the mere receipt of it by a stranger Vill not make time run against the landlord. If the person in possession or receipt of the profits acknowledges to you or your agent in wiiting, signed by him, your title, then in law his possession is yours, SAVINGS FOR DISABILITIES — 40 YEARS A TITLE. 181 and time will run against you only from the period when such acknowledgment was given, or the last, if more than one is given ; and an acknowledgment signed by an agent would be effectual* There are savings, although the 20 years have expired, for infants, married women, lunatics, or absentees beyond seas, for 10 years after the disability has ceased of the person to whom the right first accrued, or untd his death, which shall first happen. But a succession of dis- abilities does not extend the time, and 40 years are, with the exception which I will state to you, an absolute bar to all, though the disability has not been removed, or the 10 years allowed for disabilities have not expired. But the 20 years are the regular bar, and the sav- ings for disabilities are the exception, in even which case not more than 40 years are allowed in all. But the 20 years allowed may carry the right beyond 40 years; for if, for example, you are tenant for life, and your son is entitled in remainder after your death, as the 20 years will only run from the time when the right first accrues, in your case it will not commence runnuig until your death, when his right begins, and you may live for more than 40 years from the time when the estate was settled. These provisions, as I have remarked elsewhere, place landed proprietors in danger of rapidly losing portions of their property, particidarly where they have allowed friends or dependants to occupy parts without payment of any rent. In many cases it will be found that the statute has transferred the fee-simple to the occupier. Wliere 20 years have not already elapsed, written acknowledgments should be immediately obtained from aU such occupiers, signed by them. And in every case * 19 & 20 Vict., c. 97, s. 13. 182 DANCER TO TITLE — TRITSTEES POSSESSION. in whirh you allow another person to occupy any part of ycnu- estate without paying rent, or to receive any part of your rents without account, not only should you obtain a witten acknowledgment of title to be signed by such per- son, but you should rtMpiire a renewal of it every year, just as you would payment of rent ; for, oddly enough, the time will begin to run against you the moment after the j)erson in jiossession has acknowledged yoiu" title, so that, even when an annual acknowledgment is taken, with the exception of a momentary interval, time will always he running against you, although every renewed acknow- ledgment renders it necessary to begin a new computa- tion of the 20 years. If you were to postpone calling for an acknowledgment for 5 or 10 years, it would probably escape your recollection altogether, and yet you might be in constant intercourse with the person whom you kindly let into possession, and who may yet ultimately claim the property as his own. Part of your estates is vested in trustees, expressly in trust for you, and as between you and your trustees you are in no danger of being barred by time, unless indeed they should convey your property to a purchaser for valuable consideration, from which act, time would begin to run against you as regards the purchaser, and any person claiming under him. But the trustees themselves may be in danger of being barred ; for 20 years' pos- session by a third person will bar both you and them. Your possession, however, would not be adverse to youi- trustees ; and whilst their right continues, yours is safe. It would only perplex you if I were to state to you how the law bears upon estates-tail, the nature of whose tenancy I have explained to you in my Tenth Letter ; but I may mention, that if you, as tenant in tail, which you are of part of your property, were to neglect to pursue CONCEALED FRAUD — ADMIKISTRATOR, ETC. 183 your claim against a person in possession, without acknowledgment of your title for 20 years, your chil- dren and your children's chilch-en would be barred as well as yourself Your neglect would bar them, and indeed would equally bar remainder-men claiming to take after your estate-tail. Your remedy in equity, where your right is an equi- table one, for recovery of the property withheld from you, is placed on the same footing in regard to time as your legal remedies. The distinction, in a general sense, between your legal and equitable interests is, that where an estate is conveyed directly to yourself, you have the legal right to it. Where it is conveyed so as to vest in another the legal right, but in trust for you, you are the equitable owner of your property. If there is a concealed fraud, the remedy in equity, except as against any bond fide purchaser for valuable consideration, without notice, and no party to the fraud, will not be considered to accrue until the fraud shall, or with reasonable diligence might, have been first dis- covered. This has been explained not to mean the case of a party entermg wiongfully ; it means a case of de- signed fraud, by which a party, knowing to whom the right belongs, conceals the circumstances proving that right, and by means of such concealment enables him- self to enter and hold. I may still observe, that time runs against an admi- nistrator from the testator's death. A party relying upon possession cannot avail himself of the possession of a joint-tenant or tenant in common. 1 84 CHARGES BARRED BY TIME. LETTER XXIV. My last Letter relates to adverse possession of the •estate itself, but a limitation has also been put upon pro- ■ceedings to recover charges on the estate. Neither action nor suit can be brought to recover any money secured by mortgaire,* judgment, or lien, or otherwise, charged upon any estate or any legacy (which, however, extends to legacies although payable out of personal estate only), but within twenty years, unless in the mean time some part of the money or interest has been paid, or some acknow- ledgment of the right to it shall have been given in ^\Titing, signed by the person by whom the same shall be payable, or his agent, to the person entitled to it, or his agent, and in such case the twenty years are to run from the last of such payments or acknowledgments, but the time ^vill not begin to run until next after a present right to receive the money has accrued to some person capable of giving a discharge for it. This is an important condition ; for instance, if you, as tenant for life of your estates, were to pay off a charge upon it, but to take no step to keep it alive, and you were to live more than twenty years after the payment, yet the right to the charge would not be barred, for there would be no assignable person liable to pay it in your lifetime, and the rent out of which the interest of the charge was to be paid belonged to you, who were entitled to the inte- rest. You would be both the hand to pay and to re- * In Letter Fourteenth (on Mortgages), I have stated to you the operation of adverse possession on such securities. AKEEARS OF INTEREST. 185 ceive. When a judgment is entered upon a post obit bond, time -will not begin to run until after the death of the life, on the dropping of wliich the payment depends. That part of the statute which requires an acknow- ledgment in writing to save time running, has received a liberal interpretation in favour of the claimant. These provisions apply to the principal sums charged. Arrears of dower cannot be recovered for more than six years next before the action or suit. And no arrears of rent or of interest of any money charged upon any land, or in respect of any legacy, can be recovered but within six years next after the same became due, or next after an acknowledgment of the same in writing has been given to the person entitled thereto, or his agent, signed by the person entitled thereto or his agent ; with an exception, nevertheless, in favour of the creditor where a prior encumbrance has been in possession within one year before the action or suit. This provision extends to interest on judgments, as well as to interest on mortgages, and if the remedy is barred against the real estate, the bar applies equally to any remedy against the personal estate of the debtor. There is still a further provision under another Act of Parliament,* whicli was passed about the same time as the 3 & 4 W. 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